THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57652/00 by Lore WURM against Austria

The European Court of Human Rights (Third Section), sitting on 26 June 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , Mrs E. Steiner , judges , and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 30 April 2000,

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 Lore Wurm, is a Austrian national, who was born in 1933 and lives in Bad Goisern. She is represented before the Court by Mr Rinner, a lawyer practising in Linz.

A. The circumstances of the case

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

The applicant’s husband ran a tanning factory in Upper Austria.

In 1990 the Wels Regional Court instituted criminal proceedings against the applicant her husband and three other accused. While the others were suspected of intentionally causing damage to the environment and of continuous aggravated fraud ( schwerer gewerbsmässiger Betrug ), the applicant was only suspected of the latter offence.

On 4 July 1990 the court carried out a judicial inspection ( Lokalaugenschein ) at the factory, and on 27 July 1990 the investigating judge questioned the applicant as a suspect. During the preliminary proceedings 70 witnesses were heard and two expert opinions on environmental matters were obtained.

On 12 January 1996 the investigating judge concluded the preliminary investigations and transmitted the file to the Wels Public Prosecutor’s Office.

On 19 September 1996 the Public Prosecutor preferred the indictment against the applicant, her husband and the other three accused.

On forty six days between 21 January and 20 October 1999 the Regional Court held trial hearings. The proceedings against one of the accused were continued separately. On the last-mentioned date the Regional Court convicted the applicant’s husband and two other accused of continuous aggravated fraud but acquitted the applicant.

On 27 December 1999 the written version of the court’s judgment was served upon the applicant.

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 complains under Article 6 of the Convention about the length of the proceedings.

THE LAW

The applicant complains that the criminal proceedings against her were not concluded within a reasonable time. She relies on Article 6 of the Convention which, insofar as relevant, reads as follows:

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

The Government contend that the applicant failed to exhaust domestic remedies as she did not make an application in order to expedite the proceedings pursuant to Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ). In the Government’s view such an application is an effective remedy as its use would have reduced the length of the proceedings.

The applicant contests the Government’s view, arguing in particular that an application under Section 91 of the Courts Act is not an effective remedy and that the applicant’s obligation to expedite criminal proceedings against her by the use of an application under Section 91 of the Courts Act would interfere with her right to a fair trial.

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 (no. 23459/94, §§ 24-25, ECHR 2001-I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, unreported, relating to criminal proceedings). 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, where proceedings include a substantial period during which the applicant has no remedy to expedite the proceedings at his/her disposal, a request under Section 91 cannot be considered an effective remedy (see mutatis mutandis , Holzinger (no. 2) v. Austria, no. 28898/95, §§ 21-22, ECHR 2001-I).

The criminal proceedings at issue include one period during which the applicant did not have a request under Section 91 of the Courts Act at her disposal. This was a period of nine months between 12 January 1996 and 19 September 1996, when the proceedings were pending before the Public Prosecutor. Given that, until January 1996, the proceedings had already lasted five years and five months, and lasted after that period another three years and three months until 27 December 1999, when the Regional Court’s judgement was served on the applicant, during which time the applicant could have made use of an application under Section 91 of the Courts Act, and having regard to the complexity of the case, this delay cannot be regarded as substantial. In the circumstances of the case a request under Section 91 must be considered an effective and sufficient remedy, which the applicant has failed to use.

As to the applicant’s argument, the Court reiterates that the rule of exhaustion of domestic remedies laid down in Article 35 of the Convention is designed to ensure that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. It is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and others v. Turkey , judgment of 16 September 1996, Reports 1996-IV, §§ 65-66). Although Article 6 does not require accused persons actively to co-operate with the judicial authorities (see Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 36, § 82, and as a more recent authority Ledonne v. Italy (no. 1) no. 35742/97, 12 May 1999, § 21), the fact that an applicant who wishes to complain before the Court about the length of proceedings is required to exhaust domestic remedies cannot in itself be contrary to Article 6 of the Convention.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President

Appl . no. 57652/00

Lore Wurm v. Austria

Summary of the applicant’s observations in reply

The applicant contests the Government’s submissions and repeats that the criminal proceedings against her were not concluded within a reasonable time and argues that an application under Section 91 of the Courts Act is not an effective remedy. She argues that the applicant’s obligation to expedite criminal proceedings against her by the use of an application under Section 91 of the Courts Act would interfere with her right to a fair trial.