FIRST SECTION

DECISION

Application no. 57042/00 by Peter KIMESWENGER against Austria

The European Court of Human Rights (First Section), sitting on 23 October 2003 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 24 January 2000,

Having regard to the decision of 20 June 2002 to apply the procedure under Article 29 § 3 of the Convention.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. Peter Kimeswenger, is an Austrian [Note1] national, who was born in 1968 and lives in Attnang-Puchheim, Austria. He is represented before the Court by Mr. Gabl, a lawyer practising in Linz, Austria. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The circumstances of the case

On 30 September 1996, preliminary investigations ( Vorerhebungen ) were instituted against the applicant and ten other persons who were suspected of aggravated fraud ( schwerer gewerbsmässiger Betrug ) by having set up and managed a gambling-system which was based on a pyramid scheme.

On 4 October 2000, 25 May and 24 September 2001 the applicant filed requests for acceleration of the proceedings under Section 91 of the Courts Act ( Fristsetzungsantrag ).

The proceedings against the applicant are still pending.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings.

THE LAW

On 24 September 2003 the Court received the following declaration from the Government:

“I declare that the Government offer to pay the amount of 7,000 euros (EUR) to Peter Kimeswenger in respect of the application no. 57042/00 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (EUR 7,000) 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 4 July 2003 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay me the amount of 7,000 euros (EUR) on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 7,000) 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 reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. 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;

(b) the matter has been resolved;

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 agreement reached between the parties and considers that the applicant no longer intends 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 require the examination of the application to be continued. Accordingly, the application should be struck out of the list in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

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

Søren Nielsen Christos Rozakis              Deputy Registrar President

[Note1] To be checked.