European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8416/05
by Heinz POTZMADER
against Austria

The European Court of Human Rights (First Section), sitting on 27 November 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 14 February 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Heinz Potzmader, is an Austrian national who was born in 1939 and lives in Scheibbs. He was represented before the Court by Mr M. Schwarz, a lawyer practising in St Pölten. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the Law Department at the Federal Ministry for European and International Affairs.

A.  The circumstances of the case

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

The applicant was a co-executive of W. und H. Potzmader KG, a construction business.

In May 2000 the St Pölten Public Prosecutor’s office received information that there was an illicit practice of price fixing between several companies active in the construction business.

On 6 September the St Pölten Public Prosecutor’s Office opened criminal proceedings on suspicion of fraud and offences under the Antitrust Act against thirty-nine persons including the applicant. Between 11 and 14 September 2000 the Scheibbs Police carried out a number of house searches including the premises of the applicant’s company and confiscated 122 files and numerous other documents concerning calculations for the submission of tenders and invoices of implemented projects.

On 20 September 2000 the applicant was questioned as a suspect by the criminal investigation department. He confessed to have participated in price-fixing agreements in a total of three projects.

Subsequently, the investigations were extended to a number of further suspects. On 18 October and 7 November 2000 further searches were carried out.

On 17 January 2001 the investigating judge ordered two experts to prepare a report on the amount of damages resulting from the price fixing.

On 25 July 2001 the expert opinion, comprising some 650 pages, was submitted and on 14 August 2001 the investigating judge ordered it to be supplemented. A further search in the premises of one of the company’s involved took place on 17 October 2001. In November 2001 the supplemented expert opinion was submitted.

On 19 July 2002 the Public Prosecutor at the St Pölten Regional Court drew up a bill of indictment accusing the applicant and nine co-accused of aggravated fraud and offences under the Antitrust Act (Kartellgesetz). On 28 August 2002 the proceedings against this group of accused were severed from the proceedings against the other suspects. On 2 October 2002 the file was transmitted to the presiding judge of the trial court.

Having held the trial between 3 January and 31 March 2003, the St Pölten Regional Court gave judgment against the applicant and his nine co-accused on the latter date. It acquitted the applicant of the charges of fraud, but convicted him of offenses under the Antitrust Act and sentenced him to three months’ imprisonment suspended on probation.

Subsequently the applicant and his co-accused filed pleas of nullity and appeals, as did the St Pölten Public Prosecutor’s Office. The pleas of nullity and appeals reached the Supreme Court on 17 September 2003.

On 6 October 2004 the Supreme Court, having held a hearing, dismissed the pleas of nullity and the appeals.

The judgment was served on the applicant’s counsel on 31 January 2005.

B.  Relevant domestic law

Section 91 of the Courts Act (Gerichtsorganisationsgesetz), provides as follows:

“(1)  If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2)  If the court takes all the procedural steps specified in the request within four weeks of receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3)  The request referred to in sub-section (1) shall be determined with special expedition by a Chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal.”

COMPLAINT

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

THE LAW

The applicant’s complaint relates to the length of the proceedings. He relies on Article 6 § 1 which, so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Government argued that the applicant had failed to exhaust domestic remedies. They pointed out that he had not made use of the application under section 91 of the Courts Act which is an effective remedy according to the Court’s case-law. In addition he could have requested a severing of the proceedings under Article 57 § 1 of the Code of Criminal Procedure. As regards possible delays caused by the Public Prosecutor’s office, the applicant failed to lodge a hierarchical complaint (Dienstaufsichtsbeschwerde) under section 37 of the Public Prosecutor’s Act.

The applicant contested the Government’s view. He asserted that delays in the present case were caused first by the Public Prosecutor’s Office and then by the Supreme Court. However, no remedies were available: He argued that a complaint under section 37 of the Public Prosecutor’s Act was not an effective remedy, since it did not give the complainant a right to a decision. Furthermore, he pointed out that the application under section 91 of the Court’s Act was not available where the delay was caused by the Supreme Court.

The Court has already found that a hierarchical complaint under section 37 of the Public Prosecutor’s Act is not an effective remedy, on the ground that hierarchical complaints in the Austrian legal system do not grant to an individual the right to exercise supervisory powers, and any proceedings which do subsequently take place do not involve the participation of the individual who made the hierarchical appeal in the first place (see, for instance, Donner v. Austria, no. 32407/04, § 45, 22 February 2007). A similar argument applies as regards Article 57 § 1 of the Code of Criminal Procedure, which gives the court discretion to sever proceedings but does not give the accused a right to such a decision.

It is true that an applicant is normally required to file an application under section 91 of the Courts Act (see Holzinger v. Austria (no. 1), no. 23459/94, §§ 21-23, ECHR 2001 I, and, with respect to criminal proceedings, Talirz v. Austria (dec.), no. 37323/97, 11 September 2001). The applicant has not done so in the present case. However, an application under section 91 of the Courts Act may only be filed against delays caused by judicial organs but not against delays attributable to the prosecuting authorities (see A.S. v. Austria (dec.), no. 42033/98, 7 May 2002). Furthermore, it follows from the wording of section 91 of the Courts Act, which requires a superior court to examine the application and fix a time-limit if necessary that it is not available as regards delays caused by the Supreme Court.

The Court observes that delays, if any, in the present case may have occurred in the preparation of the indictment by the Public Prosecutor’s office and while the case was pending before the Supreme Court. For these periods no effective remedy was available. In respect of the remaining periods, during which the case was pending before the Regional Court, the Government have not identified any particular delays and have therefore not shown how the use of the application under section 91 of the Court’s Act could have shortened the overall duration of the proceedings. In the circumstances of the present case, the applicant was therefore not required to make use of this remedy. In short, the applicant has not failed to exhaust domestic remedies.

As to the merits of the complaint, the applicant maintained that the proceedings were not complex and that considerable delays were attributable to the authorities, while the Government asserted in particular that the proceedings were complex.

The period to be taken into consideration began on 6 September 2000 when criminal proceedings were opened against the applicant and ended on 31 January 2005, when the Supreme Court’s judgment was served on him. It has thus lasted four years and four months and three weeks for two levels of jurisdiction.

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).

The Court considers that the proceedings were of considerable complexity. They concerned white-collar crime involving initially thirty-nine suspects and were subsequently extended to further suspects. A number of house searches were carried out at which voluminous business records were seized. Furthermore the taking of a comprehensive expert opinion was required. The applicant did not contribute to the length of the proceedings, however no major delays are attributable to the authorities either. In particular, the Court finds that eight month taken by the Public Prosecutor’s office to prepare the indictment cannot be regarded as excessive in the circumstances. Moreover, the proceedings against the applicant and nine co-accused were severed which must have contributed to expediting them. The Regional Court conducted the trial speedily. Thus the Court finds that, in the circumstances of the case, the overall duration of the proceedings can still be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President