AS TO THE ADMISSIBILITY OF
Application No. 15548/89
by J.N.
against Austria
The European Commission of Human Rights (Second Chamber)
sitting in private on 14 October 1991, the following members being
present:
MM. S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
Mrs. G. H. THUNE
Mr. F. MARTINEZ
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 3 July 1989 by
J.N. against Austria and registered on 28 September 1989
under file No. 15548/89;
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 facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1926, is an Austrian national and
resident in Graz. He is a businessman by profession. Before the
Commission he is represented by Mr. F. Unterasinger, a lawyer
practising in Graz.
In February 1981 the Graz Regional Court (Landesgericht)
first opened settlement proceedings (Ausgleichsverfahren) concerning
the applicant's assets, then bankruptcy proceedings concerning his
firm producing equipment for brickyards.
In March and April 1981, in the context of bankruptcy
proceedings concerning a firm dealing in bricks (VZ), several persons
laid information against the managers of the applicant's firm, MM. V.
and B., for fraud. In July 1981 the trustee in the above-mentioned
bankruptcy proceedings laid information against MM. S. and St. for
fraud and fraudulent conversion. The Graz Regional Court, upon request
of the Graz Public Prosecutor's Office (Staatsanwaltschaft), ordered
various investigation measures in July and August 1981. In
particular, various places were searched, documents seized, and B., S.
and St. were taken into detention on remand (St. was released in
September 1981, S. in December 1981, B. in May 1982). Investigations
were extended against a further suspect. The suspects and various
witnesses were heard.
On 8 September 1981, in the context of these investigations,
the Graz Regional Court requested the Graz Federal Police Department
(Bundespolizeidirektion) to inspect a credit account of the applicant
and related documents, and to produce copies thereof. On 15 September
1981 the Regional Court instructed the Police Department to inspect a
bills account concerning the discounting of bills related to the
applicant and the above-mentioned bankrupt firm, and to produce copies
thereof. On 19 October 1981 the Graz Federal Police Department
submitted its report on the result of its investigations. The
Regional Court continued its investigations.
On 27 January 1982 the accountant expert submitted his opinion
concerning questions of the indebtedness of the above-mentioned firm
VZ (more than AS 93 million) and its insolvency.
On 8 April 1982 the Graz Regional Court heard the applicant
as a witness. The applicant filed various documents.
On 22 April 1982 the Graz Public Prosecutor's Office, having
consulted the files, requested the Graz Regional Court to open
preliminary investigations against the applicant on the suspicion of
having committed fraud in that he had, inter alia, forwarded bills
without relation to real financial transactions, on the suspicion of
fraudulent conversion as accomplice to the criminal offences of the
suspects B. and V. as well as of negligent bankruptcy as regards his own
firm.
On 23 April 1982 the Graz Regional Court, upon request of
the Public Prosecutor's Office, issued search warrants concerning the
applicant's business premises and ordered the seizure of any relevant
accountant documents in the presence of the accountant expert. It also
ordered that the files concerning the bankruptcy of the applicant's and
B.'s firms as well as other files be produced. Moreover, criminal
proceedings were instituted against three further persons.
On 27 April 1982 the Graz Federal Police Department reported
upon the search of the applicant's business premises and the documents
seized.
Furthermore, in the period from April until September 1982 the
Regional Court repeatedly heard the suspects as well as several
witnesses and ordered a banking institute to produce various
documents, in particular those concerning particular business
relations of the applicant, B. and V.
On 22 September 1982 further information concerning fraudulent
conversion was laid against the suspects B. and S.
On 29 October 1982 the Graz Regional Court received a
supplementary opinion of the accountant expert concerning the
financial situation of the applicant's firm.
On 23 November the files were sent for consultation to a civil
department of the Graz Regional Court where they remained until
10 December 1982.
On 19 April 1983 a suspect was heard again. On 26 April 1983
the files were forwarded to the Graz Public Prosecutor's Office. On
20 May 1983 the files were returned with a request to produce all
files concerning the settlement and bankruptcy proceedings of the firms
managed by B., V., St. and the applicant, to produce files concerning
parallel criminal proceedings against some of the suspects, to produce
further specified documents and information, to hear two further
witnesses and to examine again the suspects on the basis of the
investigation results so far.
On 29 July 1983 the applicant was examined as a suspect. He
was informed that preliminary investigations had been instituted
against him. A further suspect and the suspect B. were also heard
again. Other investigations required by the Prosecutor's Office were
completed in the period from 2 September until 3 October 1983. On 4
November 1983 the files were sent to the Public Prosecutor's Office.
On 25 November 1983 the Prosecutor's Office returned the files
and requested again that the files concerning the settlement and
bankruptcy proceedings related to B., V. and the applicant as well as
the other court files concerning the related criminal proceedings be
produced.
Since 15 December 1983 the applicant was assisted by counsel.
On 19 December 1983 the Graz Public Prosecutor's Office
preferred the indictment against the applicant and the co-accused B.
on charges of fraud and fraudulent conversion. It also requested that
the criminal proceedings against the two accused as well as other
suspects concerning various criminal offences be separated. On
9 January 1984 the Graz Regional Court decided accordingly, and the
bill of indictment was served upon the accused.
On 24 and 25 January 1984 the accused lodged objections to the
indictment.
On 9 February 1984 the Graz Court of Appeal (Oberlandes-
gericht) dismissed the objections. The decision was served upon the
accused on 16 February, and on 17 February 1984 the files were
forwarded to the Presiding Judge of the Regional Court, sitting in a
chamber with two lay assessors (Schöffengericht), in order to fix a
date for trial. The competent Judge declared to be biased, and the
case was assigned to another judge on 22 February 1984. Several
persons joined the proceedings as civil parties (Privatbeteiligte).
On 9 July 1984 the applicant requested to take particular
evidence.
On 7 August 1984 the Public Prosecutor's Office requested the
Regional Court to fix a trial as soon as possible.
On 11 October 1984 the Regional Court fixed the period from
5 until 16 November 1984 as date for the trial.
On 23 October 1984 the Public Prosecutor's Office preferred a
supplementary indictment against the applicant on the charge of
negligent bankruptcy, which was joined to the current criminal
proceedings on 29 October 1984.
From 5 until 13 November 1984 the Graz Regional Court held
trial against the applicant and the co-accused B. The Court heard in
particular 23 witnesses and the accountant expert. The verbatim
record comprised 224 pages.
On 13 November 1984 the Graz Regional Court convicted B. of
having committed negligent bankruptcy, failure to pay social security
contributions, fraud on several counts and fraudulent conversion and
sentenced him to six years' imprisonment. The applicant was convicted
of fraudulent conversion in complicity with B. He was sentenced to
three years' imprisonment. As regards the issue of fraudulent
conversion the Regional Court found that in 1980 the applicant, as
general manager of a firm, and in complicity with another person, had
presented an incorrect supplementary bill of more than 28 million AS
in the context of the construction of a brickyard in Crete which the
co-accused, the presiding director of the building enterprise
concerned had fraudulently approved. The Regional Court orally set
out the main reasons for its judgment.
Furthermore, the Regional Court decided, for reasons of
expediency, to separate the proceedings as regards the charge of
bankruptcy as well as some other charges against the applicant and B.
on the ground that further investigations were necessary in these
respects.
The written judgment (51 pages) was given to the Court's
Registry on 29 March 1985, and served upon the accused on 24 May 1985.
On 12 June 1985 the applicant lodged a plea of nullity
(Nichtigkeitsbeschwerde) and appeal (Berufung), and joined various
documents and in particular observations of an accountant as regards
the accountant expert opinion. The co-accused also appealed. The
Regional Court forwarded the appeals to the Supreme Court (Oberster
Gerichtshof) on 27 June 1985.
On 11 April 1986 the co-accused B. filed further submissions.
On 30 June 1986 the Supreme Court, upon the applicant's plea
of nullity, quashed the judgment of 13 November 1984 in respect of the
applicant's conviction. The co-accused's plea of nullity was partly
successful. To this extent, the Supreme Court sent the case back to
the Regional Court. It found in particular that the Regional Court
had failed to establish whether the applicant had known that the
co-accused had acted fraudulently.
On 6 August 1986 the Regional Court received the Supreme
Court's judgment. The files were sent to the Graz Public Prosecutor's
Office on 16 September 1986.
On 27 October 1986 the files were returned to the Graz
Regional Court. The Public Prosecutor's Office requested in
particular that other proceedings be joined and a date for trial be
fixed as soon as possible. The Office also expressly confirmed the
indictment as regards the charge of fraud against the co-accused B.
in that he had presented fictitious assignments, and the charge of
fraudulent conversion against the applicant in that he had presented
an incorrect supplementary bill as accomplice of another suspect. It
further requested that the proceedings against the applicant and B. be
discontinued as regards various other charges, inter alia the charge
of the applicant with negligent bankruptcy.
The applicant filed a request to take particular evidence on
26 November 1986.
On 16 February 1987 the Public Prosecutor's Office requested
the Regional Court to fix a date for trial as soon as possible.
On 14 April 1987 the Regional Court discontinued criminal
proceedings against the accused according to the request of the
Public Prosecutor's Office. The trial was fixed for 6 until 12 May
1987.
On 30 April 1987 the applicant again requested to take
evidence.
On 6 until 12 May 1987 the Graz Regional Court held trial.
The trial was continued on 24 and 25 June 1987 with the hearing of
further witnesses.
On 25 June 1987 the Graz Regional Court again convicted the
applicant as accomplice to fraudulent conversion and sentenced him to
two years and nine months' imprisonment. The co-accused was convicted
of negligent bankruptcy and fraudulent conversion and acquitted of
fraud on several counts; he was sentenced to four years and six
months' imprisonment.
On 22 December 1987 the judgment (comprising fifteen pages)
was served upon the accused.
On 8 January 1988 the accused filed their respective pleas of
nullity and appeals, which were forwarded to the Supreme Court on
10 February 1988.
On 27 July 1988 the applicant made submissions and filed in
particular a private expert opinion of a civil engineer.
On 18 October 1988 the Supreme Court, upon the pleas of
nullity and appeals of the applicant and the co-accused, decided that
the criminal proceedings be re-opened under S. 362 para. 1 of the Code
of Criminal Procedure. The Supreme Court thereby quashed the
applicant's and the co-accused's conviction for fraudulent conversion,
and decided that the proceedings be continued at the stage of
preliminary investigations.
S. 362 para. 1, as far as relevant, provides that the Supreme
Court, having heard the Attorney General (Generalprokuratur), may
exceptionally re-open criminal proceedings to the advantage of the
convicted person, if, during the provisional deliberations on a plea
of nullity, or after a public hearing on the plea of nullity, it has
serious doubts as to the correctness of facts upon which the judgment
concerned is based.
On 14 November 1988 the judgment was received by the Graz
Regional Court, which sent the files to the Public Prosecutor's Office
one day later. The Supreme Court's judgment was served upon the
parties on 25 November 1988.
On 14 December 1988 the Public Prosecutor's Office returned
the files and declared that it did not find any reason to continue the
proceedings against the accused on the charge of fraudulent
conversion.
On 27 December 1988 the applicant requested that the criminal
proceedings against him be discontinued.
By letter of 28 April 1989 the Graz Regional Court informed
the applicant that on 5 January 1989 the criminal proceedings against
him for fraudulent conversion had been discontinued.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention and Article 1 of Protocol No. 1 to the Convention about the
length of the criminal proceedings against him. He submits that due
to the length of the criminal proceedings he sustained considerable
financial losses.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 July 1989 and registered
on 28 September 1989.
On 4 December 1989 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written submissions on its admissibility and merits.
On 15 March 1990, after an extension of the time-limit, the
observations were submitted by the respondent Government. On 6 June
1990 the applicant sent his observations in reply.
On 8 January 1991 the Commission decided to refer the
application to the Second Chamber.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention and Article 1 of Protocol No. 1 (P1-1) about the length of
the criminal proceedings against him.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,
provides:
"In the determination ... 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."
The Government submit that the relevant period to be
considered under Article 6 para. 1 (Art. 6-1) of the Convention
started on 29 July 1983, when the applicant was informed about the
opening of criminal proceedings against him, and ended on 5 January
1989 when the proceedings were discontinued. Arguing the criteria
established in the case-law of the Convention organs, the Government
consider that the proceedings did not attain an unreasonable length.
In this respect, they point out that the proceedings concerned very
complex facts. In the second set of proceedings before the Regional
Court, the applicant twice made voluminous submissions, and he
submitted observations and a private expert opinion in the second set
of appeal proceedings, which he could have made at an earlier stage of
the proceedings. No undue delays were caused by the Austrian
authorities.
The Commission finds that the applicant's complaint about the
length of the criminal proceedings against him raises questions of
fact and law which require an examination of the merits. The
application is therefore not manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground
for declaring it inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy