CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1994

.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. 20454/92                     by L. W.                     against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 7 April 1994, 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                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             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 12 June 1992 by L. W. against Austria and registered on 10 August 1992 under file No. 20454/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 2 April 1993 and the observations in reply submitted by the applicant on 7 June 1993;        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 1941, is an Austrian national and resident in Vienna. Before the Commission she is represented by Ms. H. Hofbauer, a lawyer practising in Vienna.        On 10 March 1986 the applicant was questioned by the Vienna Federal Police Department (Bundespolizeidirektion) in connection with investigations concerning a series of fraud cases committed to the disadvantage of the Austrian Bundesländer Insurance Company. These proceedings involved initially investigations against about one hundred suspects, including a member of the managing board, and the overall damage caused by the numerous fraud cases amounted to AS 130 million. On 13 March 1986 she was again heard by the Vienna Federal Police Department, this time as a suspect.        On 24 March 1986 investigations were instituted against the applicant. She was suspected of having committed fraud and fraudulent conversion to the disadvantage of the Austrian Bundesländer Insurance Company, her employer, in that in 1980/81 she had made false claims in connection with damages to her and her husband's construction of a bungalow.        On 14 August 1986 the Investigating Judge at the Vienna Regional Court (Landesgericht) heard the applicant on the suspicion against her.      On 26 August 1987 the Vienna Public Prosecutor's Office (Staats-anwaltschaft) preferred the indictment against the applicant and various other accused.        The trial started before the Vienna Regional Court on 20 January 1988. It continued on altogether 34 days between January and June, a last hearing being conducted in September 1988. The concept of the trial was to conduct the proceedings against the various accused individually so that the accused concerned only had to appear at some days of the trial, and the judgment on the charges against them was pronounced upon the close of the taking of evidence in their particular case.        On 24 January 1990 judgments were served upon most of the other accused. The proceedings against the applicant were separated from the main proceedings on the ground that following her statements at the trial, according to which a defrauded sum of money had been received by a third person, the Vienna Prosecutor's Office requested investigations against the person concerned as well as further investigations against the applicant on the suspicion of defamation. It appears that the proceedings were not separated at an earlier stage as the competent Judge had considered the outcome of the main proceedings as important.        On 5 February 1990 an expert opinion was requested as to the construction damages in respect of which the applicant had raised insurance claims. The amended version of this opinion was received at the Regional Court on 6 July 1990.          On 20 March and 10 April 1991 the Vienna Regional Court held trial against the applicant.        On 10 April 1991 the Regional Court convicted the applicant of attempted grave fraud and sentenced her to twenty months' imprisonment on probation. She was acquitted of the remainder of charges. The written judgment was served upon her on 30 August 1991.        On 19 December 1991 the Austrian Supreme Court (Oberster Gerichtshof) dismissed the applicant's appeal on points of law (Revision). Upon the applicant's appeal (Berufung), the sentence was reduced to fifteen months' imprisonment on probation. In this respect, the Supreme Court, weighing the mitigating and aggravating circumstances in fixing the applicant's sentence, had also regard to the length of the criminal proceedings against her and considered the sentence imposed by the Regional Court as slightly excessive ("Bei zusammenschauender Würdigung der ... Strafzumessungsgründe erscheint unter weiterer Bedachtnahme auf die lange Verfahrensdauer ... die vom Schöffengericht verhängte ... Freiheitsstrafe doch etwas überhöht"). The decision was served on 13 February 1992.     COMPLAINTS        The applicant complains under Article 6 para. 1 of the Convention about the length of the criminal proceedings against her, in particular about the delay between the first part of the trial in 1988 and its continuation in March 1991. She also submits that the written judgment of the Regional Court was served upon her belatedly.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 12 June 1992 and registered on 10 August 1992.        On 8 December 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.        On 2 April 1993 the Government submitted their observations. The observations in reply by the applicant were submitted on 7 June 1993.     THE LAW        The applicant complains about the length of the criminal proceedings against her.        Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time".        The Government consider that the applicant can no longer claim to be a victim, within the meaning of Article 25 (Art. 25) of the Convention, of the alleged breach of Article 6 para. 1 (Art. 6-1). They refer to the Supreme Court's judgment upon the applicant's appeal according to which it had regard to the length of the proceedings when reducing her sentence from twenty months' to fifteen months' imprisonment.        The Commission recalls that an applicant can no longer claim to be a victim within the meaning of Article 25 para. 1 (Art. 25- 1) of the Convention of a failure to observe the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention if the relevant courts expressly acknowledged the existence of a breach of that provision and if redress has been given (Eur. Court H.R., Eckle judgement of 15 July 1982, Series A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; No. 8858/80, Dec. 6.7.83, D.R. 33 p. 5).        In the present case, the Commission notes that the Supreme Court, in its judgment of 19 December 1991, reduced the applicant's sentence by five months to fifteen months' imprisonment on probation. Weighing the mitigating and aggravating circumstances, the Supreme Court had also regard to the length of the criminal proceedings against her.        The Commission finds that the Supreme Court did not expressly recognise a violation of Article 6 para. 1 (Art. 6-1) of the Convention due to an unreasonable length of the proceedings, and the length was only one supplementary consideration for reducing the sentence. In these circumstances, the applicant must still be regarded as victim of the alleged violation of her right to a hearing within a reasonable time.        As regards the length of the criminal proceedings against the applicant, the Government maintain that the relevant period started on 26 August 1987 when the indictment was preferred. They considered that the applicant had not been affected by the preceding investigations against her which had commenced in March 1986. Moreover, referring to the case-law of the Convention organs, they argue that the length was mainly due to the complexity of the case. They consider that no considerable delays were imputable to the Austrian authorities.        The Commission considers, in the light of the criteria established by the case-law of the Convention institutions on the question of "reasonable time" (the complexity of the case, the applicant's conduct and that of the competent authorities), 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 as to 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)                    (A. WEITZEL)