Resolution CM /ResDH(2007)113 [1]

Execution of the judgments of the European Court of Human Rights

Schweighofer and others (see Appendix) against Austria

(Application No. 35673/97, judgment of 9 October 2001, final on 9 January 2002,

see Appendix for the others)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the excessive length of criminal proceedings (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Austria ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM /ResDH(2007)113

Information about the measures to comply with the judgments in the cases of

Schweighofer and others (see Appendix) against Austria

Application

Case

Length of proceedings

Case pending

P roceedings began

35673/97

Schweighofer and others, judgment of 09/10/2001, final on 09/01/2002

Several sets of proceedings, which lasted between 8 and 11 years, of which the preliminary investigations lasted between 1 and 4 years

No

Between 1985 and 1988

39205/98

Dirnberger , judgment of 05/02/2004, final on 05/05/2004

Almost 16 years, of which the pre-trial stage lasted more than 12 years

No

1981

41444/98

Hennig , judgment of 02/10/2003, final on 02/01/2004

Almost 8 years, of which the preliminary investigation lasted approximately 5 years

No

1989

50110/99

Maurer , judgment of 17/01/2002, final on 17/04/2002

Almost 5 years

No

1994

42484/98

Royer , judgment of 12/06/2003, final on 12/09/2003

No

1984

70883/01

Hannak , judgment of 22/12/2004, final on 22/03/2005

15 years and 9 months

No

1984Introductory case summary

These cases concern the excessive length of criminal proceedings (violations of Article 6, paragraph 1).

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and

Application No

Non-pecuniary damage

Costs and expenses

Total

P aid on

Schweighofer and others

35673/97

235 001 ATS

190 600 ATS

425 601 ATS

28/02/2002

Dirnberger

39205/98

10 000 €

2 000 €

12 000€

07/06/2004

Hennig

41444/98

4 000 €

3 000 €

7 000 €

21/07/2006

Maurer

50110/99

3 633.72 €

2 180.23 €

5 813.95 €

17/06/2002

Royer

42484/98

12 000 €

2 000 €

14 000 €

03/11/2003

Hannak

70883/01

9 000 €

2 000 €

11 000 €

18/04/2005

b) Individual measures

None: the proceedings are closed.

II. General measures

1) Measures taken to prevent the excessive length of criminal proceedings : In addition to providing information on the publication and dissemination of the judgments (see below), the Austria n authorities have indicated that it is possible under Section 91 of the Courts Act to apply for acceleration of pending criminal proceedings and that the European Court has considered this possibility to be an effective remedy for the purposes of Article 35, paragraph 1 of the Convention with certain exceptions. For example, the European Court noted that the procedure provided in Section 91 of the Courts Act is not applicable to delays during the pre-trial phase attributable to the public prosecutor or to administrative authorities, or to delays caused by the Supreme Court.

However, the new Code of Criminal P rocedure, which was published in the Official Journal No. 19/2004 and is due to enter into force on 1 January 2008, guarantees the principle that proceedings should be conducted rapidly and prohibits unnecessary delays at all stages of criminal trials. The new law also provides that an accused may request termination of the trial if this principle is infringed.

The Austria n authorities have also made reference to Section 27 of the Code of Criminal P rocedure which obliges criminal courts to report any delay or negligence of an authority which the court has requested to carry out a specific action to the respective superior authority or to the next instance court. This possibility also covers cases where the office of the public prosecutor does not fulfil a specific task.

Furthermore, public prosecutors are subject to dual supervision: first, under section 36 of the Law on public prosecutors ( Staatsanwaltschaftsgesetz ), the higher prosecution authorities ( Oberstaatsanwaltschaften ) have a duty of regular control. Secondly, under section 45 of the Law on civil servants ( Beamten - Dienstrechtsgesetz 1979), every direct superior has to supervise staff to promote efficiency in line with current laws.

2) Redress for damage caused : The Austria n authorities have drawn attention to the provision of the Criminal Code requiring excessive length of criminal proceedings to be taken into account as a mitigating circumstance when sentencing.

3) P ublication and dissemination: All judgments of the European Court against Austria concerning violations due to the length of criminal proceedings are automatically transmitted to the president of the Higher Regional Court ( Oberlandesgericht ) of the jurisdiction were the violation occurred, to inform all subordinate judicial authorities as appropriate. Furthermore, the judgments of the European Court are accessible to all judges and state attorneys through the internal database of the Austria n Ministry of Justice (RIS). Judgments of the European Court concerning Austria are habitually published in a summary version via www.menschenrechte.ac.at together with a link to the Court ' s judgments in English.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent new, similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies