FINAL
AS TO THE ADMISSIBILITY OF
Application No. 15062/89
by Erwin and Robert SCHIANSKY
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 April 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 2 May 1989 by
Erwin and Robert Schiansky against Austria and registered on
29 May 1989 under file No. 15062/89;
Having regard to the Commission's Partial Decision of 7 May 1990;
Having regard to the observations submitted by the respondent
Governemnt on 22 August 1990 and the applicant's observations in reply
submitted on 10 September 1990;
Having regard to the Commission's decision to refer the case to
the First Chamber;
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 applicants are Austrian nationals born in 1952 and 1954
respectively and resident in Vienna.
In their application, in which they rely on Article 6 para. 1 of
the Convention, they complain of the length of the proceedings before
the Austrian courts.
The following is a summary of the proceedings:
According to the applicants, the proceedings began in February
or March 1985, when the first and second applicants, respectively, were
first questioned by the police. On 6 June 1986 an injunction was laid
against them alleging fraud in connection with the alleged theft of
recording equipment from their recording studio. They were questioned
on the same day, and arrested on 8 June 1986. They were acquitted of
fraud by the Korneuburg Regional Court (Kreisgericht) on 16 May 1988.
On 17 June 1989 the Supreme Court (Oberster Gerichtshof), on the
prosecution's plea of nullity, set aside the judgment of 16 May 1988
and remitted the case to the Steyr Regional Court. On 27 September
1990 the applicants were acquitted for a second time. The prosecution
announced its intention to appeal. On 12 February 1991 the applicants
informed the Commission that the prosecution had withdrawn its notice
of appeal.
THE LAW
The applicants' complaint relates to the length of the
proceedings.
According to the applicants, the proceedings began in February
or March 1985, when the first and second applicants, respectively, were
first questioned by the police. As the proceedings finished at a date
between 27 September 1990 and 12 February 1991, the applicants consider
the length to be over five and a half years. They consider this to be
in breach of the "reasonable time" requirement (Article 6 para. 1
(Art. 6-1) of the Convention). The Government consider that the
proceedings began on 6 June 1986, when the applicants were first fully
questioned in connection with their alleged involvement in the fraud,
and consider that the "reasonable time" has not been exceeded.
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 the case raises
questions which require an examination on the merits.
For these reasons the Commission unanimously
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy