EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
APPLICATION No. 16038/90
Heinrich WRBA
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 8 January 1993)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1
II. ESTABLISHMENT OF THE FACTS
(paras. 7 - 13) . . . . . . . . . . . . . . . . . . . . . . . 2
III. OPINION OF THE COMMISSION
(paras. 14 - 25). . . . . . . . . . . . . . . . . . . . . . . 3
A. Complaint declared admissible
(para. 14) . . . . . . . . . . . . . . . . . . . . . . . 3
B. Point at issue
(para. 15) . . . . . . . . . . . . . . . . . . . . . . . 3
C. Compliance with Article 6 para. 1 of the Convention
(paras. 16 - 24) . . . . . . . . . . . . . . . . . . . . 3
D. Conclusion
(para. 25) . . . . . . . . . . . . . . . . . . . . . . . 4
APPENDIX : Decision on the admissibility of the application . . . . 5
I.INTRODUCTION
1. The present Report concerns Application No. 16038/90 by W.
against Austria, introduced on 29 November 1989 and registered on
22 January 1990.
2. The applicant, born in 1922, is an Austrian national and resident
in Vienna. He is a professor at Vienna University. Before the
Commission, he is represented by Mr. K. Bernhauser, a lawyer practising
in Vienna, and by Mr. W.L. Weh, a lawyer practising in Bregenz.
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
25 February 1991. On 27 May 1991 the application was referred to a
Chamber. Following an exchange of memorials, the applicant's complaint
under Article 6 para. 1 of the Convention relating to the length of
criminal proceedings was declared admissible on 13 January 1992. The
decision on admissibility is appended to this Report.
With a view to securing a friendly settlement of the case,
consultations took place with the parties between 17 January and
4 September 1992.
4. 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
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
5. In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by Austria.
6. 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
7. In 1979 criminal investigations were started against the
applicant who was suspected of having, as chairman of a private
association supporting a particular research institute at the Vienna
University, committed fraudulent conversion within the meaning of
S. 153 of the Austrian Criminal Code (Strafgesetzbuch). The
proceedings were also conducted against the Secretary to the
Association.
8. On 3 August 1979 the Vienna Regional Court (Landesgericht), upon
request of the Vienna Public Prosecutor's Office (Staatsanwaltschaft),
ordered that all documents of the above association relating to
credits, expenses etc. be seized.
9. On 25 April 1980, an accountant expert opinion was ordered. The
opinion was submitted on 16 June 1981 and received by the Regional
Court on 6 July 1981. The co-accused was heard by the Investigating
Judge (Untersuchungsrichter) on 22 November 1981 and 12 February 1982.
On 1 December 1982 the co-accused unsuccessfully requested that the
criminal proceedings be discontinued. The co-accused was again heard
by the Investigating Judge on 22 June 1983 and 22 November 1984.
10. On 3 July 1986 the Vienna Public Prosecutor's Office preferred
an indictment (Anklageerhebung). The applicant was charged with
fraudulent conversion in the period from March 1979 until February 1982
for having made unjustified payments to the co-accused.
11. On 26 January 1988 the Vienna Regional Court convicted the
applicant of fraudulent conversion and sentenced him to six months'
imprisonment on probation. The co-accused was convicted of fraudulent
conversion and false evidence. In these and the following proceedings
the applicant was represented by counsel.
12. On 27 October 1988 the Supreme Court (Oberster Gerichtshof), upon
the applicant's plea of nullity (Nichtigkeitsbeschwerde), quashed the
Regional Court's judgment with regard to his conviction. With regard
to his conviction of fraudulent conversion, the co-accused's plea of
nullity was also successful. The case was sent back to the Regional
Court.
13. On 27 June 1989, the Vienna Regional Court, upon a further
hearing, acquitted the applicant and the co-accused of the charges of
fraudulent conversion.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
14. The Commission has declared admissible the applicant's complaint
that his case was not heard within a reasonable time.
B. Point at issue
15. The point at issue is whether there has been a violation of the
Article 6 para. 1 (Art. 6-1) of the Convention in that the length of
the proceedings complained of exceeded a "reasonable time".
C. Article 6 para. 1 (Art. 6-1) of the Convention
16. Article 6 para. 1 (Art. 6-1) of the Convention 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 ..."
17. The period to be considered started at the latest on
3 August 1979 and terminated on 27 June 1989, thus almost ten years
later.
18. The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to its complexity, the
conduct of the parties and the conduct of the authorities dealing with
the case. In this instance the circumstances call for an overall
assessment (cf. Eur. Court H.R., Ficara judgment of 19 February 1991,
Series A no. 196-A, p. 9, para. 17).
19. According to the Government, the length of the period in question
was due to the complexity of the case, in particular the necessary
investigations relating to the financial transactions of the
association concerned as from 1970. Furthermore, the co-accused of the
applicant had made numerous requests concerning the taking of evidence
and other submissions, and the applicant had never objected thereto.
Having regard to the co-operation between the two accused, who in the
course of the proceedings had sometimes been assisted by the same
counsel, proceedings could not be separated. There were no delays to
be imputed to the Austrian judicial authorities.
20. The applicant denies any particular complexity of the case.
Moreover, he submits that he cannot be held responsible for any delay
caused by the co-accused in the course of the criminal proceedings.
He considers that there were several periods of inactivity on the part
of the judicial authorities, and on the whole an inefficient handling
of the case.
21. The Commission notes that the criminal proceedings against the
applicant concerned charges of fraudulent conversion. The
establishement of the financial transactions of the accused and the
association concerned required expert evidence. But, on the whole, the
case was not particularly complex.
22. The applicant's conduct did not contribute to the overall length
of the proceedings.
23. As regards the conduct of the Austrian authorities, the
Commission finds that the proceedings were not conducted with the
necessary expediency. In particular, it took the Prosecutor's Office
almost seven years to complete the investigations and prefer the
indictment against the applicant. At that stage, the preparation of
an expert opinion lasted more than thirteen months. The first set of
proceedings at first instance lasted about eighteen months. The
Austrian Government have not sufficiently explained these delays.
24. In these circumstances, the Commission finds that the length of
the proceedings complained of exceeded the "reasonable time" referred
to in Article 6 para. 1 (Art. 6-1) of the Convention.
D. Conclusion
25. 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