FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32942/03
by Herbert TUMA
against Austria
The European Court of Human Rights (First Section), sitting on 24 May 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 decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Herbert Tuma, is an Austrian national who was born in 1947 and lives in Vienna. He was represented before the Court by
Mr K. Bernhauser, a lawyer practising in Vienna. 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.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an estate agent, who has been operating several limited liability companies which dealt with the acquisition, restoration and resale of apartment houses in Vienna.
In 1993 police investigations were instituted against the applicant. He was accused of having misappropriated his clients’ money through an intransigent system of companies. As no proper accounting was set up, he allegedly regularly used revenues coming from one company to make up for shortfalls in another one.
Subsequently, on 11 August 1994 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) opened preliminary investigations on suspicion of, inter alia, embezzlement, fraudulent bankruptcy and evasion of social security contributions.
On 1 September 1994 the preliminary investigations were extended to include the suspicion of aggravated fraud. On the same date Mrs R. was appointed as accounting expert and requested to prepare a report on the applicant’s companies.
In the course of 1995 a number of witnesses were heard and various premises were searched. In July 1995 expert R. submitted an interim report.
On 4 June 1996 expert R. submitted a further report.
On 30 June 1996 the Vienna Regional Criminal Court ordered the applicant’s detention on remand for risk of absconding. Further, there was a risk that he might commit another offence similar to the one he was suspected of. Subsequently, the Vienna Regional Criminal Court extended the applicant’s detention on remand on 11 July, 12 August, 14 October and 28 November 1996.
On 27 August and 3 October 1996 two further experts were appointed and ordered to submit reports. On 4 October 1996 the investigating judge requested expert R. to supplement her report.
On 27 January 1997 the applicant was released from detention.
During 1997 and 1998 all three experts submitted interim reports and on 1 September 2000 expert R. submitted her final report.
On 6 November 2001 the applicant was summoned in order to be questioned. He was heard twice in November 2001 and once in March 2002.
On 1 July 2002 the Vienna Public Prosecutor’s Office drew up a bill of indictment on charges of embezzlement, fraudulent and negligent bankruptcy, aggravated fraud and misappropriation on numerous counts. On 12 August 2002 the applicant filed an objection against the indictment.
By decision of 31 March 2003 the Vienna Court of Appeal (Oberlandesgericht) dismissed the objection. It found that there were no formal reasons which would require the proceedings to be discontinued.
Between 29 September and 27 October 2003 seven hearings were held before the Vienna Regional Criminal Court.
On 27 October 2003 the Vienna Regional Criminal Court convicted the applicant of fraudulent and negligent bankruptcy and of evasion of social insurance contributions and sentenced him to four years’ imprisonment. It acquitted him of the remaining charges.
On 5 March 2004 the applicant filed a plea of nullity and an appeal against sentence. The Public Prosecutor also filed a plea of nullity.
By judgment of 10 March 2005 the Supreme Court (Oberster Gerichtshof) partly confirmed the Regional Court’s judgment. As regards some of the charges it remitted the case back to the Regional Court.
On 28 April 2005 the proceedings concerning the remaining charges were discontinued.
B. Relevant domestic law
Section 91 of the Courts Act (Gerichtsorganisationsgesetz) provides as follows:
“(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.
(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.
(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal.”
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.
THE LAW
The applicant complained that the length of the criminal proceedings exceeded the “reasonable time” requirement laid down in Article 6 § 1 of the Convention which, so far as material, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government, referring to the Court’s case-law in Holzinger v. Austria (no. 1) (no. 23459/94, ECHR 2001‑I) and Holzinger v. Austria (no. 2) (no. 28898/95, 30 January 2001), argued that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention, since he did not make use of the application for acceleration of the proceedings (Fristsetzungsantrag) provided for in Section 91 of the Courts Act. They pointed out that it is the responsibility of the investigating judge to conduct the preliminary investigations. He is thus responsible for obtaining witness statements and expert opinions expeditiously. As the applicant considered that the main delay was caused by expert R., he should have made use of the remedy provided for in Section 91 of the Courts Act, which explicitly mentioned delays in obtaining an expert opinion as a ground for applying.
The applicant asserted that major delays were caused by expert R. who took six years, namely from September 1994 until September 2000, to submit her report and that he had no possibility to apply for fixing of a time-limit pursuant to Section 91 in this respect.
The Court reiterates that it has already found an application pursuant to Section 91 of the Courts Act to be an effective remedy which has to be used in respect of complaints about the length of court proceedings (Holzinger (no. 1), cited above, §§ 24 and 25). This also applies in the context of criminal proceedings (Talirz v. Austria (dec.), no. 37323/97, 11 September 2001).
The Court finds that indeed the major delay in the preliminary proceedings was caused by expert R., in particular between October 1996, when she was requested to supplement her report, and September 2000, when she submitted her final report. According to the clear wording of Section 91 of the Courts Act, the application for acceleration of the proceedings is available where “a court is dilatory in ... obtaining an expert’s report”. The applicant has failed to submit any argument as to why he could not be expected to make use of this remedy. Moreover, the Court notes that a further period of inactivity occurred between 1 September 2000, when the expert submitted her report and November 2001, when the applicant was summoned for questioning. Again, the applicant has not given any explanation why he did not make use of the application under Section 91 of the Courts Act. He has therefore failed to exhaust domestic remedies.
It follows that Article 29 § 3 of the Convention should no longer apply to the case and that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy