AS TO THE ADMISSIBILITY OF
Application No. 16925/90
by F. K.
against Austria
The European Commission of Human Rights (First Chamber) sitting in
private on 11 May 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 May 1990 by F. K.
against Austria and registered on 25 July 1990 under file No. 16925/90;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
20 July 1992 and the observations in reply submitted by the
applicant on 12 October 1992;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1948. He lives in
Vomp, in the Tyrol, and is represented by Mr. A. Heiss, lawyer, of
Innsbruck. The facts of the case may be summarised as follows:
On 30 January 1983 an investigating judge decided to institute
proceedings against the applicant and two others on suspicion of having
committed aggravated fraud by holding themselves out as publishers of a
holiday catalogue which would be widely distributed, when in fact they
merely intended to receive payments for entries in a catalogue.
A search and seizure warrant was issued in respect of, inter alia,
the applicant's flat. Arrest warrants were issued on 3 February 1983,
and the applicant was questioned on 15 March 1983. The final indictment
of the applicant and one co-accused was transmitted to the Innsbruck
Regional Court (Landesgericht) on 27 June 1984 and the final indictment
of another co-accused was transmitted on 20 July 1984. On
20 October 1986 the trial date was fixed for 5 December 1986, but on that
date the trial had to be adjourned because neither of the co-accused was
represented. Three further adjournments ensued because both prosecution
and defence called large numbers of witnesses. Three witnesses were
heard on 23 June 1988, and 14 further witnesses were heard on
20 October 1988. At the final hearing on 27 April 1989, 6 further
witnesses were heard. The applicant was convicted.
In its judgment of 27 April 1989, served on the applicant on
14 July 1989, the court noted that it was not denied that the defendants
had published the advertisements for entries in their catalogue, and
rejected the applicant's contention that the advertisements had all been
simply wrongly phrased. It found the intention to deceive customers was
clear, and the discrepancy between the actual text used and what the
defendants claimed in court confirmed this. The court noted:
"Den verschiedenen Anzeigen der Polizei und Gendarmerie sowie den
dort enthaltenen Niederschriften und Urkunden ist zweifelsfrei zu
entnehmen, wann welche Personen zur Bezahlung welcher Beträge
verleitet wurden. Diese Beweismittel wurden dem Schuldspruch Punkt
A) bzw. den darauf bezugnehmenden Feststellungen zugrundegelegt.
Ein Teil dieser Personen wurde im Rahmen der Hauptverhandlung bzw.
im Zwischenverfahren als Zeugen vernommen. Naturgemäß konnten sich
die Vernommenen dabei an die Jahre zurückliegenden Vorgänge nicht
mehr so deutlich erinnern. Alle diese Zeugen hinterließen jedoch
den Eindruck, bei der seinerzeitigen Anzeige-erstattung jedenfalls
die Wahrheit gesagt zu haben, sodaß die damaligen Angaben den
Feststellungen und dem Schuldspruch zugrundegelegt wurden ..."
[Translation]
"It is clear from the informations laid by the police and the
witness statements and certificates attached thereto which persons
were induced to pay which sums and when. The conviction at point
A and the related findings of fact are based on this evidence.
Some of these persons were heard as witnesses in the context of the
trial or the pre-trial proceedings. It is in the nature of things
that the witnesses could no longer remember so clearly events which
happened so long ago. However, all these witnesses gave the
impression that they had been stating the truth when their
informations were laid, such that the findings of fact and the
conviction were based on the statements made then ..."
The court also referred to the evidence given by individuals who had
acted as sales representatives of the defendants, finding that the
instructions they had been given were consistent with the charges against
the defendants. It noted that the applicant had worked for a
considerable time with the printing firm which, according to the
defendants, had produced a catalogue of inadequate quality. It
considered that the applicant would have known what to expect from the
firm, and that in any event the print run of 500 was far too small to be
effective publicity. The court rejected an argument that the catalogue
was merely "provisional" on the ground that no serious attempts were made
to have a proper catalogue printed. It found that the facts as
established led only to the conclusion that the defendants all had the
requisite criminal intent, as they had all worked together in the scheme
(the applicant as treasurer) over a lengthy period of time.
The applicant made a plea of nullity (relating to his conviction)
and an appeal against sentence.
On 6 December 1989 the Supreme Court (Oberster Gerichtshof) rejected
the applicant's plea of nullity. As regards his plea under Article 6
para. 1 of the Convention that his trial had been unfair due to the
effluxion of so much time since the witness statements were originally
taken that the trial court had had to have recourse to the original
statements rather than being able to rely on the witnesses, the Supreme
Court noted that the applicant had not raised this matter as a ground of
nullity. In order to do so, he would have had to make
a specific request at the trial and if his request was unsuccessful he
could then have raised the point as a plea of nullity (Article 281 para.
1 (4) of the Code of Criminal Procedure (Strafprozeßordnung)).
The applicant's appeal against sentence was rejected by the
Innsbruck Court of Appeal (Oberlandesgericht) on 15 February 1990. The
applicant's representative received the judgment on 2 March 1990.
COMPLAINTS
The applicant alleges a violation of Article 6 paras. 1 and 3 (d)
of the Convention. He complains both of the length of proceedings as
such, and of the fact that, because of the effluxion of time between the
original witnesses' statements and the trial, his representative was no
longer able effectively to question witnesses at the trial, as they had
forgotten what had happened in the meantime.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 May 1990 and registered on
25 July 1990.
On 1 April 1992 the Commission decided to communicate the case to
the respondent Government for observations on its admissibility and
merits. The Government submitted their observations on 20 July 1992 and
the applicant submitted his observations in reply on 12 October 1992.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention by virtue of the length of the proceedings against him.
Article 6 para. 1 (Art. 6-1) of the Convention provides, as far as
relevant, as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law. ..."
The Commission notes that a decision to open proceedings against the
applicant was, taken on 30 January 1983, and that the applicant was
questioned on 15 March 1983. The final decision in the case, that of the
Innsbruck Court of Appeal, is dated 15 February 1990 and was received by
the applicant's representative on 2 March 1990.
According to the applicant, the length of the proceedings - a period
of almost seven years - is in breach of the "reasonable time" requirement
of Article 6 para. 1 (Art. 6-1) of the Convention. The Government take
the opposite view.
The Commission considers, in the light of the criteria established
by the case-law of the Convention institutions on the question of
"reasonable time" (the complexity of the case, the applicant's conduct
and that of the competent authorities), and having regard to all the
information in its possession, that an examination of this complaint is
required as to the merits.
2. The applicant also alleges a violation of Article 6 para. 1
(Art. 6-1) and Article 6 para. 3 (d) (Art. 6-3-d) of the Convention in
that by the time the matter came to trial, the proceedings had already
lasted so long that witnesses could no longer remember the events
concerned. From this, the applicant deduces that he was unable properly
to question witnesses such that the rights of the defence were not
respected.
The Government point out that all the applicant's requests for
witnesses to be heard were granted by the first instance court, and
consider that he was able to put all the questions he wanted to all the
witnesses he wanted. They consider that it was inevitable that some
witnesses' memories had faded with the passage of time, but point out
that there was a large amount of other evidence. The applicant considers
that the Government have misunderstood his complaint, as it relates to
his inability effectively to question the witnesses, not an inability to
call them. He considers that he should have had the opportunity to
question the witnesses while events were still fresh in their minds.
The Commission recalls that all the evidence must normally be
produced in the presence of the accused at a public hearing with a view
to adversarial argument (Eur. Court H.R., Asch judgment of 26 April 1991,
Series A no. 203, p. 10, para. 27). In the present case, the witnesses
who gave evidence were present in the court, but the court was obliged
to supplement that evidence by the witness statements made by the same
witness earlier in the proceedings, because by the time the matter came
to trial, events had faded in witnesses' memories.
The Commission recalls that the European Court of Human Rights has
held that it may, in certain circumstances, be permissible not to hear
certain witnesses at all, but rather to rely on their previous statements
(cf, eg, Eur. Court H.R., Artner judgment of 28 August 1992, Series A no.
242). In the present case the witnesses were in fact present, and the
role of the earlier witness statements was limited to filling the gaps
in witnesses' memories. The applicant was not prevented from questioning
the witnesses about the events, not would he have been prevented from
putting inconsistencies to them. In the light of these circumstances,
together with the other evidence available to the court, such as the
statements from the persons who had worked for the defendants, the
advertisements and orders which the defendants had placed, and the
admissions made by the applicant as to his participation, the Commission
finds no indication that the applicant was deprived of a fair trial.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE the complaint concerning the length of the
proceedings against the applicant, without prejudging the merits;
and
DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy