AS TO THE ADMISSIBILITY OF
Application No. 22634/93
by Hannes MLYNEK
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 31 August 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. 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 20 August 1993 by
Hannes MLYNEK against Austria and registered on 15 September 1993 under
file No. 22634/93;
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. This is his fourth application to the Commission.
The background to the present application
The applicant's first application (No. 11688/85) ended with a
finding of a violation of the Convention by the Commission and the
Committee of Ministers in connection with the length of criminal
proceedings against the applicant. The second and third applications,
which also concerned the length of those proceedings (Nos. 15016/89 and
19513/92), ended with decisions by the European Court of Human Rights
and the Commission to strike them off the lists of cases (Eur. Court
H.R., Mlynek judgment of 27 October 1992, Series A no. 242-C;
Comm. Dec. 20.10.92 respectively). The latter decisions were taken
following a settlement between the parties in the following terms:
[German]
"...
1. Die österreichische Bundesregierung verpflichtet sich, einem
vom Beschwerdeführer ... nach Rechtskraft des beschwerde-
gegenständlichen Strafverfahrens einzubringenden Antrag ... auf Nachlaß
der im Verfahren 12 b Vr 3769/81, Hv 3646/87 (nunmehr: 12 b E Vr
3079/91, hv 1799/91) des Landesgerichtes für Strafsachen entstandenen
Kosten und Gebühren (insbesondere Sachverständigengebühren)
stattzugeben.
2. Der Beschwerdeführer erklärt seine obengenannten Beschwerden
[Nr. 15016/89 und Nr. 19513/92] als erledigt.
3. Der Beschwerdeführer und die Republik Österreich erklären,
daß sie keinerlei Ansprüche geltend machen werden, die in irgendeiner
Weise mit dem Gegenstand der Menschenrechtsbeschwerden Nr. 15016/89 und
Nr. 19513/92, nämlich dem in Pkt. 1 gennannten Strafverfahren, in
Zusammenhang stehen, und zwar weder im Wege eines Verfahrens vor einer
österreichischen Behörde noch vor einer internationalen Instanz.
4. Kosten der Menschenrechtsbeschwerdeverfahren Nr. 15016/89
und Nr. 19513/92 werden vom Beschwerdeführer nicht geltend gemacht.
5. Die Geltendmachung von Ansprüchen nach dem strafrechtlichen
Entschädigungsgesetz sind im Falle eines Freispruches des
Beschwerdeführers in dem unter Punkt 1 genannten Strafverfahren von
Punkt 3 nicht erfaßt.
..."
[Translation]
"...
1. The Austrian Federal Government undertake to exonerate the
applicant, Dr. Hannes Mlynek, ... from the obligation to pay the costs
and fees (in particular experts' fees) incurred in the proceedings in
case 12 b Vr 3769/81, Hv 3646/87 (now 12 b E Vr 3079/91, Hv 1799/91)
before the Vienna Regional Court, in accordance with a claim to be made
... once the decision in the proceedings which are the subject of the
application has become final.
2. The applicant declares that his above-mentioned applications
[Nos. 15016/89 and 19513] are to be regarded as settled.
3. The applicant and the Republic of Austria declare that they
will under no circumstances bring before an authority, whether Austrian
or international, claims arising in any way from the subject matter of
[the aforesaid] human rights applications ..., that is the criminal
proceedings referred to in point 1.
4. The applicant will not pursue a claim for costs and expenses
incurred in connection with the proceedings concerning [the said]
applications ...
5. The introduction of claims under the Criminal Law
(Compensation) Act in the event of the applicant's acquittal in the
criminal proceedings referred to under point 1 is not covered by the
undertaking in point 3.
..."
The facts concerning the present application
On 21 May 1980 criminal proceedings were brought against the
applicant in the Vienna Regional Court (Landesgericht). They led to
his conviction, on 30 May 1984, on counts of misappropriation of funds
(Untreue) and fraud (Betrug). On 30 January 1987 the Supreme Court
(Oberster Gerichtshof) quashed the judgment and remitted the case to
the same court, which re-opened the proceedings on 11 January 1988.
The applicant was sentenced, on 23 March 1988, to three years'
imprisonment, two of which were suspended, for misappropriation of
funds and negligent bankruptcy (fahrlässige Krida). That judgment was
quashed by the Supreme Court on 1 June 1990 and once again remitted to
the Vienna Regional Court.
On 16 September 1991, the Vienna Regional Court, following
hearings between July and September 1991, convicted the applicant of
negligent bankruptcy and sentenced him to 12 months' imprisonment,
suspended for one year.
On 8 January 1992 the applicant received the transcript of the
hearing of 11 July 1991. He considered that there were a number of
errors in it, and requested the Regional Court to correct the trial
record.
On 3 March 1992 the applicant received the written version of the
judgment of 16 September 1991, and on 24 March 1992 he appealed against
the judgment.
On 27 March 1992 the Regional Court made certain amendments to
the record of the proceedings on 11 July 1991. Some of the amendments
were as requested by the applicant, others as requested by the
prosecution. Not all of the applicant's requests for amendment were
allowed. The applicant's complaint (Beschwerde) against the decision
of 27 March 1992 was rejected as inadmissible by the Vienna Court of
Appeal on 19 February 1993 on the ground that no appeal lay against the
results of an application to amend the trial record.
On 24 March 1993 the Vienna Court of Appeal rejected the
applicant's plea of nullity.
COMPLAINTS
The applicant alleges a violation of Articles 6 and 13 of the
Convention and Article 2 of Protocol No. 7 to the Convention in that
the failure to supply him with the transcript of the proceedings on
11 July 1991 prevented him from making further requests for evidence
to be taken, and thereby made the proceedings unfair. He underlines
that he only received the transcript in January 1992, even though
Austrian law provides for transcripts to be prepared within 48 hours.
The applicant also sees a violation of the Convention in the fact
that the request for the transcript to be amended was not dealt with
until after the applicant had received the written version of the
judgment. He considers that the declaration he made when settling
Applications Nos. 15016/89 and 19513/92 does not prevent him from
making the application as those applications related solely to the
length of the proceedings, and were in any event settled before the
matters now complained of occurred.
THE LAW
The applicant alleges violation of Articles 6 and 13
(Art. 6, 13) of the Convention and of Article 2 of Protocol No. 7
(P7-2) to the Convention.
The Commission notes that, on 15 September 1992, the applicant
entered into an agreement with the Government of the Republic of
Austria in the context of Application No. 15016/89, which was then
pending before the European Court of Human Rights, and Application
No. 19513/92, which was then pending before the Commission. In the
declaration which the parties then made, the applicant agreed that he
would "under no circumstances bring before an authority, whether
Austrian or international, claims arising in any way from the subject
matter of [the aforesaid] human rights applications ..., that is the
criminal proceedings referred to in point 1". The Commission must
therefore consider whether, as a result of that declaration, the
applicant may at all bring the present application.
The Commission recalls that, in the context of an alleged waiver
of a right before the domestic authorities, waiver, insofar as it is
permissible, must be established in an unequivocal manner and requires
minimum guarantees commensurate to its importance (Eur. Court H.R.,
Pfeifer and Plankl judgment of 25 February 1992, Series A no. 227,
p. 16, para. 37). The Commission finds that these criteria can
usefully be applied to a case in which an applicant may have agreed not
to bring future applications.
The Commission notes, first, that it has not been alleged that
the settlement reached in Applications Nos. 15106/89 and 16513/92 came
about as a result of pressure or proposals from the Convention organs,
and there is no indication that the applicant was under any undue
pressure from the Government.
The Commission next notes that the agreement between the parties
in terms refers to "claims arising in any way from the subject matter
of [the aforesaid] human rights applications ..., that is the criminal
proceedings referred to in point 1". This includes possible
applications to the Commission in connection with other aspects of the
proceedings than the length. Moreover, the agreement expressly
excludes certain future proceedings from its scope (an application
under the Criminal Law (Compensation) Act if the applicant was
acquitted), which indicates that the parties had considered the
possibility of further litigation arising from the case.
The Commission therefore finds that the declaration made by the
applicant in the context of Applications Nos. 15016/89 and 19513/92 is
unequivocal in that it was intended to prevent him from bringing
further applications before the Convention organs in connection with
the criminal proceedings referred to in it. It also finds that the
Commission's review of whether the declaration was unequivocal or not
provides an appropriate procedural guarantee in a case such as the
present, where the waiver relates to proceedings under Article 25
(Art. 25) of the Convention, and there is no indication that the
applicant was under any misapprehension in agreeing to it.
It follows that the applicant may not claim to be a victim of a
violation of the Convention, and 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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy