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FIRST
SECTION
CASE OF SCHUTTE v. AUSTRIA
(Application
no. 18015/03)
JUDGMENT
STRASBOURG
26 July
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 Schutte v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 18015/03) 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 Roland
Schutte (“the applicant”), on 23 May 2003.
- 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 of Foreign Affairs.
- On
15 September 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect and the
complaint about the alleged violation of the ne bis in idem
principle 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 Government, in their observations,
requested the Court to give a separate decision on the admissibility
of the application. However, the Court has found no reasons to
discontinue the application of Article 29 § 3. It therefore
rejects the request.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Ostermiething.
- In
the early hours of 5 October 1997 the applicant drove a car through a
village. Police officers required him to stop by giving a sign with a
red light. The applicant disregarded their sign and drove on,
obliging the police officers to step aside.
- On
21 November 1997 the Ried im Innkreis Public Prosecutor's Office
charged the applicant with resisting the exercise of official
authority (Widerstand gegen die Staatsgewalt) under Article
269 § 1 of the Criminal Code (Strafgesetzbuch) in that he
had prevented the police officers from carrying out a traffic control
by driving towards them with his vehicle, thus threatening them with
bodily harm.
- On
12 December 1997 the Ried im Innkreis Regional Court (Landesgericht),
having held a trial, acquitted the applicant of the above charge. As
neither party appealed, the judgment became final.
- By
letter of 29 January 1998 the Braunau District Administrative
Authority (Bezirkshauptmannschaft) charged the applicant with
failure to comply with a request to stop for the purpose of a traffic
control contrary to Section 97 § 5 of the Road Traffic Act
(Straßenverkehrsordnung).
- The
applicant submitted his defence on 4 February 1998, asserting in
particular that the conduct of proceedings for the said traffic
offence violated Article 4 of Protocol No. 7, given that he had been
acquitted of the offence of resisting the exercise of official
authority in respect of the same act.
- On
11 March 1998 the District Administrative Authority issued a penal
order (Straferkenntnis) against the applicant finding him
guilty of the offence under Section 97 § 5 in conjunction with
Section 99 § 3 (a) of the Road Traffic Act, and imposed a fine
of 4,000 Austrian schillings on him (approximately 290 euros) with 6
days' imprisonment in default. Furthermore, it ordered the applicant
to pay a contribution to the costs of the proceedings.
- Upon
the applicant's appeal, the Upper Austria Independent Administrative
Panel (Unabhängiger Verwaltungssenat) held a hearing on
17 September 1998 at which it heard the applicant and the three
police officers concerned.
- By
decision of 15 December 1998 the Independent Administrative Panel
dismissed the applicant's appeal. It noted that the applicant
admitted to having disregarded the police officers' request to stop.
It dismissed his argument that his conviction under the Road Traffic
Act violated the ne bis in idem principle. The offence under
Section 97 § 5 of the Road Traffic Act concerned a simple
omission, namely the failure to comply with a request to stop for the
purpose of a traffic control whereas Article 269 § 1 of the
Criminal Code required the use of dangerous threat or force. It
followed from the court file and from the police officers' statements
that the applicant had been acquitted of resisting the exercise of
official authority, as it had not been shown that he had driven
towards the police officers and thus threatened them with bodily
harm. In sum, the two offences were distinct and the applicant's
acquittal under Article 269 § 1 of the Criminal Code did not
hinder his conviction under Section 97 § 5 of the Road Traffic
Act.
- On
8 February 1999 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). The Independent
Administrative Panel submitted observations in reply on 24 March
1999.
- On
19 June 2000 the Constitutional Court dismissed the applicant's
complaint as being unfounded. Referring to the Court's judgment in
the case of Oliveira v. Switzerland (30 July 1998, Reports
of Judgments and Decisions 1998 V), it found that the
present case concerned an example of a single act constituting more
than one offence (Idealkonkurrenz) which was in itself not
contrary to Article 4 of Protocol No. 7. Further, it confirmed the
Independent Administrative Panel's view that the offences at issue
differed in their constituent elements.
- Upon
the applicant's request the Constitutional Court referred the case to
the Administrative Court (Verwaltungsgerichtshof) by decision
of 17 August 2000.
- The
latter requested the applicant to supplement his complaint on
2 October 2000. The applicant complied with that request on 8
November 2000. He reiterated his complaint about a violation of the
ne bis in idem principle and requested the Administrative
Court to hold a hearing. On 11 April 2002 the Administrative
Court requested the Independent Administrative Panel to submit
observations. The latter did so on 23 May 2002.
- On
20 December 2002 the Administrative Court refused to deal with the
applicant's complaint pursuant to Section 33a of the Administrative
Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed
did not exceed 726 euros and the case did not raise an important
legal issue.
- The
decision was served on the applicant's counsel on 31 January 2003.
II. RELEVANT DOMESTIC LAW
- Article
269 § 1 of the Criminal Code (Strafgesetzbuch) provides
as follows:
“Anyone who hinders the authorities in the
performance of an official act through the use of force or the threat
of force, or who hinders an official in the performance of his or her
duties through the use of force or dangerous threat, shall be liable
to a prison sentence of up to three years...”
- Section
97 § 5 of the Road Traffic Act (Strassenverkehrsordnung)
reads as follows:
“Traffic officers may, by the use of clearly
visible or audible signs, request a driver to stop for the purposes
of carrying out checks on the driver or the vehicle, for the
accomplishment of other official acts relating to the driver or a
passenger or for the purposes of road traffic analysis (such as a
traffic count). The driver of the vehicle must comply with the
request.”
Section
99 § 3 (a) in the version in force at the material time provided
for a fine of up to 10,000 Austrian schillings with up to two weeks'
imprisonment in default.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
under the Road Traffic Act 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.
- The
period to be taken into consideration began on 29 January 1998, when
the District Administrative Authority brought charges against the
applicant and ended on 31 January 2003 when the Administrative
Court's judgment was served on the applicant's counsel. It has thus
lasted five years.
A. Admissibility
- The
Court notes 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 maintained that the case was not complex and emphasised
that there was a long delay in the proceedings before the
Administrative Court.
- The
Government asserted that the case was legally complex, since it
raised a ne bis in idem issue. At the material time the
Constitutional Court had to review numerous provisions of Austrian
administrative criminal law in the light of the Court's case-law
under Article 4 of Protocol No. 7.
- 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
present case, which came before four levels of jurisdiction, was not
complex in terms of fact. The Government's argument as to the legal
issues raised by the case may explain the duration of the proceedings
before the Constitutional Court. However, it does not provide an
explanation for the considerable periods of delay before the
Administrative Court, which remained inactive between 8 November 2000
and 11 April 2002 and again between 23 May and 20 December 2002, i.e.
for a total period of two years. The applicant did not contribute to
the duration of the proceedings.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, in particular, Fehr v. Austria, no. 19247/02, §§
19-26, 3 February 2005; Blum v. Austria, no. 31655/02, §§
22-24, 3 February 2005; and Yavuz v. Austria, no. 46549/99, §§
36-40, 27 May 2004, all concerning administrative criminal
proceedings of a duration comparable to the present case and with
considerable delays before the Administrative Court).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained about the lack of a remedy in respect of
his complaint about the length of the proceedings. He relied on
Article 13 of the Convention, which, so far as material, 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...”
A. Admissiblity
- 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
applicant asserted that no remedies were available against the length
of administrative criminal proceedings.
- For
their part, the Government stressed that the Constitutional Court
examined complaints about the length of proceedings before the lower
courts. According to the Constitutional Court's case-law, excessive
length was also a mitigating circumstance which might lead to a
reduction of sentence. As far as the proceedings before the
Constitutional Court and the Administrative Court itself were
concerned, the Government contended that under the Convention there
was no obligation for a State to provide for additional levels of
appeal and a further legal remedy by which to challenge decisions of
last-instance courts. Such a requirement would affect basic issues of
the Austrian Federal Constitution and most likely also the
legislation of most Contracting States and their freedom to organise
their judicial system. Having regard to the average duration of
proceedings before the Constitutional Court and the Administrative
Court: eight and a half months and twenty-two months respectively,
the Austrian legislator had found no need to provide a remedy in
respect of the length of proceedings before those courts.
- The Court reiterates that the correct interpretation
of Article 13 of the Convention is
that this provision guarantees an effective remedy before a national
authority for an alleged violation 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). As established in its case-law,
it reiterates that the remedies available to a litigant at domestic
level for raising a complaint about the length of proceedings are
“effective”, within the meaning of Article 13 of the
Convention if they “[prevent] the alleged violation or its
continuation, or [provide] adequate redress for any violation that
[has] already occurred” (see Kudla,
cited above,
§ 158). Article 13
therefore offers an alternative: a remedy is “effective”
if it can be used either to expedite a decision by the courts dealing
with the case, or to provide the litigant with adequate redress for
delays that have already occurred (see Kudla, cited above,
§ 159; see also Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 186-87, ECHR
2006-...).
- The
Government argue in essence that a Contracting State should not be
required under Article 13 to provide a remedy against delays caused
by one of its highest courts. The Court observes that the State's
primary duty is to organise its judicial system so as to ensure that
the overall duration of civil or criminal proceedings, including the
duration before the highest courts, remains “reasonable”.
As regards remedies against excessive length of proceedings, it
follows from the Court's case-law cited above, that Contracting
States have a choice as regards their nature, since they may opt
either for a preventive or for a compensatory remedy. Moreover, they
remain free to establish the modalities for its exercise. The Court
therefore finds that the States enjoy considerable freedom in
complying with the requirements of Article 13.
- Turning
to the circumstances of the present case, the Court will examine
whether there had been a remedy compatible with Article 13 of the
Convention available to grant the applicant appropriate relief as
regards his complaint about the length of proceedings.
- The present proceedings exceeded the reasonable-time
requirement under Article 6 of the Convention in particular as delays
occurred while the case was pending before the Administrative Court
(see paragraph 28 above). Since the Government have not shown that
any form of relief – either preventive or compensatory –
was available for these delays or for the overall duration of the
proceedings, there has been a violation of Article
13 of the Convention in that the applicant had no domestic
remedy whereby he could enforce his right to a hearing within a
reasonable time as guaranteed by Article 6 § 1 of the Convention
(see, as a similar case, Hauser-Sporn v. Austria, no.
37301/03, § 40, 7 December 2006).
III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO
THE CONVENTION
- The
applicant complained that his conviction under Section 97 § 5 of
the Road Traffic Act in the administrative criminal proceedings
following his acquittal under Article 269 § 1 of the Criminal
Code by the criminal courts violated Article 4 of Protocol No. 7
which, so far as material, reads as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.”
Admissibility
- The
Government submitted that the case differed from a number of previous
Austrian cases concerning Article 4 of Protocol No. 7 (Gradinger
v. Austria, judgment of 23 October 1995, Series A no. 328 C;
Franz Fischer v. Austria, no. 37950/97, 29 May 2001; and
Sailer v. Austria, no. 38237/97, June 2002). Arguing along the
same lines as the domestic authorities, they asserted that the
applicant's conviction for failure did not violate the ne bis in
idem principle, since the offences differed in their essential
elements
- The
Court reiterates its findings in the Franz Fischer v. Austria
judgment (cited above, § 35). In that case, after having
analysed its previous judgments in the cases of Gradinger
(cited above) and Oliveira v. Switzerland (judgment of 30 July
1998, Reports of Judgments and Decisions 1998 V), the
Court found that the mere fact that one act constitutes more than one
offence is not contrary to Article 4 of Protocol No. 7. However,
where different offences based on one act are prosecuted
consecutively, one after the final decision of the other, the Court
has to examine whether or not such offences have the same essential
elements.
- In
the present case the applicant was prosecuted consecutively of two
offences relating to the same act, namely continuing to drive despite
the police officer's request to stop. The Court finds that an
analysis of the two offences at issue leads to the conclusion that
they differ in their essential elements. It observes in particular
that the domestic authorities, including the Constitutional Court
found that the essential element of the offence under Article 269 §
1 of the Criminal Code was the use of dangerous threat or of force as
a means of resisting the exercise of official authority, while the
administrative offence under Section 97 § 5 of the Road Traffic
Act punished a simple omission in the context of road safety, namely
the failure to stop for the purpose of a traffic control.
- Having regard to the differences in the two offences'
essential elements, the Court does not find that the applicant was
“tried ... again ... for an offence of which he had already
been finally acquitted” within the meaning of Article 4 of
Protocol No. 7.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with 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.”
A. Damage
- The
applicant claimed that the imposition of the fine and the costs in
the administrative criminal proceedings were the result of a
violation of Article 4 of Protocol No. 7. He therefore requested
reimbursement of the amount of 5,200 Austrian schillings (ATS), i.e.
377.90 euros (EUR) under the head of pecuniary damage. Moreover he
claimed EUR 1,000 in respect of non-pecuniary damage.
- The
Government commented that there was no causal link between the length
of the proceedings or the lack of an effective remedy in that respect
and the pecuniary damage claimed by the applicant. As to
non-pecuniary damage, they held that the finding of a violation would
constitute sufficient just satisfaction.
- The
Court found violations of Articles 6 § 1 and 13 in respect of
the length of the proceedings and the lack of a remedy. It does not
discern any causal link between the violations found and the
pecuniary damage claimed and therefore rejects this claim. On the
other hand, it awards the applicant EUR 1,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total amount of EUR 6,932.92, composed of
EUR 3,932.92 for the costs and expenses incurred in the domestic
proceedings and EUR 3,000 for those incurred before the Court.
- The
Government contested these claims. Moreover, they submitted that they
assumed the sums claimed included value-added tax (VAT).
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court rejects the claim for
costs and expenses of the domestic proceedings since they were not
incurred to prevent or redress the violations found. Furthermore, the
Court having regard to the sums awarded in comparable cases considers
it reasonable to award EUR 2,000 in respect of the costs and expenses
incurred in the Convention proceedings. This sum includes VAT.
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
- Declares by a majority 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 by six votes to one that there has been a
violation of Article 6 § 1 of the Convention;
- Holds by six votes to one that there has been a
violation of Article 13 of the Convention;
- Holds by six votes to one
(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, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage and EUR 2,000 (two
thousand euros) 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr
Malinverni, joined by Mr Rozakis and Mr Jebens, is annexed to
this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI
JOINED BY
JUDGES ROZAKIS AND JEBENS
(Translation)
I
concur with the operative provisions of the judgment according to
which there has been a violation of Article 13 of the Convention in
this case, on the ground that in the respondent State there was no
domestic remedy allowing the applicant to complain about the breach
of his right to a hearing within a reasonable time as guaranteed by
Article 6 § 1.
In
reaching this conclusion, the judgment states that Article 13 must be
construed as guaranteeing an
effective remedy before a national authority for the victim of an
alleged violation of Article 6 § 1. Referring to the judgment in
Kudła v. Poland
([GC], no. 30210/96, §
156, ECHR 2000-XI), the judgment goes on to say that domestic
remedies may be regarded as “effective”, within the
meaning of Article 13 of the Convention, “if they “[prevent]
the alleged violation or its continuation, or [provide] adequate
redress for any violation that [has] already occurred” (see
Kudla, §
158).
The
judgment thus concludes that Article 13 offers States an alternative:
“a remedy is 'effective' if it can be used either to expedite a
decision by the courts dealing with the case, or to provide the
litigant with adequate redress for delays that have already occurred”
(paragraph 35).
Further
on the judgment reasserts that “[a]s regards remedies against
excessive length of proceedings, it follows from the Court's case-law
... that Contracting States have a choice as regards their
nature, since they may opt either for a preventive or for a
compensatory remedy” (paragraph 36).
It is
on this latter point that I wish to make a few complementary remarks.
Contrary
to what the judgment would seem to imply, I do not believe that
preventive remedies and compensatory remedies are really equivalent
and it should not be open to States to choose or to opt for one or
the other of these two solutions.
In my
view, priority should be given to the preventive measures that
States must adopt in order to eradicate the phenomenon of an
excessive length of proceedings. Such measures are numerous and
varied, ranging from an increase in the number of judges and clerks,
or even the number of courts, to an overhaul of judicial
organisation, for example by generalising the system of single judge
at first instance. It is also important, however, not to
underestimate the benefits of more frequent recourse to methods of
alternative dispute resolution, such as mediation, arbitration or
conciliation, although the scope of such solutions is confined to
disputes arising in connection with certain private law matters.
Moreover, the solutions to the problem of an excessive length of
proceedings have to be divided into two main categories: those
concerning proceedings that have already ended and those applicable
to proceedings that are still pending.
Where
the proceedings have already ended, there is only one remedy that
would seem appropriate: redress for the damage caused to the victim,
in the form of compensation. But such a measure should be reserved
exclusively for proceedings that have already come to an end.
As
regards proceedings that are still pending, an award of compensation
to the victim cannot be regarded as equivalent to measures adopted in
order to expedite those proceedings. Where the proceedings
have not yet ended, preference must therefore be given to
“accelerative measures”, as they represent the most
effective way of enforcing the right to a hearing within a reasonable
time.
Examples
of “accelerative measures” to expedite proceedings are
numerous and varied: a higher court could set a time-limit within
which the court responsible for the delay has to bring the
proceedings to a close; the time allowed for pleadings to be
submitted by the parties, expert reports to be filed, possible
witnesses to be summoned, etc., could be reduced.
In
order to uphold the right to a hearing within a reasonable time, as
guaranteed by Article 6 § 1, States thus cannot confine the
solution to systematic compensation awards to victims of violations
of that right. Payment of compensation cannot therefore be regarded
as an adequate means for States to fulfil their obligations under
Articles 6 and 13 of the Convention.
In
conclusion, States must above all do their best to avert the
phenomenon of an excessive length of proceedings. An award of
compensation to victims is no more than a stopgap solution. It cannot
replace the obligation for States to organise their judicial systems
so as to address the root cause of the problem, in particular by
adopting “accelerative measures” to expedite proceedings
that are still pending.
