FIRST SECTION
DECISION
Application no. 38567/06
by Hans-Dieter WOLFSBURGER
against Austria
The European Court of Human Rights (First Section), sitting on 18 March 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 September 2006,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hans-Dieter Wolfsburger, is an Austrian national who was born in 1966 and lives in Völkermarkt. He was represented before the Court by Mr J. Kirschner, a lawyer practising in Wels. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for European and International Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 the public prosecution started investigations against a number of persons on suspicions of continuous aggravated fraud.
On 12 June 1997 the public prosecutor applied to have the applicant arrested; however the investigating judge did not issue the warrant. The application was subsequently withdrawn on 4 July 1998; the applicant was never taken into pre-trial detention.
On 19 December 1997 the public prosecutor applied to the investigating judge to conduct the investigations against the applicant and several others.
On 14 January 1999 the public prosecutor issued a bill of indictment against the applicant and four other persons.
The first hearing in the main trial took place before the Regional Criminal Court in Wels sitting as a court of assizes with two professional and two lay judges on 25 March 2003.
The trial ended on 21 December 2004, when the applicant was acquitted of all charges. The court took note of the excessive length of proceedings as a “mitigating circumstance”.
No appeal was lodged against the judgment which became final in November 2005.
COMPLAINT
The applicant complained under Article 6 of the Convention about the excessive length of the proceedings.
THE LAW
On 27 January 2010 the Court received the following declaration from the Government:
“I, Brigitte Ohms, Deputy Government Agent of Austria, Federal Chancellery – Legal and Constitutional Service, declare that the Government of Austria offer to pay 11,500 euros to Mr Hans-Dieter Wolfsburger with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 21 January 2010 the Court received the following declaration signed by the applicant:
“I, Johannes Kirschner, lawyer, note that the Government of Austria are prepared to pay the sum of 11,500 euros to Mr Hans-Dieter Wolfsburger with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Austria in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate 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