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FIRST
SECTION
CASE OF TUMA v. AUSTRIA
(Application
no. 22833/07)
JUDGMENT
STRASBOURG
18 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tuma v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 22833/07) against the
Republic of Austria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by an
Austrian national, Mr Herbert Tuma (“the applicant”), on
22 May 2007.
2. The
applicant was represented by Mr K. Bernhauser, a lawyer practising in
Vienna. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador H.
Tichy, Head of the International Law Department at the Federal
Ministry for European and International Affairs.
- On
24 March 2009 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in Hirtenberg.
- The
applicant was arrested on 11 October 2001 on suspicion of fraud. He
was in pre-trial detention until 18 October 2001.
- In
the course of the preliminary investigations, the investigating judge
requested the Economic Crime Department (Wirtschaftspolizei)
of the Vienna Federal Police Directorate (Bundespolizeidirektion)
to carry out certain investigations.
- On
14 October and 21 November 2001 the applicant was questioned by the
investigating judge. Further questioning scheduled for 18 December
2001 and 14 January 2002 was cancelled as the applicant informed the
investigating judge that he was sick. The applicant was questioned
again on 5 March 2002.
- During
the summer of 2002 further interrogations of the applicant took place
through the Vienna Public Prosecutor’s Office.
- On
22 January 2003 the Public Prosecutor requested the investigating
judge to close the investigations.
- It
appears that the investigating judge chose to continue the
investigations. The applicant was questioned again on 15 December
2003 and in March 2004 several witnesses were questioned, following
which the public prosecutor repeatedly urged the investigating judge
to obtain the investigation results from the Economic Crimes
Department of the Vienna Federal Police Directorate and to conclude
the preliminary investigations.
- On
29 June 2005 the investigating judge decided nevertheless to obtain
an expert opinion on various transactions in respect of which the
applicant was suspected of embezzlement. The expert’s opinion
was submitted on 14 November 2005 and transmitted to the Public
Prosecutor’s Office and the applicant on 6 February 2006.
- On
15 March 2006 the Vienna Public Prosecutor issued the bill of
indictment charging the applicant with embezzlement.
- The
applicant lodged objections against the indictment on 12 April 2006.
By decision of 11 May 2006 the Court of Appeal rejected the
objections and upheld the indictment.
- The
trial was scheduled to commence on 10 August 2006. As the applicant
was in hospital, the trial had to be postponed.
- The
Vienna Regional Criminal Court, sitting with two professional and two
lay judges, then held the first hearing on 2 November 2006. During
this hearing the expert was ordered to supplement his opinion, taking
into consideration further documents. The applicant’s son
transmitted further documents to the expert on 14 February 2007.
- The
court held another hearing on 26 April 2007. On that date it
acquitted the applicant. The judgment was served on the applicant’s
counsel on 28 June 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention,
which, 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 contested that argument.
A. Admissibility
- The
Government argued that the applicant failed to exhaust domestic
remedies, as he had never lodged an application to set a time-limit
under Section 91 of the Courts Act (Gerichtsorganisationsgesetz).
Such an application was an effective remedy against delays by
judicial organs, and the applicant was thus bound to make use of it.
If a delay were caused by a public prosecutor, the applicant could
have lodged a supervisory complaint against the public prosecutor.
- The
applicant argued that he could not be expected to lodge a supervisory
complaint against the public prosecutor, as it is the state’s
duty to ensure investigations are made within a reasonable time.
Furthermore, complaining against the public prosecutor might have
lead to negative consequences for the applicant.
- The Court reiterates that it held in numerous cases
that an application under Section 91 of the Courts Act is in
principle an effective remedy against court delays, both in the
context of civil proceedings (see Holzinger v. Austria (no. 1),
no. 23459/94, § 25, ECHR 2001-I) as well as in the context of
criminal proceedings (see Talirz v. Austria (dec.),
no. 37323/97, 11 September 2001). However, the Court also held
that the effectiveness of a remedy to accelerate proceedings may
depend on whether it has a significant effect on the length of the
proceedings as a whole (see Holzinger, cited above, §
22). Thus, where proceedings include a substantial period during
which there is no remedy to accelerate proceedings, a request under
Section 91 cannot be considered an effective remedy (see mutatis
mutandis, Holzinger (no. 2) v. Austria, no. 28898/95, §§
21-22).
- The
Court has also held that a supervisory complaint does not provide an
effective remedy against delays attributable to the public prosecutor
(see Lagler v. Austria, no. 16942/90, Commission
decision of 13 April 1994, and Meischberger v. Austria
(dec.), no. 51941/99, 15 September 2003). In any case, the
Government have not pointed to any particular period of inactivity
caused by the Public Prosecutor, which could and should have given
rise to a supervisory complaint.
- The
Court notes that there have not been any significant periods of
inactivity of judicial organs or of the public prosecutor, but the
file went back and forth between the public prosecutor and the
investigating judge. The Court also notes that the Government did not
substantiate during which period the applicant could have made
effective use of an application to set a time-limit under Section 91
of the Courts Act. Furthermore, the Government stated that the public
prosecutor urged the investigating judge several times to conclude
the establishment of the facts, a task that was carried out by the
Economic Crimes Department of the Vienna Federal Police Directorate.
However, the applicant did not have any remedy at his disposal in
respect of delays caused by the Vienna Federal Police Directorate.
- This
leads the Court to conclude that there were no particular delays
caused by judicial authorities against which an application to set a
time limit under Section 91 of the Courts Act would have
constituted an effective remedy. It thus rejects the argument that
the applicant failed to exhaust domestic remedies.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government argued that the case was very complex and contained a lot
of different transactions that had to be investigated. These further
facts only arose in the course of the preliminary investigations, and
were taken to the same file, as dealing with them separately was not
feasible. These new facts, however, necessitated further
interrogations of the applicant and of witnesses, and necessitated
obtaining an expert’s opinion. The judicial organs dealt with
the case expeditiously, yet the subject matter of the proceedings and
the fact that the applicant only submitted further documents later
on, lead to the long duration of the proceedings.
- The Court reiterates that the
reasonableness of the length of proceedings must be assessed in the
light of the circumstances of the case and with reference to the
following criteria: the complexity of the case, the conduct of the
applicant and the relevant authorities (see, among many other
authorities, Pélissier and Sassi v.
France [GC], no. 25444/94, § 67,
ECHR 1999-II; Rösslhuber v. Austria
(no. 32869/96, § 27, 28 November 2000 and Hennig v. Austria,
no. 41444/98, § 33 and 34, 2 October 2003).
- The
period to be taken into consideration began on 11 October 2001 and
ended on 28 June 2007. It thus lasted five years and eight and a half
months for one level of jurisdiction.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi,
cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that although the case was of some complexity, the overall length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just
satisfaction. Accordingly, the Court considers that there is no call
to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
