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FIRST
SECTION
DECISION
Application no.
33992/07
Ignaz KRAKOLINIG
against Austria
The
European Court of Human Rights (First Section), sitting on
10 May 2012 as a Chamber composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and André Wampach, Deputy
Section Registrar,
Having
regard to the above application lodged on 26 July 2007,
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 Ignaz Krakolinig, is an Austrian national who was born
in 1936 and lives in Graz. He is represented before the Court by
Mr F. Unterasinger, a lawyer practising in Graz. 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.
The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
28 June 1985 the Eisenstadt Public Prosecutor’s Office filed an
indictment against the applicant, accusing him of aiding and abetting
embezzlement (Untreue). The Vienna Court of Appeal dismissed
the applicant’s objections against the indictment on 12
November 1985.
- The
trial was scheduled by the Eistenstadt Regional Court (Landesgericht)
from 5 May 1986 to 10 July 1986. As he had suffered a heart attack
the previous day, the applicant was unable to attend the trial on
5 May 1986.
- Following
two expert opinions obtained on 5 July 1988 and 1 December 1988
attesting that he was temporarily unfit to stand trial, the
Eisenstadt Regional Court decided to stay the proceedings against the
applicant.
- As
further expert opinions of 10 July 1991 and 5 May 1992 showed that
the applicant would be able to attend the trial under certain
conditions, the Eisenstadt Regional Court scheduled hearings for 18
March 1992 and 17 July 1992. Referring to his state of health,
the applicant refused to attend these hearings.
- On
29 March 1993 the Eisenstadt Regional Court ordered that the trial be
held at Graz, where the applicant resided, on 17 and 18 June 1993. On
9 June 1993 the applicant asked the Regional Court to postpone
the hearing because of his poor state of health. The Regional Court
granted the request for the further postponement, having examined the
applicant’s state of health.
- Two
further expert opinions of 20 January 1994 and 30 January 1995
attested that the applicant had a limited ability to attend the
trial, whereas a later opinions dated 6 February 1997 raised concerns
regarding the applicant’s attendance at a lengthy trial.
- On
18 February 1997 the Regional Court again decided to stay the
proceedings.
- Two
expert reports obtained on 1 September 2000 and 19 March 2001
stated that the applicant’s state of health had worsened and
that, as it was unlikely to improve in the near future, he should not
be exposed to major stress.
- On
19 November 2003 and on 31 January 2005 the applicant submitted to
the Regional Court, upon its request, certificates by two specialist
doctors treating him showing that he was still unfit to stand trial.
- On
17 March 2007 the applicant requested that the criminal proceedings
be terminated (Einstellung des Verfahrens) because he
considered that it was against the Convention to continue the
proceedings in circumstances like his.
- The
Regional Court dismissed the applicant’s request on 18 April
2007. It held that since the indictment was issued the grounds for
suspicion had not changed or been dissipated and that the applicant’s
state of health alone did not constitute a reason to terminate the
criminal proceedings against him.
- On
13 June 2007 the Vienna Court of Appeal dismissed the applicant’s
subsequent appeal against that decision. It found that it was only
possible to terminate the proceedings against the applicant upon a
request by the Public Prosecutor.
- Meanwhile,
on 23 April 2007, the Eisenstadt Regional Court again decided to stay
the proceedings. An appeal against this decision was dismissed by the
Vienna Court of Appeal on 13 June 2007. The proceedings are still
pending.
- It
appears further that, in separate proceedings, on 28 August 2000
the Klagenfurt Regional Court convicted the applicant of fraud
(Betrug), on 31 July 2006 the Wolfsberg District Court
convicted him of having caused negligent bodily harm (fahrlässige
Körpeverletzung) and on 18 May 2009 the Graz District
Court convicted him of theft (Diebstahl).
COMPLAINT
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the pending criminal proceedings against him.
THE LAW
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
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 submitted that the applicant had failed to exhaust
domestic remedies, as he had not at any stage of the proceedings
filed a request under section 91 of the Courts Act for the
proceedings to be expedited.
- The
Government submitted further that the reasonable time requirement had
been complied with in the proceedings. The Austrian courts had dealt
with the case expeditiously and the exceptional length of the
proceedings had been caused solely by the applicant’s state of
health and his unfitness to attend the trial. The Austrian Supreme
Court’s settled case-law had established that it was an
essential element of the notion of “fair trail” that an
accused have the opportunity to be actively involved in the
proceedings and to defend him or herself effectively. This, in turn,
required that the accused be in adequate physical and mental health.
A person was therefore unable to stand trial if that person was not
in a position to follow the course of the proceedings for physical or
mental health reasons, to express himself in an understandable manner
and to defend his rights, or if, although he would be able to follow
the course of the proceedings, they presented a specific risk of a
considerable impairment of his health. The Regional Court had
therefore had to postpone the trial and to stay the proceedings as
long as the applicant was unfit for trial. Given that in August 2000,
in July 2006 and in May 2009 the applicant had been convicted of
criminal offences in different proceedings, the Regional Court had
reasonably concluded that the applicant’s health did not
permanently prevent him from standing trial. It had therefore been
required to continue the proceedings until a trial would be possible.
- This
was disputed by the applicant, who argued that the proceedings had
lasted for an unreasonably long time and that, because of his
unfitness to stand trial, they should have been terminated a long
time ago. The reference of the Government to other criminal
proceedings in which he had stood trial and had been convicted was
irrelevant, because those proceedings had concerned minor charges and
the respective trials had only lasted for a few hours.
- As
regards the question of whether the applicant has exhausted domestic
remedies, the Court notes that in the case of Holzinger v. Austria
the Court 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). It stated, however, that the effectiveness of such a
remedy may depend on whether it has a significant effect on the
length of the proceedings as a whole (ibid., § 22). Thus,
where proceedings include a substantial period during which the
applicant has no remedy at his or her disposal with which to have the
proceedings expedited, 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
criminal proceedings in issue started (at the latest) in June 1985,
whereas section 91 of the Austrian Courts Act was introduced on
1 January 1990. The proceedings, therefore, include a
substantial period during which the applicant could not have made a
request under section 91 of the Courts Act. The Court nevertheless
notes that the proceedings continued after 1 January 1990 and
are still pending. The applicant did nothing to expedite the
proceedings until many years after section 91 of the Courts Act came
into force.
- However,
the Court need not examine whether or not the applicant exhausted
domestic remedies in the proceedings in issue, because the complaint
about the length of those proceedings is, in any event, manifestly
ill-founded for the following reasons.
- The
Court notes that the reasonableness of the length
of proceedings has to be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in its case-law, in particular the complexity of the case and the
conduct of the applicant and of the relevant authorities (see among
many others, Kudla v. Poland [GC], no. 30210/96, § 124,
ECHR 2000-XI).
- The
Court does not exclude that the subject-matter of the present case
was of some complexity, as it concerned a case of white-collar crime,
but considers that this element alone cannot explain the exceptional
length of the proceedings in issue. However, the Court considers that
the Austrian authorities cannot be held exclusively responsible for
the length of the proceedings. There is no indication that the
domestic authorities contributed to the length of the proceedings.
The Eisenstadt Regional Court, in particular, tried repeatedly to
hold trial hearings and, moreover, had the applicant’s fitness
to stand trial examined by medical experts at regular intervals.
- As regards the conduct of the applicant, the Court
considers that even though the applicant cannot
be considered responsible for the repeated postponement of the trial
and the stays of the proceedings as the reason for this, his state of
health, was outside of his control, it was without doubt the
objective reason for the resulting length of the proceedings. The
delays cannot, for this reason, be attributed to the domestic courts,
and a breach of the reasonable time requirement under Article 6 can
only be found when such delays are attributable to the domestic
courts. The Court further observes that Article 6 does not give a
right to have criminal proceedings terminated on account of the
accused’s state of health. This principle is all the more valid
when there is, like in the present case, an indication that the
person concerned was not entirely prevented by his state of health
from attending court proceedings as such.
- The Court therefore concludes
that the specific circumstances of the case do not disclose any
appearance of a breach of the reasonable time requirement. It
follows that the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Nina Vajić
Deputy Registrar President
