FIRST SECTION
DECISION
Application no. 39336/03
by Andryi OMELYANENKO
against Austria
The European Court of Human Rights (First Section), sitting on 7 June 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 11 December 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Andryi Omelyanenko, is a Ukrainian national who was born in 1963. He was represented before the Court by Mr R. Gabl, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
On 7 April 1999 the Linz Regional Court ordered the applicant’s detention on remand on suspicion of aggravated continuous fraud, membership of a criminal organisation and tax evasion, finding that there was a risk of absconding, a danger of collusion and a risk that he might commit another offence similar to the one he was suspected of.
On 2 August 1999 the Linz Public Prosecutor’s Office drew up a bill of indictment. It charged the applicant and three others with continuous aggravated fraud and membership of a criminal organisation.
After a first judgment had been quashed on appeal, the Linz Regional Court convicted the applicant of aiding and abetting aggravated fraud on 2 December 2002. It sentenced him to an unconditional prison term of four months plus ten months’ imprisonment suspended on probation. However, it acquitted the applicant of being a member of a criminal organisation.
On 23 October 2003 the Supreme Court granted the applicant’s plea of nullity and remitted the case back to the Linz Regional Court.
Following the withdrawal of the bill of indictment by the Public Prosecutor, the Regional Court discontinued the proceedings on 23 January 2004.
The decision was served on the applicant’s counsel on 28 January 2004.
Meanwhile, on 11 December 2003, the applicant had lodged an application with the Court.
On 5 January 2006 the President of the First Section decided to communicate the application. Following receipt of the Government’s observations, the applicant was requested to submit his observations in reply by 8 June 2006. The applicant did neither submit observations nor did he request an extension of the time-limit.
By registered letter of 23 March 2007, addressed to the applicant’s counsel, he was warned that in these circumstances the Court might strike the case out of its list of cases. The letter reached the applicant’s counsel on 27 March 2007. The applicant did not react.
COMPLAINT
The applicant complained under Article 6 of the Convention about the length of the criminal proceedings against him.
THE LAW
The Court notes that the applicant, represented by counsel, did not submit observations in reply within the time-limit fixed. Nor did he react to the Court’s letter of 23 March 2007.
The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:
“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.”
Having regard to the circumstances of the case, the Court concludes that the applicant does not intend to pursue his application. The Court’s finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy