AS TO THE ADMISSIBILITY OF
Application No. 20114/92
by Alexander KOVAR
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 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 25 May 1992 by
Alexander KOVAR against Austria and registered on 12 June 1992 under
file No. 20114/92;
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 17 February 1994 and the observations in reply submitted
by the applicant on 29 March 1994;
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 1952, is an Austrian national. Before the
Commission he is represented by Mr. K. Bernhauser, a lawyer practising
in Vienna.
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 suspected
the applicant, who was his competitor and business partner, to be
behind this incident.
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.
On 6 September 1990 the applicant was questioned as suspect by
the Investigating Judge at the Vienna Regional Criminal Court. On
28 September 1990 the Investigating Judge questioned S. as a witness.
On 15 and 22 October 1990, additional charges (Nachtragsanzeige)
were brought before the Prosecutor's Office, saying that S. had again
been threatened by telephone on October 3, 8, 14 and 16, 1990
respectively, and been told to effect payment.
On 31 January 1991 the Prosecutor's Office requested the Regional
Court to include the additional charges in the pending preliminary
investigations.
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.
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 there were no reasons to justify the delay between
September 1990 and June 1992, when the proceedings were finally
discontinued.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 May 1992 and registered on
12 June 1992.
On 1 December 1993 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 17 February the Government submitted their observations. The
observations in reply by the applicant were submitted on 29 March 1994.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) 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 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.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs 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 by a majority
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy