FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70579/01 by Brigitte MAIER against Austria

The European Court of Human Rights (First Section), sitting on 15 September 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen ,

Mr G. Bonello ,

Mrs F. Tulkens , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 10 April 2001,

Having regard to the partial decision of 5 December 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Brigitte Maier, is an Austrian national, who was born in 1956 and lives in Vienna. She is represented before the Court by Mrs E. Bauer-Bannsdorf, a lawyer practising in Vienna.

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

On 28 March 1997 the investigating judge ( Untersuchungsrichter ) at the Wiener Neustadt Regional Court ( Landesgericht ) opened preliminary investigations against the applicant on suspicion of fraudulent bankruptcy ( betrügerische Krida ) and breach of trust ( Untreue ). The suspicion related to the applicant’s business activities as the general manager of the PLF company and to her activities as chairperson of two associations. Further, she was suspected of unauthorised use of a vehicle ( unbefugter Gebrauch eines Fahrzeugs ) and suppression of documents ( Urkundenunterdrückung ). The investigating judge issued an arrest warrant and ordered a search of the company’s premises and of the applicant’s home.

On 2 April 1997 the applicant was arrested, the search of the above premises was carried out and several documents were seized and stored at the Regional Court. Later that day, the applicant was questioned by the police.

On 3 April 1997 the applicant was again heard by the police.

On 4 April 1997 the applicant, after having been questioned by the investigating judge, was taken into pre-trial detention.

On 17 April 1997 the Wiener Neustadt Regional Court ordered that the seized documents be examined.

Between April and October 1997 a number of persons laid criminal complaints relating to the applicant’s alleged fraudulent transactions and joined the proceedings as civil parties. During the same period the disclosure of the applicant’s bank-accounts was ordered.

On 5 May 1997 the applicant was examined by the police on questions relating to the seized documents and on 23 May her tax accountant was heard as a witness.

On 25 June 1997 the applicant was released on bail.

On 28 July 1997 the court appointed an expert on accountancy. On 3 December 1997 the latter submitted his opinion which comprised more than a thousand pages.

On 2 February 1998 the investigating judge summoned the applicant to be questioned as a suspect on 24 February. However, the applicant did not appear and the questioning was postponed to 5 March.

Between 2 February and 20  April 1998 nineteen witnesses were heard.

On 30 April 1998 the investigating judge requested the court appointed expert to supplement his opinion.

On 8 October the applicant and her tax accountant were due to appear in order to answer questions of the expert. However, neither of the two appeared and the meeting had to be postponed to 3 November 1998.

On 10 November 1998 the expert submitted 480 pages supplementing his opinion.

On 10 December 1998 the investigating judge closed the preliminary investigations.

On 27 January 1999 the Public Prosecutor’s Office preferred the indictment charging the applicant with breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. The indictment was served on the applicant on 16 February 1999. A first attempt to summon her for trial failed as the summons could not be served at her address. Inquiries by the police showed however, that the applicant was living at this address. The beginning of the trial was then scheduled for 23 September 1999.

On 23 September 1999 the trial started before the Wiener Neustadt Regional Court. The applicant was requested to formulate her questions to the expert in writing and to submit certain documents.

On 3 November counsel for the applicant requested to be granted more time for preparing the questions to the expert. A trial hearing was then scheduled for 27 January, but had to be postponed to 9 March 2000 as the summons had erroneously not been sent out.

Further hearings were held on 9 March and 25 May 2000. At the close of the trial on 25 May 2000, the Regional Court convicted the applicant of breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle and suppression of documents. It sentenced her to two years’ imprisonment. The Regional Court found that the applicant had caused financial damage to the company and the associations at issue by abusing her position as financial manager and chairperson, respectively, in that she took money from the company’s and the associations’ accounts to cover her private expenses. Further, the court found that, by diminishing the company’s and the associations’ assets, she had intentionally curtailed the satisfaction of its creditors.

On 8 September 2000 the written version of the judgment was served on the applicant.

On 4 October 2000 the applicant filed a plea of nullity and an appeal against sentence ( Nichtigkeitsbeschwerde und Berufung ).

On 11 December 2000 the Procurator General’s Office ( Generalprokuratur ) filed its observations on the applicant’s plea of nullity.

On 15 February 2001 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant’s plea of nullity as being unfounded, but granted her appeal against sentence and suspended sixteen months of the two years’ sentence on probation. The Supreme Court’s decision was served on the applicant’s lawyer on 16 March 2001.

THE LAW

The applicant’s remaining complaint relates to the length of the criminal proceedings against her. She relies on 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...”

a. The Government contended that the applicant had failed to exhaust domestic remedies, as she had not filed either an application under section 91 of the Courts Act ( Gerichtsorganisationsgesetz ) or a hierachical complaint ( Aufsichtsbeschwerde ) under section 37 of the Public Prosecutor’s Act ( Staatsanwaltschaftsgesetz ). They referred to the case of Holzinger v. Austria (no. 23459/94, §§ 24-25, ECHR 2001-I) in which the Court had found that an application under section 91 of the Courts Act constituted an effective remedy as regards the length of proceedings and argued that the same considerations applied to a hierachical complaint.

The applicant contested the Government’s view. She asserted that the remedies relied on by the Government only applied where a delay was attributable to a particular court or public prosecutor. However, that was not her case. Her claim was that the overall duration of the proceedings was unreasonable, without there being particular delays attributable to a single organ.

The Court reiterates that hierarchical appeals in the Austrian legal system are not to be considered as effective remedies. They do not give the right to an individual to the exercise by the State of its supervisory powers, and any proceedings which do subsequently take place do not involve the participation of the individual who made the hierarchical appeal in the first place (see, as a recent authority, Pokorny v. Austria (dec.), no. 57080/00, 3 June 2003, unreported, with a reference to Lagler v. Austria , no. 16942/90, Commission decision of 13 April 1994, unreported).

Further, the Court doubts whether there were any periods during which the courts were dilatory as required by section 91 of the Courts Act. Thus, it is questionable whether the applicant could have made use of this remedy with reasonable prospects of success. However, the Court does not consider it necessary in the present case to examine whether the fact that the applicant did not make use of an application under section 91 of the Courts Act constitutes non-exhaustion of domestic remedies as the application is, in any event, inadmissible for the reasons set out below.

b. As to the merits, the Government submitted that the proceedings were complex. They related to a number of different charges, involved the participation of numerous victims as civil parties, and necessitated the questioning of some twenty witnesses as well as the taking of a very comprehensive expert opinion. While the authorities dealt with the proceedings  expeditiously, certain delays were attributable to the applicant.

The applicant maintains that the overall duration of the proceedings exceeded the “reasonable time” requirement.

The Court notes that the proceedings started on 28 March 1997 and were terminated on 16 March 2001. Thus, they lasted almost four years.

The Court will assess the reasonableness of the length of proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many others, Kudla v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).

As the Government have rightly pointed out, the proceedings at issue were of some complexity. The Court notes in particular that a very comprehensive expert opinion had to prepared at the stage of the preliminary investigations and that numerous witnesses had to be heard.

As regards the conduct of the authorities, the Court finds that there were no periods of apparent inactivity.

As to the conduct of the applicant, the Court notes that certain, though minor, delays are attributable to the applicant. For instance, she did not appear on 8 October 1998 to answer questions by the expert and the meeting had to be postponed to 3 November  1998. In November 1999 the applicant requested to be granted more time to prepare the questions she wanted to put to the expert and the next trial hearing was, thus, scheduled for 27 January 2000.

Having regard to these circumstances, the Court finds that the overall duration of the proceedings of almost four years can still be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President