THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42033/98 by A.S. against Austria

The European Court of Human Rights ( Third Section) , sitting on 7 May 2002 as a Chamber composed of

Mr G. Ress , President , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr J. Hedigan , Mrs H.S. Greve ,

Mrs E. Steiner , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 April 1998 and registered on 3 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is an Austrian national, born in 1953 and living in Bergheim . She is represented before the Court by Mr E. Salpius , a lawyer practising in Salzburg.

A. The circumstances of the case

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

1. First set of proceedings (no. 26 Vr 1459/89)

On 29 June 1989 the Salzburg Regional Court ( Landesgericht ) started preliminary investigations (file number 26 Vr 1459/89) 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, while in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale.

On 5 July 1989 a search was carried out at the applicant’s premises and on 22 April 1991 she was heard as a suspect. Later she fled to Panama with her life companion who was also a suspect in the proceedings.

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 clarify 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. In April 1995 the experts delivered their opinion.

On 12 May 1995 the Salzburg Regional Court, upon the Public Prosecutor’s request, issued an international arrest warrant against the applicant.

On 3 June 1995 the applicant was arrested in the Netherlands and, on 13 June 1995, she was extradited to Austria where she was remanded in custody.

On 29 August 1995 the applicant was released on bail with a surety of 2 million Austrian schillings (ATS) and the withdrawal of her passport. Upon the applicant’s request, the Salzburg Regional Court reduced the amount of the surety to ATS 1 million on 4 April 1997. It also decided that her passport be returned and ordered the applicant to report to the court at regular intervals. On 22 January 1999 the applicant requested the court to lift all measures imposed on her, which request was granted on 22 May 1999.

On 13 November 1995 the proceedings against seven co-accused, against whom the indictment comprising about 500 pages had been preferred, were severed from the proceedings concerning the applicant.

On 30 April 1996 the preliminary investigations were closed and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure ( Strafprozessordnung ), according to which the Public Prosecutor has to decide within fourteen days whether the proceedings are to be discontinued, whether they need to be supplemented or whether an indictment is to be preferred. No indictment was preferred within the prescribed time-limit since the Public Prosecutor, due to the complexity of the case, had filed several applications for supplementing the preliminary investigations. In order to comply with these applications, the preliminary investigations were re-opened.

On 27 April 1998 the applicant informed the court of the Public Prosecutor’s failure to take a decision under section 112 of the Code of Criminal Procedure within the time-limit and requested the court to inform the Principle Public Prosecutor’s Office ( Oberstaatsanwaltschaft ) pursuant to Section 27 § 2 of the Code of Criminal Procedure. However, the court did not comply with this request.

On 20 December 2000 all applications by the Public Prosecutor were complied with and the preliminary investigations under file number 26 Vr 1459/89 were closed. So far the Public Prosecutor has not taken a decision under section 112 of the Code of Criminal Procedure.

2. Second set of proceedings (no. 26 Vr 2342/97)

On 12 December 1997 the investigating judge granted the Public Prosecutor’s request of 4 September 1997 to extend and supplement the above preliminary proceedings as regards one set of facts. These proceedings were conducted under a new file number (26 Vr 2342/97). These further preliminary investigations were closed on 19 December 2000 and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure. So far no decision has been taken.

3. Third set of proceedings (no. 26 Vr 367/91)

It appears that a further set of preliminary investigations concerning related charges (number 26 Vr 367/91) against the applicant and other suspects, which was opened in 1990, is still pending on the ground that one expert has not yet completed his opinion.

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."

Section 91 of the Courts Act applies to all kind of proceedings before the ordinary courts, be it civil or criminal ones.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against her. She further complains under Article 13 of the Convention that she does not have any effective remedy against the Public Prosecutor’s failure to take a decision under section 112 of the Code of Criminal Procedure.

THE LAW

1. The applicant’s first complaint relates to the length of criminal proceedings. She invokes 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...”

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. They argue, in particular, that the applicant could have made use of this remedy during the preliminary investigation and supplementary examinations following the Public Prosecutor’s request, during which the first-instance court was in charge of conducting the criminal proceedings. 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 Section 91 of the Courts Act is not available as regards delays caused by the public prosecutor.

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 ( Holzinger v. Austria , no. 23459/94, 30.01.01, §§ 24 ‑ 25, to be published in ECHR 2001, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11.9.2001, 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 ( mutatis mutandis Holzinger (no. 2) v. Austria, no. 28898/95, 30.01.01, §§ 21-22, to be published in ECHR 2001).

a) The Court observes that the first and second set of proceedings are so closely linked that they have to be regarded as a whole. These proceedings include two periods, during which the applicant did not have a request under Section 91 of the Courts Act at her disposal. Firstly, there was a period of six months between the end of June 1989, when the first set of proceedings started, and the entry into force of Section 91 on 1 January 1990. However, this period cannot be regarded as substantial. Secondly, since Section 91 of the Courts Act does not apply as regards delays caused by the public prosecutor, and both sets of proceedings are pending before the public prosecutor since December 2000, there is at present a period of one year and four months during which the applicant was not in a position to make use of this remedy. Given that, until December 2000, the proceedings had already lasted eleven years, during which time the applicant could have made use of Section 91, and having regard to the extraordinary scope of the case, this delay cannot yet be regarded as substantial. In this connection the Court observes that it has to decide on the basis of the facts as they stand at the time of its admissibility decision. 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.

b) As regards the third set of proceedings, which are still pending at the stage of preliminary investigations conducted by the first-instance court, the Court notes that Section 91 of the Courts Act was available as from the beginning of the proceedings in 1990. However, the applicant failed to make use of this remedy.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant complains under Article 13 of the Convention that she had no effective remedy against the dilatoriness of the Public Prosecutor. The Government argue that Section 27 of the Criminal Code in conjunction with Sections 36 and 37 of the Public Prosecutor’s Act offer a suitable remedy against any inactivity.

The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see for example Kudla v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

Referring to the foregoing considerations under Article 6 § 1, the Court notes that in the present case the applicant has no “arguable complaint” under that provision.

It follows that her complaint under Article 13 is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President