AS TO THE ADMISSIBILITY OF
Application No. 20523/92
by Laszlo MUSZKA
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 26 May 1992
by Laszlo Muszka against Austria and registered on 24 August 1992
under file No. 20523/92;
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, after an extension of the time-limit, on
31 March 1993 and the observations in reply submitted by the
applicant on 14 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 1946, is an Austrian national and
resident in Vienna. Before the Convention he is represented by
Mr. R. Soyer, a lawyer practising in Vienna.
On 4 June 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 23 September and 1
October 1986 he was again heard by the Vienna Federal Police
Department, this time as a suspect.
On 7 January 1987 preliminary investigations were opened
against him on the suspicion of having committed fraud in making
false insurance claims. On 23 February 1987 the Investigating
Judge at the Vienna Regional Court (Landesgericht) heard the
applicant on the suspicion against him.
In August 1987 the Vienna Public Prosecutor's Office
(Staats-anwaltschaft) preferred the indictment against 22 of the
suspects, who appeared to be mainly involved in the fraud cases,
and requested the Vienna Regional Court to separate the
proceedings.
On 13 November 1987 the Vienna Regional Court decided to
separate the proceedings against the applicant and other
suspects, and ordered that new files be set up.
In May and August 1988 the Public Prosecutor's Office
preferred indictments against further suspects.
In September 1988 the Investigating Judge at the Vienna
Regional Court requested the Vienna Federal Police Department to
question another suspect, namely the manager of the insurance
company concerned, on the applicant's insurance claims. The
police report was submitted in January 1989.
On 12 December 1990 the Vienna Public Prosecutor's Office
preferred the indictment against the applicant. He was charged
with having committed fraud on several counts to the detriment
of the above-mentioned insurance company. The Office also
requested the Regional Court to discontinue the prosecution
regarding several other charges. The Regional Court decided
accordingly on 22 February 1991.
In April 1991 the files were forwarded to a single judge at
the Vienna Regional Court to conduct the trial against the
applicant. The date for the trial was fixed in October 1991.
The Vienna Regional Court opened the trial against the
applicant on 20 November 1991. The hearing was postponed in order
to summon a further witness.
On 21 April 1992 the date for the next hearing was fixed.
On 12 May 1992 the trial continued before the Regional
Court, and the applicant was convicted of having acted as an
accessory to fraud on six counts. He was sentenced to eight
months' imprisonment on probation. The applicant was further
ordered to pay to the insurance company concerned, which had
participated in the proceedings as a private party, AS 464.000
as compensation. The Regional Court found that the applicant had
concluded insurance contracts concerning furniture and given
false information about occurrences of loss. In fixing the
applicant's sentence, the Regional Court considered the fact that
the applicant had committed fraud on several counts and the
important damage caused as aggravating circumstances. As
mitigating circumstances the Court took into account that the
applicant had no previous convictions, that others had derived
the profit of the offences concerned, that he was in a state of
dependence towards these persons, and, moreover, that the
offences had been committed a long time ago and that since then
the applicant had had a good conduct.
The written judgment was served upon the applicant on 4
September 1992.
On 25 November 1992 the Vienna Court of Appeal (Oberlandes-
gericht), following a hearing in the presence of the applicant,
dismissed his appeal (Berufung) regarding his conviction and the
sentence imposed. However, the Regional Court's decision on the
compensation claims of the private party was quashed. The Court
of Appeal did not accede to the applicant's argument that, due
to the excessive length of the proceedings against him, the right
to prosecute him no longer existed. The Court of Appeal
considered that anybody, who participated to a limited extent in
large-scale frauds, had to accept that the proceedings against
him formed part of an overall complex and very time-consuming
procedure. The length of the proceedings could not, therefore,
be measured only against the charges in respect of the applicant,
but in the light of the entirety of the proceedings, which put
the alleged excessive length of the proceedings into perspective.
Furthermore, neither the Convention nor other legal sources
granted immunity from criminal prosecution on the ground of an
excessive length of proceedings. Similar considerations applied
to the applicant's appeal against the sentence, in which the
applicant had again invoked the allegedly excessive length of the
proceedings. Moreover, the facts that the offences had been
committed a long time ago and that since then he had had a good
conduct had been regarded as mitigating circumstances.
On 22 January 1993 the written version of the judgment was
served upon the applicant.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention about the length of the criminal proceedings against
him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 May 1992 and registered
on 24 August 1992.
On 2 December 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 31 March 1993, after an extension of the time-limit, the
Government submitted their observations. The observations in
reply by the applicant were submitted on 14 June 1993.
THE LAW
The applicant complains 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 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 contend that the Court of Appeal considered the
argument as to the excessive length of the proceedings and
confirmed the first instance court judgment in taking this aspect
into account in fixing the sentence.
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 judgment of 15 July 1982, Series
A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; No.
10232/83, Dec. 16.12.82, D.R. 35 p. 213; No. 9299/81, Dec.
12.7.86, D.R. 467 p. 5).
In the present case, the Commission notes that the Vienna
Regional Court, in its judgment of 12 May 1992, fixed the
applicant's sentence with regard to various mitigating
circumstances, inter alia, the facts that the offences had been
committed a long time ago and that since then the applicant had
had a good conduct. As regards the question of an allegedly
excessive length of the proceedings, the Vienna Court of Appeal,
in its judgment of 25 November 1992, stated that anybody, who
participated to a limited extent in large-scale frauds, had to
accept that the proceedings against him formed part of an overall
complex and very time-consuming procedure. Thus the length of the
proceedings had to be measured, not only against the charges in
respect of the applicant, but against the entirety of the
proceedings, which put the alleged excessive length of the
proceedings into perspective. Regarding the fixing of the
sentence, the Court of Appeal further noted that the facts that
the offences had been committed a long time ago and that since
then he had had a good conduct were considered as mitigating
circumstances.
The Commission finds that the Vienna Regional Court and the
Vienna Court of Appeal did not expressly or in substance
recognise a violation of Article 6 para. 1 (Art. 6-1) of the
Convention due to an unreasonable length of the proceedings.
Moreover, not the length of the proceedings as such, but the time
which had elapsed since the offences in question were committed
and the applicant's good conduct since, were considered in fixing
the sentence. In these circumstances, the applicant must still
be regarded as victim of the alleged violation of his 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 12 December 1990 when the indictment was preferred.
They consider that the applicant had not been affected by the
preceding investigations against him. Moreover, referring to the
case-law of the Convention organs, they argue that the length of
the proceedings was mainly due to the complexity of the case.
They consider that no considerable delays were imputable to the
Austrian authorities. In this respect, they submit in particular
that the Vienna Public Prosecutor's Office took the right course
when awaiting the final judgment in the proceedings against the
principal offender.
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