ROSENAUER v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Herbert Rosenauer, is a Austrian national, who was born in 1958 and lives in Timelkam. He was represented before the Court by Mr R. Gabl, a lawyer practising in Linz. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 March 1992 the Wels Regional Court (Landesgericht) instituted preliminary investigations against the applicant on suspicion of having committed continuous aggravated fraud (gewerbsmäßiger schwerer Betrug) and illegal gambling (Glücksspiel). He was suspected of having invented, managed and promulgated an “investment-game” called “the Clou”, in which the players had to pay a certain sum to the applicant in order to obtain a place on the list of players. Subsequently, they had to entice other players to join the game, the promise being that each player’s profit would be higher the more players were enlisted thereafter. Furthermore, the applicant was suspected of having raised loans from a number of persons by promising high interest rates, while he only intended to spend the money on gambling. On 22 April 1992 the applicant was questioned for the first time by the investigating judge as regards these charges. In late 1992 an expert in information technology and an expert in mathematics and statistics were appointed. In March 1993 the latter was requested to supplement his opinion. In 1993 numerous witnesses were heard. In January 1994 an expert in bookkeeping and an expert in computer technology were appointed. From 18 March 1994 to 30 December 1994 and from 4 January 1995 to 3 March 1995 the applicant was placed in detention on remand. In May 1995 the Public Prosecutor’s Office requested all four experts to supplement their opinions. On 4 October 1996 the preliminary investigations were concluded. On 20 December 1996 the Public Prosecutor’s Office lodged the bill of indictment. It was served on the applicant’s counsel on 3 February 1997. On 1 October 1998 the trial against the applicant started before the Wels Regional Court. On 19 August 1999, after 101 days of court hearings, the Wels Regional Court convicted the applicant of aggravated fraud (gewerbsmäßiger schwerer Betrug), misappropriation (Veruntreuung) and negligent and fraudulent bankruptcy (fahrlässige und betrügerische Krida). He was sentenced to five years’ imprisonment, forty-five months of which were suspended on probation. When fixing the sentence, the court found mitigating circumstances for the applicant under section 34 § 2 of the Criminal Code (Strafgesetzbuch), namely that “the proceedings against the accused have lasted disproportionately long through no fault of the accused or his counsel”. The judgment was served on the applicant’s counsel in March 2000. Neither the applicant nor the Public Prosecutor appealed. 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 in not subject to appeal.”