FIRST SECTION

DECISION

Application no. 18652/02 by Bernd STOTTER against Austria

The European Court of Human Rights (First Section), sitting on 3 June 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 7 May 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bernd Stotter, is an Austrian national who was born in 1975 and lives in Mittersill. He was represented before the Court by Mr K. Wampl, a lawyer practising in Salzburg. The respondent Government were represented by their agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.

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

On 5 September 2001 the investigating judge at the Salzburg Regional Court ( Landesgericht ) ordered the applicant's pre-trial detention on suspicion of having committed offences under the Drugs Act.

On 5 October 2001 the Salzburg Regional Court, after having held a hearing in presence of the applicant, his counsel and the Public Prosecutor, ordered that the applicant be released while imposing a certain number of conditions. The applicant was released immediately after the hearing.

On 8 October 2001 the Public Prosecutor's Office appealed against this decision. The appeal was not served on the applicant or his counsel.

On 11 October 2001 the Linz Court of Appeal ( Oberlandesgericht ), sittting in camera , granted the Public Prosecutor's appeal and ordered that the applicant's pre-trail detention be continued.

On 23 October 2001 the applicant was again taken into pre-trial detention.

On 5 November 2001 the applicant lodged a fundamental rights complaint ( Grundrechtsbeschwerde ). He complained, inter alia , that the proceedings were defective in that the Public Prosecutor's appeal had not been served on him.

On 27 November 2001 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant's fundamental rights complaint.

COMPLAINT

The applicant complained under Article 5 § 4 of the Convention that the proceedings concerning the continuation of his pre-trial detention were not adversarial, as he was not informed of and was therefore unable to comment upon the Public Prosecutor's appeal.

THE LAW

On 15 April 2004 the Court received the following declaration from the respondent Government:

“I declare that the Austrian Government offer to pay the amount of EUR 4,000 to Mr Bernd Stotter in respect of the application no. 18652/02 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (EUR 4,000) shall cover any non ‑ pecuniary damage as well as costs and expenses. It will be paid free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 16 April 2004 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay me the amount of EUR 4,000 on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 4,000) shall cover any non-pecuniary damage as well as costs and expenses. It will be paid free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the offer and withdraw the application waiving any further claims against the Republic of Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the friendly settlement reached between the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require that the examination of the application be continued. Consequently, the case should be struck out of the Court's list in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos R ozakis Registrar President