AS TO THE ADMISSIBILITY OF
Application No. 20520/92
by H.L. W.
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 7 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
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 27 April 1992
by H.L. W. against Austria and registered on 24 August 1992 under
file No. 20520/92;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the
respondent Government on 26 March 1993 and the observations in
reply submitted by the applicant on 29 April 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1942, is an Austrian national and
resident in Vienna. He is a transport worker by profession.
Before the Commission he is represented by Mr. K. Bernhauser, a
lawyer practising in Vienna.
In the context of criminal proceedings in the Federal
Republic of Germany against St., relating to charges of
conspiracy (ver-brecherischer Komplott), the applicant and two
other persons were questioned as witnesses by Austrian
authorities in proceedings under letters rogatory. In July 1988
the Vienna Public Prosecutor's Office (Staatsanwaltschaft)
commenced investigations against the applicant and three further
persons, all Austrian nationals, on the suspicion of conspiracy
committed in Germany, and enquired in particular about the state
of the criminal proceedings in Germany. The Austrian authorities
were informed that the Kiel Public Prosecutor's Office had
preferred an indictment against St. who had been regarded as
German national, and that the proceedings against the others had
been discontinued due to their absence.
According to S. 65 para. 1 (1) of the Austrian Penal Code
(Strafgesetzbuch), Austrian penal law applies to offences
committed abroad, provided the offence is also subject to
punishment under the laws of the State concerned, if the offender
was an Austrian national at the time of the offence in question,
or if the offender acquired Austrian nationality at a later stage
and was still Austrian national when the criminal proceedings
were instituted against him. S. 65 para. 4 of the Penal Code
provides, inter alia, that the offender shall not be punished if
he has been finally acquitted or exempted from prosecution; if
he has been finally sentenced by a foreign court and the sentence
has been fully or partly served, if he has been pardoned; and as
long as the enforcement of a sentence imposed by a foreign court
is suspended.
On 12 December 1989 the Investigating Judge at the Vienna
Regional Court (Landesgericht) questioned the applicant on the
charge of conspiracy, committed with the above-mentioned further
suspects between February and May 1987 in Germany.
On 5 April 1990 the Vienna Public Prosecutor's Office
preferred the indictment against the applicant and three other
accused. They were charged with conspiracy to kidnap and rob. The
Prosecutor's Office, in the indictment, noted that the accomplice
St. was prosecuted separately in Germany.
On 7 June 1990 the Vienna Court of Appeal
(Oberlandesgericht) dismissed the objection of one of the accused
against the indictment and committed the accused for trial. The
files were transferred to the Presiding Judge at the Vienna
Regional Court. In the subsequent period, the Court repeatedly
asked the Kiel District Court and the Prosecutor's Office,
respectively, for information about the state of the German
proceedings where the accused St. had not yet been committed for
trial. In March 1991 the Court was informed that the main
proceedings against St. had meanwhile started. Considerable
delays were, however, to be expected, and the trial had not yet
been scheduled.
On 10 July 1991 the Vienna Regional Court fixed date for the
trial against the four accused which was held on 26 August 1991.
At the trial the applicant's defence counsel requested that the
state of the German proceedings again be clarified. The hearing
was postponed sine die.
Following the information that, in the context of the German
proceedings, the accused St. had been acquitted on 5 March 1992,
the Vienna Regional Court discontinued the criminal proceedings
against the applicant and the co-accused on 17 March 1992. The
decision was served upon the applicant on 23 April 1992.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention about the length of the criminal proceedings against
him. He submits in particular that these proceedings were
excessively delayed in the period between indictment and trial
before the Vienna Regional Court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 April 1992 and
registered on 24 August 1992.
On 2 December 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 26 March 1993 the Government submitted their
observations. The observations in reply by the applicant were
submitted on 29 April 1993.
THE LAW
The applicant complains about the length of the criminal
proceedings against him.
Article 6 para. 1 (Art. 6-1), so far as relevant, provides
that "in the determination ... of any criminal charge against
him, everyone is entitled to a ... hearing within a reasonable
time".
The Government, having regard to the criteria established
in the case-law of the Convention organs, consider that the
proceedings against the applicant did not last unreasonably long.
The Commission notes that the relevant period to be
considered under Article 6 para. 1 (Art. 6-1) started on 12
December 1989 when the applicant was questioned as a suspect. The
proceedings ended on 23 April 1992 when the decision of 17 March
1992 to discontinue the proceedings was served upon the
applicant. They lasted about two years, four months and two
weeks.
The Commission recalls that the reasonableness of the length
of proceedings must be assessed in the light of the particular
circumstances of the case, having regard to the complexity of the
case and the conduct of the applicant and the competent
authorities (cf. Eur. Court H.R., Ficara judgment of 19 February
1991, Series A no. 196-A, p. 9, paras. 16-17).
As regards the complexity of the case, the Commission notes
that the criminal proceedings against the applicant and three co-
accused related to a charge of conspiracy committed in Germany.
Criminal proceedings had in fact been instituted against them in
Germany, which were conducted by the Kiel Public Prosecutor's
Office and the Kiel District Court. Prosecution in Austria was
initiated having regard to the Austrian nationality of the
offenders. Especially the link to the German proceedings due to
the preliminary question of the Austrian jurisdiction to
prosecute the accused, in accordance with S. 65 of the Austrian
Penal Code, created some procedural difficulties.
When examining the conduct of the Austrian authorities in
handling the case, the Commission notes that, following the
applicant's questioning by the Investigating Judge in December
1989, it took the Public Prosecutor's Office less than four
months to prefer the indictment against the applicant and his co-
accused. The objection of one of the accused against the
indictment was decided within two months. It is true that the
Vienna Regional Court, before fixing a date for the trial against
the accused, spent thirteen months inquiring about the state of
the German prosecution proceedings against in particular one of
the accused. The outcome of these proceedings were, however, of
relevance for the Austrian jurisdiction in the case. It does not
appear unreasonable that the Regional Court did not proceed with
the case before being informed by the German authorities that
they expected considerable delays in the conduct of their
proceedings. Moreover, at the trial in August 1991, it was the
defence requesting that the state of the German proceedings again
be clarified. The Vienna Regional Court discontinued the
proceedings a few days after the acquittal of St. in Germany.
In these circumstances the Commission finds no considerable
periods of inactivity on the part of the Austrian authorities,
and in particular no undue delays caused by the conduct of the
Vienna Regional Court, which would warrant the conclusion that
the overall length of the proceedings was excessive.
Consequently, there is no appearance of a violation of the
applicant's right to a hearing within a "reasonable time", as
guaranteed under Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that 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 THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy