CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 13373/87                       by G.H.                       against Austria             The European Commission of Human Rights sitting in private on 7 May 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 15 June 1987 by G.H. against Austria and registered on 12 November 1987 under file No. 13373/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to :        -   the Commission's decision of 6 July 1989 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         25 October 1989 and the observations in reply submitted         by the applicant on 18 December 1989;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is an Austrian citizen, born in 1952 and living in Hagenberg.   She is represented by MM. Christian Slana and Günter Tews, lawyers in Linz.           The facts as submitted may be summarised as follows:           The applicant was the director of a kindergarten owned by a welfare organisation (Österreichischer Sozialhilfe- und Wohlfahrtsverband). On 10 November 1983 her employer laid criminal charges against her alleging that she had committed embezzlement.   The complaint was filed with the Linz Federal Police Directorate (Bundespolizeidirektion) on on 15 November 1983.   The police started investigations and on 2 October 1984 the Public Prosecutor in Linz filed an indictment against the applicant accusing her of having embezzled approximately AS 225,000 since 1978.   According to the indictment the applicant had on 17 November and 16 December 1983 admitted before the police to having used between 1978 and 1983, for private daily expenses, money paid to her by parents as contributions to the running of the kindergarten.   She had alleged that initially she only intended to borrow the money but later she lost control.   Also she had repaid a sum of AS 41,000 as compensation at the moment when her irregularities were discovered.           The confession had however been withdrawn before the investigating judge on 24 January 1984 apparently after consultation with her defence counsel.   She then had alleged to have used all money for purposes of the kindergarten.   The indictment concluded that this version was not trustworthy.   It followed from the fact that the applicant even accepted to pay compensation that her confession corresponded to what had actually happened.           In a memorial of 14 November 1984 the applicant's defence counsel contested the charges and requested that an expert opinion from an accountant be obtained in order to prove that the applicant spent the funds entrusted to her for purposes of the kindergarten only.           On 21 November 1984, the Regional Court (Landesgericht) in Linz ordered that an expert opinion, as requested by the defence counsel and also by the public prosecutor, be obtained.   A hearing that had been fixed for 23 November was consequently cancelled and the file sent back to the investigating judge.   On 23 November 1984 Prof.   H. in Linz was charged to establish the expert opinion.           In September 1986 the public prosecutor requested the court to urge the expert to submit his expert opinion.   It follows from a file note made on 4 September 1986 that the expert stated he would submit his expert opinion at the beginning of October.   According to the expert he had tried to contact the applicant but she had been on holiday the whole summer.           The expert opinion was submitted in December 1986.   On 25 February 1987 the Regional Court decided to hold an oral hearing on 11 May 1987.   At the oral hearing on 11 May 1987 the applicant was heard and it was decided to return the file to the investigating judge for further investigation and for obtaining supplementary explanations from the expert.   Witnesses were heard on 1 July 1987, 22 October 1987 and 4 November 1987.   On the latter date the expert was requested to submit a supplementary report.   On 13 June 1988 the Regional Court decided to replace the expert Prof.   H. by another expert, Dr.   M.   On 13 July 1988 Prof.   H. submitted a supplementary report.   The decision of 13 June 1988 was therefore cancelled.   On 28 July 1988 the public prosecutor withdrew the indictment and on the following day the Regional Court discontinued the proceedings.   On 17 August 1988 the private party to the proceedings stated that the accusations against the applicant were maintained.   On 24 October 1988 this declaration was withdrawn, and on 25 October 1988 the proceedings were definitely discontinued.   COMPLAINTS           The applicant complains of the length of the criminal proceedings and invokes Article 6 para. 1 of the Convention.           She denies having been absent in summer 1986 when the expert allegedly tried to contact her.   She considers that the indictment was filed too hastily although no witnesses had been heard previously as requested by defence counsel and furthermore no accounts and documents were available as evidence for or against her.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 16 June 1987 and registered on 12 November 1987.           On 6 July 1989 the Commission decided to invite the respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure, to submit written observations on admissibility and merits before 27 October 1989.   The Government's observations were submitted on 25 October 1989 and the applicant's reply on 18 December 1989.   THE LAW           The applicant complains of the length of the criminal proceedings against her.           She relies on Article 6 para. 1 (Art. 6-1) of the Convention, which provides:   "In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...".           The Commission notes that the proceedings in question began on 15 November 1983 and ended on 25 October 1988.   The proceedings therefore had lasted nearly five years when the Regional Court definitely discontinued them.           The Government have first submitted that the applicant had not exhausted the domestic remedies by not asking for the expert to be replaced by another expert.   The Commission considers, however, that she could not have been required to do this.   In fact, the expert was appointed in a criminal case by the court, and it was the court's task to see to it that the expert acted with sufficient speed.           The Government have also informed the Commission that the criminal proceedings against the applicant were discontinued on 25 October 1988.   However, there is no indication that the delay in the proceedings was the reason, or one of the reasons, for taking this decision.   Consequently, the Commission considers that the applicant can still claim to be a victim, in the sense of Article 25 (Art. 25), of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission further, after a preliminary examination of the parties' submissions, does not find that the applicant's complaint under Article 6 para. 1 (Art. 6-1) can be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   It considers that this issue can only be determined after an examination on the merits.           No other grounds of inadmissibility have been established.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.       Secretary to the Commission          President of the Commission       (H. C. KRÜGER)                        (C. A. NØRGAARD)