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ALMESBERGER v. AUSTRIA - 13471/06 [2009] ECHR 2042 (10 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2042.html
Cite as:
[2009] ECHR 2042
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FIRST
SECTION
CASE OF ALMESBERGER v. AUSTRIA
(Application
no. 13471/06)
JUDGMENT
STRASBOURG
10
December 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Almesberger v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Elisabeth Steiner,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 19 November 2009,
Delivers
the following judgment, which was adopted on that date.
PROCEDURE
The
case originated in an application
(no. 13471/06) 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 Alfred
Almesberger (“the applicant”), on 24 March 2006.
The
applicant was represented by Mr J. Postlmayr, a lawyer practising in
Mattighofen. The Austrian Government (“the
Government”) were represented by their Agent, Ambassador
F. Trauttmansdorff, Head of the International Law Department at the
Federal Ministry for Foreign Affairs.
On
13 June 2008 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1956 and lives in Pischelsdorf. He is the
manager of a transport company.
On
1 April 1999 the Melk District Administrative Authority
(Bezirkshauptmannschaft – DAA) charged the applicant
with failing to carry a fire extinguisher while transporting
dangerous goods. The applicant did not react.
On 2 June 1999 the DAA issued a penal order
(Straferkenntnis). It found the applicant (as responsible
person for the Almesberger Transport Company) guilty (i) of failing
to carry, as the owner of the truck (Zulassungsbesitzer), a
fire extinguisher and (ii) of failing to carry, as the responsible
transporter (Befördererer) a fire extinguisher and the
necessary documents, contrary to the relevant provisions of the
Dangerous Goods Transportation Act (Gefahrgutbeförderungsgesetz).
It sentenced the applicant to a fine of 12,100 Austrian schillings
(ATS), approximately 880 euros (EUR).
The
applicant appealed on 28 June 1999 against the penal order to the
Lower Austria Independent Administrative Panel (Unabhängiger
Verwaltungssenat – IAP). He maintained that the DAA had not
raised the charge against him in time and that the criminal
proceedings had therefore become time-barred, that his conviction of
the offences under point (i) and (ii) of the penal order infringed
the principle of ne bis in idem and that the fine imposed on him was
excessive.
At
the request of the applicant a hearing scheduled before the IAP on
7 September 2000 was adjourned. On 14 September 2000 the IAP
held a hearing in the absence of the applicant.
In
a decision of 18 September 2000 the IAP dismissed the applicant’s
appeal. It found, inter alia, that in his capacity as the managing
director of a private limited company the applicant had failed to
ensure that the fire extinguisher in the inspected heavy goods
vehicle had been regularly checked.
On
10 October 2000 the applicant lodged a complaint with the
Constitutional Court. He submitted that the proceedings before the
IAP had been unfair, that his conviction under point (i) and (ii) of
the penal order of 2 June 1999 infringed the ne bis in idem
principle and that the sanctions provided for in the Dangerous Goods
Transportation Act were excessively high and thus unconstitutional.
The DAA commented on the applicant’s complaint to the
Constitutional Court on 1 December 2000.
On
9 February 2001 the comments of the Constitutional Department of the
Federal Chancellery were transmitted to the applicant.
Meanwhile
proceedings concerning a review of the constitutionality of certain
provisions of the Dangerous Goods Transportation Act had been
instituted by the Constitutional Court, following requests by several
IAPs in the course of administrative criminal proceedings pending
before them.
On
27 September 2002 the Constitutional Court gave its ruling following
its review of the Dangerous Goods Transportation Act. It rejected a
request to strike down provisions concerning the minimum fine that
had to be imposed in the event of conviction after finding that they
complied with the Austrian Federal Constitution.
Subsequently,
on 9 October 2002, the Constitutional Court declined to deal with the
applicant’s constitutional complaint as it had no prospects of
success. It remitted the case to the Administrative Court at his
request.
The
applicant amended his complaint to the Administrative Court on
28 February 2003. On 27 May 2003 the IAP submitted observations
in reply.
On
18 October 2005 the Administrative Court quashed the decision of the
IAP on the grounds that the Melk DAA had had no jurisdiction over the
case.
On
10 November 2005, in accordance with the finding of the
Administrative Court, the IAP quashed the decision of the Melk DAA
but did not formally discontinue the administrative criminal
proceedings.
On
14 November 2006 the applicant filed a request with the Melk DAA for
the proceedings to be discontinued, following which, on 24 November
2006, the proceedings were discontinued.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
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...”
A. Admissibility
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
applicant submitted that the subject matter of the present case had
not been complex. Furthermore there had been some phases of
inactivity, in particular before the Administrative Court, which had
not held a hearing and had annulled the decision only for formal
reasons.
The
Government contended that the length of the criminal proceedings had
complied with the “reasonable-time” requirement. The IAP
had decided the case within the maximum time-limit of 15 months. The
Constitutional Court had had to review, inter alia, various
provisions of the Dangerous Goods Transportation Act including those
providing for a minimum fine. Also the Administrative Court had dealt
with the case as soon as possible having regard to the number of
cases pending. In this respect the Government submitted that the
Administrative Court has been burdened constantly with an excessive
work-load which resulted in an increasing back-log of cases, rising
from 5963 in 1993 to 11286 in 2007, even though various measures for
reducing this back-log had been taken over the years, such as
increasing the number of reporting judges and reducing the subject
matters falling within the jurisdiction of the Administrative Court.
Taking this difficult situation into account, the Administrative
Court has dealt expeditiously with the applicant’s complaint.
The
Court observes that the period to be taken into consideration began
on 1 April 1999, when the Melk DAA charged the
applicant with failing to carry a fire extinguisher while
transporting dangerous goods, and ended on 24 November 2006, when the
Melk DAA decided to discontinue the proceedings. The proceedings
therefore lasted approximately seven years and seven months. During
this period the case was dealt by one administrative and two judicial
bodies as well as the Constitutional Court.
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)
In
the present case, the Court can accept that the questions the
authorities had to decide were of some complexity which, however,
could not in itself justify the substantial period that elapsed until
the final decision was taken. The Court observes in this respect that
at the same time the applicant’s complaint against the IAP’s
decision of 18 September 2000 was pending before the Constitutional
Court, that court was also in the process of reviewing the
constitutionality of various provisions of the Dangerous Goods
Transportation Act, which were of relevance to the applicant’s
case. The constitutional review of provisions of law is one of the
essential tasks of the Constitutional Court for safeguarding the rule
of law and there is an inevitable risk that it will prolong
proceedings in which provisions subject to review are at issue.
No
such considerations, however, apply to the proceedings before the
Administrative Court, which took two years and five months to decide
the applicant’s case which nevertheless remained pending for
more than a year before it was eventually terminated. As regards the
Government’s arguments in respect of the overburdening of the
Administrative Court, the Court notes that such arguments have
already been raised in previous cases (see G.S. v. Austria,
no. 26297/95, § 30, 21 December 1999 Ludescher v. Austria,
no. 35019/97, § 19, 20 December 2001). Even though the Court
appreciates the effort made by the Administrative Court for dealing
with its case-load expeditiously, it would reiterate that it is for
Contracting States to organise their legal systems in such a way that
their courts can guarantee the right of everyone to obtain a final
decision on disputes within a reasonable time (see G.S., cited
above, § 35).
Therefore
the Court considers that in the instant case the overall length of
the proceedings, namely more than seven years and seven months, was
excessive and failed to meet the “reasonable-time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained under Article 6 that the above
administrative criminal proceedings against him had been unfair in
various respects. He submitted that the IAP refused to pronounce it’s
decision orally; that the charges had been modified during the
proceedings; that only his counsel and not he himself was summoned to
the hearing before the IAP; that his request for adjournment had been
dismissed; that there was no hearing before the Constitutional Court
and that there was not sufficient time to prepare his defence before
the hearing before the IAP.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 4,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested that claim as being excessive.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 2,500
under that head plus any tax that may be chargeable on this amount.
B. Costs and expenses
The
applicant also claimed EUR 2,503.27 including value-added tax (VAT)
for the costs and expenses incurred before the domestic courts and
EUR 3,000 including VAT for those incurred before the Court.
The Government contested the claim for costs as being excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum. In the
present case, it does not appear from the applicant’s
submissions that any specific costs were incurred in an attempt to
expedite the proceedings. Therefore, no award can be made as regards
the costs of the domestic proceedings.
As
to the costs of the proceedings before the Court, the Court notes
that the applicant, who was represented by counsel, did not have the
benefit of legal aid but was only partly successful. It considers it
reasonable, having regard to similar cases, to award him EUR 1,500
under this head plus any tax that may be chargeable to the applicant
on this amount.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
amounts:
(i)
EUR 2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 1,500 (one thousand five hundred 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
