A.S. v. AUSTRIA
Inadmissible
Georg Ress
The applicant is an Austrian national, born in 1953 and living in Bergheim. She is represented before the Court by Mr E. Salpius, a lawyer practising in Salzburg. The facts of the case, as submitted by the parties, may be summarised as follows. On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations (file number 26 Vr 1459/89) against the applicant and thirty-four other suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund. They were suspected of having sold so called “partial house ownership certificates” to several thousand investors with the assurance that their value was secured by real property, while in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale. On 5 July 1989 a search was carried out at the applicant’s premises and on 22 April 1991 she was heard as a suspect. Later she fled to Panama with her life companion who was also a suspect in the proceedings. As of the beginning of 1990 the investigating judge was relieved of all other business and two junior judges completing their training period (Richteramtsanwärter) were assigned to assist him. In May 1990 one of them took over as the new investigating judge. During the preliminary investigations, which concerned a network of more than 300 firms, about 1,800 bank accounts were examined and about 8,000 volumes of documents were seized and studied. A special computer programme was designed in order to cope with the large volume of data. Most of the time was consumed by the preparation of an expert opinion, whereby the team of accounting experts first had to clarify the balance sheets of the companies, most of which were intertwined. A change in the team of experts became necessary in 1990 due to the potential bias of some of its members. In April 1995 the experts delivered their opinion. On 12 May 1995 the Salzburg Regional Court, upon the Public Prosecutor’s request, issued an international arrest warrant against the applicant. On 3 June 1995 the applicant was arrested in the Netherlands and, on 13 June 1995, she was extradited to Austria where she was remanded in custody. On 29 August 1995 the applicant was released on bail with a surety of 2 million Austrian schillings (ATS) and the withdrawal of her passport. Upon the applicant’s request, the Salzburg Regional Court reduced the amount of the surety to ATS 1 million on 4 April 1997. It also decided that her passport be returned and ordered the applicant to report to the court at regular intervals. On 22 January 1999 the applicant requested the court to lift all measures imposed on her, which request was granted on 22 May 1999. On 13 November 1995 the proceedings against seven co-accused, against whom the indictment comprising about 500 pages had been preferred, were severed from the proceedings concerning the applicant. On 30 April 1996 the preliminary investigations were closed and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure (Strafprozessordnung), according to which the Public Prosecutor has to decide within fourteen days whether the proceedings are to be discontinued, whether they need to be supplemented or whether an indictment is to be preferred. No indictment was preferred within the prescribed time-limit since the Public Prosecutor, due to the complexity of the case, had filed several applications for supplementing the preliminary investigations. In order to comply with these applications, the preliminary investigations were re-opened. On 27 April 1998 the applicant informed the court of the Public Prosecutor’s failure to take a decision under section 112 of the Code of Criminal Procedure within the time-limit and requested the court to inform the Principle Public Prosecutor’s Office (Oberstaatsanwaltschaft) pursuant to Section 27 § 2 of the Code of Criminal Procedure. However, the court did not comply with this request. On 20 December 2000 all applications by the Public Prosecutor were complied with and the preliminary investigations under file number 26 Vr 1459/89 were closed. So far the Public Prosecutor has not taken a decision under section 112 of the Code of Criminal Procedure. On 12 December 1997 the investigating judge granted the Public Prosecutor’s request of 4 September 1997 to extend and supplement the above preliminary proceedings as regards one set of facts. These proceedings were conducted under a new file number (26 Vr 2342/97). These further preliminary investigations were closed on 19 December 2000 and the file was sent to the Public Prosecutor for a decision under section 112 of the Code of Criminal Procedure. So far no decision has been taken. It appears that a further set of preliminary investigations concerning related charges (number 26 Vr 367/91) against the applicant and other suspects, which was opened in 1990, is still pending on the ground that one expert has not yet completed his opinion. 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." Section 91 of the Courts Act applies to all kind of proceedings before the ordinary courts, be it civil or criminal ones.