AS TO THE ADMISSIBILITY OF
Application No. 21024/92
by Ernst VOLKERT
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
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 2 September 1992
by Ernst VOLKERT against Austria and registered on 2 December 1992
under file No. 21024/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 1 December 1993 to communicate the
application;
- the observations submitted by the respondent Government on
23 February 1994 and the observations in reply submitted by the
applicant on 11 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1945 and living in
Vienna.
He is represented by Mr. K. Bernhauser, a lawyer practising in
Vienna.
On 10 May 1982 the applicant represented by counsel,
Mr. G. Zanger, a lawyer in Vienna, wrote to the Public Prosecution at
Vienna Regional Court (Landesgericht) accusing himself of negligent
bankruptcy (fahrlässige Krida). At the same time he made a request to
the Vienna Regional Court for composition proceedings
(Ausgleichsantrag). On 9 July 1982 the investigating judge at the
Vienna Regional Criminal Court decided to institute preliminary
investigations and summoned the applicant for 27 July 1982, who,
despite being duly summoned, did not present himself.
On 22 February 1985 the Public Prosecution filed an indictment
against the applicant and a certain SCH. accusing SCH. of counts of
negligent and fraudulent bankruptcy and of other economic offences and
the applicant of negligent bankruptcy. According to the indictment,
received by the trial court on 27 March 1985, SCH. was the responsible
manager of the SCH. Ltd. company and the applicant responsible manager
of the V. Ltd. company. SCH. and the applicant as well as their
companies worked closely together. The two managers were considered
to be responsible for the financial breakdown of their companies
causing losses to the companies' creditors in the amount of AS 10.5
million in the case of the SCH. company and 23.5 million in the case
of the V. company. The applicant was inter alia accused of having
between 1980 and 11 May 1982 increased the debts of his company by at
least AS 1.4 million knowing that the company was insolvent and of
having suppressed the companies's accounts. In addition the applicant
had increased his own insolvency by offering security for debts of the
SCH. company.
According to the indictment SCH. had in June 1982 absconded, and
returned to Austria in 1984. He could first be interrogated by the
police for economic crimes in August 1984.
A first hearing took place on 26 August 1985 and the case was
adjourned sine die for the purpose of the preparation of an expert
opinion.
On 7 August 1986 the expert opinion was submitted and on
8 August 1986 was sent to the Public Prosecution for their
observations.
On 23 January 1987 the presiding judge decided to join the
proceedings against one M.G. with the pending proceedings.
On 20 April 1987, the Public Prosecution submitted further
results of investigations carried out by the police for economic crimes
on 27 January 1987.
On 30 April 1987 the presiding judge requested that the complete
files be submitted to him.
On 27 July 1988 he fixed the trial hearing to take place on
8 August 1988.
At the hearing of 8 August 1988 the co-accused SCH. and M.G. and
two witnesses were heard while the applicant was absent.
A further hearing was fixed for 5 September 1988 and had to be
postponed because of the absence of a lay judge.
On 5 September 1988 the Public Prosecution informed the Vienna
Regional Court that it intended to modify and extend the indictment as
continued investigations brought to light further objectionable
business transactions.
On 15 September 1988 the trial continued and the applicant as
well as three witnesses were heard. The indictment was modified and
extended.
On 15 September 1988 another hearing was held. The indictment
was extended. The applicant was convicted by the Vienna Regional Court
on seven counts of negligent bankruptcy, one count of aggravated fraud
(schwerer Betrug) and two counts of fraudulent bankruptcy. The
objectionable business transactions were according to the court carried
out in the applicant's case between October 1979 and May 1984 in
respect of negligent bankruptcy, in January 1982 in respect of the
aggravated fraud and between April 1982 and May 1984 in respect of a
count of fraudulent bankruptcy and aggravated fraud. The judgment
which inter alia describes the business transactions in question
comprises 75 pages. The judgment was served on the applicant's lawyer
on 2 May 1989.
SCH. and co-accused M.G. were convicted of similar offences, SCH.
was acquitted on one count of fraudulent bankruptcy.
The applicant was sentenced to 30 months' imprisonment. In
respect of part of the sentence (20 months imprisonment) the applicant
was granted a 3 year period of probation. On 17 May 1989 the applicant
lodged an appeal as to the sentence and a plea of nullity. The latter
remedy was partly granted by the Supreme Court (Oberster Gerichtshof)
which on 20 March 1990 in part confirmed the judgment appealed from but
sent the case back for a new trial in the respect of one count of
aggravated fraud and consequently for a new determination of the
sentence.
On 5 November 1991 the applicant and the co-accused M.G. were
acquitted on one count of aggravated fraud but he was given an
additional sentence of 23 months and 5 days imprisonment for the
offenses with regard to which the Supreme Court had confirmed the
applicants' culpability. In fixing the sentence the court had regard
to another conviction pronounced by the Regional Court in Klagenfurt
on 17 January 1990 imposing a fine for causing wilful damage to
property. The court considered that the additional sentence was
necessary in view of the especially high amount of damages caused by
the applicant. Taking into account that the applicant had admitted the
offenses and had not committed any criminal acts since May 1984 the
court considered that the execution of the total of the sentence could
be stayed on probation.
On 8 April 1992 the Vienna Court of Appeal following an appeal
lodged by the Public Prosecution amended the sentence to 27 months and
5 days imprisonment granting a period of probation of 2 years with
regard to twenty months of this sentence. This court considered that
the fact that the applicant had not committed further offences during
a rather lengthy period of proceedings was outweighed by the long
periods over which the objectionable business transactions were carried
out. Therefore the court considered it unjustified to grant a period
of probation with regard to the total of the sentence.
COMPLAINTS
The applicant considers that the criminal proceedings against him
were excessively long taking into account that he laid charges against
himself already in 1982.
THE LAW
The applicant's complaint concerns the length of proceedings at
issue. According to the applicant, the length of proceedings is
incompatible with the "reasonable time" requirement (Article 6 para. 1
(Art. 6-1) of the Convention). The Government dispute this argument.
The period to be considered in the present case may be considered
to have started on 9 July 1982 when the investigating judge summoned
the suspects. It ended on 8 April 1992 when the Vienna Court of Appeal
amended the sentence imposed on the applicant by the trial court.
The Commission notes that the proceedings lasted nearly ten
years, a very substantial period. It therefore considers that, in the
light of the criteria established by the case-law of the Convention
organs in respect of "reasonable time" (complexity of the case, conduct
of the applicant and of the competent authorities), and having regard
to all the information in its possession, this complaint requires
examination of the merits.
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) (C. L. ROZAKIS)
Full & Egal Universal Law Academy