However, the State Court has also ruled that these four criteria? only constitute aspects
"which the ECtHR applies to assess the duration of proceedings in the individual case. They
do not constitute a standard of their own, since it is always the concrete constellation of the
individual case that the determines the adequacy of the duration of proceedings." 38
Taking the case law of the ECtHR and the literature published in that context as an
assessment standard, the State Court has for example considered a duration of proceedings
which "divided by the number of instances results in between eighteen and twenty-four
months" to be still acceptable.’ 9
However, if an infringement of fundamental rights is found, the State Court is confronted with
the problem that annulling the challenged decision will only extend the infringement if the
factual decision as such is not modified. In these cases, the State Court (and incidentally, also
the Austrian Constitutional Court)*® declares that the challenged decision "has violated the
complaining party's right guaranteed by the Constitution and by the ECHR to a decision
within a reasonable term pursuant to Art. 31 (1) LV und Art. 6 (1) ECHR." ^! So far, the State
Court has never found grounds to partly annul the challenged decision (as the Austrian
Constitutional Court does) ^, for example because in criminal proceedings the violation of the
reasonable duration of proceedings would have to be taken into account in assessing the
amount of the sentence.
also Hugo Vogt, Rechtsverweigerung, Rechtsverzógerung, überspitzter Formalismus, in: Kley/Vallender (ed.),
Grundrechtspraxis in Liechtenstein, LPS 52 (2012), p. 593 — 618 (p. 607 et seq.).
7 As to the content of these four criteria in detail, see Christoph Grabenwarter/Katharina Pabel, Europäische
Menschenrechtskonvention, 5" ed. (2012), p. 428 et sqq. margin no. 70.
?* StGH 2005/52.
3? StGH 2010/29, www.gerichtsentscheide.li, cons. 6 with reference to Wolfgang Peukert, in: Jochen Abr.
Frowein/Wolfgang Peukert (ed.), Menschenrechtskonvention, 3" ed. (2009), margin no. 249.
? Cf. e.g. VfSIg 16.747/2002; VfSlg 17.339/2004; VfSlg 18.012/2006.
^! Cf. StGH 2011/32, www.gerichtsentscheide.li.
BC, VfSig 17.339/2004: "Only the verdict on the sentence in the challenged order had to be annulled, given
that the declared infringement of rights does not affect the verdict on guilt, and a modification can only be
taken into account within the framework of sentencing pursuant to 8 16 (6) DSt 1990 (Austrian Disciplinary
Statute for Lawyers and Trainee Lawyers) (arg. 'in particular'), in particular by constitutional consideration of
the overly long duration of proceedings as a mitigating factor in mutatis mutandis application of 8 34 (2) StGB
(Penal Code) (cf. VfSlg 16385/2001)." To the same effect also Grabenwarter/Pabel, Europáische
Menschenrechtskonvention, p. 431 margin no. 72.