CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 septembre 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. 20007/92                       by Tibor FOCO                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 7 September 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 21 October 1992 by Tibor Foco against Austria and registered on 19 May 19912 under file No. 20007/92;         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 applicant is an Austrian citizen born in 1956.   He is detained at Stein Prison.   The facts of the application as submitted by the applicant and apparent from the documents lodged with the application, may be summarised as follows.         On 31 March 1987 the applicant, with a co-accused, was convicted before the Linz Regional Court (Landesgericht) of several offences, including murder.   He was sentenced to life imprisonment.   The pleas of nullity and appeals against sentence by both co-accused were dismissed by the Supreme Court (Oberster Gerichtshof) on 15 September 1987.   The applicant's representative received the decision of the Supreme Court on 23 October 1987.         On 12 May 1989 a request for the proceedings to be reopened (Wiederaufnameantrag) was dismissed, and an appeal against that decision was rejected by decision of the Linz Court of Appeal (Oberlandesgericht) on 6 June 1989.         On 8 January 1991 the applicant made a disciplinary complaint (Aufsichtsbeschwerde) against the presiding judge of the Court which convicted him in 1987.   On 14 May 1991 the Linz Court of Appeal rejected nine of the applicants ten points.   Point 6 of the applicant's points related to a complaint that, on 23 and 24 April 1987 a witness at the trial had been questioned by the police outside the confines of the trial, and that the presiding judge had been present for part of this questioning.   The Linz Court of Appeal, agreeing with the applicant, established a violation of Article 6 of the Convention in that the applicant's rights to a fair trial had been denied by the violation of the procedure rights to have public, direct and oral hearing, and the principle that all authorities must establish facts fairly (Instruktionsgrundsatz).   The judgment of the Linz Court of Appeal was declaratory, and no further measures followed.         On 11 December 1991 the Linz Regional Court dismissed requests by the applicant and his co-accused for the re-opening of the proceedings in which they were both convicted.   The Linz Court of Appeal, on 15 June 1992, re-opened the proceedings in respect of the co-accused but rejected the appeal (Beschwerde) of the applicant against the decision of 11 December 1991.   The Court, referring to its own decision of 14 May 1991, found that the violation of Article 6 there established could not give rise to the grounds for the proceedings to be reopened under Article 353 para. 2 Code of Criminal Procedure (Strafprozeßordnung).     COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in respect of his conviction.       THE LAW         The applicant alleges a violation of Article 6 (Art. 6) of the Convention in respect of his conviction.       However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".        In the present case the decision of the Supreme Court which was the final decision regarding the proceedings leading to the applicant's conviction was given on 15 September 1987 and received by the applicant's then representative on 23 October 1987, whereas the application was submitted to the Commission on 21 October 1991, that is more than six months after the date of this decision. Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.   The applicant's various attempts to have the proceedings re-opened and the disciplinary proceedings he introduced cannot affect this position.         The Commission notes that the decision of the Linz Court of Appeal of 14 May 1991 that the proceedings violated Article 6 (Art. 6) in one respect was given less than six months before the date of introduction of the application.   However, those proceedings were of the nature of disciplinary proceedings against a judge.   Accordingly, notwithstanding the conclusion that Article 6 (Art. 6) had been violated in one respect in the criminal proceedings, the disciplinary proceedings did not themselves determine the criminal charges which were at issue in the proceedings which culminated in the applicant's conviction.        It follows that the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                        (A. WEITZEL)