THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32869/96
by Dietrich RÖSSLHUBER
against Austria
The European Court of Human Rights (Third Section) sitting on 12 October 1999 as a Chamber composed of
SirNicolas Bratza, President,
MrJ.-P. Costa,
MrL. Loucaides,
MrP. Kūris,
MrW. Fuhrmann,
MrsH.S. Greve,
MrK. Traja, Judges,
andMrsS. Dollé, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 May 1996 by Dietrich Rösslhuber against Austria and registered on 4 September 1996 under file no. 32869/96;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the Commission’s of 2 July 1998 to partially communicate the application on length complaint, declaring the remainder inadmissible;
Having regard to the observations submitted by the respondent Government on 5 November 1998 and the observations in reply submitted by the applicant on 19 January 1999;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian national, born in 1940 and living in Salzburg. He is represented before the Court by Mr Werner Sporn, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, but in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale.
On 31 January 1990 the Review Chamber (Ratskammer) at the Salzburg Regional Court dismissed the applicant’s appeal against the opening of preliminary proceedings. On 14 March 1990 the Linz Court of Appeal (Oberlandesgericht) rejected the applicant’s further appeal.
During the preliminary proceedings 8,000 volumes of documents were seized and studied. Due to the large volume of data, a special computer program had to be designed and the court room had to be adapted in order to provide the court, the prosecution and the defence with access to computers. The investigating judge was relieved from all other business as of the beginning of 1990. According to the Government there was a change of the investigating judge in May 1990. According to the applicant there were further changes before that date and after May 1996, with the result that altogether five different investigating judges were successively dealing with the file. The Government submit that from the outset of the preliminary proceedings two junior lawyers (Richteramtsanwärter) were assigned to the competent investigating judge as judicial support. The applicant does not contest this but submits that they were withdrawn from the case in 1997 and 1998 respectively.
On 4 August 1995 the Salzburg Public Prosecutor’s Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused. The presiding judge was relieved from all other business as of December 1995 and the assistant judge was relieved from all other business as of May 1996. On 7 November 1995 the Linz Court of Appeal dismissed the objection raised by the applicant against the indictment.
On 16 September 1996 the trial started before the Salzburg Regional Court. Since then there have been more than 150 hearings. A large number of witnesses and ten experts on accountancy have been heard.
On 31 December 1998 the indictment against the applicant and his co-accused was extended and further investigations were opened. On 12 January 1999 the Public Prosecutor’s Office applied for the additional taking of evidence.
The proceedings are still pending before the trial court.
COMPLAINT
The applicant’s remaining complaint concerns the length of the criminal proceedings against him. He relies on Article 6 of the Convention.
PROCEDURE
The application was introduced on 10 May 1996 and registered on 4 September 1996.
On 2 July 1998 the European Commission of Human Rights decided to communicate the applicant’s complaint concerning the length of the criminal proceedings and to declare the remainder of the application inadmissible.
The Government’s written observations were submitted on 5 November 1998. The applicant replied on 19 January 1999.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicant complains under Article 6 of the Convention about the length of criminal proceedings against him.
Article 6 § 1, so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ... .”
The Government submit that in view of the large volume of documents and of the number of persons having possibly suffered damages who joined the proceedings as private parties, and having regard to the number of accused, witnesses and experts, the case has to be considered as extremely complex and confusing. The competent judges were relieved of all other duties and two other jurists were appointed to assist in the preparation of the proceedings. Besides, the courtroom had to be reorganised in order to provide the necessary computer facilities for the judges, the public prosecutor, the accused and their defence counsel. The Government further submit that the main reason for the length of the proceedings is nevertheless the delaying tactics adopted by the accused and their counsel, who filed an extensive statement on the bill of indictment and who made extensive use of their rights to file motions for taking evidence and to question witnesses and experts.
The applicant does not contest that his case is of a certain complexity. However, he submits that five different investigating judges were in charge of the investigations and that a number of different experts had been appointed which delayed the proceedings. Furthermore, the persons providing judicial support to the judges in charge of the case had recently been withdrawn from it. As to his own conduct, he submits that two of his applications (for a change of expert and an adjournment) were dismissed while a third motion (for the taking of evidence) is still pending. He has not filed any further motions for admission of evidence. The delay is therefore not attributable to his conduct. The applicant further submits that, as the case is still pending before the trial court, a final judgment cannot be expected to be given before the end of the year 2001.
The Court notes that the criminal proceedings were opened on 29 June 1989 and are still pending before the trial court. Thus the procedure has already lasted for more than ten years and is not yet terminated.
The Court considers, in the light of the criteria established by the case-law on the question of “reasonable time” and having regard to all the information in its possession, that an examination of the merits of the complaint is required.
For these reasons, the Court, unanimously,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. DolléN. Bratza
RegistrarPresident
Full & Egal Universal Law Academy