CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 15321/89                       by Franz SCHIEHSER                       against Austria           The European Commission of Human Rights sitting in private on 16 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 21 April 1989 by Franz Schiehser against Austria and registered on 31 July 1989 under file No. 15321/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to :        -   the Commission's decision of 1 October 1990 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         6 February 1991 and the observations in reply submitted         by the applicant on 27 March 1991;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, a retired civil servant, is an Austrian citizen, born in 1920 and living in Vienna.   He is represented by Mr. F.C. Obendorfer, a lawyer in Vienna.           The facts as agreed between the parties may be summarised as follows.           On 20 March 1980 a search and seizure was effected by the prosecution branch of the Austrian tax authorities (Finanzstraf- behörde) on the premises of the enterprise M.K., a construction firm. It followed from the documents seized that the enterprise had paid bribe money (Schmiergeldzahlungen) to various civil servants, inter alia two payments in 1976 and 1978 to the applicant.           On 24 October 1980 the police laid charges against the applicant and on 7 July 1981 an indictment was filed accusing the applicant of two counts of taking bribes (Geschenkannahme).           On 17 October 1981 the investigating judge submitted the case to the trial court (Schöffengericht) in order to fix a date for the hearing.   Fifty other cases were disconnected from the proceedings against the applicant.           On 15 November 1981 the Public Prosecution (Staatsanwaltschaft) in Vienna requested supplementary preliminary investigations as there was then suspicion that the applicant had been corrupted by taking the bribes (pflichtwidrige Vornahme oder Unterlassen von Amtsgeschäften). The request was granted and the files retransmitted to the investigating judge on 26 November 1981.           On 12 November 1985 another indictment was filed against the applicant and twelve other civil servants.           The trial was fixed to take place between 6 November and 12 December 1986.   However, on 6 November 1986 the proceedings against the applicant had to be severed from those against the others due to his illness.           The trial against the applicant started on 2 December 1987 and had to be postponed sine die because of a request made by the defence for the taking of further evidence.   On 16 June 1988 the applicant was convicted by the Vienna Regional Court (Landesgericht) on two counts of taking bribes (Geschenkannahme durch Beamte) and sentenced to two months' imprisonment.   He was granted a two-year period of probation. He was acquitted of a further charge of taking bribes.           According to the findings of the trial court, based on the testimony of several witnesses and documentary evidence, the applicant had, when working as a civil servant in the Federal Administration of Public Buildings (Bundesgebäudeverwaltung), accepted bribes on 16 December 1976 in the amount of 7,100 AS and a further sum of 1,050 AS in the course of 1978.   The money was paid by the construction firm M.K. which had received construction orders from the Federal Administration of Public Buildings.   These payments had been entered in a notebook in which the owner of the firm, Mrs. K., had recorded cash payments made to various civil servants, inter alia the applicant. In most cases she had also noted the percentage figure which the payment represented in relation to the value of the order received. Mrs. K. could not be heard before the trial court because she had suffered a depression.   During the pre-trial proceedings she had stated that the entries in the notebook corresponded in reality to private withdrawals for her own purposes which, however, she wanted to conceal from her employee dealing with the bookkeeping. The trial court considered these allegations to be incredible as Mrs. K., as owner of the firm, had no reason to conceal private withdrawals in this manner. In particular the notebook did not form part of the firm's official bookkeeping but was intended only to keep Mrs. K. informed of her private spending.   She had no obligation to render account to her employee of her expenditures.           Having regard to a medical expert opinion, the trial court further considered that Mrs. K. was not mentally ill at the time when the relevant payments were effected and recorded in her notebook.           Insofar as witness N., Mrs. K.'s employee, had confirmed that in her opinion the entries in Mrs. K.'s notebook did not relate to bribe money but to private expenditures, the trial court considered that this was a mere assumption of N. which, in the light of all the circumstances, was absurd and unrealistic.           On the other hand the trial court considered credible the statements of witness E. Kl. who had effected the payments and had incriminated the applicant in the pre-trial proceedings.   At the trial he had declared that he no longer remembered all the details of the various bribe payments but he could confirm that his former statements relating to the applicant were correct.           The trial court took into account as mitigating circumstance that the offences in question had been committed a long time ago and that the applicant's conduct before the offences as well as thereafter had been correct.           The applicant lodged an appeal (Berufung) and a plea of nullity (Nichtigkeitsbeschwerde) arguing that his conviction was unfounded, that relevant facts had been disregarded, that the medical expert opinion had to be interpreted as indicating that the witness, Mrs. K., had been mentally ill for about thirty years, and that circumstances discharging him had not been considered.           On 24 November 1988 the Supreme Court (Oberster Gerichtshof) dismissed both remedies.   The Court stated inter alia that the judgment appealed from was in line with the expert opinion in which it was unequivocally stated that the expert had found nothing to show that Mrs. K. was mentally ill at the time when she recorded the payments in question.           The chronology of the events is listed in the attached time-table.   COMPLAINTS           The applicant complains that he was convicted on the basis of vague documents written by a mentally insane person whom he did not have the opportunity to cross-examine at the trial.   He further complains of the length of the criminal proceedings.           He invokes Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 2 April 1989 and registered on 31 July 1989.           On 1 October 1990 the Commission decided to communicate the complaint on the length of the proceedings for observations on admissibility and merits.   After an extension of the time-limit the respondent Government submitted their observations on 6 February 1991 and the applicant replied on 27 March 1991.   THE LAW   1.       The applicant mainly complains of the length of the criminal proceedings against him and alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention, which provides that:           "In the determination of any criminal charge         against him everyone is entitled to a ...         hearing within a reasonable time by ... [a]         tribunal."           The Commission first observes that according to the Government's submissions the criminal proceedings in question were initiated with the Vienna Regional Court by the police on 24 October 1980. They ended with the Supreme Court's decision of 24 November 1988 and thus lasted eight years and one month.           The Commission notes that the sentence was mitigated on account of the fact that the offences had been committed a long time ago. However, the mitigation of the sentence alone does not deprive the applicant of the status as "victim" (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A No. 51, p. 30, para. 66).           The Commission has taken into account the parties' observations as to the reasonableness of the period in question.   A preliminary examination of the application does not disclose sufficient justification for the delays that occurred in the proceedings.   The Commission therefore considers that the question of whether the length of the proceedings in the present case exceeded the reasonable time provided for in Article 6 para. 1 (Art. 6-1) of the Convention raises serious points of fact and law which cannot be resolved at this stage in the proceedings, but necessitate a thorough examination of the merits of the case.           The Commission further observes that there are no other grounds for considering this complaint inadmissible.   2.       The Commission has examined the applicant's remaining complaint, but finds that the applicant's submissions do not disclose any appearance of a violation of the Convention.   The Commission notes in particular that the applicant's conviction was not only based on Mrs. K.'s pre-trial statements but also on documentary evidence and the statements of the witness E. Kl.           It follows that to this extent the application has to be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention as being manifestly ill-founded.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE INSOFAR         AS IT CONCERNS THE LENGTH OF THE PROCEEDINGS,          without prejudging the merits;           DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.   Secretary to the Commission                President of the Commission      (H.C. KRÜGER)                                (C.A. NØRGAARD)