CEDH · CASELAW;REPORTS;ENG — 11 janvier 1995

.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                          Application No. 20566/92                                    W. S.                                   against                                     Austria                          REPORT OF THE COMMISSION                        (adopted on 11 January 1995)                              TABLE OF CONTENTS   Page   I.     INTRODUCTION       (paras. 1 - 6)   . . . . . . . . . . . . . . . . .            1   II.    ESTABLISHMENT OF THE FACTS       (paras. 7 - 24)    . . . . . . . . . . . . . . . .            2   III.   OPINION OF THE COMMISSION       (paras. 25 - 36)   . . . . . . . . . . . . . . . .            4         A.    Complaint declared admissible            (para. 25)    . . . . . . . . . . . . . . . .            4         B.    Point at issue            (para. 26)    . . . . . . . . . . . . . . . .            4         C.    The alleged violation of Article 6 para. 1 of            the Convention            (paras. 27 - 35)    . . . . . . . . . . . . .            4              CONCLUSION            (para. 36) . . . . . . . . . . . . . . . . .            5   APPENDIX : DECISION ON THE ADMISSIBILITY OF THE            APPLICATION. . . . . . . . . . . . . . . . .            6   I.     INTRODUCTION   1.     The present Report concerns Application No. 20566/92 by W. S. against Austria, introduced on 22 July 1992 and registered on 31 August 1992.   2.     The applicant, born in 1961, is an Austrian national and resident at Günselsdorf.   He is a taxi driver by profession.   Before the Commission he is represented by Mr. F. Langmayr, a lawyer practising in Vienna.         The Government of Austria are represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   3.     The application was communicated to the respondent Government on 2 December 1992.   Following an exchange of memorials, the applicant's complaint about the length of the criminal proceedings against him (Article 6 para. 1 of the Convention) was declared admissible on 8 March 1994.   The decision on admissibility is appended to this Report.   4.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 11 January 1995 in accordance with Article 31 para. 1 of the Convention, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS   5.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Austrian Government.   6.     The text of this Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   7.     In 1987 criminal investigations started against various persons on the suspicion of having committed fraud in the context of a real estate business.   In this context, preliminary investigations against the applicant were instituted by the Vienna Regional Court (Landesgericht) on 21 August 1987.   In these proceedings the applicant was assisted by Mr. Langmayr as his defence counsel.   8.     In the course of the investigations, more than one hundred victims of frauds were heard as witnesses.   The preliminary investigations terminated on 2 September 1988.   9.     On 21 April 1989 the Vienna Public Prosecutor's Office (Staats- anwaltschaft) preferred the indictment (Anklageschrift) against the applicant and fourteen co-accused.   They were charged with having professionally committed fraud in that they pretended to be honest estate agents employed by an estate agency in Vienna, and thereby received payments in view of accommodation which they did not and never intended to supply to the clients concerned.   The indictment referred to more than one hundred cases and a total damage caused by the offences which amounted to AS 6.5 million.   10.    The bill of indictment was received by the Vienna Regional Court on 12 May 1989.   11.    On 28 June 1989 the bill of indictment was served upon the applicant's defence counsel.   In July 1989 two of the applicant's co-accused appealed against the bill of indictment.   Following inquiries concerning the whereabouts of two other accused, the bill of indictment could only be served upon them in November 1989.   One of these two accused also appealed against the bill of indictment. However, he withdrew his appeal in February 1990.   On 11 May 1990 the Vienna Court of Appeal (Oberlandesgericht) finally committed the accused for trial. Meanwhile, the Investigating Judge had also decided on various requests lodged by the Public Prosecutor's Office regarding the joinder of other proceedings against one of the accused, as well as the discontinuation of the prosecution regarding some aspects of the charges.   12.    On 18 May 1990 the Presiding Judge at the Vienna Regional Court received the files.   In July 1990 the criminal records regarding the accused were received by the Regional Court.   Furthermore, on 27 July 1990 the Presiding Judge ordered that the criminal files concerning previous convictions of some of the accused be obtained.   13.    On 6 March 1991 the dates for the trial against the accused were fixed.   Moreover, in March 1991 official defence counsel for various accused were appointed.   14.    The Vienna Regional Court conducted the trial every day from 8 until 18 April 1991 when it was adjourned sine die.   In July 1991 copies of the files were produced for the various official defence counsel, and subsequently the file was transmitted to the Public Prosecutor's Office for further action.   The file was returned on 20 August 1991.   15.    On 30 August 1991 the dates for the further trial against the accused were fixed.   The trial was conducted from 15 until 18 October 1991.   16.    On 18 October 1991 the trial was closed, and the applicant was convicted of fraud and sentenced to sixteen months' imprisonment.   17.    The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against the Regional Court's judgment.   The written version of the judgment, which comprised altogether 182 pages, was served upon the applicant's counsel on 18 March 1992.   18.    On 22 April 1992 the files were transmitted to the Public Prosecutor's Office for comments on the applicant's and other co-accused's appeals.   The files were returned six days later.   The Regional Court's report transmitting the appeals with the files was received by the Supreme Court on 6 May 1992.   19.    On 21 October 1992 the Austrian Supreme Court (Oberster Gerichts- hof) rejected the applicant's plea of nullity as having been lodged out of time, and decided that the files be transferred to the Vienna Court of Appeal for a decision on the applicant's appeal regarding the sentence imposed upon him.   As regards the applicant's plea of nullity, the Supreme Court found that the applicant had failed to file the reasons for his plea of nullity within the general time-limit of two weeks.   The Supreme Court noted that the indication in the Regional Court's judgment according to which there was a time-limit of four weeks to file the reasons for the plea of nullity had been erroneous.   20.    At that stage of the proceedings, the case files comprised twelve volumes of more than 5,500 pages and two boxes with annexes.   21.    On 6 November 1992 the applicant lodged a request for the reinstatement of the proceedings regarding his plea of nullity.   22.    In the course of the present proceedings before the Commission, the files concerning the criminal proceedings against the applicant and others were transmitted to the Federal Ministry of Justice between 18 November and 17 December 1992.     23.    On 25 August 1993 the Supreme Court granted the applicant's request for the reinstatement, but dismissed his plea of nullity.   The Supreme Court also decided that the files be transferred to the Vienna Court of Appeal for a decision on the applicant's appeal.   24.    On 16 November 1993 the Vienna Court of Appeal dismissed the applicant's appeal.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   25.    The Commission has declared admissible the applicant's complaint that the criminal charges against him were not determined within a reasonable time.   B.     Point at issue   26.    The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     The alleged violation of Article 6 para. 1 (Art. 6-1) of the       Convention   27.    The applicant submits that the criminal proceedings against him have exceeded a reasonable time.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention which includes the following provision:         "In the determination of his civil rights and obligations or of       any criminal charge against him, everyone is entitled to a ...       hearing within a reasonable time by (a) ... tribunal ..."   28.    The Government, referring to the case-law of the Convention organs, argue that the length of the proceedings was mainly due to the complexity of the case.   They consider that no considerable delays were imputable to the Austrian authorities.   29.    The period to be taken into consideration started on 21 August 1987 when the criminal investigations were instituted against the applicant.   The proceedings terminated on 16 November 1993 when the Vienna Court of Appeal dismissed the applicant's appeal.   The proceedings thus lasted almost six years and three months.   30.    The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case.   In this instance the circumstances call for an overall assessment (see Eur. Court H.R., Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   31.    The Commission finds that the proceedings were of some complexity as they covered prosecution of several accused in numerous cases of fraud involving a considerable number of witnesses.   32.    There were no significant delays caused by the applicant.   33.    As regards the conduct of the judicial authorities, the Commission finds that there were important periods of delay.   34.    There is a first gap between the conclusion of the preliminary investigations on 2 September 1988 and the preferral of the indictment by the Public Prosecutor's Office on 21 April 1989.   Moreover, due to shortcomings in the preparation of the bills of indictment, the proper service of these documents was delayed for more than five months, and it took until May 1990 to commit the applicant for trial.   The ensuing period of ten months in order to prepare the trial has not been sufficiently explained by the Government.   35.    In these circumstances, the Commission cannot regard as "reasonable" a lapse of time of more than six years for the conclusion of the criminal proceedings against the applicant.   CONCLUSION   36.    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.F. BUQUICCHIO)                           (C.L. ROZAKIS)