AS TO THE ADMISSIBILITY OF
Application no. 32042/02
by Alexander ECKER
The European Court of Human Rights (First Section), sitting on 1 February 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 22 August 2002,
Having regard to the President's decision of 8 July 2003 to communicate the application to the respondent Government and to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention),
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 applicant, Alexander Ecker, is an Austrian national, who was born in 1966 and lives in Linz. He was represented before the Court by Hintermayr, Krüger, Haunschmidt, Minichmayr and Burgstaller, a company of lawyers practising in Linz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
A. The circumstances of the case
On criminal information laid by the Linz Federal Police Office (Bundespolizeidirektion) on 26 November 1996, the Linz Public Proscutor's Office (Staatsanwaltschaft) decided to open preliminary inquiries (Vorerhebungen) against the applicant on suspicion of fraud in the context of investment management.
Between 10 December 1996 and 2 February 1999 the Linz Regional Court (Landesgericht) carried out the preliminary inquiries. On 16 January 1997 the applicant's premises were searched. The Regional Court also heard witnesses in Liechtenstein, Italy and Switzerland by way of letters rogatory (Rechtshilfeersuchen) and obtained an expert opinion on book keeping.
The Regional Court repeatedly transmitted the file back to the Public Prosecutor's Office for consultation and eventual further requests. It did so on 25 February, 11 April, 16 May, 16 September, 18 November and 29 December 1997, and on 14 January, 27 October and 10 December 1998 and on 22 January 1999. The Public Prosecutor's Office remitted the file on 3 March, 6 May, 21 May, 9 October and 19 November 1997, and on 2 January, 20 January, 2 November and 14 December 1998 and on 27 January 1999 respectively. On 9 February 1999, the Public Prosecutor's Office requested the Regional Court to institute preliminary investigations (Voruntersuchungen) against the applicant.
Having taken further evidence, the Regional Court transmitted the file to the Public Prosecutor's Office in October 1999, following which the Public Prosecutor's Office, on 9 November 1999, filed a bill of indictment (Strafantrag), charging the applicant with negligent bankruptcy (fahrlässige Krida) under Section 159 of the Penal Code (Strafgesetzbuch).
Subsequently, on 16 November 1999, the President (Vorsteher) of the Linz Regional Court assigned the case to another judge as the judge in charge had declared himself biased. On 6 September 2000 the case was again assigned to another judge due to the fact that the judge in charge had been assigned to other duties.
On 8 September 2000 the Regional Court transmitted the file to the Public Prosecutor's Office as, in the meantime, Section 159 of the Penal Code been amended. On 18 September 2000 the Public Prosecutor's Office declared that it would maintain the indictment.
On 12 February 2001 the Public Prosecutor's Office urged the Regional Court to hold an oral hearing.
On 5 March 2001 the Regional Court scheduled a hearing for 9 July 2001. On that day it held a hearing and postponed the proceedings for an indefinite time.
On 30 October 2001 the President of the Linz Regional Court assigned another judge to deal with the case as the judge in charge had moved to the Wels Regional Court.
Having held a further hearing on 26 February 2002, the Regional Court acquitted the applicant. The written transcript of the judgment was served on the applicant's counsel on 21 August 2002.
B. Relevant domestic law
SS. 84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung) concern the conduct of preliminary inquiries (Vorerhebungen) and preliminary investigations (Voruntersuchungen).
In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a criminal information, the Public Prosecutor may first have preliminary inquiries carried out by the investigating judge, the District Court or the police authorities (S. 88 § 1).
Where the Public Prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he or she shall either request the institution of preliminary investigations or file a formal accusation (Anklageschrift, Strafantrag; S. 90 §1). According to S. 91 § 2 the preliminary investigations pursue the aim of provisionally examining the criminal charges laid against a person and of establishing the facts to the extent necessary to decide whether to discontinue the criminal proceedings or to commit for trial and prepare the taking of evidence at the trial.
According to S. 93 § 1 the preliminary investigations are in principle conducted by the investigating judge personally and directly.
Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, 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."
The applicant complained under Article 6 of the Convention about the length of the criminal proceedings.
The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him. Article 6 § 1, as 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 by [a] ... tribunal...”
The Government contended that the applicant had not exhausted domestic remedies as he had not filed a request for acceleration of the proceedings under S. 91 of the Courts Act (Gerichtsorganisationsgesetz) or a supervisory complaint under S. 37 of the Public Prosecutor's Act (Staatsanwaltschaftsgesetz).
The applicant contested the Government's view, arguing in particular that a request under Section 91 of the Courts' Act was not an effective remedy in order to accelerate his proceedings. He submitted that the Public Prosecutor's Office had unsuccessfully requested the Regional Court to accelerate the proceedings. Furthermore, a request under Section 91 of the Courts' Act would have caused further delay because the file had to be submitted to the superior court. The applicant finally submitted that, in the view of the criminal charges against him, he could not be expected to raise a request under Section 91 of the Courts' Act as this would have implied reproval of the Regional Court.
The Court recalls that in the case of Holzinger v. Austria the Court has found that a request under Section 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings (no. 23459/94, §§ 24-25, ECHR 2001 I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, relating to criminal proceedings). The effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole (Holzinger v. Austria, cited above, § 22). Thus, where proceedings include a substantial period during which the applicant has no remedy to expedite the proceedings at his/her disposal, a request under Section 91 cannot be considered an effective remedy (see mutatis mutandis, Holzinger (no. 2) v. Austria, no. 28898/95, §§ 21-22, ECHR 2001-I).
The Court notes, however, that neither the Government nor the applicant have submitted that the present case includes a substantial period during which the applicant did not have a request under Section 91 of the Courts Act at his disposal. The Court further notes that the delays which occurred in the proceedings at issue in fact result from the alleged inactivity of the Regional Court in the main proceedings during which time the applicant could and should have used the remedy under Section 91 of the Courts' Act.
The Court, thus, concludes that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and that his application must, therefore, be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention,
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
ECKER v. AUSTRIA DECISION
ECKER v. AUSTRIA DECISION