AS TO THE ADMISSIBILITY OF
Application No. 20454/92
by 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 12 June 1992
by L. W. against Austria and registered on 10 August 1992 under
file No. 20454/92;
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 2 April 1993 and the observations in
reply submitted by the applicant on 7 June 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 1941, is an Austrian national and
resident in Vienna. Before the Commission she is represented by
Ms. H. Hofbauer, a lawyer practising in Vienna.
On 10 March 1986 the applicant was questioned by the Vienna
Federal Police Department (Bundespolizeidirektion) in connection
with investigations concerning a series of fraud cases committed
to the disadvantage of the Austrian Bundesländer Insurance
Company. These proceedings involved initially investigations
against about one hundred suspects, including a member of the
managing board, and the overall damage caused by the numerous
fraud cases amounted to AS 130 million. On 13 March 1986 she was
again heard by the Vienna Federal Police Department, this time
as a suspect.
On 24 March 1986 investigations were instituted against the
applicant. She was suspected of having committed fraud and
fraudulent conversion to the disadvantage of the Austrian
Bundesländer Insurance Company, her employer, in that in 1980/81
she had made false claims in connection with damages to her and
her husband's construction of a bungalow.
On 14 August 1986 the Investigating Judge at the Vienna
Regional Court (Landesgericht) heard the applicant on the
suspicion against her.
On 26 August 1987 the Vienna Public Prosecutor's Office
(Staats-anwaltschaft) preferred the indictment against the
applicant and various other accused.
The trial started before the Vienna Regional Court on 20
January 1988. It continued on altogether 34 days between January
and June, a last hearing being conducted in September 1988. The
concept of the trial was to conduct the proceedings against the
various accused individually so that the accused concerned only
had to appear at some days of the trial, and the judgment on the
charges against them was pronounced upon the close of the taking
of evidence in their particular case.
On 24 January 1990 judgments were served upon most of the
other accused. The proceedings against the applicant were
separated from the main proceedings on the ground that following
her statements at the trial, according to which a defrauded sum
of money had been received by a third person, the Vienna
Prosecutor's Office requested investigations against the person
concerned as well as further investigations against the applicant
on the suspicion of defamation.
It appears that the proceedings were not separated at an earlier
stage as the competent Judge had considered the outcome of the
main proceedings as important.
On 5 February 1990 an expert opinion was requested as to the
construction damages in respect of which the applicant had raised
insurance claims. The amended version of this opinion was
received at the Regional Court on 6 July 1990.
On 20 March and 10 April 1991 the Vienna Regional Court held
trial against the applicant.
On 10 April 1991 the Regional Court convicted the applicant
of attempted grave fraud and sentenced her to twenty months'
imprisonment on probation. She was acquitted of the remainder of
charges. The written judgment was served upon her on 30 August
1991.
On 19 December 1991 the Austrian Supreme Court (Oberster
Gerichtshof) dismissed the applicant's appeal on points of law
(Revision). Upon the applicant's appeal (Berufung), the sentence
was reduced to fifteen months' imprisonment on probation. In this
respect, the Supreme Court, weighing the mitigating and
aggravating circumstances in fixing the applicant's sentence, had
also regard to the length of the criminal proceedings against her
and considered the sentence imposed by the Regional Court as
slightly excessive ("Bei zusammenschauender Würdigung der ...
Strafzumessungsgründe erscheint unter weiterer Bedachtnahme auf
die lange Verfahrensdauer ... die vom Schöffengericht verhängte
... Freiheitsstrafe doch etwas überhöht").
The decision was served on 13 February 1992.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention about the length of the criminal proceedings against
her, in particular about the delay between the first part of the
trial in 1988 and its continuation in March 1991. She also
submits that the written judgment of the Regional Court was
served upon her belatedly.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 June 1992 and
registered on 10 August 1992.
On 8 December 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 2 April 1993 the Government submitted their observations.
The observations in reply by the applicant were submitted on 7
June 1993.
THE LAW
The applicant complains about the length of the criminal
proceedings against her.
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 applicant can no longer
claim to be a victim, within the meaning of Article 25 (Art. 25)
of the Convention, of the alleged breach of Article 6 para. 1
(Art. 6-1). They refer to the Supreme Court's judgment upon the
applicant's appeal according to which it had regard to the length
of the proceedings when reducing her sentence from twenty months'
to fifteen months' imprisonment.
The Commission recalls that an applicant can no longer claim
to be a victim within the meaning of Article 25 para. 1 (Art. 25-
1) of the Convention of a failure to observe the "reasonable
time" requirement in Article 6 para. 1 (Art. 6-1) of the
Convention if the relevant courts expressly acknowledged the
existence of a breach of that provision and if redress has been
given (Eur. Court H.R., Eckle judgement of 15 July 1982, Series
A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; No.
8858/80, Dec. 6.7.83, D.R. 33 p. 5).
In the present case, the Commission notes that the Supreme
Court, in its judgment of 19 December 1991, reduced the
applicant's sentence by five months to fifteen months'
imprisonment on probation. Weighing the mitigating and
aggravating circumstances, the Supreme Court had also regard to
the length of the criminal proceedings against her.
The Commission finds that the Supreme Court did not
expressly recognise a violation of Article 6 para. 1 (Art. 6-1)
of the Convention due to an unreasonable length of the
proceedings, and the length was only one supplementary
consideration for reducing the sentence. In these circumstances,
the applicant must still be regarded as victim of the alleged
violation of her right to a hearing within a reasonable time.
As regards the length of the criminal proceedings against
the applicant, the Government maintain that the relevant period
started on 26 August 1987 when the indictment was preferred. They
considered that the applicant had not been affected by the
preceding investigations against her which had commenced in March
1986. Moreover, referring to the case-law of the Convention
organs, they argue that the length was mainly due to the
complexity of the case. They consider that no considerable delays
were imputable to the Austrian authorities.
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 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