THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37323/97 by Heinz TALIRZ against Austria

The European Court of Human Rights (Third Section) , sitting on 30 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr L. Loucaides, Sir Nicolas Bratza, Mrs H.S. Greve, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 February 1997 and registered on 8 August 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant is an Austrian national, born in 1939 and living in Innsbruck. He is represented before the Court by Mr P. Wallnöfer , a lawyer practising in Innsbruck.

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

On 25 April 1991 the Innsbruck Regional Court ( Landesgericht ) instituted preliminary investigations ( Voruntersuchung ) against the applicant on suspicion of having committed aggravated fraud ( schwerer Betrug ) and fraudulent conversion ( Untreue ). In particular, he was suspected of having manipulated a call for tenders ( Ausschreibung ) for the construction of a tunnel in favour of a specific company.

On 6 May 1991 the applicant was questioned by the Investigating Judge about these charges for the first time.

Subsequently, the charges against the applicant were extended to more than 15 counts of aggravated fraud and fraudulent conversion.

In 1992 the Investigating Judge appointed experts on geology and explosives.

On 13 July 1992 the Investigating Judge ordered the tapping of the applicant’s telephone. On 19 August 1992 the telephone tapping was terminated. Subsequently, the applicant introduced an application with the European Commission of Human Rights against this measure (Application no. 21837/93), which was declared inadmissible by the Commission on 2 March 1994.

In June and July 1993 two reports by the court appointed experts on geology and explosives were submitted to the Investigating Judge. A third one on geology was submitted in September 1994.

In February 1994 the Public Prosecutor's Office ( Staatsanwaltschaft ) at the Innsbruck Regional Court ( Landesgericht ) lodged the first bill of indictment ( Anklageschrift ). In June 1994 the second bill of indictment was lodged. The Innsbruck Court of Appeal dismissed the applicant’s objections ( Einspuch ) to both indictments.

On 6 November 1995 the trial before the Innsbruck Regional Court commenced. On 26 January 1996, after 40 court hearings, the applicant was convicted of two counts of aggravated fraud and fraudulent conversion and acquitted of the other charges. He was sentenced to 4 years’ imprisonment.

On 13 December 1996 the Supreme Court ( Oberster Gerichtshof ) dismissed the applicant’s plea of nullity, but granted the plea of nullity lodged by the Public Prosecutor and quashed the applicant’s acquittal on five charges. Although the applicant’s conviction in respect of two counts had become final, the Supreme Court remitted the case to the Regional Court in respect of five counts of fraud and fraudulent conversion. Thereupon, the Regional Court resumed the preliminary investigations concerning these charges.

On 13 August 1997 the Innsbruck Regional Court partially granted the applicant’s request for the re-opening of the proceedings ( Wiederaufnahme ). On 30 April 1998 the Innsbruck Court of Appeal ( Oberlandesgericht ), on the applicant’s appeal, ordered a complete retrial, including all charges against the applicant.

On 12 October 1998 the Innsbruck Regional Court acquitted the applicant of all the charges against him.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him have not been terminated within a reasonable time.

2. The applicant further complains under Article 6 § 1 of the Convention that the reasoning of the Innsbruck Regional Court’s judgement of 26 January 1996 was not correct.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time ...”

The Court consi d ers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this co m plaint to the respondent Government.

2. The applicant further complains about an incorrect reasoning of the Innsbruck Regional Court.

The Court recalls that any procedural defects which may have existed at the time of an accused's trial must be considered to have been rectified by the accused's subsequent acquittal (see No. 8083/77, Dec. 13.3.80, D.R. 19 p. 226; No. 15831/89, Dec. 25.2.91, D.R. 69 p. 317).

The Court observes that, following the applicant’s conviction by the Innsbruck Regional Court on 26 January 1996, the re-opening of the criminal proceedings was granted, and on 12 October 1998 the applicant was acquitted of all charges. In these circumstances the applicant can no longer claim to be a victim of a violation of Article 6 of the Convention on account of the alleged unfairness of the criminal proceedings.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaint about the length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

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S. Dollé J.-P. Costa Registrar President