CEDH · CASELAW;REPORTS;ENG — 15 mai 1996

.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                                  FIRST CHAMBER                            Application No. 21611/93                                Helmut Haslhofer                                     against                                     Austria                            REPORT OF THE COMMISSION                          (adopted on 15 May 1996)                                TABLE OF CONTENTS   Page   I.     INTRODUCTION       (paras. 1-6). . . . . . . . . . . . . . . . . . . . . . . . . 1     II.    ESTABLISHMENT OF THE FACTS       (paras. 7-15) . . . . . . . . . . . . . . . . . . . . . . . . 2     III.   OPINION OF THE COMMISSION       (paras. 16-27). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Complaint declared admissible            (para. 16) . . . . . . . . . . . . . . . . . . . . . . . 3         B.    Point at issue            (para. 17) . . . . . . . . . . . . . . . . . . . . . . . 3         C.    The alleged violation of Article 6 para. 1 of            the Convention            (paras. 18-26) . . . . . . . . . . . . . . . . . . . . . 3              CONCLUSION            (para. 27) . . . . . . . . . . . . . . . . . . . . . . . 4     APPENDIX : DECISION OF THE COMMISSION            AS TO THE ADMISSIBILITY OF THE APPLICATION . . . . . . . 5     I.     INTRODUCTION   1.     The present Report concerns Application No. 21611/93 by Helmut Haslhofer against Austria, introduced on 18 December 1992 and registered on 2 April 1993.   2.     The applicant, born in 1934, is an Austrian national and resident at Kirchham.   He is an insurance agent by profession.   Before the Commission he is represented by Mr. T. Höhne, 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 12 October 1994.   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 6 September 1995.   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 15 May 1996, in accordance with Article 31 para. 1 of the Convention, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL   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.     On 14 July and 15 July 1986 the General Police Directorate (Generaldirektion für die öffentliche Sicherheit) questioned the applicant on suspicion of having committed grave fraud and fraudulent conversion.   The investigations concerned a series of frauds committed against the Austrian Bundesländer Insurance Company, involving initially about one hundred suspects and total losses amounting to AS 130 million.   8.     On 10 September 1986 the Vienna Regional Court (Landesgericht), upon the request of the Vienna Federal Police Authority (Bundespolizeidirektion) of 4 September 1986, instituted preliminary investigations against the applicant.   On 17 February 1987 the applicant was questioned by the Investigating Judge.   9.     On 26 August 1987 the Vienna Public Prosecutor's Office (Staatsanwaltschaft) filed the bill of indictment charging the applicant with having acted as an accessory to fraudulent conversion. The bill of indictment related to offences committed by altogether 21 accused.   10.    The trial of the accused started before the Vienna Regional Court on 20 January 1988.   It continued over altogether 34 days between January and June, a last hearing being held in September 1988.   The concept of the trial was to hold the hearings concerning the various accused individually so that they only had to appear on certain days of the trial.   11.    Hearings relating to the applicant took place on 21 January and 8 February 1988.   At the further hearing of 5 May 1988 the Vienna Public Prosecutor's Office extended the bill of indictment and also charged the applicant with grave fraud (schwerer Betrug).   Several motions for a further taking of evidence were filed.   However, the Regional Court dismissed these additional requests and closed the trial.   The applicant was convicted of having acted as an accessory to fraudulent conversion and sentenced to four years' imprisonment.   12.    On 31 January 1990 the applicant was served with the written copy of the judgment.   On 14 February 1990 he lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal (Berufung) with the Supreme Court (Oberster Gerichtshof).   13.    On 6 September 1990 the Supreme Court quashed the judgment and referred the case back to the Vienna Regional Court.   14.    On 2 December 1991 proceedings were resumed before the Vienna Regional Court.   On 4 December 1991 the case was referred back to the Investigating Judge.   15.    On 3 August 1992 the Vienna Public Prosecutor's Office dropped the charges against the applicant, and the Regional Court discontinued the criminal proceedings.   The decision was served upon the applicant on 12 August 1992.     III.   OPINION OF THE COMMISSION     A.     Complaint declared admissible   16.    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   17.    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   18.    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 ..."   19.    The Government maintain that the relevant period to be considered under Article 6 para. 1 (Art. 6-1) started on 10 September 1986 when the Vienna Regional Court opened investigation proceedings against the applicant, and ended on 3 August 1992, when the proceedings were discontinued.   20.    The Commission recalls that, in criminal matters, the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) begins to run as soon as a person is "charged" which may be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed an offence", a definition that also corresponds to the test whether "the situation of the [suspect] has been substantially affected" (cf. Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 33, para. 73 with further references).   In the present case, the time to be taken into consideration therefore started on 14 July 1986, when the applicant was questioned by the General Police Directorate and informed about the existence of a suspicion against him.   Following his conviction and successful appeal proceedings, the criminal proceedings were discontinued on 3 August 1992, i.e. more than six years later.   21.    As regards the question of reasonableness, 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.   The applicant objects to this view.   22.    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).   23.    The Commission finds that the proceedings were of some complexity, involving numerous suspects and counts of fraud.   24.    There were no significant delays caused by the applicant.   25.    As regards the conduct of the judicial authorities, the Commission has considered the Government's explanations as to the approach taken by the authorities in dealing with the applicant's case as one of a series of fraud cases.   The Commission finds in particular there was a delay of almost twenty-one months between the pronouncement of the judgment against the applicant on 5 May 1988 and the service of the written version of this judgment, which has not been justified. In this respect, the Commission recalls that it is for Contracting States to organise their legal systems in such a way that their courts can meet this requirement (see Eur. Court H.R., Vocaturo judgment of 24 May 1991, Series A no. 206-C, p. 32, para. 17).   The Commission further observes that, having regard to the overall length of the proceedings at the stage of the Supreme Court's judgment of 6 September 1990, the authorities failed duly to expedite the ensuing proceedings.   26.    Having regard to all circumstances, the Commission cannot regard as "reasonable" a lapse of time of more than six years in the instant case.           CONCLUSION   27.    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)