P. v. AUSTRIA



AS TO THE ADMISSIBILITY OF

Application No. 13017/87

by P.

against Austria

The European Commission of Human Rights sitting in private

on 14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 May 1987 by

P. against Austria and registered on 15 June 1987 under file No.

13017/87;

Having regard to:

- observations submitted by the respondent Government

on 13 June 1988 and the observations in reply submitted by

the applicant on 29 June 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case may be summarised as follows.

The applicant, born in 1945, is an Austrian national and

resident in Freistadt. He is a businessman by profession. Before the

Commission he is represented by Mr. G. Tews and Mr. C. Slana, lawyers

practising in Linz.

On 13 May 1982 the Linz Police Office (Bundespolizeidirektion)

questioned the applicant as regards the purchase of a stolen car on

30 August 1981. The applicant denied that he knew about the origin of

the car and alleged that he had bought it from an unknown person.

In June 1982 the Klagenfurt Public Prosecutor's Office

(Staatsanwaltschaft) opened investigation proceedings against K and

others on the ground that they were suspected of having stolen

numerous cars, removed the identification marks and replaced them by

the marking of wrecked cars.

On 2 July 1982 the Klagenfurt Public Prosecutor's Office

started investigations against the applicant, the suspicion being

that he had received stolen goods (Hehlerei). The preliminary

investigations (Voruntersuchung) were opened in September 1982. The

investigations against the applicant and those against K and others

were apparently joined.

On 23 September 1982 the applicant was arrested on the basis

of a warrant of arrest issued by the Klagenfurt Regional Court (Landes-

gericht) on 14 September 1982. On 25 September 1982 he was taken into

detention on remand. Since 7 October 1982 the applicant was represented

by counsel. Following proceedings to review his detention on remand

the applicant was released on bail (100,000 AS) on 28 February 1983.

In March 1983 the case against K and others and the case

against the applicant were separated. The vendors of the applicant's

car were convicted by the Klagenfurt Regional Court on 24 April 1984

and 18 July 1984, respectively.

On 22 March 1984 the applicant's new defence counsel requested

the Klagenfurt Regional Court to transfer the case to the Linz

Regional Court. The applicant was apparently at that time residing in

Linz.

On 9 May 1984 the Klagenfurt Public Prosecutor's Office

preferred an indictment (Anklageerhebung) against the applicant on

charges of receiving stolen goods and failure to pay maintenance

(Verletzung der Unterhaltspflicht) to his child born out of wedlock.

The Court received the bill of indictment on 11 May 1984.

On 20 September 1984 the Austrian Supreme Court (Oberster

Gerichtshof) dismissed the applicant's request to transfer the

case to the Linz Regional Court.

On 21 November 1984 the Klagenfurt Regional Court fixed

14 December 1984 as the date for the opening of the trial.

On 24 November 1984 MM. Slana and Tews presented themselves as

the applicant's defence counsels. On 27 November 1984 the applicant

requested the Regional Court to call further witnesses and to adjourn

the trial. On 17 December 1984 the trial was fixed for 25 January 1985.

On 25 January 1985 the Klagenfurt Regional Court opened the

trial against the applicant. The trial was adjourned in order to take

further evidence as requested by the Prosecutor's Office and the

applicant's defence counsel. In February 1985 a technical expert was

appointed and submitted his written opinion.

On 29 March 1985 the Klagenfurt Regional Court resumed the

trial against the applicant. He was convicted of receiving stolen

goods and sentenced to eight months' imprisonment. He was acquitted

of the charge of failure to pay maintenance. The Court ordered that

the period of his detention on remand be deducted from the sentence.

The Court found in particular that the applicant had known that the

car was stolen. His defence that he had bought the car from K without

knowing about its origin was considered untrustworthy on the ground

that he had first alleged to have bought the car from an unknown

person. He had only changed his defence in a written statement of 14

October 1982. The judgment was served upon the applicant in August

1985.

On 10 August 1985 the Klagenfurt Regional Court dismissed the

applicant's request to have his bail paid back. On 31 October 1985

the Graz Court of Appeal (Oberlandesgericht), upon the applicant's

appeal (Beschwerde), quashed that decision.

On 19 December 1985 the Austrian Supreme Court (Oberster

Gerichtshof), upon the applicant's appeal (Berufung) and plea of

nullity (Nichtigkeitsbeschwerde), quashed the judgment of 29 March 1985

insofar as he had been convicted. The case was referred back to the

Regional Court. The Supreme Court found that the Regional Court had not

taken sufficient evidence as regards the question whether or not the

applicant had known that the car was stolen. The judgment was

received by the Klagenfurt Regional Court on 5 February 1986.

On 6 March 1986 the Graz Court of Appeal dismissed the

expert's appeal (Beschwerde) against the Klagenfurt Regional Court's

decision of 7 October 1985 fixing his fees.

On 25 August 1986 the Klagenfurt Regional Court set the date

for a new trial for 20 October 1986.

On 10 October 1986 the Klagenfurt Public Prosecutor's Office

requested the Klagenfurt Regional Court to transfer the case to the

Linz Regional Court where in June 1986 preliminary investigations had

been instituted against the applicant in respect of assault. The

Klagenfurt Regional Court transferred the case to the Linz Regional

Court on 15 October 1986.

On 4 November 1986 the Linz Regional Court decided to transfer

the case back to the Klagenfurt Regional Court. It found that having

regard to the different stages of the two cases they had to be dealt

with separately in order to avoid unnecessary delays. The files were

sent back to the Klagenfurt Regional Court on 16 February 1987 when

the Linz Regional Court held the trial against the applicant,

convicted him of assault and sentenced him to eight months'

imprisonment.

On 5 March 1987 the Klagenfurt Regional Court, having regard

to the applicant's appeal against his conviction by the Linz Regional

Court, again sent the files to the Linz Regional Court and requested

it to take over the Klagenfurt case. On 17 March 1987 the Linz

Regional Court declined this and sent the files back.

On 14 April 1987 the Klagenfurt Regional Court fixed the trial

for 19 May 1987. The Court was then informed by several post offices

that one witness summons could not be served and that the applicant

had changed address. On 12 May 1987 the hearing was cancelled.

On 14 May 1987 the Judge GF at the Klagenfurt Regional Court

informed the President of the Court that she was disqualified to take

part in the proceedings against the applicant. It appears that GF

had acted as investigating judge. The case was assigned to the

substitute judge on 10 June 1987.

On 23 June 1987 the Klagenfurt Regional Court fixed the date

for the trial for 15 July 1987. The hearing was adjourned on that

date, as two witnesses had not appeared, and in order to produce the

files concerning the case before the Linz Regional Court. The Linz

Regional Court was requested twice to send the files.

On 29 September 1987 the Linz Regional Court informed the

Klagenfurt Regional Court that the Linz case was terminated; the

Linz Court of Appeal had reduced the sentence and imposed a fine of

108,OOO AS on 11 June 1987.

On 16 October 1987 the Klagenfurt Regional Court fixed the

trial for 4 November 1987.

On 4 November 1987 the Klagenfurt Regional Court convicted the

applicant of negligent receiving (fahrlässiges Ansichbringen) and

sentenced him to 18,000 AS. In fixing the sentence, the Court took

the sentence imposed by the Linz Court of Appeal and the applicant's

detention on remand into account.

On 23 December 1987 the Klagenfurt Regional Court, upon the

applicant's request, corrected the record of the hearing of 4 November 1987.

On 29 March 1988 the Supreme Court dismissed the applicant's

plea of nullity (Nichtigkeitsbeschwerde). The applicant withdrew his

appeal against the sentence (Berufung).

In April 1988 the Klagenfurt Public Prosecutor's Office agreed

that the bail be paid back to the applicant.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

of the length of the criminal proceedings against him before the Klagenfurt

Regional Court. He considers that the proceedings were delayed, in

particular due to the late indictment and the course of action taken by the

Klagenfurt Regional Court after the appeal proceedings in 1985.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 May 1987 and registered on

15 June 1987.

On 8 March 1988 the Commission decided that, in accordance with

Rule 42 para. 2 (b) of the Rules of Procedure, notice should be given to

the Austrian Government of the application and that the Government should

be invited to submit written observations on the admissibility and merits

of the case.

After an extension of the time-limit, the Government's

observations were submitted on 13 June 1988. The applicant's

observations in reply were submitted on 29 June 1988.

SUBMISSIONS OF THE PARTIES

A. The Government

The Government maintain that the criminal proceedings against

the applicant were not unreasonably delayed.

They submit that the length of the proceedings was due to the

complexity of the investigations and the conduct of the applicant.

The proceedings against the applicant formed part of complicated

investigations against numerous suspects who had stolen cars.

Moreover, in the beginning of the preliminary investigations, the

applicant made misleading statements concerning the charges against

him. He committed another criminal offence pending the proceedings

which the Klagenfurt Regional Court had to take into account. The

applicant also lodged several appeals.

The Government contend that the Austrian courts had not been

completely inactive for a longer period. Furthermore, referring to

the Foti judgment of the Eur. Court H.R. of 10 December 1982 (Series A

no. 56, p. 21, para. 64), they consider that delays do not necessarily

entail a breach of Article 6 para. 1 of the Convention. Even assuming

that there had been delays in the present case, such delays were

justified on the grounds that the proceedings had been particularly

complex and related to other proceedings. They submit in particular

that the decisions of the Klagenfurt Regional Court to transfer the

proceedings to the Linz Regional Court were appropriate and in

accordance with the applicant's previous request. The hearing before

the Klagenfurt Regional Court fixed for 19 May 1987 had to be

postponed because two summonses could not be served. The next hearing

was already fixed for 15 July 1987.

The Government request the Commission to declare the

application inadmissible as being manifestly ill-founded within the

meaning of Article 27 para. 2 of the Convention.

B. The applicant

The applicant submits that the delays in the criminal

proceedings against him before the Klagenfurt Regional Court cannot be

justified by their relation to the proceedings before the Linz

Regional Court. The two sets of proceedings were only joined from

15 October until 4 November 1986. When the Linz Regional Court

transferred the case back, it could have kept a copy of the files.

Furthermore the applicant alleges the following unreasonable

delays: The Austrian authorities were inactive between March 1983 and

April 1984. The judgment concerning his first conviction was only

served upon him in August 1985. The delays pending the expert's

appeal proceedings could have been avoided by sending a copy of the

files to the Graz Court of Appeal. The second decision of 5 March

1987 to transfer the case was wrong on the ground that at that

stage he had already been convicted by the Linz Regional Court and

appeal proceedings were pending.

Moreover the Klagenfurt Regional Court was not required to

await the outcome of the Linz proceedings; on the contrary, had the

Klagenfurt proceedings been terminated within a reasonable time, the

Linz Regional Court could have taken any sentence imposed by the

Klagenfurt Regional Court into account. The applicant also considers

that it was not necessary to cancel the hearing of 19 May 1987, as he

had been informed about the date by his defence counsel and he would

have agreed to use as evidence the written statements of the witness

concerned.

The applicant denies that he contributed to the length of the

proceedings by giving misleading statements on the charges against

him. In fact, he had already changed his initial statement in October

1982 and then maintained his defence.

Finally he submits that the length of the proceedings before

the Klagenfurt Regional Court was not only as such detrimental to him,

but he also suffered financial losses in that his bail was only paid

back more than three years later.

THE LAW

The applicant complains under Article 6 para. 1 (Art. 6-1) of

the Convention that the criminal proceedings against him before the

Klagenfurt Regional Court were not terminated within a reasonable

time.

Article 6 para. 1 (Art. 6-1) of the Convention provides, inter

alia, that in the determination of any criminal charges against him,

everyone is entitled to a fair and public hearing within a reasonable

time.

The respondent Government contend that the length of the

proceedings was partly caused by the applicant. Any other delays were

due to the complexity of the case and its relation to other

proceedings. They submit that the application should be declared

inadmissible as being manifestly ill-founded.

The Commission considers that the applicant's complaint

about the length of the criminal proceedings against him, which lasted

nearly six years, raises questions of fact and of law which are of

such a complex nature that their determination requires an examination

of the merits. The application cannot, therefore, be declared

manifestly ill-founded within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention, but must be declared admissible, no other

ground for declaring it inadmissible having been established.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

APPENDIX

History of the domestic proceedings

13.5.82 Applicant questioned by the Linz Police Office.

2.7.82 Klagenfurt Public Prosecutor's Office started

investigations.

18.8.82 Applicant questioned by Linz Police Office.

1.9.82 Klagenfurt Federal Police Office laid information

(Strafanzeige) against applicant concerning receiving

a stolen car.

9.9.82 Request of Klagenfurt Public Prosecutor's Office for

preliminary investigations, warrant of arrest and

search warrant.

14.9.82 Warrant of arrest (danger of collusion) and search

warrant.

23.9.82 Arrest.

25.9.82 Detention on remand.

1.10.82 Applicant questioned by investigating judge.

7.10.82 First defence counsel appointed.

5.11.82 Request for extension of detention on remand (unusual

scale and difficulties of the investigations).

22.11.82 Applicant questioned by investigating judge.

19.11.82 Supplemented warrant of arrest (necessity to prevent

fleeing).

9.12.82 Extension of detention on remand up to three months.

Appeal and offer of bail (50,000 AS).

30.12.82 Klagenfurt Regional Court refused release on bail.

Appeal.

26.1.83 Files sent to the Graz Court of Appeal.

4.2.83 Graz Court of Appeal quashed decision of 30.12.82.

22.2.83 Bail fixed at 100,000 AS.

28.2.83 Bail paid by applicant's wife. Release on bail.

24.3.83 Seperation of applicant's case.

22.3.84 Second counsel's request for transfer of case

to Linz Regional Court.

4.4.84 Witness questioned by investigating police officer.

17.4.84 Applicant questioned by investigating judge.

30.4.84 Files sent to Klagenfurt Public Prosecutor's Office.

9.5.84 Indictment.

11.5.84 Bill of indictment received by Klagenfurt Regional

Court.

17.5.84 Bill of indictment submitted to counsel.

17.8.84 Request of Klagenfurt Public Prosecutor's Office

not to transfer case.

21.8.84 Request for transfer submitted to Supreme Court.

20.9.84 Request for transfer dismissed.

21.11.84 Trial fixed for 14.12.84.

24.11.84 Applicant changed counsel.

27.11.84 Applicant's request to take further evidence and to

postpone hearing.

11.12.84 Applicant submitted documents.

17.12.84 Trial fixed for 25.1.85.

25.1.85 Trial. Postponed to take further evidence.

4.2.85 Technical expert appointed.

12.2.85 Expert opinion submitted.

18.2.85 Trial fixed for 29.3.85.

29.3.85 Trial. Conviction for receiving stolen goods.

1.4.85 Applicant announced plea of nullity and appeal.

10.4.85 Applicant's request that bail be paid back.

23.5.85 Applicant's request that files be sent to Linz

Regional Court.

30.5.85 Request of applicant's wife that bail be paid back.

7.8.85 Written judgment of 29.3.85 served upon applicant.

10.8.85 Requests of 10.4. and 30.5.85 dismissed.

14.8.85 Applicant filed plea of nullity and appeal.

23.9.85 Appeal of applicant's wife against decision of

10.8.85.

7.10.85 Expert's fees fixed. Files sent to Supreme Court.

24.10.85 Expert's appeal.

31.10.85 Graz Court of Appeal quashed decision of 10.8.85

19.12.85 Supreme Court quashed judgment of 29.3.85.

6.3.86 Graz Court of Appeal dismissed expert's appeal.

25.8.86 New trial fixed for 20.10.86.

22.9.86 Files sent to Linz Regional Court for inspection by

defence counsel.

10.10.86 Request of the Public Prosecutor's Office to transfer

case to Linz Regional Court where proceedings

had been instituted in June 1986.

15.10.86 Trial cancelled. Case transferred.

15.11.86 Case transferred back.

16.2.87 Files returned to Klagenfurt Regional Court.

5.3.87 Case transferred to Linz Regional Court a second time.

17.3.87 Case transferred back to the Klagenfurt Regional

Court.

14.4.87 Trial fixed for 19.5.87.

24.4./5.5.87 Information that witness summons could not be served

and that applicant changed address.

12.5.87 Trial cancelled.

14.5.87 Judge stated that she was disqualified.

10.6.87 Case assigned to substitute judge.

23.6.87 Trial fixed for 15.7.87.

15.7.87 Trial. Adjourned.

16.7.87 Court requested Linz Regional Court's files.

17.7.87 Applicant's request to be paid bail back.

28.7.87 Renewed request for Linz files.

29.9.87 Information by Linz Regional Court about termination

of proceedings.

16.10.87 Request of 17.7.87 dismissed.

Trial fixed for 4.11.87.

28.10.87 Appeal against decision of 16.10.87 concerning bail.

4.11.87 Trial. Conviction for negligent receiving of stolen

goods.

13.11.87 Plea of nullity and appeal.

19.11.87 Applicant's request to correct the verbatim record.

21.12.87 File sent to the Supreme Court.

23.12.87 Klagenfurt Regional Court's decision to correct the

record.

29.3.88 Applicant's plea of nullity dismissed. Appeal

withdrawn.

29.4.88 Bail paid back.