EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
APPLICATION No. 15548/89
Hans NIESENBACHER
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 2 September 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 7). . . . . . . . . . . . . . . . . . . . . . . . 1
II. ESTABLISHMENT OF THE FACTS
(paras. 8 - 54) . . . . . . . . . . . . . . . . . . . . . . . 2
III. OPINION OF THE COMMISSION
(paras. 55 - 75). . . . . . . . . . . . . . . . . . . . . . . 7
A. Complaint declared admissible
(para. 55) . . . . . . . . . . . . . . . . . . . . . . . 7
B. Point at issue
(para. 56) . . . . . . . . . . . . . . . . . . . . . . . 7
C. Alleged violation of Article 6 para. 1
of the Convention
(paras. 57 - 74) . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . . . . . . . 9
APPENDIX : Decision on the admissibility of the application 10
I. INTRODUCTION
1. The present Report concerns Application No. 15548/89 by
Hans NIESENBACHER against Austria, introduced on 3 July 1989 and
registered on 28 September 1989.
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.
2. The Austrian Government are represented by their Agent,
Ambassador H. Türk, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
3. The application was communicated to the Government on
14 December 1989. On 8 January 1991 the application was referred to
the Second Chamber. Following an exchange of memorials, the complaint
relating to the length of criminal proceedings (Article 6 para. 1 of
the Convention) was declared admissible on 14 October 1991. The
decision on admissibility is appended to this Report.
4. The Government have made further submissions on 18 November 1991,
30 March and 8 May 1992; the applicant submitted further observations
on 21 November 1991, 7 January and 7 May 1992.
5. Having noted that there is no basis upon which a friendly
settlement within the meaning of Article 28 para. 1 (b) of the
Convention can be secured, the Commission (Second Chamber), after
deliberating, adopted this Report in accordance with Article 31 para. 1
of the Convention, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
6. In this report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by Austria.
7. The text of the Report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with Article 31
para. 1 of the Convention.
II. ESTABLISHMENT OF THE FACTS
8. 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.
9. 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. B. and
V., 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.
10. 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 relating
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.
11. 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.
12. On 8 April 1982 the Graz Regional Court heard the applicant as
a witness. The applicant filed various documents.
13. 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, furthermore 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.
14. 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.
15. On 27 April 1982 the Graz Federal Police Department reported upon
the search of the applicant's business premises and the documents
seized.
16. Furthermore, between April and 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.
17. On 22 September 1982 further information concerning fraudulent
conversion was laid against the suspects B. and S.
18. 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.
19. On 23 November 1982 the files were sent for consultation to a
civil department of the Graz Regional Court where they remained until
10 December 1982.
20. 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.
21. 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
between 2 September and 3 October 1983. On 4 November 1983 the files
were sent to the Public Prosecutor's Office.
22. On 25 November 1983 the Prosecutor's Office returned the files
and requested again that the files concerning the settlement and
bankruptcy proceedings relating to B., V. and the applicant as well as
the other court files concerning the related criminal proceedings be
produced.
23. Since 15 December 1983 the applicant was assisted by counsel.
24. 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.
25. On 24 and 25 January 1984 the accused lodged objections to the
indictment.
26. 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 himself to be biased, and the case was
assigned to another judge on 22 February 1984. Several persons joined
the proceedings as civil parties (Privatbeteiligte).
27. On 9 July 1984 the applicant asked for further evidence to be
taken.
28. On 7 August 1984 the Public Prosecutor's Office requested the
Regional Court to fix a trial as soon as possible.
29. On 11 October 1984 the Regional Court fixed the period from
5 until 16 November 1984 as dates for the trial.
30. 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.
31. From 5 March 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. On 11 April 1986 the co-accused B. filed further submissions.
37. 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 that the applicant had known that the co-accused
had acted fraudulently.
38. 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.
39. 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 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 negligent bankruptcy
against the applicant.
40. The applicant filed a request to take further evidence on
26 November 1986.
41. On 16 February 1987 the Public Prosecutor's Office requested the
Regional Court to fix a date for trial as soon as possible.
42. On 14 April 1987 the Regional Court discontinued certain 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.
43. On 30 April 1987 the applicant again asked for further evidence
to be taken.
44. From 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.
45. 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.
46. On 22 December 1987 the judgment (comprising fifteen pages) was
served upon the accused.
47. 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.
48. On 27 July 1988 the applicant made submissions and filed in
particular a private expert opinion of a civil engineer.
49. 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.
50. 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.
51. 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.
52. 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.
53. On 27 December 1988 the applicant requested that the criminal
proceedings against him be discontinued.
54. 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.
III. OPINION OF THE COMMISSION
A.Complaint declared admissible
55. The Commission has declared admissible the applicant's complaint
that his case was not heard within a reasonable time.
B. Point at issue
56. The only point at issue is whether the length of the proceedings
complained of exceeded the "reasonable time" referred to in Article 6
para. 1 (Art. 6-1) of the Convention.
C. Alleged violation of Article 6 para. 1 (Art. 6-1) of the
Convention
57. The applicant complains that the criminal proceedings against him
were not terminated within a reasonable time. He relies on Article 6
para. 1 (Art. 6-1) of the Convention which includes the following
provision:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by (a) ... tribunal ..."
58. The Government consider that the proceedings did not attain an
unreasonable length.
a. Period to be considered
59. 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.
60. The Commission recalls that the period to be taken into
consideration under Article 6 para. 1 (Art. 6-1) begins at the time
when formal charges are brought against a person or when that person
has otherwise been substantially affected by actions taken by the
prosecution authorities as a result of a suspicion against him
(cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 50,
p. 33, para. 75).
61. The Commission notes that, in the course of criminal
investigations instituted against other persons in 1981, the Graz
Public Prosecutor's Office requested the opening of preliminary
investigations against the applicant on 22 April 1982. On
23 April 1982 the Regional Court issued search warrants concerning the
applicant's business premises and ordered the seizure of any relevant
documents. The applicant was informed about the decision to
discontinue the proceedings against him on 28 April 1989.
62. The Commission therefore considers that the relevant period
started in April 1982 and ended in April 1989, i.e. seven years later.
b. Reasonableness of the length of the proceedings
63. Arguing the criteria established in the case-law of the
Convention organs, the Government submit in particular that the length
of the proceedings was due to their complexity and the conduct of the
applicant.
64. The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard in particular to the
complexity of the case and the conduct of the applicant and the
relevant authorities (cf. Eur. Court H.R., Baggetta judgment of
25 June 1987, Series A no. 119, p. 38, para. 35).
65. As regards the complexity of the applicant's case, the Commission
notes that criminal proceedings against several other persons,
including the applicant's later co-accused, started already in 1981.
These proceedings concerned complex facts, namely the bankruptcy of
several firms and their financial transactions. The investigations
partly extended to several suspects, and they involved the hearing of
various witnesses and the production of an accountant expert opinion.
The proceedings were thus of some complexity.
66. Moreover, the Commission considers that the applicant did not
unreasonably contribute to the overall length of the criminal
proceedings against him. In particular, it was not incumbent on the
applicant to further the investigations and to submit all evidence and
other material at the earliest possible stage.
67. The Commission has next examined the conduct of the Austrian
authorities.
68. The Commission notes that the preliminary investigations against
the applicant lasted from 23 April 1982 until 9 February 1984 when the
applicant's objections against the indictment of 19 December 1983 were
dismissed. The Commission finds that the Graz Regional Court did not
actively further the investigations between July 1982 and April 1983;
in particular the applicant was not heard as a suspect until July 1983.
69. From 16 February 1984 until 24 May 1985, proceedings against the
applicant and his co-accused B. were pending before the Graz Regional
Court. Other suspects involved in the general context of the offences
in question had been or were meanwhile prosecuted separately. The
preparation of the trial took the Regional Court more than eight
months; it lasted from 5 March until 13 November 1984. After
pronouncement of the judgment against the accused at the end of the
trial, it took the Regional Court more than four months to draft the
written version of the judgment. A further delay of about one and a
half months occurred at the Court's registry.
70. The first set of appeal proceedings before the Supreme Court
lasted from 12 June 1985 until 30 June 1986, thus more than one year.
This delay has not been explained by the respondent Government.
71. The second set of proceedings before the Graz Regional Court
lasted from 6 August 1986 until 22 December 1987, i.e. one year and
four and a half months. There was, despite reminders of the Public
Prosecutor's Office, no activity of the Regional Court between October
1986 and 14 April 1987 when the trial was fixed for May 1987. After
conviction of the accused on 25 June 1987, the Regional Court completed
the written version of its judgment, comprising fifteen pages, more
than five months later.
72. The second set of appeal proceedings before the Supreme Court
lasted from 8 January 1988 until 18 October 1988. Having regard to the
overall length of the proceedings at this stage, there is no sufficient
explanation for this delay.
73. Furthermore, the Regional Court's decision of 5 January 1989 to
discontinue the proceedings was not notified to the applicant until
almost four months later, on 28 April 1989.
74. The Commission finds that the length of the criminal proceedings
against the applicant cannot be justified by the complexity of the
case, or the conduct of the applicant. Consequently, as a result of
various delays for which the Austrian authorities must be held
responsible, the length of the proceedings complained of exceeded the
"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the
Convention.
CONCLUSION
75. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy