European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20026/06
by Christian GRÖGER
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,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 12 May 2006,

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 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 Christian Gröger, is an Austrian national who lives in Vienna (Austria). He is represented before the Court by Mr K. Bernhauser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

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

On 7 March 2001 the applicant was questioned by the Vienna Police authority on suspicion of cigarette smuggling. Further examinations by the Vienna Customs Office (Zollamt Wien) took place on 9 March 2001 and 17 November 2005.

On 5 April 2006 the Vienna Customs Office formally decided to institute proceedings for smuggling under the Tax Offences Act.

On 27 April 2006 the applicant appealed against the decision to institute proceedings against him. In his appeal he submitted, inter alia, that the proceedings had already lasted an unreasonably long time and requested that they be discontinued.

The proceedings against the applicant are still pending.

B.  Relevant domestic law

Article 132 of the Federal Constitution Act, in its relevant part, reads as follows:

“An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except as regards private prosecutions and prosecutions in respect of tax offences.”

Section 57 (6) of the Code of Tax Offences (Finanzstrafgesetz) as amended by the Code of Tax Offences Amendment Act 2007 (Finanzstrafgesetz-Novelle 2007), Federal Law Gazette 2007 Part I No. 44 (BGBl. Nr. I 2007/44) as in force since 1 January 2008, reads as follows:

“Financial criminal proceedings shall always be conducted expeditiously and without unnecessary delay and shall be terminated within adequate time. Proceedings during which an accused is detained shall be conducted with particular expedience. If a finance prosecution authority is dilatory in taking procedural action, the accused may file a request with the finance prosecution authority directed at the head of the Appeal Senate of the Independent Financial Senate (Berufungssenat des unabhängigen Finanzsenates) referred to in Section 62 (4) to set an adequate time-limit for the finance prosecution authority to take the procedural action. If the finance prosecution authority has taken the procedural action prior to the decision on the request, the request shall be deemed withdrawn.”

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of proceedings.

THE LAW

The applicant complains that the administrative criminal proceedings instituted against him under the Tax Offence Act have lasted an unreasonably long time. He relies on Article 6 § 1 of the Convention which, in so far as relevant, 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...”

The Government submitted that for two reasons the applicant had failed to exhaust domestic remedies as required. In the first place he should have waited until the tribunal deciding on the criminal charge against him had given its decision, because only at that moment was it clear whether it had been taken into account, in meting out the sentence, that any undue length had occurred in the proceedings. The European Court of Human Rights has found in its case-law that the passing of a lenient sentence or its reduction in an express or measurable manner was appropriate redress for a breach of the reasonable time requirement (see Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66, and Donner v. Austria, no. 32407/04, § 26, 22 February 2007). Since the applicant did not wait for the domestic tribunal’s decision on the merits of his case, he has failed to exhaust domestic remedies. In the second place the applicant has failed to exhaust domestic remedies as he did not make an application to the Administrative Court under Article 132 of the Federal Constitution Act (Bundes Verfassungs-Gesetz), complaining about the tax offence authority’s inertia in dealing with the case against him. According to Article 132 of the Federal Constitution Act this remedy applied to fiscal criminal cases before federal authorities and according to the Constitutional Court’s case-law this remedy may also be taken against inertia of an authority of first instance provided that no other remedies for accelerating the proceedings exist. In this respect the Government added that such additional remedies which allow that proceedings at first or second instance be accelerated by a different remedy came into existence only with the Tax Offences Amendment Act of 2007, which entered into force on 1 January 2008. Thus, the applicant had the opportunity to go directly to the Administrative Court. Since he has not done so, the applicant has failed to exhaust domestic remedies in this respect also.

As to the merits of the complaint, the Government submitted that the length of the proceedings could be explained by the complexity of the investigations and the necessity to obtain witness statements abroad.

This is disputed by the applicant. In his view it was contrary to the requirements of Article 6 to force an accused to wait until the sentencing court had actually decided on the charge and, perhaps, given a lenient sentence. As to the second remedy mentioned by the Government, the applicant submitted that an accused cannot be expected to make a complaint under Section 132 of the Federal Constitutional Act to the Administrative Court because of the considerable costs incurred in these proceedings since representation by a lawyer was mandatory. He further submitted that there were no particular circumstances which could justify the length of the proceedings, which still were pending at first instance

The Government raised the objection of non-exhaustion of domestic remedies by the applicant. The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52; Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-67; and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).

As to the first avenue proposed by the Government, which consists essentially of waiting for the outcome of the criminal proceedings, the Court observes that the reduction of a sentence on the ground of excessive length of proceedings deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention when the national authorities have acknowledged sufficiently clearly a failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Karg v. Austria (dec.), no. 9749/4, May 2008; Beck v. Norway, judgment of 26 June 2001, § 27; and Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66).

However, circumstances which might eventually deprive an individual of his status as a victim cannot be equated to a proper and effective remedy which either is designed to speed up proceedings or to allow an individual to take proceedings for affording ex-post redress where proceedings have lasted an unreasonably long time. This part of the Government’s objection of non-exhaustion must therefore be rejected.

The Government argued further that the applicant should have gone to the Administrative Court with an application under Article 132 of the Federal Constitution against the inertia of the Vienna Customs Office.

In this respect the Court reiterates that an application under Article 132 of the Federal Constitution constitutes, in principle, an effective remedy which has to be used in respect of complaints about the length of administrative proceedings (see Basic v. Austria, no. 29800/96, §§ 39-40, ECHR 2001-I; and Emsenhuber v. Austria (dec.), no. 54536/00, 11 September 2003).

Having regard to the wording of Article 132 of the Federal Constitution and the fact that the amendment to Section 57 (6) of the Code of Tax Offences which provided for further remedies in order to accelerate proceedings only entered into force on 1 January 2008 the Court concludes that this application constitutes an effective remedy as regards a complaint about the length of proceedings.

Thus, the applicant should have made use of the application under Article 132 of the Federal Constitution. However, he did not do so at any stage of the proceedings and has therefore failed to give the domestic authorities the opportunity intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely the opportunity of preventing or putting right the alleged violation (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection that domestic remedies have not been exhausted is therefore well-founded.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President