FIRST SECTION

FINAL DECISION

Application no. 48886/99 by Fadil MULAJ and Arben SALLAHI against Austria

The European Court of Human Rights (First Section), sitting on 22 May 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 19 March 1999,

Having regard to the partial decision of 27 June 2002,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicants, Fadil Mulaj and Arben Sallahi , are Austrian nationals, who were born in 1967 and 1976 respectively and live in Deutschlandsberg (Austria). They are represented before the Court by Mr. W. Vacarescu , a lawyer practising in Graz (Austria).

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

On 11 May 1998 the applicants were remanded in custody on the suspicion of having committed the offences of dangerous threat ( gefährliche Drohung ), of aggravated fraud ( schwerer Betrug ) and of using false documents ( Urkundenfälschung ).

On 12 May 1998 the Graz Regional Court ( Landesgericht ) imposed detention on remand on the applicants. They appealed against this decision.

On 20 May 1998 the Regional Court held a hearing on the continuation of the detention on remand ( Haftverhandlung ). On the same day, the Court of Appeal ordered the applicants to be released. It found that, due to the conflicting testimonies of the witnesses, there was no longer any strong suspicion that the applicants had committed the above-mentioned offences and subsequently the criminal proceedings against the applicants were discontinued as the Regional Court found no further reason to prosecute the applicants.

On 9 June 1998 the applicants requested compensation under the Criminal Proceedings Compensation Act ( Strafrechtliches Entschädigungsgesetz ).

On 12 August 1998 the Review Chamber of the Graz Regional Court ( Ratskammer ), sitting in camera, dismissed the applicants’ request for compensation.

The applicants appealed against this decision and requested a public hearing of their appeal.

On 10 September 1998 the Graz Court of Appeal ( Oberlandesgericht ), sitting in camera, dismissed the applicants’ appeal. It found that a public hearing was not provided under the applicable law and that the applicants had been heard before the first instance.

On 16 October 2002 the Supreme Court, upon the Procurator General’s plea of nullity for the preservation of law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ), quashed the Review Chamber’s and the Court of Appeal’s decisions and remitted the case to the Regional Court. It found that the court’s failure to hold a hearing in the compensation proceedings violated the applicants’ rights under Article 6 § 1 of the Convention.

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention that no public hearing was held in the course of the compensation proceedings.

THE LAW

The Court observes that by letter of 12 November 2002 the Government informed the Court that by decision of 16 October 2002 the Supreme Court set aside the decisions of the Review Chamber of the Graz Regional Court of 12 August 1998 and the decision of the Graz Court of Appeal of 10 September 1998 and remitted the case to the Graz Regional Court for deciding again on the applicants’ compensation claim. The applicants did not comment on these submissions.

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.

In the present case the Court considers that the applicants no longer intend pursuing their application and that the matter has been resolved since the applicants’ complaint relates to proceedings which have been quashed by the Supreme Court on the ground that the failure to hold a hearing violated the applicants’ rights under Article 6 § 1. New proceedings are to be conducted by the Regional Court. The Court also considers that respect for human rights as defined in the Convention does not require a continuation of the examination of the case. It, therefore, decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) and (b) of the Convention.

For these reasons, the Court unanimously

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

Søren Nielsen Christos Rozakis              Deputy Registrar President