PROCEDURE

The case originated in an application (no. 32869/96) against the Republic of Austria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Dietrich Rösslhuber (“the applicant”), on 10 May 1996.

The applicant was represented by Mr H. Asenbauer, a lawyer practising in Vienna (Austria). The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The applicant alleged that the criminal proceedings against him lasted unreasonably long.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 12 October 1999 the Chamber declared the application admissible and requested the parties to submit further observations.

Thereupon the applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant is a certified accountant and tax consultant, residing in Salzburg.

On 29 June 1989 the Salzburg Regional Court (Landesgericht) started preliminary investigations 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.

On 31 January 1990 the Review Chamber (Ratskammer) of the Salzburg Regional Court dismissed the applicant’s appeal against the opening of preliminary proceedings. On 14 March 1990 the Linz Court of Appeal (Oberlandesgericht) rejected the applicant’s further appeal.

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. According to the applicant, the team was restructured again in 1993. In April 1995 the experts delivered their opinion.

On 4 August 1995 the Salzburg Public Prosecutor’s Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) of 441 pages against the applicant and eight of his co-accused. On 7 November 1995 the Linz Court of Appeal dismissed the applicant’s objection to the indictment. At that time the file comprised 166 volumes with about 83,000 pages.

Both professional judges who were to deal with the case were relieved from all other business as of December 1995. In preparation for the trial, the court room at the Salzburg Regional Court was adapted with the installation of computer desks, in order to give the judges, the prosecution and the defence access to the data-base.

On 30 July 1996 the applicant filed a motion challenging the accounting experts for bias. This motion was dismissed on 26 August 1996. His further request to postpone the beginning of the trial was dismissed on 12 September 1996.

On 16 September 1996 the trial started before the Salzburg Regional Court sitting with two professional and two lay judges. A motion brought by the applicant and his co-accused challenging the two professional judges for bias was dismissed, as was their further motion challenging the experts for bias. The applicant challenged single members of the expert team on three further occasions, namely on 11 December 1996, 13 January 1997 and 3 May 1999. Further motions challenging the two professional judges for bias were brought by his co-accused.

The hearings lasted 186 days, at a rhythm of two or three days per week. 46 days were dedicated to hearing the accounting experts. According to the applicant, he put questions to the experts on twenty occasions, sometimes only a few and sometimes many. According to the Government, the applicant made excessive use of his right to question the experts, submitting ever changing calculations which necessitated time-consuming replies by the experts. According to the applicant, he only made one request for the taking of evidence, while the Government state that he made seven such requests. According to both parties, a large number of witnesses were heard. On 19 January 1998 a hearing had to be held in a hospital in Vienna due to the applicant’s illness.

On 14 June 1999 the Salzburg Regional Court gave its judgment orally. It convicted the applicant of breach of trust and sentenced him to six years’ imprisonment. The applicant announced that he would file a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung).

On 16 June 2000 the written version of the judgment, comprising about 1,100 pages, was served on the applicant.

Meanwhile, on 16 March 2000, the Constitutional Court (Verfassungsgerichtshof) had, upon a motion filed by two of the applicant’s co-accused, given a judgment to the effect that the four-weeks time-limit provided for in the Code of Criminal Procedure for lodging a plea of nullity and an appeal which - though being sufficient in the vast majority of cases - could not be extended in cases of an extraordinary scope such as the present, was contrary to Article 6 § 3 (b) of the European Convention on Human Rights. This time-limit was, therefore, not to be applied in the present case.

On 14 July 2000 the applicant lodged an appeal. The last information received by the Court concerning the applicant was that he was preparing his plea of nullity, to be filed by 16 November 2000, a time-limit set by the Salzburg Regional Court.
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32869/96
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001-59053_a8_e2
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ORG
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Republic of Austria
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DEM
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Austrian
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PERSON
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Mr Dietrich Rösslhuber
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DATETIME
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10 May 1996
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PERSON
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Mr H. Asenbauer
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Vienna
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Austria
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Austrian Government
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H. Winkler
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International Law Department
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Federal Ministry of Foreign Affairs
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12 October 1999
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DEM
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accountant
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DEM
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tax consultant
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LOC
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Salzburg
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29 June 1989
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Salzburg Regional Court (Landesgericht)
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1986
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31 January 1990
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Review Chamber (Ratskammer)
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Salzburg Regional Court
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14 March 1990
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Linz Court of Appeal (Oberlandesgericht)
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1990
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May 1990
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1990
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1993
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April 1995
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4 August 1995
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Salzburg Public Prosecutor’s Office (Staatsanwaltschaft)
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7 November 1995
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Linz Court of Appeal
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December 1995
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Salzburg Regional Court
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30 July 1996
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26 August 1996
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12 September 1996
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16 September 1996
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Salzburg Regional Court
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11 December 1996
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13 January 1997
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3 May 1999
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186 days
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two or three days
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46 days
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19 January 1998
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Vienna
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14 June 1999
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Salzburg Regional Court
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six years
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16 June 2000
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16 March 2000
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Constitutional Court (Verfassungsgerichtshof)
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four-weeks
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14 July 2000
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16 November 2000
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Salzburg Regional Court
Dietrich Rösslhuber
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Dietrich Rösslhuber