THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70883/01 by Karin HANNAK against Austria

The European Court of Human Rights (Third Section), sitting on 16 December 2003 as a Chamber composed of:

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 7 May 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Karin Hannak , is an Austrian national, who was born in 1940 and lives in Wels . She is represented before the Court by Mr R. Selendi , a lawyer practising in Wels .

A. The circumstances of the case

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

On 12 April 1984, after criminal proceedings had been opened against her husband in December 1981, preliminary investigations were also instituted against the second applicant in the same matter.

On 15 April 1984 she was first heard by the police.

On 6 July 1987 the Wels Public Prosecutor’s Office preferred the indictment against her, her husband and two other co-accused. It charged the applicant, her husband and two co-accused with continued aggravated fraud and with negligent and fraudulent bankruptcy ( fahrlässige und betrügerische Krida )

The applicant’s objection against the indictment filed with the Linz Court of Appeal ( Oberlandesgericht ) was of no avail.

On 30 May 1988 the Public Prosecutor’s Office requested the Supreme Court ( Oberster Gerichtshof ) that jurisdiction over the case be transferred to the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) on the ground that the applicant and her husband had moved to Vienna and that numerous witnesses were residing there. On 9 August 1988 the Supreme Court allowed the transfer. The file arrived at the Vienna Regional Court on 16 September 1988, which set trial hearings for the period between September and November 1989.

On 25 September 1989 the Vienna Public Prosecutor’s Office filed a request for transfer of jurisdiction to the Linz Regional Court since it had turned out that the applicant and her husband had not moved to Vienna. The Linz Regional Court was proposed by the Public Prosecutor’s Office on the ground that it was feared that all the judges of the Wels Regional Court could declare themselves biased as the applicant’s husband was one of their former colleagues. On 29 December 1989 the Linz Public Prosecutor’s Office requested that a trial hearing be fixed.

Subsequently the Linz Regional Court, sitting with two professional and two lay judges, suggested ex officio the re-transfer of the case to the Wels Regional Court. This was refused by the Linz Court of Appeal on 13 June 1990. On 22 June 1990 a first trial hearing was set by the Linz Regional Court for 18 December 1990.

Between 18 December 1990 and 5 September 1991, the Linz Regional Court, sitting with two professional and two lay judges, held further trial hearings against the applicant and the co-accused. Numerous witnesses as well as an expert on bookkeeping were heard.

On 11 July 1991, i.e. the fifteenth trial day, the Linz Regional Court decided to disjoin the proceedings against the applicant from those against the co-accused due to her poor state of health.

On 5 September 1991 the Linz Regional Court convicted the applicant’s husband of continued aggravated fraud ( gewerbsmässiger schwerer Betrug ), fraudulent bankruptcy ( betrügerische Krida ), fraudulent conversion ( Veruntreuung ) and false testimony ( falsche Beweisaussage vor Gericht ).

On 26 November 1992 the Supreme Court quashed the Linz Regional Court’s decision regarding the conviction of the applicant’s husband relating to the counts on aggravated fraud and fraudulent bankruptcy, but confirmed his conviction as regards the other charges, quashed the sentence and referred the case to the Linz Regional Court for further proceedings. It reasoned that there were substantial grounds to cast doubt upon the impartiality of the bookkeeping expert.

The new trial before the Linz Regional Court was scheduled for 9 March 1993. This decision was taken by a judge who had participated in the judgment of 5 September 1991. Following a successful objection lodged by the applicant’s husband with the Linz Court of Appeal, the case was assigned to another judge at the Linz Regional Court.

On 14 April 1993 the Supreme Court allowed the request of the applicant’s husband for transfer of jurisdiction back to the Wels Regional Court as there were no longer any concerns about possible bias.

Subsequently, the Wels Regional Court divided the proceedings into two different sets:

The first set, relating to the final conviction of the applicant’s husband on account of fraudulent conversion and of having given false testimony, concerned the fixing of a sentence regarding these offences. The second set of proceedings related to the counts of aggravated fraud and fraudulent bankruptcy.

As regards the first set of proceedings, the Wels Regional Court, on 16 December 1993, convicted the applicant’s husband.

In respect of the second set of proceedings, the Regional Court, on 16 September 1993, remitted the file to the investigating judge for the preparation of a new report by a bookkeeping expert and for the conduct of further investigations, including the seizure of further accounting documents. On 14 December 1994 the expert requested the submission of these documents, which he inspected on 6 March 1995.

Meanwhile, on 17 October 1994 the proceedings against the applicant were again joined with  those against her husband.

On 7 November 1996 the first part of the expert report arrived at the court. The remainder arrived on 16 April 1997.

On 9 August 1997 the file was transferred to the trial court, which, on 1 December 1997, fixed a hearing for 20 January 1998.

On 20 January 1998, namely the first trial day in the second round of proceedings, the Wels Regional Court again decided to disjoin the proceedings against the applicant from those against her husband on account of her poor health.

On 19 March 1998 the proceedings against the applicant were again joined with the proceedings against her husband.

Between 20 January 1998 and 18 December 1998, the Wels Regional Court held ten hearings and, on the latter date, convicted the applicant of aiding and abetting fraudulent bankruptcy and sentenced her to six months imprisonment suspended on probation.

On 28 May 1999 the written version of the judgment was served on the applicant’s counsel. Thereupon, the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde ).

On 2 December 1999 the Supreme Court rejected her plea of nullity and appeal against sentence.

The judgment was served on 13 January 2000.

B. Relevant domestic law

Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows:

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings against her have not been terminated within a reasonable time.

THE LAW

The applicant’s complaint related to the length of criminal proceedings. She invokes Article 6 § 1 of the Convention, which, so far as material, reads as follows:

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

The Government contended that the applicant failed to exhaust domestic remedies as she had not made an application in order to expedite the proceedings pursuant to Section 91 of the Courts Act. In the Government’s view such an application was an effective remedy as its use would have reduced the length of the proceedings. The applicant contested the Government’s view.

In the case of Holzinger v. Austria the Court has found that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria , no. 23459/94, 30.01.01, §§ 24-25, to be published in ECHR 2001). It stated, however, that the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole ( ibid ., § 22). Thus, the Court found that, where the duration of the proceedings has already been substantial before the entry into force of Section 91 of the Courts Act on 1 January 1990, this remedy cannot be considered to be effective ( Holzinger (no. 2) v. Austria, no. 28898/95, 30.01.01, §§ 21-22, to be published in ECHR 2001). In the Talirz v. Austria case the Court found that Section 91 of the Courts Act also applied to criminal proceedings ( Talirz v. Austria (dec.), no. 37323/97, 11.9.2001).

In the present case, the lapse of time before the entry into force of Section 91 of the Courts Act was considerable. The proceedings started on 12 April 1984 and had by then already lasted five years and eight months. The case, thus, resembles the Holzinger (no. 2) case. In these circumstances, Section 91 of the Courts Act cannot be regarded as an effective remedy.

It follows that the application cannot be rejected for non-exhaustion of domestic remedies.

As to the merits, the Government asserted that the case was extraordinarily complex, in particular as regards the scope of the file, the number of co-accused and charges, involving the necessity to hear witnesses in foreign countries. It was necessary to conduct a second round of proceedings in the trial against the applicant’s husband which were closely connected to those of the applicant, and to obtain a new expert opinion. They further submitted that the Austrian courts involved dealt expeditiously with the case. The delays caused by the transfer of jurisdiction due to the applicant’s statement that she had moved to Vienna and the delays caused by disjunctions of the applicant’s proceedings from those of her husband due to her poor state of health were attributable to the applicant. The applicant maintained that the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible without prejudging the merits.

Vincent Berger Georg Ress Registrar President