AS TO THE ADMISSIBILITY OF
Application No. 20178/92
by Franz HENGL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 15 January 1992
by Franz HENGL against Austria and registered on 17 June 1992 under
file No. 20178/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 1 December 1993 to declare the
application partly inadmissible and to communicate the remainder
to the respondent Government for observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
31 March 1994 and the observations in reply submitted by the
applicant on 8 June 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1940. He is
represented before the Commission by Dr. W. Blaschitz, a lawyer
practising in Vienna. The facts of the case, as submitted by the
parties, may be summarised as follows.
Criminal proceedings were opened against the applicant on
10 September 1982 under file number 12 Vr 9703/82. The formal
preliminary investigation began on 12 June 1986. In the indictment of
12 August 1988 the applicant was accused of various fraud offences
committed between 1980 and 1986. He was later also accused of
threatening, amongst others, a legal aid lawyer.
From 2 July 1986 until 30 June 1987 the applicant was in
detention on remand. He was released because the Vienna Court of
Appeal (Oberlandesgericht) refused to extend the permitted period of
detention in that, given the complexity of the case, it was unlikely
that the indictment and trial would be in the foreseeable future.
On 2 June 1987 the applicant's privately employed lawyer was
questioned by the Vienna Regional Court as to some AS 1,000,000 which
had been deposited with him by the applicant in 1984, before the lawyer
had been representing the applicant. The lawyer gave information as
to how and when he had received the sum, but declined, by reference to
Article 153 of the Code of Criminal Procedure (Strafprozeßordnung), to
give information as to smaller sums (of some AS 100,000) which the
lawyer had received. Article 153 of the Code of Criminal Procedure
provides for a limited right for witnesses to refuse to give evidence
when they run the risk of criminal proceedings or direct financial
disadvantage.
On 5 June 1987 the Review Chamber (Ratskammer) of the Regional
Court excluded the lawyer from further representing the applicant. The
Chamber relied on Article 40 para. 1 of the Code of Criminal Procedure
which prohibits representation by persons who have been summoned as
witnesses in the trial, and states that the Review Chamber shall
determine whether persons who have been have heard as witnesses at an
earlier stage should be excluded from representation. The Review
Chamber noted that the lawyer had declined to answer certain questions
by reference to Article 153 of the Code of Criminal Procedure, and
found that there was a risk of a conflict of interests. Accordingly,
the lawyer was excluded. The applicant's appeal against the decision
of 5 June 1987 was rejected by the Vienna Court of Appeal
(Oberlandesgericht) on 6 December 1988 on the ground that such
decisions of the Review Chamber could not be appealed.
On 31 January 1990 the trial (Hauptverhandlung) was opened. The
applicant was in hospital. On 9 February 1990 the President of the
Regional Court ordered the applicant's detention on remand
(Untersuchungshaft) on the ground that there was a risk that he would
abscond and that he would commit criminal offences. The Review Chamber
rejected his appeal against this decision on 28 February. On
21 February the Regional Court had refused an application for release
(Enthaftungsantrag). On 20 March 1990 the Vienna Court of Appeal
rejected the applicant's complaints (Beschwerden) against the decisions
of 21 and 28 February.
The applicant was convicted on 18 May 1990 after a 24-day trial
and sentenced to a six years' prison sentence. The Regional Court
ordered that he should remain in detention on remand. The applicant's
complaint against the remand order was rejected by the Court of Appeal
on 21 June 1990.
The applicant's plea of nullity was rejected in part by the
Supreme Court on 19 September 1991. On 17 October 1991 the Supreme
Court dealt, in a public hearing, with the remainder of the plea of
nullity and with the applicant's appeal against sentence. It accepted
the plea of nullity in part and remitted the question of sentence in
respect of part of the conviction to the Regional Court. The remainder
of the plea of nullity was rejected, and the prison sentence reduced
to five and a half years.
The judgment of the Supreme Court was received by the applicant's
representative on 30 January 1992.
COMPLAINT
The applicant alleges a violation of Article 6 para. 1 of the
Convention. He considers that the proceedings, which began in 1982,
lasted an unreasonable time within the meaning of Article 6 para. 1 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 January 1992 and registered
on 17 June 1992.
On 1 December 1993 the Commission decided to declare the
application partly inadmissible and to communicate the remainder to the
respondent Government for observations on its admissibility and merits.
The Government's written observations were submitted on
31 March 1994, after an extension of the time-limit. The applicant
replied on 8 June 1994.
THE LAW
The applicant alleges that the length of the proceedings exceeded
the "reasonable time" prescribed by Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission notes that the proceedings against the applicant
were opened in 1982. The applicant's representative received the
judgment of the Supreme Court on 30 January 1992.
The parties are in agreement that the proceedings began in
September 1982, and that they ended with the Supreme Court's judgment
of 17 October 1991, which was served on the applicant's representative
on 30 January 1992. The applicant considers that the period exceeded
the "reasonable time" requirement of Article 6 (Art. 6) of the
Convention. The Government consider that there were no standstill or
avoidable delays in the proceedings, and point out that the proceedings
were particularly complex in that there was an extensive network
relationships which had to be investigated in the course of the
economic offences alleged, with 110 private parties, 180 witnesses
before the investigating judge and a file running to 24 volumes plus
annexes at the date of the indictment (including one expert's report
which had a total of 2,432 pages). They also note that the applicant
had an interest in procrastinating as much as possible, and cite as one
example the applicant's absence from the beginning of the trial.
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 a thorough
examination of this complaint is required, both as to the law and as
to the facts.
For these reasons, the Commission, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy