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Cite as: [2012] ECHR 1041

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FIRST SECTION

DECISION

Application no. 8154/04
Claude Louis DUBOC
against Austria

The European Court of Human Rights (First Section), sitting on 5 June 2012 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 27 February 2004,

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 Claude Louis Duboc, is a national of the United States of America and France, who was born in 1942. He is currently detained in a prison in the United States of America. He is represented before the Court by Dr. J. Hock, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of France were given notice of the application, and they informed the Court on 11 June 2008 that they would not exercise their right to intervene in the present case.

A. The circumstances of the case

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

In November 1988 the applicant opened a bank account with an Austrian bank, bank G. The account was registered under his name and all movements on the account were able to be followed. By 1998 the applicant’s account had a positive balance of approximately 17 million euros (EUR).

1. Criminal proceedings in the United States of America

In 1994 the applicant was indicted in the United States on various drug and money laundering charges relating to drug trafficking on a particularly large scale, which he was involved in from 1982 until his arrest in 1994. The applicant entered into a Plea and Cooperation Agreement with the prosecution on 17 May 1994. Under that agreement, the applicant voluntarily forfeited to the United States approximately 50 million United States dollars (USD) in assets. He was also obliged to identify all his assets. However, the applicant did not disclose his account with bank G.

While in prison the applicant was induced by one of the other fellow inmates, who was cooperating with the FBI, to bribe a judge. The inmate also arranged a meeting between the applicant and W., an undercover law enforcement officer, who presented himself as being able to assist the applicant. Subsequently, W. arranged several money transfers for the applicant from bank G. in Austria.

Thereupon, on 7 May 1998, the United States Department of Justice requested the Austrian authorities under letters rogatory to freeze the applicant’s assets as a preliminary step to forfeiture under US law, subject to the operation of Austrian law. It stated that the applicant’s funds deposited with bank G. were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in 1994. It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later.

This request was based on the treaty regulating judicial assistance between Austria and the United States, namely the Treaty of Mutual Legal Assistance (“the MLAT”), which entered into force on 1 August 1998.

On 23 September 1999 the District Court for the Northern District of Florida issued a Final Order of Forfeiture including the applicant’s assets at bank G. (“the first forfeiture order”). Apparently, the applicant’s appeal against this decision was to no avail.

In a second set of criminal proceedings in the United States, the applicant was indicted for conspiracy to bribe a federal judge, conspiracy to tamper with a witness, conspiracy to money laundering and for money laundering.

On 1 February 2000 the District Court for the Northern District of Florida acquitted the applicant of bribery, but convicted him of all other charges. The court also ordered the forfeiture of his assets (“the second forfeiture order”).

On 26 August 2004 the United States Court of Appeals for the Eleventh Circuit partly granted the applicant’s appeal against the decision of 1 February 2000 and acquitted him with respect to money laundering. His conviction for conspiracy to tamper with a witness was affirmed. The court also reversed the second forfeiture order.

2. Proceedings in Austria

Based on the United States’ letters rogatory of 7 May 1998, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) issued an interim measure on 23 June 1998 enjoining the applicant from disposing of all assets deposited with bank G. It also held that the interim measure would be suspended on deposit of USD 325,000. The applicant did not pay that deposit and did not appeal against the court’s decision. This interim measure was twice altered to reflect the increased value of the assets subject to it.

Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on 19 June 1998.

On 23 April 1999 the Austrian Federal Ministry of the Interior (Bundesministerium für Inneres) issued a report listing all credits and debits on the applicant’s account that had been carried out via bank transfer or by means of crossed cheques (Verrechnungsschecks).

On 14 April 2000 the Regional Criminal Court dismissed the applicant’s request for the suspension of the criminal proceedings and for the lifting of the interim measure. It held that only the Public Prosecutor’s Office could suspend the proceedings at this stage and that the interim measure was still justified.

On 17 August 2000 the Vienna Court of Appeal (Oberlandesgericht) rejected the applicant’s request that it hold a hearing and dismissed his complaint against the Regional Criminal Court’s decision of 14 April 2000. It held that according to the findings of the United States authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property (Hehlerei) and, after the entry into force of the relevant amendment to the Austrian Criminal Code, the crime of money laundering.

Subsequently, the applicant applied to have the interim measure lifted three additional times between 27 June 2001 and 18 August 2003. All of his requests were to no avail.

Following the judgment of the United States Court of Appeals for the Eleventh Circuit of 26 August 2004 and the applicant’s acquittal of the charges of money laundering, the applicant applied again to have the interim measure lifted.

On 22 March 2005 the Vienna Regional Criminal Court dismissed this request and upheld the interim measure. It held that a distinction had to be made between the two different proceedings in the United States. The first forfeiture order was still in force and consequently the interim measure in Austria could not be quashed. Even if the second forfeiture order had been lifted, the corresponding judgment of the United States Court of Appeals for the Eleventh Circuit had stated that at least some of the money in the applicant’s account with bank G. had “doubtlessly derived from drug related money”. The interim measure was therefore still justified.

This decision was upheld by the Court of Appeal on 22 September 2005 and served on the applicant’s counsel on 10 October 2005.

On 18 May 2005 the Vienna Public Prosecutor’s Office asked the Regional Criminal Court to enforce the first forfeiture order. Furthermore, it discontinued the criminal proceedings against the applicant on the same date. It renewed the request on 26 February 2006.

Upon the request of the Vienna Regional Court of 16 March 2006, the U.S. Department of Justice submitted a certified written version of the judgment issued against the applicant. However, it did not do so until 6 March 2007.

On 25 April 2006 the Vienna Regional Court dismissed the Public Prosecutor’s request for the execution of the first forfeiture order for formal reasons.

On 19 June 2007 the Vienna Court of Appeal allowed the Public Prosecutor’s appeal and remitted the case back to the Regional Court.

On 1 February 2008 the Vienna Regional Court asked the U.S. authorities to inform the applicant of the request of the U.S. Department of Justice for enforcement of the first forfeiture order and to give him the opportunity to comment on it.

On 23 April 2008 the applicant and his former wife, both represented by counsel, requested in their comments that the first forfeiture order not be executed in Austria.

On 4 June 2008 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant’s Austrian assets. The applicant appealed against this decision on 24 June 2008.

On 30 December 2008 the Vienna Court of Appeal dismissed the applicant’s subsequent appeal. That decision was served on the applicant’s counsel on 27 January 2009.

B. Relevant domestic law

1. The Extradition and Legal Assistance Act

Section 1 of the Extradition and Legal Assistance Act (Federal Law Gazette no. 529/1979) stipulates that the Act applies where international or bilateral agreements do not provide otherwise.

Section 3

Section 3 carries the heading “reciprocity” and, so far as relevant, provides as follows:

“(1) Foreign requests may be granted only if it is ensured that the requesting State would also grant an equivalent Austrian request.

...

(3) If there are doubts regarding compliance with reciprocity, information shall be obtained from the Federal Minister of Justice.”

Section 64

“(1) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect, in the form of a money fine or prison sentence, a preventive measure or a pecuniary measure (vermögensrechtliche Anordnung), is admissible at the request of another State if:

the decision of the foreign court was taken in the course of proceedings in compliance with the principles of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette No. 210/1958);

the decision was taken for an act that is sanctioned by a court sentence under Austrian law;

the decision was not taken for one of the offences listed in § 14 and § 15;

no time lapse has occurred under Austrian law regarding enforceability;

the person concerned by the decision of the foreign court – regarding this offence – is not prosecuted in Austria, was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution.

...

(4) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under Austrian law for a money fine, a withdrawal of enrichment or forfeiture apply, and that no corresponding Austrian measure has yet been taken.

...

(7) Fines, forfeited assets or enrichment withdrawn shall fall to the Republic of Austria.”

2. The Treaty between the Government of the Republic of Austria and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters

The Treaty was signed on 23 February 1995 and, following ratification, entered into force on 1 August 1998 (Federal Law Gazette Part III, no. 107/1998).

Article 1

“(1) The Contracting Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of the Requesting State, and in related forfeiture proceedings.

(2) Assistance shall include:

...

(h) assisting in proceedings related to forfeiture and restitution; ...”

Article 17

“(1) If the Central Authority of one Contracting Party becomes aware of fruits or instrumentalities of offences which are located in the territory of the other Party and may be forfeitable of otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If the other Party has jurisdiction in this regard, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities shall issue their decision and shall, through their Central Authority, report to the other Party on the action taken.

(2) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions.

(3) A Requested State in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law. To the extent permitted by its laws and upon such terms as it deems appropriate, either Party may transfer forfeited assets or the proceeds of their sale to the other Party.”

Article 20

“(3) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of this Treaty.”

COMPLAINTS

Citing Article 6 of the Convention, the applicant complained of the lack of a public hearing in the proceedings concerning the interim measure freezing his assets in Austria. He asserted that he had not been given the opportunity to present any evidence on his behalf as to the legitimacy of his Austrian assets and as regards the question of reciprocity under the Treaty of Mutual Legal Assistance between Austria and the United States (“the “MLAT”). Furthermore, the Austrian courts’ refusals to lift the interim measure had been unfair because they had not been sufficiently reasoned.

Under the same provision the applicant complained about the length of the criminal proceedings in Austria. He submitted that they had started in 1998 and had lasted until 18 May 2005.

The applicant also complained under Article 1 of Protocol No. 1 that the Austrian courts’ refusal to lift the interim measure had constituted a violation of his right to the free enjoyment of his property. He claimed that the interim measure had been entirely devoid of any legal basis, in that the condition of reciprocity which he asserted was required by the MLAT had been not fulfilled and that the Austrian authorities’ interpretation of Article 17 of the MLAT had been contrary to the clear wording and meaning of this provision.

Relying on Article 7 of the Convention, the applicant complained that the preliminary investigation against him and the confiscation of his assets had been conducted on the basis of money laundering, which had not been punishable in Austria at the material time.

Finally, he complained under Article 13 of the Convention that he had not been able to bring his case before the Constitutional Court in order to challenge the conformity of the relevant domestic provisions with the Convention.

THE LAW

1. Complaint under Article 6 § 1 about the lack of a public hearing

The applicant complained, relying on Article 6 of the Convention, of the lack of an oral hearing in the proceedings concerning the interim measure.

Article 6, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time... by [a] ... tribunal ...”

The Government submitted that the right to a public hearing or any hearing at all was not absolute. In the present case, the courts had been justified in dispensing with a hearing, as the cross-border enforcement proceedings had exclusively concerned questions of law. Moreover, a personal appearance by the applicant had neither been necessary, as the issues to be resolved had not required the court to gain a personal impression of him, nor had it been feasible, as he was serving a prison term in the United States. A requirement of personal attendance would severely hamper international cooperation in cases such as the present one. Moreover, the applicant had been sufficiently involved in the proceedings, in that he had been informed of all steps taken and had submitted comprehensive statements through counsel.

This was disputed by the applicant, who submitted that neither the Vienna Regional Criminal Court nor the Vienna Court of Appeal had held a public hearing, although there had been no special circumstances that would have justified dispensing with a hearing. Moreover, he submitted that he should have been heard in person in order to show that his assets had originated from lawful business activities.

The Court observes at the outset that the proceedings relating to the enforcement of a foreign forfeiture order by the Austrian courts fall to be considered under the civil head of Article 6 § 1 (see Saccoccia v. Austria, no. 69917/01, § 65, 18 December 2008).

As regards the necessity of holding a public hearing in such proceedings, the Court found in the above-cited Saccoccia case as follows:

“77. Turning to the circumstances of the present case, the Court observes that the courts had to examine whether the conditions laid down in the relevant provisions of the Extradition and Legal Assistance Act (“the ELAA”) and the 1998 Treaty for execution of the forfeiture order were met. The issues to be examined included questions of reciprocity, the question whether the acts committed by the applicant were punishable under Austrian law at the time of their commission, compliance with statutory time-limits and whether the proceedings before the Rhode Island District Court, which had issued the confiscation order, had been in conformity with the standards of Article 6 of the Convention.

78. In the Court’s view, the present proceedings concerned rather technical issues of inter-State cooperation in combating money-laundering through the enforcement of a foreign forfeiture order. They raised exclusively legal issues of a limited nature. All the Austrian courts had to establish was whether the conditions set out in the ELAA and the 1998 Treaty for granting the execution of the confiscation order were met. As has already been established, the proceedings did not involve any review of the merits of the forfeiture order issued by the Rhode Island District Court.

79. The present proceedings did not require the hearing of witnesses or the taking of other oral evidence. Furthermore, the Court agrees with the Government that the courts were not called upon to hear the applicant in person. The proceedings did not raise any issue of his credibility, nor did they concern any circumstances which would have required the courts to gain a personal impression of the applicant. In these circumstances, the courts could fairly and reasonably decide the case on the basis of the parties’ written submissions and other written materials. They were therefore dispensed from holding a hearing.”

Given that the same kind of proceedings were conducted in the present case, in which the same kind of issues had to be examined by the Austrian courts, the Court considers that the above reasons also apply to the present case. It therefore concludes that, in these circumstances, the courts could fairly and reasonably decide the case on the basis of the parties’ written submissions and other written materials and were dispensed from holding a hearing. Accordingly, there is no appearance of a violation of Article 6 on account of the lack of an oral hearing.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Complaint under Article 6 § 1 about the length of the preliminary investigation proceedings

The applicant also complained under Article 6 of the Convention about the length of the proceedings before the Austrian courts.

The Government submitted that a period of six years and eleven months for the criminal proceedings against the applicant on suspicion of money laundering had been reasonable in the circumstances of the case and had not been in breach of the reasonable time requirement under Article 6 § 1. The investigation had been particularly complex because it had required verification of money flows between numerous bank accounts, of which several had been opened with banks outside Austria in Liechtenstein, Switzerland and the United States of America, and the judicial authorities had sent out numerous requests for judicial assistance which had been very time consuming. While these proceedings had been pending the applicant had tried to obtain possession of the funds in these accounts through civil proceedings, which had further complicated the criminal proceedings.

This was disputed by the applicant. In his view, the investigation into the allegation of money laundering could have been terminated much earlier.

The Court observes that the period to be taken into consideration started on 19 June 1998, when a preliminary investigation against the applicant on suspicion of money laundering was opened and ended on 18 May 2005, when the investigation was discontinued.

The Court reiterates that it is its settled case-law that an applicant who complains of the length of proceedings before the ordinary courts being unreasonably long is normally required to file an application under section 91 of the Courts Act (see (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; Wurm v. Austria (dec.), no. 57652/00 , 26 June 2003, Ecker v. Austria (dec.), no. 32042/02, 1 February 2005; Tuma v. Austria (dec.), no. 32942/03, 24 May 2007 and Saccoccia v. Austria (dec.), no. 69917/01, 5 July 2007). The applicant did not do so in the present case and has not given any explanation as to why he failed to do so.

The Court thus concludes that the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention and that this part of the application must, therefore, be rejected pursuant to Article 35 § 4.

3. Complaint under Article 1 Protocol no. 1

Under Article 1 of Protocol No. 1 the applicant complained that the Austrian courts’ decisions had violated his right to the peaceful enjoyment of his property, in that they had lacked a legal basis.

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government argued that the execution of the forfeiture order had not interfered with the applicant’s right to peaceful enjoyment of his property. He had failed to show that he was the owner of the assets at issue, because, according to an enforceable notary deed of 1 April 2004, the applicant had acknowledged several claims made by his former wife relating to the assets deposited in Austria as part of their divorce settlement. Thus, he had no longer been the owner of these funds and consequently could not argue that he had been the victim of an alleged breach of Article 1 of Protocol No. 1. Even assuming that the applicant had still been the owner of the assets in issue, there had been nothing to indicate that they had originated from any legal activities and an interference with the applicant’s “possessions” had, in any case, been justified. The execution of the forfeiture order had had a legal basis in Article 17 of the MLAT and section 64 of the ELAA. Moreover, the Austrian courts had given detailed reasons when finding that the conditions enumerated in these provisions had been met. The forfeiture had served the legitimate aim of combating international drug trafficking; the measure had also been proportionate, given that the applicant had pleaded guilty to drug trafficking and money laundering offences.

The applicant asserted that he had been the owner of the assets in issue. In the notary deed of 1 April 2004 he had only acknowledged that he owed certain amounts to his wife, but that had not meant that she had actually acquired ownership. He maintained further that the Austrian courts’ decisions had lacked a legal basis, firstly in that the condition of reciprocity contained in the MLAT had not been fulfilled, secondly in that the first forfeiture order had been time-barred, and thirdly in that Article 17 of the MLAT had only permitted the forfeiture of “fruits and instrumentalities” of an offence, but not the forfeiture of “substitute assets”. The Austrian authorities’ interpretation of this provision had been contrary to the clear wording and meaning of this provision.

The Court need not determine whether the applicant actually lost ownership of the assets deposited in Austria following the notary deed of 1 April 2004 because, even if he continued to be the owner and could claim that the Austrian courts’ decisions had interfered with his rights under Article 1 Protocol No. 1, this complaint is manifestly ill-founded for the following reasons.

In the case of Saccoccia v. Austria (cited above), the Court found in respect of a similar claim as follows:

“87. The Court notes that the execution of the forfeiture order had a basis in Austrian law, namely section 64 of the ELAA and Article 17 of the 1998 Treaty. As to the applicant’s claim that the requirements laid down in these provisions were not complied with, it has to be borne in mind that the Court’s power to review compliance with domestic law is limited (see, among many other authorities, Jokela v. Finland, no. 28856/95, § 51, ECHR 2002-IV, and Fredin v. Sweden (no. 1), 18 February 1991, § 50, Series A no. 192). In the present case, the Austrian courts dealt in detail with the applicant’s arguments and gave extensive reasons for their finding that the above-mentioned provisions provided a legal basis for executing the final forfeiture order. There is nothing to show that their application of the law went beyond the reasonable limits of interpretation.

88. Furthermore, the Court observes that the execution of the forfeiture order had a legitimate aim, namely enhancing international co-operation to ensure that monies derived from drug dealing were actually forfeited. The Court is fully aware of the difficulties encountered by States in the fight against drug-trafficking. It has already held that measures, which are designed to block movements of suspect capital, are an effective and necessary weapon in that fight (see Raimondo v. Italy, 22 February 1994, § 30, Series A no. 281-A). Thus the execution of the forfeiture order served the general interest of combating drug trafficking. However, a fair balance has to be struck between these demands of the general interest and the applicant’s interest in the protection of his right to peaceful enjoyment of his possessions. In making this assessment due regard is to be had to the wide margin of appreciation the respondent State enjoys in such matters (see AGOSI, cited above, § 52, and Butler, cited above).

89. Article 1 of Protocol No. 1 contains no explicit procedural requirements. It follows that they are not necessarily the same as under Article 6. However, the Court has held that the proceedings at issue must afford the individual a reasonable opportunity of putting his or her case to the relevant authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by this provision. In ascertaining whether this condition has been satisfied, the Court takes a comprehensive view (see, for instance, Jokela, cited above, § 45, and AGOSI, cited above, § 55).”

In the present case, the Court observes that the applicant was represented by a lawyer throughout the proceedings and had the opportunity, of which he made ample use, to submit his arguments. He was therefore in a position to effectively challenge the measures interfering with his rights under Article 1 of Protocol No. 1. Moreover, bearing in mind the respondent State’s wide margin of appreciation in this area, the Court finds that the ordering of the interim measure freezing the applicant’s assets and the domestic courts’ subsequent enforcement of the first forfeiture order do not disclose a failure to strike a fair balance between respect for the applicant’s rights under Article 1 of Protocol No. 1 and the general public interest. Having regard to these considerations, the Court considers that there is no indication that the execution of the forfeiture order amounted to disproportionate interference with the applicant’s property rights.

Consequently, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The other complaints

The applicant further complained under Article 6 that he had not been given an opportunity to present any evidence on his behalf as to the legitimacy of his Austrian assets and as regards the question of reciprocity in the MLAT and that the Austrian courts’ refusals to lift the interim measure had been unfair because they had not been sufficiently reasoned. Under Article 7 of the Convention, the applicant complained that the preliminary investigation against him and the confiscation of his assets had been conducted on the basis of money laundering, which had not been punishable in Austria at the material time. Under Article 13 of the Convention he complained that he had not been able to bring his case before the Constitutional Court in order to challenge the conformity of the relevant domestic provisions with the Convention.

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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić
Registrar President