CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1993

.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. 17617/91                       by Walter POSCHER                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 31 March 1993, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mrs. M.F. BUQUICCHIO, Secretary to the First 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 23 November 1990 by Walter POSCHER against Austria and registered on 8 January 1991 under file No. 17617/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows.         The applicant, born in 1924, is an Austrian national and resident in Vienna.   Before the Commission he is represented by Mr. K. Bernhauser, a lawyer practising in Vienna.         In 1976 criminal proceedings were instituted against the applicant and others on the suspicion of corruption, smuggling and other tax offences under SS. 2 and 24 para. 1 of the Exchange Control Regulations (Devisengesetz), S. 33 para. 1 and S. 37 para. 1 of the Code of Tax Offences (Finanzstrafgesetz) were formally opened on 11 November 1976.   The applicant was detained on remand from 11 November 1976 until 24 April 1977.         On 30 July 1977 the criminal proceedings against the applicant on the suspicion of tax evasion under S. 33 paras. 1 to 3, S. 13 of the Code of Tax Offences in the period from 1971 until 1975, and of forgery of documents under S. 223 of the Penal Code (Strafgesetzbuch), as well as the proceedings against three other suspect persons relating to charges under the Code of Tax Offences, were separated from the main proceedings.    The applicant was informed accordingly on 6 September 1977.   On 26 November 1977 these proceedings were provisionally discontinued.         On 24 November 1977, in the main proceedings, the Vienna Regional Court (Landesgericht), having held several hearings in October and November 1977, convicted the applicant of having incited a public servant to abuse of power in 1976, of having committed exchange control offences on two counts and smuggling on one count between July and September 1975, and of having evaded turnover tax in the period from January until September 1976. It sentenced the applicant to one year's imprisonment and imposed a fine of AS nine million; furthermore it fixed AS 86,186,369 as compensation in lieu of confiscation or one year's imprisonment in default of payment.   On 5 October 1978 the applicant was released on probation.   On 3 July 1980 the sentence was remitted.         Following partly successful appeal proceedings, the tax assessment proceedings against the applicant, which had apparently started in the early Seventies, were terminated in July 1989.         On 8 March 1990 the Vienna Public Prosecutor's Office (Staats- anwaltschaft) preferred an indictment against the applicant charging him with having evaded turnover, income and trade tax in the years 1969 until 1973 and capital tax in 1969, further with having attempted to evade capital tax in 1972 until 1976, as well as turnover, income and trade tax in 1974 and 1975.   The relevant overall amount was approximately AS thirty million.   The Public Prosecutor's Office considered that the applicant would have to be punished for completed and attempted tax evasion under S. 33 paras. 1 and 3 a the Code of Tax Offences, taking into account the judgment of the Vienna Regional Court of 24 November 1977, so far as it related to smuggling and tax evasion.           In the reasons for its indictment, the Office noted in particular that the applicant had been convicted in 1977 on the basis of facts which were also at issue in the present criminal proceedings.   Thus only a supplementary punishment could be imposed.   The Office referred in detail to the results of the examination of the applicant's business by tax inspectors, and the revised tax assessments in these respects, which had become final after partly successful appeal proceedings. Finally, the Office stated that prosecution against the applicant was prescribed only as from November 1991.   In this respect, the Office noted in particular that the criminal proceedings against the applicant on the suspicion of tax evasion under S. 33 para. 1 of the Code of Tax Offences had already been instituted on 11 November 1976, and that part of the relevant tax assessments dated 7 March 1972.         The indictment was received at the Vienna Regional Court on 23 March 1990.   It was served upon the applicant on 11 April 1990.   On 18 April 1990 Mr. Bernhauser presented himself as the applicant's counsel.   On 23 April 1990 the applicant appealed against the indictment.   His appeal was dismissed by the Vienna Court of Appeal on 18 October 1990.         On 24 March 1991 the Vienna Regional Court fixed the 11 June 1991 as date for the trial.   On that date the trial was postponed sine die on account of the applicant's illness.         On 31 July 1991 the applicant requested that an expert be appointed to deliver an opinion as to his capacity to participate in the proceedings.   The Regional Court appointed Dr. S. as expert in this respect.         On 16 March 1992 the Vienna Public Prosecutor's Office withdrew the indictment against the applicant on the ground that prosecution had become statute-barred.         On 31 March 1992 the Vienna Regional Court discontinued the proceedings against the applicant.     COMPLAINTS         The applicant complains about the length of the criminal proceedings against him.   He invokes Article 6 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 November 1990 and registered on 8 January 1991.         On 13 January 1992 the Commission decided to communicate the application to the respondent Government.         The Government's observations were, after an extension of the time-limit, submitted on 7 July 1992.   Upon a reminder, the applicant's observations in reply were submitted on 17 December 1992.       THE LAW         The applicants consider that the criminal proceedings against them exceeded a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Article 6 para. 1, so far as relevant, provides:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       ..."         The Government submit that, having regard to the complexity of the case and the applicants' conduct, the length of the proceedings is not in breach of Article 6 para. 1 (Art. 6-1).         The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of the reasonableness of the length of proceedings, and having regard to all the information in its possession, that a thorough examination of this complaint is required, both as to the law and the facts.           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)                        (J.A. FROWEIN)