AS TO THE ADMISSIBILITY OF
Application No. 15615/89
by M.
against Austria
The European Commission of Human Rights (Second Chamber)
sitting in private on 15 January 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
F. ERMACORA
G. JÖRUNDSSON
A. WEITZEL
Mrs. G. H. THUNE
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
Mr. K. ROGGE, Secretary to the Second 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 14 September
1989 by M. against Austria and registered on 13 October 1989 under
file No. 15615/89;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1943. He lives in
Vienna. He is represented in the proceedings before the Commission by
Mr. K. Bernhauser, lawyer, of Vienna.
The facts submitted may be summarised as follows.
An indictment was brought against the applicant on 26 August
1987, accusing him of involvement with insurance fraud. 14 other
persons were also charged. The applicant's trial before the Vienna
Regional Court (Landesgericht) began, apparently, in January 1988, and
the applicant was convicted and sentenced on 5 April 1988. The
applicant gave notice of appeal (Berufung) and plea of nullity
(Nichtigkeitsbeschwerde) within the specified three day time-limit.
By virtue of Article 270 of the Code of Criminal Procedure
(Strafprozessordnung), the written judgment should have been prepared
within 14 days. It was served on him on 31 January 1990. On 6
September 1990 the applicant's plea of nullity was rejected and his
sentence was reduced by the Supreme Court (Oberster Gerichtshof).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 September 1989 and
registered on 13 October 1989.
On 2 April 1990 the Commission decided to bring the
application to the notice of the respondent Government and to invite
them to submit observations on its admissibility and merits.
The respondent Government's observations were submitted on 15
June 1990 and the applicant's reply on 18 July 1990.
The application was referred to the Second Chamber on 7
November 1990.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention of the length of the above criminal proceedings, in
particular the delay between his conviction and sentence on 5 April
1988 and the written judgment, which was served on 31 January 1990.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of
the Convention that the written judgment of his conviction of 5 April
1988 was served on him only on 31 January 1990. Article 6 para. 1
(Art. 6-1) provides, as far as relevant, as follows:
"In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law..."
It is not in dispute that the proceedings against the
applicant involved the "determination of .... [a] criminal charge"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Moreover, the Government do not contest the admissibility of the
application.
The Government do, however, consider that the time taken for
the preparation of the judgment was not unreasonable. In particular,
they underline that the applicant agreed that the various defendants
should be heard separately and that separate judgments be announced in
the case of each. Further, the applicant agreed that, if an appeal
was to be made, one appeal would be made for all defendants.
Accordingly, the period to be taken into consideration could only
begin at the date of the last judgment, that is, 6 September 1988. A
certain period would inevitably be necessary for the preparation of
the judgments. The Government consider that the subject matter of the
proceedings was undoubtedly complicated, and that the judge was
required to consider a large amount of documentation. They further
underline that the applicant at no stage requested accelerated
production of the judgment. Finally, the Government point out that no
new cases were alloted to the judge for various periods from 11 April
1988; that the judge was removed from his position as Head of one
section of the courts and that disciplinary proceedings were
introduced against him because of the delays involved in preparing
judgments in this complex of cases.
The applicant accepts that he had agreed to the proceedings
against the various defendants being conducted separately and that he
thereby saved considerable defense costs, but emphasises that it was
not made clear that this would mean a delay in the preparation of the
judgment.
The Commission is required to have regard to the whole of the
proceedings in the present case, although the period which calls for
particular examination is the time taken for preparation of the
written judgment. The Commission finds that the case raises questions
of fact and law which are of such complexity that the determination
requires an examination of merits. The application is therefore not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention and no other grounds for declaring it
inadmissible have been established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy