FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72594/01 by Normann GRAF against Austria

The European Court of Human Rights (Fourth Section) , sitting on 3 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mrs E. Steiner , judges , , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 29 December 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Normann Graf, is a German national of Austrian origin, who lives in Köln (Germany). He is represented before the Court by Mr H. Liebscher, a lawyer practising in Salzburg (Austria).

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

On 29 June 1989 the Salzburg Regional Court ( Landesgericht ) instituted preliminary i n vestigation proceedings against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, but in fact they had sold the real property in 1986 and misappr o priated the proceeds of the sale.

As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period ( Richteramtsanwärter ) were assigned to assist him. In May 1990 one of them took over as the new investigating judge.

During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data. Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clear the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. The team was restructured again in 1993. In April 1995 the experts delivered their opinion.

In 1993 the applicant, who had his place of residence in Germany since 1986, obtained German citizenship.

In 1994 the Austrian authorities issued an international arrest warrant against the applicant. It appears that this warrant is still valid.

In 1995 the Austrian authorities requested the German authorities to take over the criminal proceedings against the applicant.

In March 1995 the Cologne Public Prosecutor opened criminal proceedings against the applicant.

On 18 December 1996 the Cologne Public Prosecutor sent a letter to the applicant and informed that he had discontinued the criminal proceedings against him.

On 4 August 1995, even before the Investigating Judge formally closed the preliminary investigations, the Salzburg Public Prosecutor’s Office ( Staatsanwaltschaft ) pr e ferred a bill of indictment ( Anklageschrift ) of 441 pages against the appl i cant and eight of his co-accused. However, since the applicant had no residence in Austria, the indictment could not be served on him.

On 28 January 1997 the Public Prosecutor in Traunstein (Germany) refused to open criminal proceedings against the applicant as the prosecution had become time-barred ( Verfolgungsverjährung ) in Germany.

Meanwhile, the co-accused had been convicted by the Austrian courts and had been sentenced to prison sentences from seven to nine years. However, the proceedings against the applicant are still pending due to the impossibility of serving the bill of indictment on the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings. He submits that the proceedings had been pending since 1989 and that the Austrian authorities failed to request the German authorities in time to take over the proceedings and that, therefore, a prosecution in Germany was not any longer possible.

He also submits that the fact that the criminal proceedings against him are still pending violates his rights not to be tried or punished twice, as German authorities had also instituted criminal proceedings against him.

He further complains that the proceedings were unfair. He submits that the proceedings were subject to extensive media coverage and that he was not duly heard.

THE LAW

1. The applicant complains that the criminal proceedings against him were not concluded within a reasonable time and that these proceedings were unfair. He relies on Article 6 of the Convention which, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ....”

a. As regards the complaint about the length of the proceedings, the Court observes that the application concerns the same domestic proceedings as the case of Rösslhuber v. Austria ( judgment , no. 32869/96, 28 November 2000, unreported). In that case the Court found that the proceedings had lasted unreasonably long. However, the Court reiterates that, after the judgment in the case of Rösslhuber v. Austria had been given, the Court found in the case of Holzinger v. Austria that, as regards a complaint about the length of proceedings before an Austrian ordinary court, the request for acceleration of the proceedings under section 91 of the Austrian Courts Act constituted an effective remedy ( Holzinger v. Austria , no. 23459/94, 30.01.01, §§ 24-25, ECHR 2001 relating to civil proceedings, and Talirz v. Austria (dec.), no. 37323/97, 11.09.2001, relating to criminal proceedings).

In the present case preliminary investigation proceedings were instituted against the applicant on 29 June 1989. These proceedings were pending until 4 August 1995, when the Public Prosecutor lodged a bill of indictment against the applicant and eight co-accused. The criminal proceedings against the applicant are still pending, as the Salzburg Regional Court could not serve the bill of indictment on the applicant who had meanwhile left for Germany. The Court observes that the remedy of an application under section 91 of the Austrian Courts Act remained available to  the applicant throughout the proceedings.

The applicant submits that he had not made use of this remedy because in the particular circumstances of his case this remedy could not be considered as effective. However, he failed to substantiate this argument.

The Court, therefore, finds that he failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention

It follows that this part of the application has to be rejected pursuant to Article 35 § 4.

b. As regards the applicant’s complaint about the alleged unfairness of the proceedings, the Court finds that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 of the Convention, as it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

In this respect, the Court observes that no final decision has yet been taken in the criminal proceedings against the applicant. His case is still pending before the Regional Court. As regards this complaint the application is therefore premature.

It follows that this complaint must be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 1 and 4 of the Convention.

2. The applicant complains that he was tried twice, on the one hand by Austrian courts and on the other hand by German courts. The applicant invokes no specific Convention provision. The Court observes that this complaint falls to be considered under Article 4 of Protocol No. 7, which, insofar as relevant, reads as follows:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

However, the Court finds that Article 4 of Protocol No. 7 does not guarantee respect for the principle ne bis in idem where a person is tried or punished repeatedly by the courts of different States ( S.R v. Sweden (Dec.), no. 62806/00, 23 April 2002, unreported).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas bratza Registrar President