EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 20114/92
Alexander Kovar
against
Austria
REPORT OF THE COMMISSION
(adopted on 6 April 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-6) . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 7-12). . . . . . . . . . . . . . . . . . . . . .2
III. OPINION OF THE COMMISSION
(paras. 13-26) . . . . . . . . . . . . . . . . . . . . .3
A. Complaint declared admissible
(para. 13). . . . . . . . . . . . . . . . . . . . .3
B. Point at issue
(para. 14). . . . . . . . . . . . . . . . . . . . .3
C. The alleged violation of Article 6 para. 1
of the Convention
(paras. 15-25). . . . . . . . . . . . . . . . . . .3
CONCLUSION
(para. 26). . . . . . . . . . . . . . . . . . . . .4
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . .5
I. INTRODUCTION
1. The present Report concerns Application No. 20114/92 by
Alexander Kovar against Austria, introduced on 25 May 1992 and
registered on 12 June 1992.
2. The applicant, born in 1952, is an Austrian national and resident
in Vienna. He is a business man by profession. Before the Commission
he is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.
The Government of Austria are represented by their Agent,
Ambassador F. Cede, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
3. The application was communicated to the respondent Government on
1 December 1993. Following an exchange of memorials, the applicant's
complaint about the length of the criminal proceedings against him
(Article 6 para. 1 of the Convention) was declared admissible on
2 September 1994. The decision on admissibility is appended to this
Report.
4. 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 6 April 1995 in accordance with
Article 31 para. 1 of the Convention, 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
5. In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by the Austrian
Government.
6. The text of this 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
7. On 14 May 1990 the Vienna Regional Criminal Court (Landesgericht
für Strafsachen) received a criminal information (Strafanzeige) from
the Lower Austrian Security Office (Sicherheitsbüro) stating that on
27 March 1990 S., a businessman, had been beaten up in his office by
persons unknown who demanded payment of US $ 78,000. S. had denounced
the applicant, who was his competitor and business partner, to be
behind this incident.
8. On 1 August 1990 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) requested the Vienna Regional Court
(Landesgericht) to open preliminary investigations against the
applicant on the suspicion of having committed inter alia attempted
blackmail (versuchte Erpressung). By letter dated 3 August 1990 the
applicant informed the Court that he had appointed Mr. Bernhauser as
his counsel.
9. On 6 September 1990 the applicant was questioned as a suspect by
the Investigating Judge at the Vienna Regional Criminal Court. On
28 September 1990 the Investigating Judge questioned S. as a witness.
10. On 15 and 22 October 1990 an additional criminal information
(Nachtragsanzeige) was brought to the attention of the Prosecutor's
Office, according to which S. had again been threatened by telephone
on October 3, 8, 14 and 16, 1990 respectively, and been told to effect
payment.
11. On 31 January 1991 the Prosecutor's Office requested the Regional
Court to include the additional criminal information in the pending
preliminary investigations.
12. On 26 June 1992 the Vienna Regional Criminal Court, upon the
Public Prosecutor's request of 23 June 1992, discontinued the
proceedings against the applicant on the ground that the Prosecutor did
not see any further reason to pursue these proceedings.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
13. The Commission has declared admissible the applicant's complaint
that the criminal charges against him were not determined within a
reasonable time.
B. Point at issue
14. The point at issue is whether there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
C. The alleged violation of Article 6 para. 1 (Art. 6-1) of the
Convention
15. The applicant complains under Article 6 para. 1 (Art. 6-1) about
the length of criminal proceedings against him.
16. Article 6 para. 1 (Art. 6-1) of the Convention includes the
following provision:
"In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal ..."
17. The Government consider that the proceedings lasted from
1 August 1990 until 26 June 1992. Referring to the case-law of the
Convention organs, they argue that the case was complex, as there was
little evidence to show in what direction inquiries should be
conducted. Moreover, they submit that the Public Prosecutor waited
before taking his final decision as he could reasonably assume that
further attempts to blackmail the victim might occur. The Government,
therefore, maintain that the overall duration of the proceedings of
less than two years cannot be considered as being unreasonable.
18. The Commission recalls that the right, in criminal matters, to
a hearing within a reasonable time covers the initial period of
investigations starting at the moment the person was "charged",
irrespective of whether his case has come before a trial court or not
(see, Eur. Court H.R., Deweer judgment of 27 February 1980, Series A
no. 35, pp. 21 et seq., paras 41-47; Viezzer judgment of
19 February 1991, Series A no. 196-B, p. p. 19 et seq., paras. 9 and
14-175).
19. As regards the period to be considered, the Commission recalls
that the moment a person is "charged" within the meaning of Article 6
(Art. 6) may occur on a date prior to the case coming before the trial
court, such as the date of arrest, the date when the person concerned
was officially notified that he would be prosecuted or the date when
the preliminary investigations were opened (see Eur. Court H.R., Foti
judgment of 10 December 1982, Series A no. 56, p. 18, para. 52 with
further references).
20. The Commission, therefore, agreeing with the Government,
considers that the proceedings at issue started on 1 August 1990, when
the Public Prosecutor requested that preliminary investigations be
opened against the applicant. They lasted until 26 June 1992, when the
investigations were discontinued. Thus, the overall duration of the
proceedings was one year and almost eleven months.
21. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment (Eur. Court H.R. Boddaert
judgment of 12 October 1992, Series A no. 235-B, p.82, para. 36).
22. The present case, relating to charges of attempted blackmail, was
not of any particular complexity. No delays are attributable to the
applicant.
23. As regards delays attributable to the authorities, the Commission
notes that there was a first period of inactivity of three and a half
months between mid October 1990, when an additional criminal
information was brought to the attention of the Public Prosecutor's
Office, and 31 January 1991 when the Public Prosecutor requested that
this additional criminal information be joined to the pending
proceedings. Further, the competent authorities remained inactive for
a second period of one year and almost four months between the
beginning of February 1991 and 26 June 1992, when the proceedings were
discontinued.
24. The Commission recalls that the proceedings never attained trial
stage. Although there were considerable delays, it cannot be said that
the lapse of time during the preliminary investigations weighed as
heavily on the applicant as a comparable lapse of time would have
weighed on a person waiting for the outcome of his trial. The applicant
was questioned only once by the Investigating Judge as a suspect and
was not taken in detention on remand. Moreover, there is no indication
that the applicant was particularly affected by the pending
proceedings.
25. In these circumstances, the Commission finds that a period of one
year and almost eleven months of the criminal proceedings against the
applicant can still be regarded as "reasonable" for the purposes of
Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
26. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 6 para. 1 of the Convention.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy