FIRST SECTION

DECISION

Application no . 46601/07 Walter Franz BREINESBERGER and Hermann WENZELHUEMER against Austria

The European Court of Human Rights (First Section), sitting on 27 November 2012 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner , Nina Vajić , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges, and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 25 October 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Wa lter Franz Breinesberger and Mr Hermann Wenzelhuemer , are Austrian nationals who were born in 1942 and 1948 respectively and live in Eferding . They were represented before the Court by Haslinger/Nagele Rechtsanwälte GmbH, lawyers practising in Linz .

2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry for European and International Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The first applicant had been employed by the Sparkasse Eferding bank since 1962 and became a member of the board of directors ( Vorstand ) in 1991. The second applicant became a member of the board of directors of the same bank in 1993.

5. In the year 2000 preliminary investigations ( Vorerhebungen ) were initiated concerning the applicants on suspicion of aggravated fraud. The applicants were taken into pre-trial detention on 28 August 2000 and were released again on 11 September 2000.

6. On 20 March 2002 the Wels public prosecutor issued a bill of indictment charging the applicants with the offence of aggravated fraud, alleging that from March 1994 onwards the applicants had failed to repay commissions on loans to customers in 190 cases, had failed to reimburse legal fees by recording them under the headings “final entry” or “loan interest” in four cases and had charged higher interest on overdrafts than had been agreed in 127 cases.

7. On 19 October 2004, and after forty days of hearings held between 24 June 2003 and 19 October 2004, the Wels Regional Court, sitting as a court with two professional and two lay judges ( Schöffengericht ), convicted the applicants of aggravated fraud in respect of the first two events, namely failure to repay loan commissions in 179 cases and legal fees in four cases, and sentenced each of them to twenty-four months ’ imprisonment, sixteen months of which were suspended with probation. The judgment was delivered in public at the end of the fortieth day of hearings.

8. On 24 May 2005 the applicants filed an application for acceleration of the proceedings ( Fristsetzungsantrag ) under section 91 of the Courts Act ( Gerichts ­ organisationsgesetz ), requesting that a time-limit be set within which the Regional Court must send them the minutes of the last hearing and the written judgment.

9. The written judgment of 236 pages was served on the applicants ’ counsel on 17 June 2005.

10. On 20 June 2005 the applicants lodg ed an application under Article 285 § 2 of the Code of Criminal Procedure ( Strafprozeßordnung ) seeking to extend the time-limit for lodging a plea of nullity and an appeal against the sentence, owing to the complexity o f the case. By a decision of 23 June 2005 the Wels Regional Court granted the application, referring to the complexity and volume of documentation in the case, and extended the time-limit for exercise of the remedies by a further four weeks.

11. On 11 August 2005 the applicants lodged a plea of nullity and an appeal against the sentence.

12. With a decision dated 10 November 2005 the time limit for the Wels public prosecutor to submit observations on the plea of nullity was extended by a further four weeks. On 5 January 2006 the Wels public prosecutor submitted comments on the plea of nullity. The plea of nullity was transferred to the Supreme Court on 12 January 2006. On 6 March 2006 the Supreme Court forwarded the file to the Attorney-General ’ s Office ( General ­ prokuratur ) for observations. The Attorney-General ’ s Office submitted its comments on 29 November 2006, which were served on the applicants on 4 January 2007, together with the information that they could lodge their observations on the comments within fourteen days.

13. On 11 January 2007 the applicants made an application seeking to extend the time-limit in which to submit observations on the Attorney ‑ General ’ s Office ’ s comments by a further two weeks. The application was granted by the Supreme Court on 16 January 2007.

14. On 31 January 2007 the applicants submitted their comments on the Attorney General ’ s Office ’ s observations.

15. In a judgment of 15 February 2007 concerning the plea of nullity, served on counsel on 4 May 2007, the Supreme Court quashed the parts of the conviction that related to eight counts of alleged fraud regarding the failure to repay commissions on loans to customers, but dismissed the remainder of the plea of nullity as unfounded. However, in accordance with its decision on the eight counts in question, the Supreme Court also quashed the sentence passed by the Regional Court and referred the case back to the first-instance court for a retrial with regard to the eight counts and for sentencing.

16. The Wels public prosecutor subsequently withdrew the bill of indictment in so far as it concerned those eight counts.

17. On 20 July 2007 the Wels Regional Court , to which it only remained to decide on the overall sentence in respect of the applicants, sentenced each of the applicants to two years ’ imprisonment, suspended with probation for one year. The case was then sent to the Linz Court of Appeal for determination of the appeal against the sentence.

18. On 15 November 2007 the Linz Court of Appeal partly upheld the public prosecutor ’ s appeal and sentenced each of the applicants to twenty ‑ four months ’ imprisonment, twenty months of which were suspended with probation for one year.

19. That judgment was served on the applicants ’ counsel on 31 January 2008.

B. Relevant domestic law

20. Article 285 § 1 of the Code of Criminal Procedure ( Strafprozeß ­ ordnung ) at the material time provided that a complainant could submit a plea of nullity, giving reasons, within four weeks after service of the written first-instance judgment.

21. Paragraph 2 of the provision provided at the material time as follows:

“ Where the proceedings are on an extremely large scale the first-instance court shall, if the applicant so requests, extend the time-limit referred to in paragraph 1 by the length of time required – particularly in view of the exceptional length of the trial or the exceptional volume of the minutes of the proceedings, the remainder of the case file or the written judgment – in order to ensure adequate preparation of the defence (Article 6 § 3 (b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958, and Article 2 of Protocol No. 7 thereto, Federal Law Gazette No. 628/1988) or of the prosecution of the case .”

COMPLAINTS

22. The applicants complained under Article 6 of the Convention about the length of the criminal proceedings and under Article 13 of the Convention of the lack of an effective remedy in respect of the delays in the proceedings before the Supreme Court.

23. The applicants further complained under Article 13 of the lack of an effective remedy in respect of the length of the proceedings before the Wels Regional Court .

24. Under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 of the Convention, the applicants also complained that the Supreme Court had lacked the necessary appearance of impartiality. They further alleged under Article 6 of the Convention that the Regional Court had wrongly assessed the evidence before it and had not sufficiently explained its assessment of the evidence in the reasoning of its judgment. The applicants also complained of the lack of a hearing in the proceedings before the Supreme Court. Lastly, they alleged under Article 6 § 3 of the Convention that they had not had enough time to prepare their plea of nullity and their appeal.

THE LAW

A. The applicants ’ complaint with regard to the length of the proceedings

25. With regard to their complaint concerning the length of the criminal proceedings, the applicants relied on Article 6 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

26. The Government maintained that the proceedings at issue had been particularly extensive and had concerned complex events in the context of white-collar crime. The court-commissioned experts had had to examine six years ’ worth of manipulation of accounts and the Wels Regional Court had had to hear evidence from numerous witnesses, spread over forty days of hearings. Overall, the proceedings had been dealt with by five courts, since they had been referred back in part to the first-instance court. The Government submitted that the domestic authorities ’ conduct should be considered as having been expeditious and efficient in view of the extensive and complex subject matter of the proceedings. They claimed that there had been no undue periods of inactivity caused by the authorities. The Government argued that in fact some delays had been caused by the applicants, inter alia on account of their requests for the extension of time ‑ limits.

27. The applicants claimed that the criminal proceedings had been unreasonably long and had thus breached the “reasonable time” requirement of Article 6 of the Convention. They contended that neither the scope nor the complexity of the case could explain or justify the length of the proceedings. Furthermore, the large number of witnesses who had been called and had given evidence before the Wels Regional Court had been neither necessary nor relevant. The applicants had always cooperated with the authorities and courts and their conduct could not be considered as having prolonged the proceedings, with the exception of the requests for extension of the time-limits for lodging their plea of nullity, their appeal and their comments with the Supreme Court. However, those extensions had been only minor and had not been such as to draw out the proceedings unduly. The applicants also stated that the fact that a defendant used all the remedies available to him in criminal proceedings could not be interpreted to his disadvantage. By contrast, the applicants pointed to the long delay before the written judgment of the Wels Regional Court had been served and the delay in the proceedings before the Supreme Court.

28. The Court considers that the period to be taken into account began at the la test with the applicants ’ arrest on 28 August 2000 and ended on 31 January 2008, when the judgment of the Linz Court of Appeal was served on the applicants. It thus lasted for seven years, five months and five days across three levels of jurisdiction.

29. The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicant ’ s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II).

30. The Court finds that the criminal proceedings at issue were of considerable complexity in view of the number of separate instances of manipulation of loan accounts and contract provisions to be investigated and examined. This involved establishment of the facts regarding a large number of individual loan agreements and quarterly billings, a process which took time, in particular at the investigation stage by the public prosecutors and the trial stage in the first ‑ instance court. The sheer extent of the subject matter of the proceedings is made clear by the over 300 events to be investigated, the forty hearing dates necessary to interview the witnesses and experts and the length of the judgment of the Wels Regional Court, which comprised 236 pages.

31. Furthermore, the Court observes that the applicants requested extension of the time-limits for lodging their plea of nullity and their appeal and their observations on the Attorney-General ’ s Office ’ s comments. As regards the first request to extend the time-limit, the Court notes that such an extension is provided for in domestic law only in cases of extreme complexity where, inter alia , the length of the trial, the minutes or the judgment warrant extension of the time-limit to ensure the defendant ’ s right to fair proceedings under the Convention (see paragraph 21 above). The fact that the applicants needed to request such an extension and that the Wels Regional Court granted it is a strong indicator of the particular complexity of the present criminal proceedings.

32. The Court acknowledges that, taken alone, some stages of the proceedings appear drawn out as regards the start of the first-instance trial, the serving of the written judgment of the Wels Regional Court and the proceedings concerning the plea of nullity. However, the Court finds that, in view of the extent of the subject matter of the proceedings, the individual stages cannot be considered as periods of inactivity attributable to the domestic authorities. With further reference to the necessity for the applicants to request an extension of the time-limit, which is only to be granted in cases of extreme complexity, the Court finds that the length of the individual stages, like the overall length of the proceedings, while admittedly considerable, nevertheless did not breach the “reasonable time” requirement in the present case.

33. It follows that this complaint is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The applicants ’ complaint as regards the lack of an effective remedy in respect of the delays before the Supreme Court

34. The applicants complained of the lack of an effective remedy in respect of the delays in the proceedings before the Supreme Court. They relied on Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

35. The Government contended that no separate remedy was available in respect of delays before the Supreme Court.

36. The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, for example, KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and A.S. v. Austria ( dec .), no. 42033/98, 7 May 2002).

37. Referring to the foregoing considerations under Article 6 § 1, the Court notes that in the present case the applicants have no “arguable complaint” under that provision.

38. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. The applicants ’ further complaints

39. The applicants further complained under Article 13 of the Convention of the lack of an effective remedy in respect of the delays occurring before the Wels Regional Court and, under Article 6 of the Convention and Article 2 of Protocol No. 7 to the Convention, of the lack of appearance of impartiality of the Supreme Court. They also complained under Article 6 of the Convention that the Regional Court had wrongly assessed the evidence before it and had not sufficiently explained its assessment of the evidence in the reasoning of its judgment. They further complained of the lack of a hearing in the proceedings before the Supreme Court. Lastly, the applicants complained under Article 6 § 3 of the Convention that they had not had enough time to prepare their plea of nullity and their appeal.

40. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

41. It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

André Wampach Isabelle Berro-Lefèvre Deputy Registrar President