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FIRST
SECTION
CASE OF DONNER v. AUSTRIA
(Application
no. 32407/04)
JUDGMENT
STRASBOURG
22
February 2007
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 Donner v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 1 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32407/04) 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 Karl
Friedrich Donner (“the applicant”), on 7 September 2004.
- The
applicant was first represented by Mr Zwerger and subsequently by Mr
Kreibich, both lawyers practising in Salzburg. The
Austrian Government (“the Government”) were represented
by their Agent, Mr F. Trauttmansdorff, Head of the
International Law Department at the Federal Ministry for Foreign
Affairs.
- On
10 January 2006 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Salzburg.
- In
the autumn of 1989 the Salzburg Tax Office (Finanzamt) started
investigations into a large-scale fraud relating to the “WEB/IMMAG”
group.
- On
20 December 1989, the applicant, member of the board of directors and
managerial director of one of the concerned companies, wrote a letter
to the Salzburg Tax Office and requested that his income tax
declaration for the year 1987 be corrected in that the losses
declared therein be cancelled.
- Thereupon,
the Salzburg Tax Office, on 27 December 1989, informed the applicant
that he was suspected of tax evasion and invited him to submit his
comments in writing. On 23 January 1990 it further informed the
applicant that his letter of 20 December 1989 was considered as
“self-accusation” (Selbstanzeige). On 16 February
1990 the applicant transferred the amount of 1,973.07 euros (EUR) for
evaded taxes to the Tax Office.
- In
the following years the Tax Office conducted extensive inspections
into the WEB/IMMAG group together with the Tax Office for the
Investigations of Large Enterprises in the course of which
investigation reports were published and administrative criminal
fiscal proceedings were instituted against a multitude of persons.
- On
19 August 1993 the Salzburg Tax Office heard the applicant.
Subsequently, it submitted criminal information against the applicant
to the Public Prosecutor's Office (Staatsanwaltschaft)
concerning suspicions of tax evasion. The Public Prosecutor's Office
received this information on 15 March 1994, together with
criminal information against four other suspects related to the
WEB/IMMAG group.
- Subsequently,
on 4 May 1994 the investigating judge at the Salzburg Regional Court
(Landesgericht) instituted criminal investigations
(Voruntersuchungen) against the applicant and other accused.
It further included these proceedings into already pending
proceedings against other accused. This decision was confirmed by the
Chamber (Ratskammer) of the Regional Court on 1 February 1995.
- Having
received supplementary criminal information from the Tax Office, the
investigating judge, in April 1995, summoned the applicant and the
other accused to six hearings scheduled in May and June 1995
respectively. The applicant's request that the criminal
investigations be stayed was dismissed. On 30 April 1996 the
investigating judge forwarded the file to the Public Prosecutor's
Office.
- On
13 January 1998 the Salzburg Public Prosecutor's Office preferred a
bill of indictment against the applicant and three co-accused. It
charged the applicant with evasion of income tax and participation in
evasion of taxes of the WEB/IMMAG group in 1987 and 1988. Proceedings
against other accused were separated from those of the applicant's.
The applicant's appeals against these decisions remained
unsuccessful.
- On
16 May, 4 July, 22 August and 3 October 2000 the Regional Court
examined the case. At the end of 2000 the presiding judge of the
chamber dealing with the applicant's case retired and a new presiding
judge was appointed in July 2001.
- Having
held further hearings on 18 and 19 February 2002, the Regional Court
convicted the applicant pursuant to section 33 of the Code of Tax
Offences (Finanzstrafgesetz) of income tax evasion in the
amount of 1,973.07 EUR and partly attempted evasion of other
taxes in the total amount of 1,074,891.60 EUR. It sentenced him to a
fine of 300,000 EUR of which the payment of 200,000 EUR was suspended
with a probation period. When fixing the sentence the court took into
account the applicant's good conduct until the offences and since
then, that the applicant had paid the evaded taxes, the fact that the
offences had partly only been attempted and the length of the
proceedings. The court noted that these circumstances as well as the
scale of the unlawfulness of the offences justified that the sentence
amounted only to one sixth of the maximum penalty (Höchststrafe).
The court finally noted that the length of the proceedings and the
other mitigating circumstances justified the suspension of part of
the sentence.
- During
the trial the applicant requested to hear N.G. as a witness due to
the fact that, when assessing the losses relevant for his and others'
income taxes, he had only followed a system which N.G. had developed
and instructed him to use. The court rejected the request and noted
inter alia that even assuming this to be correct, there was no
reason why the applicant should not bear responsibility. Referring to
the fact that the applicant had completed university studies it did
not accept the applicant's arguments as to his limited knowledge in
this matter.
- On
8 May 2002 the written version of the judgment was served on the
applicant's counsel. The applicant thereupon, on 5 June 2002, filed a
plea of nullity (Nichtigkeitsbeschwerde) with the Supreme
Court (Oberster Gerichtshof). On 16 September 2003 the Public
Prosecutor's Office submitted its observations. The applicant filed
further comments on 9 October 2003.
- On
12 February 2004 the Supreme Court rejected the applicant's plea of
nullity and transmitted the applicant's appeal to the Linz Court of
Appeal. It confirmed inter alia the Regional Court's refusal
to hear N.G. Having regard to all other evidence against the
applicant obtained during the trial including his own statements, and
the fact that N.G. had denied any concrete knowledge about the case
at issue when heard as a suspect in his own criminal proceedings
before absconding to Germany, it found that the applicant had not
given any convincing reason why hearing N.G. again was relevant. This
judgment was served on the applicant's counsel on 10 March 2004.
- On
19 August 2004 the Linz Court of Appeal rejected the applicant's
appeal.
II. RELEVANT DOMESTIC LAW
- Section 91 of the Courts Act
(Gerichtsorganisationsgesetz), which has been in force since 1
January 1990, 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 after 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.
- Section 37 of the Public Prosecutor's Act
(Staatsanwaltschafts-gesetz)
reads as follows:
“(1) Complaints against a public
prosecutor challenging the performance of his duties, may be filed
with any superior authority. Unless the complaint is filed with the
authority directly superior to the public prosecutor, it shall, as a
rule, be transmitted to that authority together with an order to
submit a report, if necessary, for the purpose of taking further
action.
(2) The public prosecutor concerned shall be
informed of all complaints that are not manifestly unfounded and he
shall be ordered to remedy the complaint within a certain period and
to report thereon or to disclose any existing obstacles thereto.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- 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...”
- The
Government contested that argument.
- In
the circumstances of this case the Court considers that the period to
be taken into consideration began on 27 December 1989 when the Tax
Office informed the applicant that he was suspected of tax evasion
and ended on 19 August 2004 when the Court of Appeal dismissed the
applicant's appeal. It thus lasted for 14 years and some 8 months
before three levels of jurisdiction.
A. Admissibility
- The
Government pointed out that the long duration of the proceedings was
taken into account by the court when fixing the sentence.
- The
applicant did not comment on that issue.
- The Court recalls that an individual can no
longer claim to be a victim of a violation of the Convention when the
national authorities have acknowledged, either expressly or in
substance, the breach of the Convention and afforded redress
(Eckle v. Germany, judgment of 15 July 1982, Series
A no. 51, § 66; for the application of this principle in the
context of Article 6, see Lüdi v. Switzerland, judgment
of 15 June 1992, Series A no. 238 at § 34 and Schlader
v. Austria (dec.), no. 31093/96, 7 March 2000). In this
regard the mitigation of a sentence on the ground of the excessive
length of proceedings does not in principle deprive the individual
concerned of his status as a victim within the meaning of Article 34
of the Convention. However, this general rule is subject to an
exception when the national authorities
have acknowledged in a sufficiently clear way the failure to observe
the reasonable time requirement and have afforded redress by reducing
the sentence in an express and measurable manner (see Eckle
v. Germany, cited
above, § 66, Beck
v. Norway,
no. 26390/95, § 27, 26 June 2001 and Cocchiarella
v. Italy [GC],
no. 64886/01, § 77, ECHR 2006-...).
- In
the present case, while it is true that the Regional Court stated
that it was taking into account the length of proceedings in reducing
the sentence of the applicant, it is not apparent from its judgment
what this reduction was in the applicant's case. On this point, the
Court notes that the excessive length of the proceedings was taken
into account amongst four other factors of mitigating circumstances.
While it is true that the applicant's sentence was at the lower end
of the scale of punishment authorised by the relevant penal
provisions, it is not clear from court's reasoning that the
time/delay element stood out as being the primary mitigating factor.
The Court cannot find, therefore, that the reduction in sentence on
account of the length factor was measurable in the present case, and
had a decisive impact on the applicant's sentence. The applicant has,
thus, not been afforded express and quantifiable redress for the
alleged breach of the reasonable time requirement (see, mutatis
mutandis, Beck v. Norway, cited above, §§ 27-29;
also Jensen v. Denmark (dec.), no. 48470/99, ECHR
2001-X). The applicant may, therefore, still claim to be a victim
within the meaning of Article 34 of the Convention.
- Referring
to the Court's case-law, the Government further argued that the
applicant had not exhausted domestic remedies as he did not make use
of the remedy under section 91 of the Courts' Act. They submitted
that the applicant could have made use of this remedy as from 15
March 1994, when the Public Prosecutor's Office received the
criminal information against him, until 19 August 2004, when the
Court of Appeal dismissed his appeal, except for the insignificant
periods between 15 March and 4 May 1994 and 30 April 1996
and 13 January 1998 respectively during which the Public Prosecutor
was dealing with the case. Furthermore, during the latter periods the
applicant could have filed a supervisory complaint under section 37
of the Public Prosecutor's Act which remedy he did not use.
- The
applicant contested these arguments. He submitted that section 91
of the Courts' Act could not be regarded as an effective remedy in
his case in particular because it was not available during a
substantial period of time, namely from the beginning of the
proceedings until 13 January 1998 when the competence of
the judicial courts was finally established.
- The
Court finds that the question of exhaustion of domestic remedies is
inextricably linked to the merits of the applicant's further
complaint under Article 13 of the Convention. Therefore, to
avoid prejudging the latter, both questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits of
that complaint.
- The
Court notes that the complaint about the length of the proceedings
under Article 6 § 1 of the Convention is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government asserted that the length of the proceedings was
reasonable. The proceedings were extremely complex as they were
closely linked to the proceedings in the WEB/IMMAG case concerning a
multitude of persons suspected of embezzlement, fraud, breach of
trust and fraudulent bankruptcy, one of the biggest white-collar
criminal proceedings ever conducted in Austria. While the courts
dealt expeditiously with the case, the accused were responsible for
some delay. In particular, the courts' decisions to separate the
fiscal criminal proceedings from the main WEB proceedings in order to
accelerate the proceedings were repeatedly challenged by various
accused. Furthermore, the defence repeatedly submitted requests for
the taking of evidence which obviously caused delay.
- The
applicant maintained that the
length of the proceedings breached the “reasonable time”
requirement laid down in Article 6 § 1. He could not be held
responsible for any delay which had incurred. He further contested
that his case was complex and submitted in this regard that his
proceedings concerning tax evasion had to be distinguished from the
more complex WEB/IMMAG proceedings concerning fraud. He finally
referred to the Court's judgments in the cases Hennig v. Austria
(no. 41444/98, 2 October 2003) and Rösslhuber
v. Austria (no. 32869/96, 28 November 2000).
- 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 and what was at stake for the applicant in the dispute
(see, among many other authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court acknowledges that the proceedings at issue were of a certain
complexity. However, it finds that the present case which concerned
merely tax evasion should be distinguished from the undoubtedly more
complex investigations into the whole WEB group and its financial
network. In any event, even a certain complexity of the proceedings
does not in itself suffice to justify a substantial duration (see
mutatis mutandis Hennig v. Austria, §
33, cited above).
- As
to the applicant's conduct, the applicant partly contributed to the
length of the proceedings
while they were pending before the court, namely by contesting the
court's decision to separate his proceedings from those of other
accused. However, as regards the conduct of the competent
authorities, the Court notes that the case was for altogether more
than six years before the investigating administrative authorities,
namely from 27 December 1989 until 15 March 1994 before the Tax
Office and between 15 March and 4 May 1994 and 30 April 1996 and
13 January 1998 before the Public Prosecutor. The Court finds that no
sufficient explanation has been submitted for this period of time.
Furthermore, while pending before the court the case was not dealt
with from the end of 2000 until February 2002.
-
Having regard to these delays and the overall length of the
proceedings, the Court finds that the duration of the proceedings was
excessive and failed to meet the “reasonable time”
requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention of
the lack of a remedy in respect of his complaint about the length of
the proceedings. He submitted, in particular, that he should have
been given the possibility to request his acquittal or the
discontinuation of the proceedings because of the excessive length.
Article 13
of the Convention provides 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.”
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government contested that there had been a violation of Article 13
of the Convention. They stressed that the applicant had at his
disposal effective domestic remedies, namely the request under
section 91 of the Courts' Act and the hierarchical complaint
under section 37 of the Public Prosecution Act.
- The
applicant did not file any further comments in this regard.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach 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).
- The
Court notes that in the case of Holzinger
v. Austria the Court found that a request under section 91
of the Austrian Courts Act is, in principle, an effective remedy
which has to be used in respect of complaints about the length of
court proceedings (no. 23459/94, §§ 24-25, ECHR 2001-I,
relating to civil proceedings; see also Talirz
v. Austria (dec.), no. 37323/97, 11 September 2001,
relating to criminal proceedings). It stated, however, that the
effectiveness of such a remedy may depend on whether it has a
significant effect on the length of the proceedings as a whole
(ibid., § 22).
Thus, where proceedings include a substantial period during which the
applicant has no remedy to expedite the proceedings at his/her
disposal, a request under section 91 cannot be considered an
effective remedy (see mutatis
mutandis, Holzinger
(no. 2) v. Austria, no. 28898/95, §§
21-22, ECHR 2001-I).
- Turning
to the present case, the Court notes that during the proceedings
before the Regional Court the applicant could have made use of the
section 91 request. However, when finding a violation of Article 6 of
the Convention the Court had in particular regard to the substantial
delays occurred before the Tax Office and the Public Prosecutor's
Office. In this regard, the Court observes that while the case was
pending before the Tax Office the applicant had no remedy at his
disposal to speed up the proceedings. As to the subsequent
proceedings before the Public Prosecutor's Office, the Government
contended that during this period the applicant could have made use
of a hierarchical complaint under section 37 of the Public
Prosecutor's Act. The Court reiterates, however, that hierarchical
appeals in the Austrian legal system are not to be considered as
effective remedies as they 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
Maier v. Austria (dec.), no. 70579/01, 15 September
2003, with further references).
-
The Government have, therefore, not shown that any form of effective
relief was available for the substantial delays caused by the
domestic authorities. Accordingly, their objection as to the
non-exhaustion of domestic remedies concerning the applicant's
complaint under Article 6 § 1 of the Convention
about the length of the proceedings fails. Furthermore, there has
been a violation of Article 13 of the Convention in that the
applicant had no domestic remedy whereby he could effectively enforce
his right to a hearing within a reasonable time as guaranteed by
Article 6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE FAIRNESS OF THE PROCEEDINGS
A. Admissibility
- The
applicant complained under Article 6 § 3 d of the Convention
about the Austrian courts' failure to hear N. G. as a witness.
- The
Court recalls, however, that as a general rule it is for the national
courts to assess the evidence before them, as well as the relevance
of the evidence which the defendant seeks to adduce. More
specifically, Article 6 § 3 (d), in principle, leaves to
them the assessment whether it is appropriate to call witnesses, in
the “autonomous” sense given to that word by the
Convention. The Convention does not require the attendance and
examination of every witness on the accused's behalf (Bricmont
v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31,
§ 89; Vidal v. Belgium judgment of 22 April 1992,
Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on
behalf of the accused, only exceptional circumstances could lead the
Court to conclude that a refusal to hear such witnesses violated
Article 6 of the Convention (Bricmont v. Belgium, loc.
cit).
- The
Court observes that the Regional Court rejected the applicant's
request for evidence, explaining why such evidence was irrelevant.
The Supreme Court, giving extensive reasons, found that the Regional
Court had acted correctly in its refusal.
- Having
regard to this, the Court finds no indication in the case-file that
the refusal to take all the evidence requested by the applicant was
incompatible with Article 6, or that thereby the applicant's defence
rights were unduly restricted or the proceedings unfair (see mutatis
mutandis Hennig v. Austria (dec.), no 41444/98, 4
September 2001).
- It
follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. 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.”
- The
applicant did not submit a claim for just satisfaction within the set
time-limit. Accordingly, the Court considers that there is no call to
award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's objection
that the applicant has not exhausted domestic remedies concerning the
excessive length of the proceedings and rejects it;
- Declares the complaints concerning the excessive
length of the proceedings and the lack of an effective remedy
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there is no call to award just
satisfaction.
Done in English, and notified in writing on 22 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
