GRAF v. AUSTRIA
Inadmissible
Nicolas Bratza
The applicant, Normann Graf, is a German national of Austrian origin, who lives in Köln (Germany). He is represented before the Court by Mr H. Liebscher, a lawyer practising in Salzburg (Austria). The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 June 1989 the Salzburg Regional Court (Landesgericht) instituted preliminary investigation proceedings 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, but in fact they had sold the real property in 1986 and misappropriated the proceeds of the sale. 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 clear 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. The team was restructured again in 1993. In April 1995 the experts delivered their opinion. In 1993 the applicant, who had his place of residence in Germany since 1986, obtained German citizenship. In 1994 the Austrian authorities issued an international arrest warrant against the applicant. It appears that this warrant is still valid. In 1995 the Austrian authorities requested the German authorities to take over the criminal proceedings against the applicant. In March 1995 the Cologne Public Prosecutor opened criminal proceedings against the applicant. On 18 December 1996 the Cologne Public Prosecutor sent a letter to the applicant and informed that he had discontinued the criminal proceedings against him. On 4 August 1995, even before the Investigating Judge formally closed the preliminary investigations, the Salzburg Public Prosecutor’s Office (Staatsanwaltschaft) preferred a bill of indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused. However, since the applicant had no residence in Austria, the indictment could not be served on him. On 28 January 1997 the Public Prosecutor in Traunstein (Germany) refused to open criminal proceedings against the applicant as the prosecution had become time-barred (Verfolgungsverjährung) in Germany. Meanwhile, the co-accused had been convicted by the Austrian courts and had been sentenced to prison sentences from seven to nine years. However, the proceedings against the applicant are still pending due to the impossibility of serving the bill of indictment on the applicant.