CEDH · CASELAW;REPORTS;ENG — 8 juillet 1991

.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 }  EUROPEAN COMMISSION OF HUMAN RIGHTS     FIRST CHAMBER   Application No. 13373/87   H.   against   AUSTRIA   REPORT OF THE COMMISSION   (adopted on 8 July 1991)     TABLE OF CONTENTS                                                   Pages I. INTRODUCTION       (paras. 1 - 15) ........................................    1-2         A.       The application            (paras. 2 - 4) .................................     1         B.       The proceedings            (paras. 5 - 10) ................................     1         C.       The present Report            (paras. 11 - 15) ...............................     2     II.      ESTABLISHMENT OF THE FACTS       (paras.   16 - 40) ......................................    3-5     III.     OPINION OF THE COMMISSION       (paras. 41 - 58) .......................................    6-8         A. Complaint declared admissible          (para. 41) ..........................................     6         B. Point at issue          (para. 42) ..........................................     6         C. As to the alleged violation of Article 6          para. 1 of the Convention          (paras. 43 - 57) ....................................    6-8            1.   General considerations (paras. 43 - 44) ..........     6            2.   Determination and assessment of the length             of proceedings (paras. 45 - 57) ..................    6-8         D. Conclusion          (para. 58) ..........................................     8   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ..................     9   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ...............    10   I.     INTRODUCTION     1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant, H., is an Austrian citizen, born in 1952 and residing in Hagenberg, Austria.   She is represented by Messrs. Christian Slana and Günter Tews, lawyers practising in Linz.   3.       The application is directed against Austria.   The respondent Government are represented by their Agent, Mr.   Helmut Türk, Head of the International Law Division of the Federal Ministry of Foreign Affairs.   4.       The application concerns the length of criminal proceedings instituted against the applicant on the basis of a complaint filed with the police on 15 November 1983 and discontinued on 25 October 1988. The applicant complains of the unreasonable length of the proceedings and alleges a violation of Article 6 para. 1 of the Convention.   B.       The proceedings   5.       The application was introduced on 15 June 1987 and registered on 12 November 1987.   On 6 July 1989 the Commission decided to give notice of the application to the Austrian Government and to invite them to present their observations in writing on the admissibility and merits of the application.   6.       The Government presented their observations on 25 October 1989 and the applicant replied on 18 December 1989.   7.       On 7 May 1990 the Commission declared the application admissible.   8.       On 28 May 1990 the parties were invited, should they so desire, to submit further evidence and observations on the merits of the application.   They did not avail themselves of this possibility.   9.       After consulting the parties the Commission, by decision of 8 December 1990, referred the application to the First Chamber.   10.      After declaring the case admissible the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 28 May and 7 September 1990.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected. C.       The present Report   11.      The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.   J.A. FROWEIN, President of the First Chamber              F. ERMACORA              E. BUSUTTIL              A.S. GÖZÜBÜYÜK              H. DANELIUS            Sir   Basil HALL            MM.   C.L. ROZAKIS              L. LOUCAIDES              B. MARXER   12.      The text of this Report was adopted on 8 July 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found       disclose a breach by the State concerned of its       obligations under the Convention.   14.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   15.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   16.      The applicant was the director of a kindergarten owned by a welfare organisation (Österreichischer Sozialhilfe- und Wohlfahrts- verband).   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 15 November 1983.   17.      On 18 November 1983 the applicant was given notice by her employer.   A labour court action brought by her against her former employer was adjourned pending the outcome of the criminal proceedings.   18.      In January 1984 the applicant was again appointed director of the kindergarten in question which had been taken over by another organisation.   19.      Having received the complaint the police started an investigation.   On 15 November 1983 a search and seizure order was issued by the Regional Court (Landesgericht) in Linz and a report on the result of the search and seizure was submitted on 28 December 1983. It comprised 706 pages.   On 16 December 1983 the applicant's counsel submitted a power of attorney.   20.      The applicant was summoned on 30 December 1983 and heard on 24 January 1984 at the Regional Court.   21.      On 31 January 1984 the Public Prosecution requested that preliminary investigations (Voruntersuchung) be opened as the applicant was suspected of having committed embezzlement (Veruntreuung).   On 2 February 1984 the request was granted by the Regional Court.   22.      On 10 February 1984 the files were sent to the Labour Court (Arbeitsgericht) following a request by this Court.   They were returned on 13 March 1984.   23.      On 30 March 1984 the applicant was summoned and she was heard on 4 May 1984.   The witness P. of the Regional Control Commission (Landeskontrollkommission) was likewise heard and requested to submit certain documents.   On 25 July 1984 the applicant submitted a memorial with documentary evidence.   On 8 August 1984 the applicant and the witness P. were again summoned to appear on 4 September 1984.   The witness P. was prevented from appearing, and only the applicant and two further witnesses, Pe. and L., were heard on 4 September 1984.   24.      On 24 September 1984 the file was submitted to the Public Prosecution which on 2 October 1984 filed an indictment accusing the applicant of having embezzled approximately 225,000 AS since 1978.   It stated that the applicant had admitted before the police 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 41,000 AS as compensation when her irregularities were discovered. 25.      The applicant had, however, withdrawn her confession before the investigating judge on 24 January 1984, apparently after consultation with her defence counsel.   She had then alleged that she had used all the money for purposes of the kindergarten.   The indictment concluded that this version was not trustworthy.   From the fact that the applicant had even accepted to pay compensation it followed that her confession corresponded to what had actually happened.   26.      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 had spent the funds entrusted to her for purposes of the kindergarten only.   27.      On 21 November 1984 the Regional Court 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 with the task of establishing the expert opinion.   28.      On 27 August 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 Court was in touch with the expert in order to make him expedite his work and 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.   29.      The expert opinion was submitted on 10 December 1986.   On 22 December 1986 two witnesses (A.Pe. and K.Pl.) were summoned and heard on 12 January 1987.   The preliminary investigations were subsequently terminated and on 19 January 1987 the files were submitted to the trial court.   On 23 January 1987 the presiding judge had to withdraw from the case because he had dealt with the matter while working as a public prosecutor.   On 28 january 1987 the case was assigned to another judge.   30.      On 25 February 1987 the first trial hearing was fixed for 11 May 1987.   On 1 April 1987 the defence requested nine witnesses to be summoned (P.H., O.H., B.B., H.S., K.Pl., E.Po., E.St., J.A. and A.Pe.). The defence also criticised the expert opinion as being incomplete.   31.      Having consulted the Public Prosecutor, the Court then tried in vain to contact the expert H. by telephone in order to find out whether he could complement his expert opinion before the hearing of 11 May 1987.   A copy of the defence memorial of 1 April 1987 was sent to the expert on 5 May 1987.   32.      At the oral hearing of 11 May 1987 it was decided to refer the matter back to the investigating judge for the hearing of witnesses F.D., T.R., and E.K..   Furthermore, it was ordered that invoices and other documents which the applicant allegedly kept in a yellow envelope be procured and that the expert complement his opinion by establishing a list of receipts and expenditures on the basis of both the defendant's documents and those on which the police and the control authorities had relied. 33.      On 4 June 1987 the file was sent to the investigating judge who, on 15 June 1987, summoned the witnesses F.D., T.R., and E.K. to appear on 1 July 1987.   E.K. replied that he could not make any statements relevant to the case.   34.      On 29 June 1987 the police authorities were requested to make enquiries with regard to the existence of a yellow envelope with invoices and documents and with regard to the authorship of the audit report of 1983 incriminating the applicant.   35.      On 1 July 1987 the witnesses T.R. and F.D. were heard.   36.      On 16 September 1987 the police authorities reported that a yellow envelope with documents had not been found during the search and seizure in November 1983.   M.D. and L. Sch. were named as authors of the audit report.   37.      On 22 October 1987 the witness E.K., who had been summoned again on 2 October 1987, was heard and the witnesses M.L. and L. Sch. were summoned and heard on 4 November 1987.   On the same day the files were sent to the expert H. for complementation of his expert opinion.   38.      According to a file note of the Public Prosecution of 7 June 1988 attempts had repeatedly been made to contact the expert H. by telephone.   On 8 June 1988 the Public Prosecutor requested the appointment of another expert.   On 13 June 1988 the Court granted this request and appointed the expert M.   39.      On 13 July 1988 the expert H. submitted his supplementary report.   The appointment of M. was therefore cancelled.   40.      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 on this ground.   III.   OPINION OF THE COMMISSION   A.       Complaint declared admissible   41.      The Commission has declared admissible the applicant's complaint that the length of the criminal proceedings against her violated Article 6 para. 1 (Art. 6-1) of the Convention.   B.       Point at issue   42.      Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.       As to the alleged violation of Article 6 para. 1         (Art. 6-1) of the Convention   1.       General considerations   43.      Under the terms of Article 6 para. 1 (Art. 6-1) first sentence of the Convention, "In the determination of ... a criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...".   44.      The Commission recalls that the reasonableness of the length of proceedings must be assessed according to the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the authorities dealing with the case (Eur.   Court H.R., Milasi judgment of 25 June 1987, Series A no. 119, p. 46 para. 15).   2.       Determination and assessment of the length of proceedings   45.      Regarding the period to be considered, the Commission notes that the complaint filed on 15 November 1983 marks the commencement of the proceedings in question.   46.      They were ended on 25 October 1988 when the Regional Court in Linz decided to discontinue the proceedings.   The proceedings consequently lasted nearly five years.   47.      The applicant submits that this lapse of time cannot be deemed to be "reasonable" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The criminal proceedings did not involve difficult factual or legal issues.   The indictment was prepared without prior complete establishment of all relevant facts and without giving the applicant adequate facilities to explain the manner in which she had received and spent the money for the purposes of the kindergarten. Therefore an expert opinion became necessary. The applicant received knowledge of the expert report only three months after it had been submitted to the Court, i.e. on 6 March 1987, when she was informed that a trial hearing had been fixed for 4 May 1987.   Only subsequently was it possible for her to request the taking of further evidence as the expert report was incomplete.   48.      According to the applicant it is a notorious fact that Mr.   H., being a renowned expert, is overburdened with work.   The Court, when choosing this expert, did not ensure that the expert would submit his report within a reasonable time.   49.      The Government submit that the case was complex because embezzlement was alleged to have taken place over a period of six years and a large number of documents had to be collected, checked and compared with one another to find out the purposes for which the money entrusted to the applicant had been used.   The applicant herself based her request of 4 August 1988 for reimbursement of costs on the affirmation that the proceedings were of an extremely tedious and difficult nature as it was necessary to work through some 1441 copies of documentary evidence.   50.      The Government further state that the applicant caused certain delays in that, apparently for tactical reasons, she submitted requests for the taking of further evidence shortly before the hearings, i.e. on 15 November 1984 and 1 April 1987.   This made it necessary to refer the case back to the investigating judge.   Only two of the witnesses named by the defence in the request of 1 April 1987 had already been named and heard before.   51.      Finally, the respondent Government consider that the State cannot be held responsible for the delays caused by the expert as the judicial authorities could not do more than urge the expert, as they did by way of various telephone calls, to complete his work. Eventually it was even decided to replace Mr.   H. by another expert. Even if this measure had been taken earlier a new expert would have needed a certain time to study the case.   52.      The Commission considers that the proceedings in question did in fact raise certain complex issues of a factual nature in view of the uncontestedly voluminous amount of documentary evidence which it was apparently necessary to take into account in the establishment of the facts.   53.      As regards the handling of the case by the investigating and judicial authorities, the Commission finds two prolonged periods of inactivity which raise doubts as to the observance of the right to a trial within a reasonable time.   These periods during which the proceedings practically came to a standstill were those during which the matter was in the hands of the expert H., namely from 23 November 1984 to 10 December 1986, i.e. about two years, and again from 4 November 1987 to 13 July 1988, i.e. about eight months. The Government have not alleged that these delays were due to the complexity of the matter.   They have only argued that the expert was urged to complete his work and that replacing him would also have caused a loss of time.   54.      However, the Court and the Commission have previously held that the judicial authorities are responsible for the way in which expert assessments ordered by them are carried out.   Experts work within the framework of judicial proceedings supervised by a competent judge, who remains responsible for the preparation and speedy conduct of the trial (cf.   Eur.   Court H.R., Martins Moreira judgment of 26 October 1988, Series A no. 143, p. 21 para. 60; Gobrecht v. Austria, Comm.   Report 3.7.89, No. 11744/85, para. 75).   It cannot be found in the present case that sufficient and effective measures were taken by the competent authorities to speed up the preparation of the expert opinion.   It has not been shown that, before appointing the expert H., the Court, by fixing a time-limit or otherwise, tried to ensure that his report would be available within a reasonable time. Furthermore, more than one and a half years elapsed before the Court contacted the expert H. in order to make him expedite his work.   After H. had been requested on 4 November 1987 to submit supplementary explanations, several months again elapsed before the Court took any action.   55.      The applicant may also have contributed to the delay in the investigation proceedings.   While in 1983 she first confessed to having embezzled funds, she later claimed to have spent all the money for kindergarten purposes but did not name some of the witnesses until 1 April 1987.   However, the applicant cannot be held responsible for the time it took the expert to submit his report and his supplementary explanations, and it was the expert's slowness which was the main cause of the delay in the proceedings.   56.      The expert allegedly could not reach the applicant in the summer of 1986.   However, it still remains unexplained why he remained inactive from 23 November 1984 until that time.   57.      Taking all relevant factors into consideration, the Commission is of the opinion that the applicant's case was not heard within a "reasonable time".   D.       Conclusion   58.      The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber      President of the First Chamber          (M. de SALVIA)                      (J.A. FROWEIN)   APPENDIX I   HISTORY OF PROCEEDINGS   Date                  Item ______________________________________________________________________   15 June 1987               Introduction of the application   12 November 1987             Registration of the application     Examination of Admissibility     6 July 1989               Commission's decision to invite                       the Government to submit observations                       on the admissibility and merits of                       the application   25 October 1989         Government's observations   18 December 1989             Applicant's observations in reply     7 May 1990                 Commission's decision to declare the                       application admissible     Examination of the merits   28 May 1990                 Decision on admissibility transmitted                       to the parties   17 April 1991             Commission's consideration of the                       state of proceedings     8 July 1991               Commission's deliberations on the                       merits, final vote and adoption of                       the Report