THIRD SECTION

DECISION

Application no. 38897/97 by Herbert ROSENAUER against Austria

The European Court of Human Rights, sitting on 3 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. Kūris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and    Mrs   S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 May 1997 and registered on 8 December 1997,

Having deliberated, decides as follows:

THE FACTS

The applicant, is a Austrian national , born in 1958 and living in Timelkam . He is represented before the Court by Mr R. Gabl, a lawyer practising in Linz.

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

On 27 March 1992 the Wels Regional Court ( Landesgericht ) instituted preliminary investigations against the applicant on suspicion of having committed continuous aggravated fraud and illegal gambling. On 22 April 1992 the applicant was questioned for the first time by the investigating judge about these charges. Subsequently, four reports by court appointed experts on financial mathematics and bookkeeping were submitted to the investigating judge.

On 20 December 1996 the Public Prosecutor’s Office ( Staatsanwaltschaft ) lodged the bill of indictment.

On 19 August 1999, after 101 days of court hearings, the Wels Regional Court convicted the applicant of aggravated fraud, misappropriation and negligent and fraudulent bankruptcy. He was sentenced to five years’ imprisonment, forty-five months of which were suspended on probation. The judgment was served on the applicant’s counsel in March 2000. Neither the applicant nor the public prosecutor appealed.

COMPLAINT

The applicant originally complained under Article 6 § 1 of the Convention that the criminal proceedings against him were not terminated within a reasonable time.

THE LAW

The  Court observes that by letter of 21 September 2000 the applicant was invited to reply to the observations of the Government. Since the applicant did not react, he was requested by letter of 7 December 2000, and again by registered letter of 9 February 2001, either to submit observations or to state that he did not wish to make any. His attention was also drawn to Article 37 § 1 (a) of the Convention which provides:

“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; . ..

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.”

The applicant did not reply. In these circumstances, the Court considers that the applicant does not intend to pursue his application. The Court considers that respect for human rights as defined in the Convention does not require it to continue 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) of the Convention.

For these reasons, the Court unanimously

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

S. Do llé J.-P. Costa Registrar President