Application No. 12896/87
Franz SCHADEN
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 12 February 1990)
TABLE OF CONTENTS
Page
INTRODUCTION ........................................... 1
PART I: ESTABLISHMENT OF THE FACTS ...................... 3
PART II: SOLUTION REACHED ................................ 4
I. INTRODUCTION
1. This Report relates to Application No. 12896/87 introduced by
Franz Schaden against Austria on 10 January 1987 under Article 25 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms. The application was registered on 28 April 1987.
The applicant was represented before the Commission by
K. Bernhauser, lawyer, Vienna.
The Government of Austria were represented by their Agent,
Ambassador Helmut Türk, Head of the International Law Department at
the Federal Ministry of Foreign Affairs.
2. On 9 May 1989 the European Commission of Human Rights declared
the application admissible.* The Commission then proceeded to carry
out its task under Article 28 para. 1 of the Convention ** which
provides as follows:
"1. In the event of the Commission accepting a petition
referred to it:
(a) it shall, with a view to ascertaining the facts,
undertake together with the representatives of the parties
an examination of the petition and, if need be, an
investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities,
after an exchange of views with the Commission;
(b) it shall at the same time place itself at the
disposal of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of respect
for Human Rights as defined in this Convention."
3. The Commission found that the parties had reached a friendly
settlement of the case and on 12 February 1990 it adopted this Report
which, in accordance with Article 28 para. 2 of the Convention **, is
confined to a brief statement of the facts and of the solution
reached.
____________
* This decision is public and can be obtained from
the Commission's Secretary.
** As amended with effect from 1 January 1990.
The following members of the Commission were present when the
Report was adopted:
MM. C. A. NØRGAARD, President
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. C. L. ROZAKIS
Mrs.J. LIDDY
Mr. L. LOUCAIDES
PART I
STATEMENT OF THE FACTS
4. The applicant, born in 1949, is a German national and resident
at Retz, Austria. He is an oenologist and businessman by profession.
5. The applicant was manager of two limited liability companies
trading in wine and spirits. One of them was owned by the applicant's
father, the other was jointly owned by the applicant and his father.
In June 1977 the Korneuburg Regional Court (Kreisgericht) instituted
preliminary investigations (Voruntersuchung) against the applicant's
father on the suspicion of fraud and bankruptcy offences. In July and
August 1977 bankruptcy proceedings were opened against the two
companies. In September 1977 the Korneuburg Regional Court joined
criminal proceedings against the applicant, his father and a further
person on the suspicion of conversion of goods in official custody
(Verstrickungsbruch), which had been conducted at the Retz District
Court (Bezirksgericht), with the investigation proceedings against the
applicant's father concerning fraud and bankruptcy offences.
Furthermore, investigations were started against the applicant who was
suspected of having committed fraud as manager of the two above
companies.
6. On 28 February 1980 the Korneuburg Public Prosecutor's Office
preferred the indictment (Anklageerhebung) against the applicant on
charges of fraud, conversion of goods in official custody, retention
of social security contributions (§114 of the Social Security Act -
ASVG) and fraudulent bankruptcy (fahrlässige Krida). The criminal
proceedings against the other suspects were discontinued.
7. On 29 January 1981 the Korneuburg Regional Court convicted the
applicant of fraud on six counts, fraudulent bankruptcy, conversion
of goods in official custody and retention of social security
contributions, and sentenced him to two years' imprisonment. The
applicant was acquitted of the charge of fraud on seven further
counts.
8. Following partly successful appeal proceedings before the
Austrian Supreme Court (Oberster Gerichtshof) in 1981, the Korneuburg
Regional Court conducted the second trial on 9 and 10 July and
13 September 1985. It convicted the applicant of fraud on five counts
and of bankruptcy offences by which he had caused a total damage of
more than 15 million AS. He was sentenced to one and half years'
imprisonment. He was acquitted of the charge of fraud on one count.
9. On 9 September 1986 the Supreme Court dismissed the
applicant's plea of nullity (Nichtigkeitsbeschwerde) and appeal
(Berufung). The decision was served on 7 November 1986.
10. Before the Commission the applicant complained under Article 6
para. 1 of the Convention of the length of the criminal proceedings
against him.
PART II
SOLUTION REACHED
11. Following its decision on the admissibility of the
application, the Commission placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the parties
to submit any proposals they wished to make.
12. In accordance with the usual practice, the Secretary, acting
on the Commission's instructions, contacted the parties in order to
explore the possibilities of reaching a friendly settlement.
13. Following an exchange of letters through the intermediary
of the Secretary, the Commission resumed its examination of the above
case on 8 December 1989. Having regard to the case-law of the Court
under Article 50 of the Convention, and the practice of the Commission
as regards proposals to the Committee of Ministers in the context of
Article 32 of the Convention and the Rules adopted by the Committee
of Ministers for the application of Article 32, the Commission
proposed to the parties a friendly settlement of the above case on the
basis of a payment of AS 200,000.
14. The respondent Government accepted the Commission's proposal by
letter of 12 January 1990, the applicant by letter of 19 January 1990.
15. The Commission, at its session on 12 February 1990, noted
that the parties had reached an agreement regarding the terms of a
settlement. The Commission further found, having regard to the
terms of Article 28 para. 1 (b) of the Convention, that a friendly
settlement had been secured on the basis of respect for Human Rights
as defined in the Convention.
For these reasons, the Commission adopted this Report.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)