In the case of Mlynek v. Austria*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr C. Russo,
Mr A. Spielmann,
Mrs E. Palm,
Mr R. Pekkanen,
Mr F. Bigi,
Sir John Freeland,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 October 1992,
Delivers the following judgment, which was adopted on that
date:
_______________
Notes by the Registrar
* The case is numbered 6/1992/351/425. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 21 February 1992, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 15016/89) against the Republic of Austria lodged with
the Commission under Article 25 (art. 25) by an Austrian national,
Mr Hannes Mlynek, on 21 March 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 27 February 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr J. Cremona, Mr C. Russo, Mr A. Spielmann,
Mrs E. Palm, Mr R. Pekkanen, Sir John Freeland and Mr L. Wildhaber
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr F. Bigi, substitute judge, replaced
Mr Cremona, who had left the Court on the expiry of his term of office
and whose successor had taken up his duties before the hearing
(Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Austrian Government ("the Government"), the Delegate of the
Commission and the applicant on the organisation of the procedure
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicant's memorial on 16 June 1992. On
9 April the Government had informed the Registrar that they did not
intend to file a memorial.
5. On 22 and 29 September the Government and Mr Mlynek's lawyer
communicated to the Registrar the text of an agreement concluded
between them on 15 September.
The Delegate of the Commission was consulted and on 14 October
expressed the view that the settlement represented a solution
consistent with respect for the human rights laid down in the
Convention.
6. On 26 October 1992 the Court decided to dispense with a
hearing in the case, having satisfied itself that the conditions for
this derogation from the usual procedure had been met (Rules 26 and
38).
AS TO THE FACTS
7. Mr Hannes Mlynek is an Austrian national currently living in
Vienna.
8. On 21 May 1980 criminal proceedings were brought against him
in the Vienna Regional Court (Landesgericht). They led to his
conviction, on 30 May 1984, on counts of misappropriation of funds
(Untreue) and fraud (Betrug). On 30 January 1987 the Supreme Court
(Oberster Gerichtshof) quashed the judgment and remitted the case to
the same court, which reopened the proceedings on 11 January 1988.
9. On 10 March 1988 the European Commission of Human Rights, with
which the applicant had lodged a first application (no. 11688/85), drew
up a report expressing the opinion that the length of the proceedings
had exceeded a "reasonable time" within the meaning of Article 6
para. 1 (art. 6-1) of the Convention. Taking its decision on
19 September 1989 pursuant to Article 32 (art. 32) of the Convention,
the Committee of Ministers of the Council of Europe reached the same
conclusion and recommended that the Government pay Mr Mlynek
275,000 schillings as just satisfaction.
10. In the meantime, after thirty-three days of hearings,
including inter alia the taking of evidence from some hundred
witnesses, the Regional Court had, on 23 March 1988, sentenced the
applicant to three years' imprisonment, two of which were suspended,
for misappropriation of funds and negligent bankruptcy (fahrlässige
Krida).
11. The Supreme Court quashed the judgment on 1 June 1990 and once
again remitted the case to the Vienna Regional Court. The proceedings
are still pending, but are confined to a prosecution for negligent
bankruptcy.
PROCEEDINGS BEFORE THE COMMISSION
12. Mr Mlynek lodged a second application with the Commission on
21 March 1989; he complained of the length of the proceedings after
10 March 1988 (see paragraph 9 above).
The Commission declared the application (no. 15016/89)
admissible on 2 July 1990. In its report of 9 December 1991
(Article 31) (art. 31), it expressed the unanimous opinion that there
had been a violation of Article 6 para. 1 (art. 6-1) of the Convention.
The full text of its opinion is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 242-C of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
AS TO THE LAW
13. On 22 September 1992 the Court received from the Ministry of
Foreign Affairs of the Republic of Austria the following text, signed
by the Government's representative and Mr Mlynek on 15 September 1992:
"...
1. The Austrian Federal Government undertake to
exonerate the applicant, Dr Hannes Mlynek, ... from the
obligation to pay the costs and fees (in particular experts'
fees) incurred in the proceedings in case 12 b Vr 3769/81,
Hv 3646/87 (now 12 b E Vr 3079/91, Hv 1799/91) before the
Vienna Regional Criminal Court, in accordance with a claim to
be made ... once the decision in the proceedings which are
the subject of the complaint has become final.
2. The applicant declares that his above-mentioned
applications [application no. 15016/89 and an application
no. 19513/92, which is still pending before the Commission]
are to be regarded as settled.
3. The applicant and the Republic of Austria declare
that they will under no circumstances bring before an
authority, whether Austrian or international, claims arising
in any way from the subject-matter of [the aforesaid] human
rights applications ..., that is the criminal proceedings
referred to in point 1.
4. The applicant will not pursue a claim for costs and
expenses incurred in connection with the proceedings
concerning [the said] applications ...
5. The introduction of claims under the criminal law
compensation Act in the event of the applicant's acquittal in
the criminal proceedings referred to under point 1 is not
covered by the undertaking in point 3.
..."
By a letter of 25 September 1992 to the Registrar the
applicant's lawyer confirmed the agreement concluded between his client
and the Government. The Delegate of the Commission was consulted in
accordance with Rule 49 para. 2 of the Rules of Court and expressed a
favourable opinion (see paragraph 5 above).
14. The Court takes formal note of the friendly settlement reached
between the Government and Mr Mlynek. It discerns no reason of public
policy militating against striking the case out of the list (Rule 49
paras. 2 and 4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 para. 2, second sub-paragraph, of the Rules of Court
on 27 October 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy