EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 20178/92
Franz Hengl
against
Austria
REPORT OF THE COMMISSION
(adopted on 4 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-9). . . . . . . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 10-17). . . . . . . . . . . . . . . . . . . . . . . . . . .3
III. OPINION OF THE COMMISSION
(paras. 18-27). . . . . . . . . . . . . . . . . . . . . . . . . . .5
A. Complaint declared admissible
(para. 18). . . . . . . . . . . . . . . . . . . . . . . . . .5
B. Point at issue
(para. 19). . . . . . . . . . . . . . . . . . . . . . . . . .5
C. As regards Article 6 para. 1 of the Convention
(paras. 20-26). . . . . . . . . . . . . . . . . . . . . . . .5
CONCLUSION
(para. 27). . . . . . . . . . . . . . . . . . . . . . . . . .6
APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . .7
APPENDIX II : FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . . 12
I. INTRODUCTION
1. The present Report concerns Application No. 20178/92 introduced
on 15 January 1992 against Austria and registered on 17 June 1992.
2. The applicant is an Austrian national born in 1940 and resident
in Vienna.
3. The applicant is represented before the Commission by
Mr. W. Blaschitz, a lawyer practising in Vienna.
4. The respondent Government, Austria, are represented by
Mr. F. Cede, Head of the International Law Department at the Federal
Ministry of Foreign Affairs.
5. On 1 December 1993 the application was declared partially
admissible, and the remainder concerning the length of the
proceedings was communicated to the Government. Following an
exchange of written observations, the complaint relating to the
length of proceedings (Article 6 para. 1 of the Convention) was
declared admissible on 29 November 1995. The decision on
admissibility is appended to this Report.
6. On 29 April 1996 the Secretary to the Commission met
representatives of the Government and the applicant in Vienna and
attempted to reach a settlement of the case.
7. Having noted that there is no basis upon which a friendly
settlement within the meaning of Article 28 para. 1 (b) of the
Convention can be secured, the Commission (First Chamber), after
deliberating, adopted this Report on 4 September 1996 in accordance
with Article 31 para. 1 of the Convention, the following members
being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
8. In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by the
Republic of Austria.
9. The text of the Report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with Article 31
para. 2 of the Convention.
II. ESTABLISHMENT OF THE FACTS
10. 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.
11. 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.
12. 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 he 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.
13. 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.
14. 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.
15. 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.
16. 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 charges in respect of
which the question of sentence had been remitted to the Regional
Court were dropped on 9 January 1992.
17. The judgment of the Supreme Court was received by the
applicant's representative on 30 January 1992.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
18. The Commission has declared admissible the applicant's complaint
that his case was not heard within a reasonable time.
B. Point at issue
19. The only point at issue is whether the length of the proceedings
complained of exceeded the "reasonable time" requirement referred to
in Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
20. The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal ..."
21. The proceedings in question concerned criminal charges against
the applicant. The proceedings accordingly fall within the scope of
Article 6 para. 1 (Art. 6-1) of the Convention.
22. These proceedings, which began in September 1982 and ended with
the Supreme Court's judgment of 17 October 1991 which was served on
the applicant's representative on 30 January 1992, lasted over nine
years.
23. The Commission recalls that the reasonableness of proceedings
must be assessed in the light of the particular circumstances of the
case (see Eur. Court HR, Ficara v. Italy judgment of 19 February
1991, Series A no. 196-A, p. 9, para. 17).
24. According to the Government, the length of the period in
question was due to the complexity of the case in that there was an
extensive network of 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.
They also point to the applicant's conduct, in particular in
connection with his interest in procrastinating as much as possible,
and cited as one example the applicant's absence from the beginning
of the trial.
25. The Commission accepts that the case involved a certain further
complexity, but the legal issues were clear. Moreover, whilst the
applicant must bear a certain responsibility for some of the length
of the proceedings, the overall period of over nine years has not
been convincingly explained.
26. In the light of the criteria established by case-law and having
regard to the circumstances of the present case, the Commission
considers that the length of the proceedings was excessive and failed
to meet the "reasonable time" requirement.
CONCLUSION
27. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy