European Court of Human Rights

FIRST SECTION

DECISION

Application no. 2400/05
by Werner BAHAR
against Austria

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

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 13 January 2005,

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, Mr Werner Bahar, is an Austrian national who was born in 1947 and lives in Freilassing. He was represented before the Court by Dr. P. Rosenthal, a lawyer practising in Salzburg. 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 29 June 1989 the Salzburg Regional Court started preliminary investigations against thirty-five suspects on suspicion of large-scale fraud and breach of trust in the context of investments in a real estate fund, relating to the “WEB/IMMAG” group. On 21 May 1990 the investigating judge opened the preliminary investigations against the applicant.

While some of the co-accused were convicted of breach of trust on 14 June 1999, the case against the applicant remained still at the state of preliminary investigations.

On 28 January 2000 the Public Prosecutor’s Office preferred an indictment against the applicant and on 12 September 2001 the trial against the applicant started.

On 19 August 2002 the Regional Court gave its judgment orally, acquitting the applicant. The written version of the judgment was served on the applicant’s lawyer on 28 March 2003.

On 17 June 2004 the Supreme Court rejected the plea of nullity by the Public Prosecutor’s Office. This decision was served on the applicant’s lawyer on 23 July 2004.

COMPLAINTS

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

He further complained under Article 13 of the Convention that he did not have at his disposal an effective domestic remedy concerning the above complaint.

THE LAW

On 29 May 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 13,500 to Werner Bahar 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 30 April 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 13,500 to Werner Bahar 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