THIRD SECTION

DECISION

Application no. 52326/99 by Alfred CERNY against Austria

The European Court of Human Rights (Third Section), sitting on 6 November 2003 as a Chamber composed of:

Mr G. Ress , President , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan , Mrs H.S. Greve , Mrs E. Steiner, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 16 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Alfred Cerny , is an Austrian national, who was born in 1954 and lives in Vienna (Austria). He is represented before the Court by K. Bernhauser , a lawyer practising in Vienna (Austria).

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

On 17 December 1998 the Vienna Regional Court convicted the applicant of sexual offences and sentenced him to two years and five months’ imprisonment. The applicant filed a plea of nullity as well as an appeal against the sentence. He submitted that he was not duly informed about his daughter’s testimony and that the court had failed to advise a witness of the right to refuse to give evidence.

On 23 April 1999 the Procurator General’s Office submitted that the Supreme Court should allow the applicant’s plea of nullity.

On 11 May 1999 the Supreme Court ordered the Regional Court to clarify the questions whether the witness had been advised about the right to refuse to give evidence and whether the applicant had been informed about his daughter’s testimony.

On 8 June 1999 the Regional Court, without hearing the applicant, rectified the transcript of the trial and added the sentences that the witness at issue, after the court had advised her, had stated: “I want to give evidence” and “The accused was notified of the daughter’s testimony”. It found that the typist, transferring the shorthand record of the trial into ordinary script, had overlooked these passages.

On 20 July 1999 the Supreme Court, finding no grounds of nullity on the basis of the rectified transcript, rejected the plea.

On 31 August 1999 the Vienna Court of Appeal dismissed the applicant’s appeal against sentence.

COMPLAINT [Note1]

The applicant complained under Article 6 of the Convention that his right to be heard was violated. In particular he submitted that he had not been heard by the Vienna Regional Court taking the decision of 8 June 1999 to rectify the record and that he had had no remedy against this decision which led to the Supreme Court’s decision of 20 July 1999.

THE LAW

On 13 October 2003 the Court received the following declaration from the Government:

“I declare that, the Government offer to pay the amount of 5,000 euros (EUR) to Alfred Cerny in respect of the application no. 52326/99 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (EUR 5,000) shall cover any pecuniary and 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 25 September 2003 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay me the amount of 5,000 euros (EUR) on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 5,000) shall cover any pecuniary and 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 Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention).

For these reasons, the Court unanimously

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

Mark Villiger Georg Ress              Deputy Registrar President

[Note1] Use the present tense for communication of a case (the applicant complains) and the past for a decision (the applicant complained).