European Court of Human Rights

FIRST SECTION

DECISION

Application no. 127/05
by Michal BENES
against Austria

The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 6 December 2004,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Michal Benes, is a Czech national who was born in 1973 and lives in Ceske Budejovicje. He was represented before the Court by Mr H. Pohlhammer, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Tauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 26 August 1998 the Wels Regional Court issued a warrant of arrest against the applicant, as he was suspected, inter alia, together with several co-suspects, of having committed aggravated professional fraud and being a member of a criminal organisation.

On 12 September 1998 the applicant was arrested by the German police and, on an unspecified date, extradited to Austria. He remained in detention on remand until 23 July 1999.

Meanwhile, on 14 January 1999, the Wels Public Prosecutor’s Office filed a bill of indictment charging him with the above-mentioned offences. The applicant’s objection against it was dismissed by the Linz Court of Appeal, on 26 March 1999.

On 13 January 2003 the applicant filed a request for the acceleration of the proceedings under Section 91 of the Austrian Court Act (Fristsetzungs-antrag). Thereupon, the Wels Regional Court held a first hearing on 25 March 2003.

On 29 October 2003 the court decided to separate the trial against the applicant from the one against the other accused.

On 9 December 2003 the applicant requested that the trial against him be resumed and, in March and July 2004 filed two further requests for acceleration of proceedings.

The proceedings were still pending on 23 October 2006.

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the criminal proceedings against him.

THE LAW

On 9 June 2008 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay ex gratia the sum of EUR 12,300 to Michal Benes with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 19 February 2008 the Court received the following declaration signed by the applicant:

“I note that the Government of Austria are prepared to pay ex gratia the sum of EUR 12,300 to Michael Benes with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President