AS TO THE ADMISSIBILITY OF

                      Application No. 12896/87
                      by Franz SCHADEN
                      against Austria


        The European Commission of Human Rights sitting in private
on 9 May 1989, the following members being present:

              MM. J.A. FROWEIN, Acting President
                  S. TRECHSEL
                  F. ERMACORA
                  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.  L. LOUCAIDES

             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 20 January 1987
by Franz Schaden against Austria and registered on 28 April 1987
under file No. 12896/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        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 1949, is a German national and resident
at Retz, Austria.  He is an oenologist and businessman by profession.
When lodging the application he was detained at the Korneuburg Prison.
Before the Commission he is represented by Mr.  K. Bernhauser, a lawyer
practising in Vienna.

        The applicant was manager of two limited liability companies
trading in wine and spirits.  One of them was owned by the applicant's
father, the other was jointly owned by the applicant and his father.
In June 1977 the Korneuburg Regional Court (Kreisgericht) instituted
preliminary investigations (Voruntersuchung) against the applicant's
father on the suspicion of fraud and bankruptcy offences.  In July and
August 1977 bankruptcy proceedings were opened against the two
companies.  On 12 September 1977 the Korneuburg Regional Court joined
criminal proceedings against the applicant, his father and a further
person on the suspicion of conversion of goods in official custody
(Verstrickungsbruch), which had been conducted at the Retz District
Court (Bezirksgericht), with the investigation proceedings against the
applicant's father concerning fraud and bankruptcy offences.

        On 22 September 1977 the Retz City Police Office (Gendarmerie-
postenkommando) requested the Korneuburg Regional Court to institute
criminal proceedings against the applicant on the suspicion of having
committed fraud as manager of the two above companies.  The Regional
Court joined the two investigation proceedings against the applicant.

        In October 1977 a company joined the proceedings as a private
party (Privatbeteiligter).

        On 20 December 1977, following investigations by the Lower
Austria Police Department (Landesgendarmeriekommando), the Korneuburg
Regional Court summoned the applicant, who could then not be examined
on account of illness.  He was heard on 5 January 1978.

        On 12 January 1978 the applicant's defence counsel presented
himself to the Regional Court.

        On 26 January 1978 the Korneuburg Regional Court, having
received information about various civil enforcement proceedings
against the applicant and the other suspects and having heard the two
witnesses C and B, submitted the files to the Korneuburg Public
Prosecutor's Office (Staatsanwaltschaft) for further action.

        On 27 January 1978 the Prosecutor's Office returned the
files.  It requested the Korneuburg Regional Court to investigate
further, in particular against the applicant, to conduct appropriate
inquiries as to the bankruptcy offences and to order an expert opinion
as to the applicant's and his father's financial situation at the
beginning of their insolvency.

        On 3 February 1978 the Korneuburg Regional Court questioned
the applicant and other suspects a second time.  On 17 February 1978
it submitted the files to the Lower Austria Police Department
requesting them to supplement their inquiries.
        On 28 August 1978 the Korneuburg Regional Court received the
further findings of the Police Department.  On 29 August 1978 the
Court appointed the commercial expert P as auditor and instructed him
to prepare an opinion on the questions raised by the Public
Prosecutor's Office, namely the financial situation of the applicant
and his father at the beginning of their insolvency and knowledge
thereof.  The Court fixed a time-limit of six weeks.

        On 30 October 1978 the expert P informed the Korneuburg
Regional Court that the time-limit could not be kept for an opinion
such as in the present case.  His opinion could be expected in
December 1978; otherwise he would submit a further intermediate
report.  On 19 December 1978 P informed the Court that the applicant
had not appeared at a final discussion on 14 December 1987 on account
of a death.  His opinion would be delivered the second week of January
1979.

        On 17 January 1979 the Korneuburg Regional Court, having
received the expert opinion comprising 89 pages and annexes, closed
the preliminary investigations and submitted the files to the
Korneuburg Public Prosecutor's Office for further action.  On
29 January 1979 the files were returned to the Regional Court;
the Prosecutor's Office requested completion of the investigations.
The Regional Court sent the files to the Lower Austria Police
Department on 30 January 1978 and requested that the further inquiries
be completed with priority.

        On 21 February 1980 the Korneuburg Regional Court received the
Police Department's report.  It sent the files to the Korneuburg
Public Prosecutor's Office for further action.

        On 28 February 1980 the Korneuburg Public Prosecutor's Office
preferred the indictment (Anklageerhebung) against the applicant on
charges of fraud, conversion of goods in official custody, retention
of social security contributions (§114 of the Social Security Act -
ASVG) and fraudulent bankruptcy (fahrlässige Krida).  The criminal
proceedings against the other suspects were discontinued.
Furthermore, the Prosecutor's Office requested supplementary inquiries
to be conducted in the intermediate proceedings (Zwischenverfahren)
before the opening of the main proceedings.

        On 13 March 1980 the Korneuburg Regional Court sent part of
the files to the Linz District Court for examination of the witness M.
On 20 March the Regional Court heard the two further witnesses N and F
as requested by the Public Prosecutor's Office.  One of the witnesses
was heard again on 27 March 1980.  The Linz District Court heard the
witness M on 16 April 1980, and submitted its report and the files to
the Regional Court on 17 April 1980.

        On 6 May 1980 the Presiding Judge at the Korneuburg Regional
Court sent the files to the Public Prosecutor's Office for action on
new requests to prosecute the applicant.  On 8 May 1980 the files were
returned.  The Prosecutor's Office reserved the right to extend the
indictment to charges based on the statements of the witnesses M and
F.  These witnesses should be summoned for the trial.

        On 2 September 1980 the Korneuburg Regional Court fixed
13 November 1980 as the date for the trial.  On 30 September 1980 the
files were sent to the Lower Austria Police Department to establish
the whereabouts of a witness H.  The Police Department's report was
received on 15 October 1980.

        Furthermore, in October 1980, three persons joined the
criminal proceedings as private parties.

        On 13 November 1980 the Regional Court opened the trial, which
was postponed to hear the expert on his opinion.  On 14 November 1980
the Public Prosecutor's Office ordered supplementary inquiries as
regards the testimony of a particular witness.  The results were
received by the Regional Court on 24 November 1980.

        On 29 January 1981 the Korneuburg Regional Court resumed the trial.
It convicted the applicant of fraud on six counts, fraudulent bankruptcy,
conversion of goods in official custody and retention of social security
contributions, and sentenced him to two years' imprisonment.  The applicant
was acquitted of the charge of fraud on seven further counts.  The Court
having heard several witnesses and the expert P found that in 1974 to 1975
the applicant had negligently caused the insolvency of the two above-
mentioned companies.  It considered that he had not requested the opening
of bankruptcy proceedings in the beginning of 1976 when he already knew
about the insolvency of both companies.  Furthermore he had entered into
legal transactions in 1976 pretending still to be a solvent businessman.
The judgment, comprising 6 pages, was served upon the applicant on 1 June
1981.

        On 16 June 1981 the applicant, having previously announced his
plea of nullity (Nichtigkeitsbeschwerde) and appeal (Berufung)
against sentence, filed the reasons for these remedies.

        On 23 July 1981 the Austrian Supreme Court (Oberster
Gerichtshof), upon the applicant's plea of nullity, quashed the
judgment with regard to the conviction and sentence.  The case was to
that extent sent back for a new trial.  The Supreme Court upheld the
remainder of the judgment of 29 January 1981.  It found that the Regional
Court had insufficiently taken evidence as regards the question
whether the applicant was at the relevant time still convinced that he
could restore the companies' solvency.

        On 12 August 1981 the files were returned to the Korneuburg
Regional Court.  On 17 August 1981 Judge F, competent for the second
trial under the Court's rules on assignment of cases, informed the
President of the Korneubeurg Regional Court that he had acted as
Investigating Judge in the first set of proceedings.  The case was
assigned to Judge R.

        On 26 August 1981 the Korneuburg Regional Court sent the files
to its Investigating Judge in order to question the applicant as
regards the mental elements of the offences concerned, and to order
subsequently a supplementary expert opinion.  The applicant did not
comply with a first summons to be heard on 24 September 1981.  On 9
October 1981 he requested a time-limit of six to eight weeks to submit
documents explaining his business concept for the companies.  On
27 October 1981 the applicant was summoned for 16 November 1988.  On
that date he was questioned, he filed some documents and stated that
he intended to submit further documents before 15 December 1981.

        On 27 November 1981 the Korneuburg Public Prosecutor's Office
informed the Regional Court that the indictment might be extended to
further offences under S. 114 of the Social Security Act.

        On 30 November 1981 the applicant was summoned for 15 December
1981.  One day earlier his defence counsel informed the Court that the
applicant was travelling abroad, and they agreed upon 21 December 1981
as the date for the applicant's questioning.  The applicant did not
appear on account of illness.  On 18 January 1982 the Retz District
Court, upon a request for mutual assistance, questioned the applicant.
The report and files were submitted on 21 January 1982.  On
12 February 1981 the Korneuburg Regional Court heard the witness B.

        On 18 February 1982 the Korneuburg Regional Court ordered the
expert P to supplement his written opinion.  The expert informed the
Court that he had first to comply with urgent orders from other
courts.  In an intermediate report dated 3 August 1982 the expert
confirmed that he could finish his supplementary opinion only at the
end of September 1982 after a final discussion with the applicant.
The opinion arrived at the Regional Court on 6 October 1982.

        On 15 October 1982 the files were again sent to the
Investigating Judge in order to complete the investigations according
to the Court's decision of 26 August 1981, in particular to hear
further witnesses.

        On 29 October 1982 six witnesses were heard, two further
witnesses were summoned for 8 November 1982.  One of the witnesses
did not appear on account of illness, he was heard on 12 January
1983.  In the meantime, on 7 December 1982, the Linz District Court,
upon request for mutual assistance, heard another witness.

        On 21 January 1983 the files were again sent to the Korneuburg
Regional Court and, three days later, transferred to Judge F,
competent for the case under the Court's new rules.  On 24 January 1983
F informed the President of the Korneuburg Regional Court that,
according to the decision of 17 August 1981, he could not deal with
the case.  On 3 February 1983 the case was again assigned to Judge R.

        From 16 February until 7 March 1983 the files were sent to the
Laa District Court upon the request of the applicant's counsel.

        On 21 June 1983 the files were again sent to the Investigating
Judge.  The Korneuburg Regional Court, referring to the earlier
decisions of 26 August 1981 and 15 October 1982, requested to take
further evidence, in particular to hear witnesses upon particular
aspects of the charges.

        On 26 July 1983 the Investigating Judge at the Korneuburg
District Court sent rogatory letters to the Bad Kreuznach District
Court (Amtsgericht), in the Federal Republic of Germany, asking to
hear as witness a representative of a wine firm at Bingen who was
informed about a particular business transaction.

        On 23 October 1983 the Bad Kreuznach District Court informed
the Korneuburg Regional Court that the rogatory letters could not be
complied with on the ground that Ma, the responsible buying agent at
that time, had moved to Switzerland.

        On 9 November 1983 rogatory letters asking to hear two other
employees at Bingen were sent to the Bingen District Court, which
forwarded them to the competent Bad Kreuznach District Court on 6
December 1983.  On 6 February 1984 the Bad Kreuznach District Court
returned the rogatory letters.  It annexed a letter of the Bingen wine
firm explaining that the two employees concerned had not been
responsible for the business transaction in question and stating the
address of Ma, the previous buying agent.
        On 14 February 1984 the Swiss court competent for Wintherthur
received rogatory letters and was asked to hear Ma as witness.  The
Winterthur District Attorney's Office (Bezirksanwaltschaft), having
heard Ma, submitted its report on 22 March 1984.

        On 27 March 1984 the Korneuburg Regional Court sent rogatory
letters to the Bad Kreuznach District Court and asked to hear a
witness who had been mentioned by the witness Ma.  The rogatory
proceedings were closed on 27 June 1984.

        On 26 July 1984 the applicant, who had not complied with a
summons two weeks earlier, was heard by the Retz District Court, in
proceedings of mutual assistance, in respect of the particular
business transaction.

        On 30 July 1984 the Korneuburg Regional Court sent rogatory
letters to the Bad Kreuznach District Court and requested the hearing
of a further witness who had been named by the applicant.  On
10 September 1984 the Bad Kreuznach District Court informed the
Korneuburg Regional Court that it had forwarded the rogatory letters
to the competent Rüdesheim District Court.  The Korneuburg Regional
Court heard a further witness in September 1984.  On 7 November 1984
the Rüdesheim District Court submitted its report.

        On 10 June 1985 the Presiding Judge of the Korneuburg Regional
Court fixed 9 and 10 July 1983 as dates for the trial.

        On 31 July 1985 the applicant was taken into detention on
remand.

        On 9 and 10 July the Korneuberg Regional Court conducted the
second trial which was continued on 13 September 1985.  It convicted
the applicant of fraud on five counts and bankruptcy offences by which
he had caused a total damage of more than 15 million AS.  He was
sentenced to one and a half years' imprisonment.  The period of his
detention on remand was to be deducted from his sentence.  He was
acquitted of the charge of fraud on one count.

        In its judgment, the Court found in particular that, having
regard to the amount of his debts, the lack of liquid funds and the
failure of an envisaged important business transaction, the applicant
should have known by the end of 1975 that he could not restore the
solvency of the two companies.  He nevertheless continued his
transactions.  He raised further loans without having any concept for
his business, broke accounting rules and interfered with executions.
The Court proceeded from the evidence obtained from the files of the
bankruptcy proceedings, the files of numerous executions, the
testimony of witnesses and the opinion of the expert P.

        The written version of the judgment of 48 pages was completed
on 31 January 1986 and served upon the applicant's defence counsel on
19 February 1986.

        On 6 March 1986 the applicant filed the reasons for a plea of
nullity and an appeal against the judgment of 13 September 1986.  He
submitted inter alia that the Regional Court had failed to consider as
mitigating circumstances the lapse of time since he committed the
offences in question.

        On 9 September 1986 the Supreme Court dismissed the
applicant's plea of nullity and appeal.
        The applicant started to serve his sentence on 12 September
1986.  The Supreme Court's written decision was served upon him on
7 November 1986.


COMPLAINTS

        The applicant complains under Article 6 para. 1 of the
Convention of the length of the criminal proceedings against him.  He
considers in particular that the second trial before the Korneuburg
Regional Court could have taken place earlier.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 January 1987 and
registered on 28 April 1987.

        On 5 May 1988 the Commission decided that, in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure, notice should be given
to the respondent Government of the application and that they be
invited to submit written observations on the admissibility and merits
of the application before 22 July 1988.

        The Government's observations were submitted on 25 July 1988.
The applicant's observations in reply were submitted on 20 October
1988.


THE LAW

        The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the criminal proceedings against him were not
terminated within a reasonable time.

        Article 6 para. 1 (Art. 6-1), first sentence, states:

        "In the determination of his civil rights and
obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by
law."

        The respondent Govenment contend that criminal proceedings
concerning bankruptcy and related offences such as in the present case
are of a complex nature.  Evidence had to be taken from an expert
opinion and witnesses had to be heard in rogatory proceedings.
Furthermore, the Government submit the applicant did not insist upon
fixing the second trial at an earlier date, and repeatedly delayed
the proceedings in that he did not comply with summonses.  The length
of the proceedings could not be attributed to the Austrian
authorities.  The Government, referring to the different stages of the
proceedings, submit that no unreasonable delays occurred and that the
course of action taken by the Korneuburg Regional Court did not cause
any unreasonable delays.
        The Commission finds that the applicant's complaint under
Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal
proceedings against him, which lasted more than nine years, raises
complex issues of fact and law which can only be resolved by an
examination of the merits.  The application cannot, therefore, be
declared manifestly ill-founded.  No other grounds for inadmissibility
have been established.


        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE
        without prejudging the merits of the case



Secretary to the Commission      Acting President of the Commission




    (H. C. KRÜGER)                       (J. A. FROWEIN)