Přehled
Rozhodnutí
FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 70579/01
by Brigitte MAIER
against Austria
The European Court of Human Rights (First Section), sitting on 5 December 2002 as a Chamber composed of
Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr G. Bonello,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 10 April 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Brigitte Maier, is an Austrian national, who was born in 1956 and lives in Vienna. She is represented before the Court by Mrs E. Bauer-Bannsdorf, a lawyer practising in Vienna.
The facts of the case, as submitted by the applicant, may be summarised as follows:
On 28 March 1997 the investigating judge (Untersuchungsrichter) at the Wiener Neustadt Regional Court (Landesgericht) issued a warrant of arrest against the applicant on suspicion of fraudulent bankruptcy (betrügerische Krida) and breach of trust (Untreue). The suspicion related to the applicant’s business activities as the general manager of the PLF company. The investigating judge also issued a search warrant ordering a search of the company’s premises and of the applicant’s home.
On 2 April 1997 the applicant was arrested, the search of the above premises was carried out and several documents were seized and stored at the Regional Court. Later in that day, the applicant was questioned by the police.
On 3 April 1997 the applicant was again heard by the police.
On 4 April 1997 the applicant was questioned by the investigating judge.
On 17 April 1997 the Wiener Neustadt Regional Court ordered that the seized documents be examined.
On 5 May 1997 the applicant was examined by the police on questions relating to the seized documents.
On 27 January 1999 the Public Prosecutor’s Office preferred the indictment charging the applicant, inter alia, with breach of trust and fraudulent bankruptcy. The indictment was served on the applicant on 16 February 1999.
On 23 September 1999, 9 March 2000 and 25 May 2000 the trial was held before the Wiener Neustadt Regional Court.
At the end of the third day of trial, namely on 25 May 2000, the Regional Court convicted the applicant of breach of trust, fraudulent bankruptcy, unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) and suppression of documents (Urkundenunterdrückung). It sentenced her to two years’ imprisonment. The Regional Court found that the applicant had caused financial damage to the company by abusing her position as financial manager, i.e. by taking money from the company’s accounts to cover her private expenses. Further, the court found that, by diminishing the company’s assets, she had intentionally curtailed the satisfaction of its creditors.
The applicant filed a plea of nullity and an appeal against sentence (Nichtigkeitsbeschwerde und Berufung), claiming, inter alia, that her conviction for both, breach of trust and fraudulent bankruptcy, constituted double punishment.
On 11 December 2000 the Procurator General’s Office (Generalprokuratur) filed its observations on the applicant’s plea of nullity.
On 15 February 2001 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s plea of nullity as being unfounded, but granted her appeal against sentence and suspended sixteen months of the two years’ sentence on probation. As far as the applicant had complained about having been convicted twice for the same conduct, the court noted that in the present case a single act constituted two separate offences (Idealkonkurrenz) under the Criminal Code without the one absorbing the other. The nature and purpose of prosecution for breach of trust, which aimed at protecting a trustee’s assets, were different from those pursued by prosecution for fraudulent bankruptcy, namely to ensure the creditors’ satisfaction. The Supreme Court’s decision was served on the applicant’s lawyer on 16 March 2001.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the criminal proceedings against her lasted unreasonably long.
She also complains under Article 4 of Protocol No. 7 that she was convicted twice for the same conduct.
THE LAW
1. The applicant complains that the criminal proceedings instituted against her were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.
The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.
2. The applicant maintains that the fact that she was convicted of both, breach of trust and fraudulent bankruptcy, amounts to her being punished twice for the same conduct. She relies on Article 4 of Protocol No. 7 which, as far as relevant, provides as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State....”
The Court reiterates that the aim of Article 4 Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision. That provision does not therefore apply before new proceedings have been opened (Gradinger v. Austria, judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53).
In the present case, the applicant does not complain that she was tried or punished again for an offence of which she had already been finally acquitted or convicted. Her complaint relates to her conviction for different offences based on a single act in the course of one set of criminal proceedings. Accordingly, Article 4 of Protocol No. 7 does not apply.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings;
Declares the remainder of the application inadmissible.
Søren Nielsen Christos L. Rozakis
Deputy Registrar President