FIRST SECTION

CASE OF KÜCHER v. AUSTRIA

(Application no. 2834/09)

JUDGMENT

STRASBOURG

5 February 2015

This judgment is final. It may be subject to editorial revision.

In the case of Kücher v. Austria,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Julia Laffranque,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 7 January 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 2834/09) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Alois Kücher (“the applicant”), on 30 December 2008.
2.  The applicant was represented by Mr J. Postlmayr, a lawyer practising in Mattighofen. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3.  On 9 March 2012 the application was communicated to the Government.
4.  The applicant complained under Articles 6 and 13 of the Convention of the length of administrative criminal proceedings and the lack of an effective remedy to that effect. He also relied on Article 46 of the Convention.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1949 and lives in Schalchen.
6.  On 8 September 1999, the Salzburg Federal Police Authority (Bundespolizeidirektion) issued fifteen preliminary penal orders (Strafverfügung) against the applicant for infringements of the Motor Vehicle Act (Kraftfahrgesetz) and EU Regulations No. 3820/85 and 3821/85. On 23 September 1999, the applicant lodged objections (Einspruch) to all fifteen orders.
7.  On 27 December 2000, the Salzburg Federal Police Authority issued six penal orders (Straferkenntnis) against the applicant. On 16 January 2001, the applicant lodged appeals against all six penal orders with the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat).
8.  On 4 December 2001, after having held an oral hearing, the Salzburg Independent Administrative Panel sentenced the applicant to pay a fine of a total amount of 21,500 Austrian Schillings (ATS) (approx. 1,562 Euros (EUR)), and to contribute ATS 6,450 (approx. EUR 469) to the costs of the first and second instance proceedings. It discontinued the proceedings concerning one of the penal orders. On 24 January 2002, the applicant lodged a complaint with the Administrative Court (Verwaltungsgerichtshof) against that decision.
9.  On 12 September 2006, the Administrative Court quashed the appeal decision.
10.  On 3 January 2007, the Independent Administrative Panel issued a fresh decision and quashed four of the penal orders. As concerns the remaining penal order, it sentenced the applicant to pay a fine of EUR 210, and to contribute EUR 21 to the costs of the proceedings. It took into account the length of the proceedings as a mitigating circumstance when determining the amount of the fine.
11.  On 6 February 2007, the applicant lodged a complaint pursuant to Article 144 of the Federal Constitution with the Constitutional Court (Verfassungsgerichtshof). He complained about the length of the proceedings and lack of an effective remedy and asked for just satisfaction.
12.  On 10 June 2008, the Constitutional Court refused to deal with the complaint on the grounds that it did not raise an important legal question.
13.  On 30 July 2008, the applicant applied for his complaint to be referred to the Administrative Court, which was done on 8 August 2008. On 3 September 2008, the Administrative Court requested him to specify his complaint. He provided the supplementary information on 6 October 2008.
14.  On 24 October 2008, the Administrative Court refused to deal with the complaint pursuant to Section 33a Administrative Court Act, because the fine imposed did not exceed EUR 750.
The decision was served on the applicant’s counsel on 17 November 2008.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
15.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
16.  The period to be taken into consideration began on on 23 September 1999, when the applicant lodged objections against the fifteen preliminary penal orders, and ended on 17 November 2008, when the decision of the Administrative Court was served. It thus lasted nine years, one month and twenty-seven days, during which the case came before one administrative authority and two levels of jurisdiction.
Section 2.01	A.  Admissibility
17.  The Government argued that the applicant had not suffered a significant disadvantage, because he was finally sentenced to pay a fine of only EUR 210. They contended that he had not suffered a significant disadvantage as a result of the length of the proceedings either. Further, the question of an excessive procedural duration has already been examined by the Court at length, for example in its judgments of Stempfer v. Austria, no. 18294/03, 26 July 2007, and Vitzthum v. Austria, no. 8140/04, 26 July 2007. The Government therefore considered that the complaint must be rejected pursuant to Article 35 § 3 (b) of the Convention.
18.  The Government further submitted that the duration of the proceedings had been taken into account by the Independent Administrative Panel in its decision of 3 January 2007 when determining the amount of the fines, which is why the applicant cannot claim anymore to be a victim of a violation of the Convention.
19.  The applicant submitted that he had indeed suffered a significant disadvantage. He had a monthly income of EUR 1,235 and three children to care for. Therefore, even a moderate fine of EUR 210 constituted a financial burden for him. Also, the duration of the proceedings in itself constituted a significant disadvantage.
20.  Article 35 § 3 (b) of the Convention reads as follows:
“3.  The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(b)  the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
21.  The Court reiterates that this admissibility criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court (see Ladygin v. Russia (dec.), no. 35365/05, 30 August 2011). The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (see Gagliano Giorgi v. Italy, no. 23563/07, § 55, ECHR 2012 (extracts)). Even modest pecuniary damage may be significant in the light of the person’s specific condition and the economic situation of the country or region in which he or she lives (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010).
22.  The Court considers that in the light of the income of the applicant and his financial responsibilities towards his family, even the relatively low fine of EUR 210 constituted a financial burden for him. Under the circumstances, it cannot be said that the applicant has not suffered a significant disadvantage (compare Rinck v. France (dec.), no. 18774/09, 19 October 2010).
23.  Further, the Court notes that even though the Independent Administrative Tribunal had considered the length of the proceedings as a mitigating factor when fixing the fine, it had not properly acknowledged a violation of the Convention, neither has it specified the redress awarded to the applicant (compare, among many other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006‑V, and Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003‑XI). The Court is therefore convinced that the applicant can still claim to be a victim of the alleged breach of the reasonable time requirement under Article 6 of the Convention.
24.  The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is also not inadmissible on any other grounds.
It must therefore be declared admissible.
Section 2.02	B.  Merits
25.  The applicant argued that the proceedings at issue were not at all complex, and that he did not contribute to the length of the proceedings. There were, however, several phases of inactivity before the Austrian courts.
26.  The Government did not comment on the merits of this complaint.
27.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
28.  The Court notes that the proceedings at issue were not particularly complex, nor could any of the delays be attributed to the applicant’s conduct during the proceedings. There was in particular one long period of inactivity by the authorities of almost four and a half years, when the applicant’s appeal was pending before the Administrative Court.
29.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Hauser-Sporn v. Austria, no. 37301/03, §§ 32-33, 7 December 2006; Almesberger v. Austria, no. 13471/06, §§ 27-29, 10 December 2009; Vitzthum, cited above, § 31; and Stempfer, cited above, § 48).
30.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
31.  The applicant complained that the Austrian Administrative Criminal Proceedings Act (Verwaltungsstrafgesetz) does not provide any legal remedy against a failure of the Administrative Court to decide within a reasonable time. Further, he complained that there was no legal remedy available to accelerate administrative criminal proceedings. He relied on Articles 13 and 46. The Court will examine the complaint under Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Section 3.01	A.  Admissibility
32.  The Government maintained their argument that the applicant had not suffered a significant damage, and added that the question of the lack of a legal remedy against an excessive procedural duration before the Administrative Court had already been examined by the Court at length.
33.  The applicant reiterated his arguments submitted concerning the admissibility of his complaint under Article 6 § 1 of the Convention, and argued that in the light of the previous case-law of the Court, his complaint under Article 13 was indeed well-founded.
34.  The Court has already found above that, taking into account the circumstances of the case, the applicant has suffered a significant disadvantage. Therefore, he can still claim to be a victim of a violation of Article 13 of the Convention. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
Section 3.02	B.  Merits
35.  The applicant asserted that no remedies were available against the length of administrative criminal proceedings.
36.  The Government did not comment on the merits of this complaint, but referred to the comprehensive reform of administrative proceedings which entered into force on 1 January 2014: the creation of nine Regional Administrative Courts and one Federal Administrative Court aimed inter alia at reducing the work-load of the Administrative Court and in consequence also the duration of the proceedings before it.
37.  The Court reiterates that Article 13 of the Convention guarantees an effective remedy before a national authority for an alleged violation of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). Moreover, the Court reiterates that Article 13 offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła, cited above, § 159; see also Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 186-87, ECHR 2006-V).
38.  While the Court notes with satisfaction the steps taken by the Government in order to reduce the duration of proceedings before the Administrative Court, the fact remains that at the material time, the applicants did not have any remedy – either preventive or compensatory – as regards the considerable delays in the proceedings before the Administrative Court (see, for instance, Hauser-Sporn v. Austria, no. 37301/03, § 40, 7 December 2006; Stempfer v. Austria, no. 18294/03, § 48, 26 July 2007; Vitzthum, cited above, § 31; and Schutte v. Austria, no. 18015/03, § 38, 26 July 2007).
39.  Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding their right to have their case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 4.01	A.  Damage
41.  The applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage.
42.  The Government considered this claim to be wholly disproportionate to the fine imposed, and also excessive in the light of the Court’s previous case-law in similar cases.
43.  As the applicant made no claim for pecuniary damage, no award is made under this head. However, the Court finds that the applicant must have sustained non-pecuniary damage which cannot be compensated by the finding of a violation. Regard being had to its case-law, the Court considers it reasonable to award EUR 6,000 in respect of non-pecuniary damage.
Section 4.02	B.  Costs and expenses
44.  The applicant also claimed EUR 3,926.40 for the costs and expenses incurred before the domestic courts and EUR 2,500 for those incurred before the Court.
45.  The Government considered these claims to be excessive.
46.  According to the Court’s case-law, an applicant is entitled to the reimbursement of such costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings, but considers it reasonable to award the sum of EUR 2,000 for the proceedings before the Court.
Section 4.03	C.  Default interest
47.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts:
(i)  EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President