H.L. W. proti Rakousku



AS TO THE ADMISSIBILITY OF

Application No. 20520/92

by H.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 27 April 1992

by H.L. W. against Austria and registered on 24 August 1992 under

file No. 20520/92;

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 26 March 1993 and the observations in

reply submitted by the applicant on 29 April 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 1942, is an Austrian national and

resident in Vienna. He is a transport worker by profession.

Before the Commission he is represented by Mr. K. Bernhauser, a

lawyer practising in Vienna.

In the context of criminal proceedings in the Federal

Republic of Germany against St., relating to charges of

conspiracy (ver-brecherischer Komplott), the applicant and two

other persons were questioned as witnesses by Austrian

authorities in proceedings under letters rogatory. In July 1988

the Vienna Public Prosecutor's Office (Staatsanwaltschaft)

commenced investigations against the applicant and three further

persons, all Austrian nationals, on the suspicion of conspiracy

committed in Germany, and enquired in particular about the state

of the criminal proceedings in Germany. The Austrian authorities

were informed that the Kiel Public Prosecutor's Office had

preferred an indictment against St. who had been regarded as

German national, and that the proceedings against the others had

been discontinued due to their absence.

According to S. 65 para. 1 (1) of the Austrian Penal Code

(Strafgesetzbuch), Austrian penal law applies to offences

committed abroad, provided the offence is also subject to

punishment under the laws of the State concerned, if the offender

was an Austrian national at the time of the offence in question,

or if the offender acquired Austrian nationality at a later stage

and was still Austrian national when the criminal proceedings

were instituted against him. S. 65 para. 4 of the Penal Code

provides, inter alia, that the offender shall not be punished if

he has been finally acquitted or exempted from prosecution; if

he has been finally sentenced by a foreign court and the sentence

has been fully or partly served, if he has been pardoned; and as

long as the enforcement of a sentence imposed by a foreign court

is suspended.

On 12 December 1989 the Investigating Judge at the Vienna

Regional Court (Landesgericht) questioned the applicant on the

charge of conspiracy, committed with the above-mentioned further

suspects between February and May 1987 in Germany.

On 5 April 1990 the Vienna Public Prosecutor's Office

preferred the indictment against the applicant and three other

accused. They were charged with conspiracy to kidnap and rob. The

Prosecutor's Office, in the indictment, noted that the accomplice

St. was prosecuted separately in Germany.

On 7 June 1990 the Vienna Court of Appeal

(Oberlandesgericht) dismissed the objection of one of the accused

against the indictment and committed the accused for trial. The

files were transferred to the Presiding Judge at the Vienna

Regional Court. In the subsequent period, the Court repeatedly

asked the Kiel District Court and the Prosecutor's Office,

respectively, for information about the state of the German

proceedings where the accused St. had not yet been committed for

trial. In March 1991 the Court was informed that the main

proceedings against St. had meanwhile started. Considerable

delays were, however, to be expected, and the trial had not yet

been scheduled.

On 10 July 1991 the Vienna Regional Court fixed date for the

trial against the four accused which was held on 26 August 1991.

At the trial the applicant's defence counsel requested that the

state of the German proceedings again be clarified. The hearing

was postponed sine die.

Following the information that, in the context of the German

proceedings, the accused St. had been acquitted on 5 March 1992,

the Vienna Regional Court discontinued the criminal proceedings

against the applicant and the co-accused on 17 March 1992. The

decision was served upon the applicant on 23 April 1992.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the criminal proceedings against

him. He submits in particular that these proceedings were

excessively delayed in the period between indictment and trial

before the Vienna Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 April 1992 and

registered on 24 August 1992.

On 2 December 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 26 March 1993 the Government submitted their

observations. The observations in reply by the applicant were

submitted on 29 April 1993.

THE LAW

The applicant complains about the length of the criminal

proceedings against him.

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, having regard to the criteria established

in the case-law of the Convention organs, consider that the

proceedings against the applicant did not last unreasonably long.

The Commission notes that the relevant period to be

considered under Article 6 para. 1 (Art. 6-1) started on 12

December 1989 when the applicant was questioned as a suspect. The

proceedings ended on 23 April 1992 when the decision of 17 March

1992 to discontinue the proceedings was served upon the

applicant. They lasted about two years, four months and two

weeks.

The Commission recalls that the reasonableness of the length

of proceedings must be assessed in the light of the particular

circumstances of the case, having regard to the complexity of the

case and the conduct of the applicant and the competent

authorities (cf. Eur. Court H.R., Ficara judgment of 19 February

1991, Series A no. 196-A, p. 9, paras. 16-17).

As regards the complexity of the case, the Commission notes

that the criminal proceedings against the applicant and three co-

accused related to a charge of conspiracy committed in Germany.

Criminal proceedings had in fact been instituted against them in

Germany, which were conducted by the Kiel Public Prosecutor's

Office and the Kiel District Court. Prosecution in Austria was

initiated having regard to the Austrian nationality of the

offenders. Especially the link to the German proceedings due to

the preliminary question of the Austrian jurisdiction to

prosecute the accused, in accordance with S. 65 of the Austrian

Penal Code, created some procedural difficulties.

When examining the conduct of the Austrian authorities in

handling the case, the Commission notes that, following the

applicant's questioning by the Investigating Judge in December

1989, it took the Public Prosecutor's Office less than four

months to prefer the indictment against the applicant and his co-

accused. The objection of one of the accused against the

indictment was decided within two months. It is true that the

Vienna Regional Court, before fixing a date for the trial against

the accused, spent thirteen months inquiring about the state of

the German prosecution proceedings against in particular one of

the accused. The outcome of these proceedings were, however, of

relevance for the Austrian jurisdiction in the case. It does not

appear unreasonable that the Regional Court did not proceed with

the case before being informed by the German authorities that

they expected considerable delays in the conduct of their

proceedings. Moreover, at the trial in August 1991, it was the

defence requesting that the state of the German proceedings again

be clarified. The Vienna Regional Court discontinued the

proceedings a few days after the acquittal of St. in Germany.

In these circumstances the Commission finds no considerable

periods of inactivity on the part of the Austrian authorities,

and in particular no undue delays caused by the conduct of the

Vienna Regional Court, which would warrant the conclusion that

the overall length of the proceedings was excessive.

Consequently, there is no appearance of a violation of the

applicant's right to a hearing within a "reasonable time", as

guaranteed under Article 6 para. 1 (Art. 6-1) of the Convention.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)