FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42484/98 by Gerhart ROYER against Austria

The European Court of Human Rights (First Section) , sitting on 18 April 2002 as a Chamber composed of

Mr C.L. Rozakis , President ,

Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 July 1998 and registered on 29 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 1932 and living in Wels . He is represented before the Court by Mr G. Buder, 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.

1. First round of proceedings

On 4 April 1984 the Wels Regional Court ( Kreisgericht ) served an arrest warrant on the applicant for suspicion of continued aggravated fraud ( gewerbsmäβiger schwerer Betrug ) committed since 1 January 1979. The same day the applicant was arrested.

On 5 April 1984 the Wels Regional Court ordered the applicant’s detention on remand.

On 13 and 17 April 1984 and 7 June 1984 supplementary charges led to the extension of the preliminary investigations against the applicant.

On 4 May 1984 the appointed bookkeeping expert was sworn in.

On 28 September 1984 the applicant was released from detention.

During the pre-trial phase in 1985 and 1986 more than 60 witnesses were heard, some of them under letters rogatory . On 14 February 1986 the expert submitted a comprehensive opinion, as a result of which further witnesses were heard.

On 22 April 1987 the preliminary investigations were closed and the file, which comprised 15 volumes consisting of more than 500 documents, was transferred to the Wels Public Prosecutor’s Office ( Staatsanwaltschaft ).

On 6 July 1987 the Public Prosecutor’s Office preferred the indictment charging the applicant and three co-accused with continued aggravated fraud, and with negligent and fraudulent bankruptcy ( fahrlässige und betrügerische Krida ) . The bill of indictment, which arrived at the Regional Court on 29 July 1987, comprised 143 pages and consisted of 29 counts of aggravated fraud, out of which 10 concerned the applicant; 5 counts of fraudulent bankruptcy, out of which one concerned the applicant; and 4 counts of negligent bankruptcy all concerning the applicant. The major part of the charges as well as further charges relating to various other offences concerned one co-accused, Mr H., a former judge at the Wels Regional Court. The applicant’s and H.’s objections against the indictment were dismissed by the Linz Court of Appeal ( Oberlandesgericht ).

On 30 May 1988 the Public Prosecutor’s Office requested the Supreme Court ( Oberster Gerichtshof ) that jurisdiction over the case be transferred to the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) on the ground that H. had moved to Vienna and that numerous witnesses were residing there. On 9 August 1988 the Supreme Court allowed the transfer. The file arrived at the Vienna Regional Court on 16 September 1988, which set trial hearings for the period between September and November 1989.

On 25 September 1989 the Vienna Public Prosecutor’s Office filed a request for transfer of jurisdiction to the Linz Regional Court since it had turned out that H. had not moved to Vienna. The Linz Regional Court was proposed by the Public Prosecutor’s Office on the ground that it was feared that all the judges of the Wels Regional Court could declare themselves biased as the case concerned their former colleague H. In his statement of 13 October 1989 the applicant indicated that he had no objections against this transfer. On 18 December 1989 the Supreme Court allowed the transfer. On 29 December 1989 the Linz Public Prosecutor’s Office requested that a trial hearing be fixed.

Subsequently the Linz Regional Court, sitting with two professional and two lay judges, suggested ex officio the re-transfer of the case to the Wels Regional Court, which was refused by the Linz Court of Appeal on 13 June 1990. On 22 June 1990 a first trial hearing was set for 18 December 1990.

Between 18 December 1990 and 5 September 1991, the Linz Regional Court, sitting with two professional and two lay judges, held 55 trial hearings against the applicant and the co-accused H. Numerous witnesses as well as an expert on bookkeeping were heard. On the latter date the Regional Court convicted the applicant of continued aggravated fraud and negligent bankruptcy and sentenced him to 18 months’ imprisonment, 14 of which were suspended on probation. The written version of the judgment , comprising 692 pages, was served on 11 December 1991. The applicant did not appeal.

On 7 January 1992 the Public Prosecutor’s Office filed a plea of nullity and an appeal against the sentence with the Supreme Court. The co-accused H. also filed a plea of nullity and an appeal.

On 26 November 1992 the Supreme Court, upon H.’s plea of nullity, found that there were legitimate doubts as to the expert’s impartiality and partly set aside the Linz Regional Court’s judgment . Due to the principle of “ beneficium cohaesionis ” pursuant to Section 290 § 1 of the Code of Criminal Procedure ( Strafprozessordnung ) the applicant’s conviction was also set aside. The case was referred back to the Regional Court. The judgment was served on the applicant’s counsel on 3 December 1992.

2. Second round of proceedings

On 14 April 1993 the Supreme Court allowed the co-accused H.’s request for transfer of jurisdiction to the Wels Regional Court because the concerns about possible bias did no longer exist. On 16 September 1993 the Regional Court remitted the file to the investigating judge for the preparation of a new opinion by a bookkeeping expert and for the conduct of further investigations, including the seizure of further accounting documents. On 14 December 1994 the expert requested the submission of these documents, which he inspected on 6 March 1995. On 7 July 1995 the applicant’s bankruptcy and tax records were submitted to the bookkeeping expert. On 7 November 1996 the first part of the expert opinion arrived at the court and the remainder on 16 April 1997.

On 9 August 1997 the file was transferred to the trial court, which, on 1 December 1997, fixed a hearing for 20 January 1998.

The Wels Regional Court held hearings on 20, 27 and 29 January 1998 and on 3, 5 and 10 February 1998, at which it decided to sever the proceedings against the applicant. At the close of the hearing of 10 February 1998 the Regional Court convicted the applicant of negligent bankruptcy and sentenced him to one year’s imprisonment suspended on probation. Both, the applicant and the Public Prosecutor waived their right to appeal. Thus, the judgment became final on 10 February 1998. Contrary to Section 270 § 1 of the Code of Criminal Procedure, which provides for the service of the written version within four weeks after the oral judgment , the written version of the judgment was served on the applicant’s counsel on 8 March 2001.

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 § 1 of the Convention that the criminal proceedings against him have not been terminated within a reasonable time.

THE LAW

The applicant’s complaint relates to the length of criminal proceedings. He invokes Article 6 § 1, 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...”

1. The Government contend that the applicant failed to exhaust domestic remedies as he did not make an application in order to expedite the proceedings pursuant to Section 91 of the Courts Act. 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.

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). 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, the Court found that where the duration of the proceedings has already been substantial before the entry into force of Section 91 of the Courts Act on 1 January 1990, this remedy cannot be considered to be effective ( Holzinger (no. 2) v. Austria, no. 28898/95, 30.01.01, §§ 21-22, to be published in ECHR 2001). In the Talirz v. Austria case the Court found that Section 91 of the Court Act also applied in criminal proceedings ( Talirz v. Austria (dec.), no. 37323/97, 11.9.2001).

In the present case, the lapse of time before the entry into force of Section 91 of the Courts Act was considerable. The proceedings started on 4 April 1984 and had therefore already lasted five years and almost nine months by then. The case, thus, resembles the Holzinger (no. 2) case. In these circumstances, Section 91 of the Courts Act cannot be regarded as an effective remedy.

It follows that the application cannot be rejected for non-exhaustion of domestic remedies.

2. As to the period to be taken into account, the Government assume that the proceedings ended on 10 February 1998 when the Wels Regional Court’s judgment became final, since neither the applicant nor the Public Prosecutor appealed. The applicant contends that the proceedings were terminated with the service of the written version of the judgment on 8 March 2001.

The Court notes that domestic law provides for the service of the written version of a judgment within four weeks after an oral judgment was given. Thus, in the present case, the proceedings had already lasted thirteen years, ten months and six days when the oral judgment was given at the hearing of 10 February 1998. However, the overall duration of the proceedings until the service of the written version on 8 March 2001 was sixteen years and over eleven months, during which time the case was examined at three levels of jurisdiction and once referred back to the first instance.

As to the merits, the Government assert that the case was extraordinary complex, in particular as regards the scope of the file and the pertinent documents, involving the necessity to conduct a second round of proceedings and to obtain a new expert opinion, and that the delays were mainly attributable to the applicant’s conduct. The applicant maintains that the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

E. fribergh C. rozakis Registrar President

.