CASE OF BERGER v. AUSTRIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
4. The applicant was born in 1971 and lives in Mondsee. 5. On 3 October 2000 the Vienna public prosecutor’s office (Staatsanwaltschaft – hereinafter, “the prosecutor’s office”) requested the Vienna Regional Criminal Court (Landesgericht für Strafsachen – hereinafter, “the Regional Court”) to institute criminal proceedings against the applicant. The prosecutor’s office sought to obtain information about the outcome of criminal proceedings against the applicant in the United States, where he had been charged with aggravated fraud in his function as director of the M. investment fund and the M. capital management company. Among the injured parties there were also Austrian banks. The criminal proceedings against the applicant in Austria were suspended in accordance with Article 412 of the Code of Criminal Proceedings (hereinafter, the “CCP”) pending the outcome of the proceedings in the United States. 6. On 27 November 2000 the applicant was convicted of bond fraud by the New York Southern District Court in the United States. However, he subsequently absconded and did not appear at the court hearing in which his sentence was to be determined. On 1 March 2002 the United States issued an arrest warrant against the applicant. 7. On 29 May 2002 the Regional Court opened a judicial investigation (Voruntersuchung) against the applicant and issued an arrest warrant. 8. On 6 July 2007 the applicant was arrested in Austria on the basis of the arrest warrant of 29 May 2002 (see paragraph 7 above) and subsequently placed in pre-trial detention. 9. On 23 July, 17 August and 24 September 2007 the applicant filed complaints against the continuation of the pre-trial detention. While the first two complaints were withdrawn by the applicant, the third was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 5 November 2007. The applicant unsuccessfully requested his release also on 28 January, 8 May and 12 August 2008. The applicant’s complaints against the continuation of his pre-trial detention lodged on 7 February, 27 May and on 27 August 2008 were dismissed by the Vienna Court of Appeal on 27 March, 24 June and 23 September 2008. 10. On 25 October 2007 the applicant submitted a statement of facts to the authorities, presenting his view of the situation. 11. On 16 November 2007, 21 April and 15 July 2008 the applicant applied to be granted access to his case-file. On an unspecified date the Regional Court dismissed his requests. 12. On 27 December 2007 the case file was transferred to the prosecutor’s office for further investigation. 13. On 10, 29 and 30 January 2008 the applicant filed submissions with the Regional Court. Among other things, he declared that he was willing to give a statement concerning the accusations against him. On 26 March 2008 the Regional Court rejected his requests on formal grounds. 14. On 14 April 2008 the applicant lodged a complaint relating to his fundamental rights (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof), which was dismissed on 19 June 2008. 15. On 1 May 2008 the applicant lodged an objection because of alleged violations of his rights (Einspruch wegen Rechtsverletzung) and again applied to be granted access to his case-file. On 8 July 2008 the Regional Court dismissed the objection. 16. On 21 July, 29 August and 1 September 2008 the applicant lodged further objections because of alleged violations of his rights. On 16 October 2008 the Regional Court dismissed all of them. The applicant appealed against this decision. 17. On 30 December 2008 the Vienna Court of Appeal dismissed the objection of 1 September 2008, but granted the two objections of 21 July and 29 August 2008, holding that the refusal to grant the applicant access to his case file and to provide him with copies thereof constituted a violation of his rights. 18. On 27 August 2008 the applicant filed another complaint against the continuation of his pre-trial detention. On 23 September 2008 the Vienna Court of Appeal dismissed this complaint. 19. On 23 September 2008 the prosecutor’s office informed the applicant about the intended appointment of expert S.J. 20. On 29 September 2008 the applicant objected to this appointment, stating that S.J. would not have the necessary knowledge to deal with the case and could possibly be biased as she was cooperating with the companies involved in the alleged fraud. 21. On 6 October 2008 the expert S.-J. was nonetheless appointed to provide an opinion relating to the applicant’s businesses. 22. On 9 October 2008 the applicant lodged another complaint relating to his fundamental rights with the Supreme Court. On 4 November 2008 his complaint was dismissed by the Supreme Court. 23. On 21 October 2008 he unsuccessfully lodged another request to be released. On 6 April 2009 the applicant again requested his release from pre-trial detention. 24. On 24 April 2009 the applicant was released from pre-trial detention. He alleged that he had not even once been questioned in relation to the accusations against him during the entire time he spent in pre-trial detention, even though he had tried to contribute to the clarification of the facts by submitting statements as well as requests for the taking of evidence. 25. On 13 September 2009 the applicant lodged another objection because of an alleged violation of his rights, arguing that the expert S.-J. had close connections with potential victims and was therefore biased. On 19 January 2010 the Regional Court granted this objection. 26. On 8 September 2010 the applicant filed an application for the discontinuation of the criminal proceedings against him. He argued that he had already been tried and sentenced in the United States for the same offences. Moreover, according to the laws in force at the time and place of the commission of the offences, the latter had become time-barred. On 7 October 2010 the Regional Court dismissed the application. On 14 March 2011 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that even though it was difficult to clarify the facts of the case after more than ten years, the applicant had significantly contributed to the length of the investigations by having absconded. 27. On 7 April 2011 a new expert, W.-A., was appointed to provide an opinion. The applicant again objected to the expert and complained about the length of the pre-trial investigations. On 11 May 2011 the Regional Court granted the objection concerning the expert, but dismissed the applicant’s complaint concerning the length of the proceedings, holding that it had been proportionate to the complexity of the case. Further, it held that the main reason for their length was that the applicant had filed a large number of objections and appeals. Hence, the duration of the proceedings was not in violation of Article 6 of the Convention. 28. On 16 August 2011 the prosecutor’s office informed the applicant that it intended to appoint a new expert, B. The applicant objected, alleging that B. had close relations with investors who could potentially have sustained damages because of his activities. On 25 October 2011 B. was nonetheless appointed by the prosecutor’s office and given a deadline of nine months to provide the opinion. The applicant’s objection was dismissed by the Regional Court on 5 December 2011. On 16 April 2012 the Vienna Court of Appeal rejected the applicant’s appeal as being lodged out of time. 29. On 14 August 2013 the applicant lodged an objection because of an alleged violation of his rights, repeating his arguments that the expert B. was not impartial. He further argued that B. had significantly exceeded the time-limit for providing his opinion. On 26 December 2013 the Regional Court granted the objection, holding that the prosecutor’s office had not adequately reacted to the exceeding of the time-limit by the expert, who should have been discharged as a consequence. It therefore found that the applicant’s right to have the proceedings conducted within a reasonable time was violated. 30. On 4 March 2014 the expert B. was discharged and on 5 May 2014 another expert, M., was appointed. 31. On 9 October 2016 the prosecutor’s office submitted an indictment against the applicant on suspicion of embezzlement and aggravated fraud on a commercial basis. On an unspecified date, the applicant’s appeal against the indictment was rejected by the Vienna Court of Appeal. Therefore, it has become legally binding. 32. At the date of the latest information available to the Court (15 November 2016), the criminal proceedings against the applicant were still pending at first instance.