BREINESBERGER AND WENZELHUEMER v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicants, Mr Walter Franz Breinesberger and Mr Hermann Wenzelhuemer, are Austrian nationals who were born in 1942 and 1948 respectively and live in Eferding. They were represented before the Court by Haslinger/Nagele Rechtsanwälte GmbH, lawyers practising in Linz. 2. 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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The first applicant had been employed by the Sparkasse Eferding bank since 1962 and became a member of the board of directors (Vorstand) in 1991. The second applicant became a member of the board of directors of the same bank in 1993. 5. In the year 2000 preliminary investigations (Vorerhebungen) were initiated concerning the applicants on suspicion of aggravated fraud. The applicants were taken into pre-trial detention on 28 August 2000 and were released again on 11 September 2000. 6. On 20 March 2002 the Wels public prosecutor issued a bill of indictment charging the applicants with the offence of aggravated fraud, alleging that from March 1994 onwards the applicants had failed to repay commissions on loans to customers in 190 cases, had failed to reimburse legal fees by recording them under the headings “final entry” or “loan interest” in four cases and had charged higher interest on overdrafts than had been agreed in 127 cases. 7. On 19 October 2004, and after forty days of hearings held between 24 June 2003 and 19 October 2004, the Wels Regional Court, sitting as a court with two professional and two lay judges (Schöffengericht), convicted the applicants of aggravated fraud in respect of the first two events, namely failure to repay loan commissions in 179 cases and legal fees in four cases, and sentenced each of them to twenty-four months’ imprisonment, sixteen months of which were suspended with probation. The judgment was delivered in public at the end of the fortieth day of hearings. 8. On 24 May 2005 the applicants filed an application for acceleration of the proceedings (Fristsetzungsantrag) under section 91 of the Courts Act (Gerichtsorganisationsgesetz), requesting that a time-limit be set within which the Regional Court must send them the minutes of the last hearing and the written judgment. 9. The written judgment of 236 pages was served on the applicants’ counsel on 17 June 2005. 10. On 20 June 2005 the applicants lodged an application under Article 285 § 2 of the Code of Criminal Procedure (Strafprozeßordnung) seeking to extend the time-limit for lodging a plea of nullity and an appeal against the sentence, owing to the complexity of the case. By a decision of 23 June 2005 the Wels Regional Court granted the application, referring to the complexity and volume of documentation in the case, and extended the time-limit for exercise of the remedies by a further four weeks. 11. On 11 August 2005 the applicants lodged a plea of nullity and an appeal against the sentence. 12. With a decision dated 10 November 2005 the time limit for the Wels public prosecutor to submit observations on the plea of nullity was extended by a further four weeks. On 5 January 2006 the Wels public prosecutor submitted comments on the plea of nullity. The plea of nullity was transferred to the Supreme Court on 12 January 2006. On 6 March 2006 the Supreme Court forwarded the file to the Attorney-General’s Office (Generalprokuratur) for observations. The Attorney-General’s Office submitted its comments on 29 November 2006, which were served on the applicants on 4 January 2007, together with the information that they could lodge their observations on the comments within fourteen days. 13. On 11 January 2007 the applicants made an application seeking to extend the time-limit in which to submit observations on the AttorneyGeneral’s Office’s comments by a further two weeks. The application was granted by the Supreme Court on 16 January 2007. 14. On 31 January 2007 the applicants submitted their comments on the Attorney General’s Office’s observations. 15. In a judgment of 15 February 2007 concerning the plea of nullity, served on counsel on 4 May 2007, the Supreme Court quashed the parts of the conviction that related to eight counts of alleged fraud regarding the failure to repay commissions on loans to customers, but dismissed the remainder of the plea of nullity as unfounded. However, in accordance with its decision on the eight counts in question, the Supreme Court also quashed the sentence passed by the Regional Court and referred the case back to the first-instance court for a retrial with regard to the eight counts and for sentencing. 16. The Wels public prosecutor subsequently withdrew the bill of indictment in so far as it concerned those eight counts. 17. On 20 July 2007 the Wels Regional Court, to which it only remained to decide on the overall sentence in respect of the applicants, sentenced each of the applicants to two years’ imprisonment, suspended with probation for one year. The case was then sent to the Linz Court of Appeal for determination of the appeal against the sentence. 18. On 15 November 2007 the Linz Court of Appeal partly upheld the public prosecutor’s appeal and sentenced each of the applicants to twentyfour months’ imprisonment, twenty months of which were suspended with probation for one year. 19. That judgment was served on the applicants’ counsel on 31 January 2008. 20. Article 285 § 1 of the Code of Criminal Procedure (Strafprozeßordnung) at the material time provided that a complainant could submit a plea of nullity, giving reasons, within four weeks after service of the written first-instance judgment. 21. Paragraph 2 of the provision provided at the material time as follows: “Where the proceedings are on an extremely large scale the first-instance court shall, if the applicant so requests, extend the time-limit referred to in paragraph 1 by the length of time required – particularly in view of the exceptional length of the trial or the exceptional volume of the minutes of the proceedings, the remainder of the case file or the written judgment – in order to ensure adequate preparation of the defence (Article 6 § 3 (b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958, and Article 2 of Protocol No. 7 thereto, Federal Law Gazette No. 628/1988) or of the prosecution of the case.”