FIRST SECTION
DECISION
Application no. 33934/05
by Gerhard SCHMID and Others
against Austria
The European Court of Human Rights (First Section), sitting on 28 February 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 12 September 2005,
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 applicants, Mr Gerhard Schmid, Mr Klaus Franz Buttenhauser and Dr. Josef Kaimelmayr, are Austrian nationals who were born in Wels, Salzburg and Linz respectively and live in Salzburg. They are represented before the Court by Mr R. Soyer, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The three applicants held key positions in a regional bank, the S. Bank, at the relevant time.
Preliminary investigations concerning the applicants were opened on 4 February 1998 by the Regional Court. On 11 June 2001 the Salzburg Prosecutor’s Office drew up a bill of indictment charging the applicants with breach of trust (Untreue). Additionally, the second and third applicant were indicted for perjury (Falsche Beweisaussage vor Gericht).
On 7 July 2003 the Salzburg Regional Court sitting with two professional and two lay judges convicted all three applicants of aiding and abetting to breach of trust and the second and the third applicant also of perjury.
All three applicants filed pleas for nullity and appeals (Nichtigkeits-beschwerde und Berufung). On 2 November 2004 the Procurator General (Generalprokurator) commented on the pleas of nullity and on 2 and 3 December 2004 respectively, the applicants commented on the Procurator General’s opinion.
On 1 March 2005 the Supreme Court (Oberster Gerichtshof) rejected the pleas of nullity and referred the cases to the Court of Appeal to decide on the appeals.
On 24 June 2005 (served on the applicants’ counsel on 25 August 2005) the Court of Appeal reduced the sentences imposed.
COMPLAINTS
The applicants complained under Article 6 § 1 about the unreasonable length of criminal proceedings.
They also complained under Article 6 § 1 and Article 6 § 3 (d) of the Convention about the unfairness of the proceedings claiming that their right to have witnesses on their behalf examined was breached.
Furthermore, the applicants complained under Article 6 § 1 that the Supreme Court failed to hold a public hearing. Thus, a plea of nullity was not an effective remedy within the meaning of Article 13 of the Convention. Lastly, they complained that this insufficient remedy did not constitute a proper review by a higher tribunal within the meaning of Article 2 § 1 of Protocol No. 7.
THE LAW
On 11 December 2007 the applicants’ representative informed the Court that the applicants wanted to withdraw the application.
The Court considers that, in these circumstances, the applicants may be regarded as no longer wishing to pursue their application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case 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