Peter KIMESWENGER v Austria - 87/06 [2010] ECHR 600 (30 March 2010)

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The European Court of Human Rights (First Section), sitting on 30 March 2010 as a Chamber composed of:

Nina Vajić, President,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Peter Kimeswenger, is an Austrian national who was born in 1968 and lives in Attnang-Puchheim. He was represented before the Court by Gabl, Kogler, Papesch and Leitner, a firm of lawyers practising in Linz. 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 30 September 1996, preliminary investigations (Vorerhebungen) were instituted against the applicant and ten other persons who were suspected of aggravated fraud, breach of trust, money laundering and forming a criminal organisation.

During these proceedings the Wels Regional Court (Landesgericht) acting through its competent investigating judge, on 16 September 1997 confiscated three cars belonging to the applicant by an interim measure under section 144a of the Code of Criminal Procedure (Strafprozess-ordnung) in order to secure the levy (Abschöpfung) of property presumed to have been obtained by criminal acts. The court confiscated a Suzuki Kombi, a Chrysler Voyager Kombi and a Mercedes Cabrio. On 12 March 1998 the court further ordered that the cars be kept at a motor trading company in Gallspach. It dismissed the applicant’s argument that his friend and not he was the owner of the Suzuki Kombi.

On 21 December 2004 the Wels Regional Court convicted the applicant of aggravated professional fraud and being a member of a criminal organisation. Under Article 20 of the Criminal Code (Strafgesetzbuch) it found that there should be a levy on the enrichment obtained from the crimes in the amount of 5,220.36 euros (EUR). The applicant made a plea of nullity to the Supreme Court. The applicant and the Public Prosecutor also filed appeals against the sentence.

On 23 February 2005 the court, referring inter alia to section 401 of the Enforcement Act (Exekutionsordnung), ordered that the cars be sold at public judicial auction. It noted that the criminal proceedings were very complex and that the Supreme Court would presumably not render judgment until 2006. The sale of the cars was necessary in order to prevent excessive parking charges and loss of value due to the cars’ decreasing sales value. The court finally noted that the interests of the car owner were protected by the fact that he could recover the cars by participating in the judicial auction. Furthermore, he would obtain the proceeds of the sale revenue if no levy would be imposed. The decision was served on the applicant’s counsel on 18 March 2005. No formal remedy lies against this decision.

Nevertheless, the applicant, assisted by counsel, lodged an appeal on 30 March 2005. He submitted that the reasons given for the sale were not plausible, as the cars had until now been kept for some seven and a half years, and considerable parking charges had accrued. Therefore, the fact that the cars should be kept for some further nine months was of minor importance. He was not in a position to buy the cars at the judicial auction as he was currently living on emergency assistance (Notstandshilfe). Furthermore, there was not sufficient legal basis for the court’s decision to sell his property. The applicant finally argued that he was not the owner of the Suzuki Kombi and that the court had failed to inform the real owner.

On 30 May 2005 the Linz Court of Appeal (Oberlandesgericht) rejected the appeal as inadmissible, as no appeal lay against such an order. It noted that the provisions of the Code of Criminal Procedure alone were relevant and section 144a § 6 of the Code of Criminal Procedure only provided for the right to appeal against a decision ordering or cancelling an interim confiscation. This decision was served on the applicant’s counsel on 27 June 2005.

On 1 April 2008 the Supreme Court dismissed the applicant’s plea of nullity against the Regional Court’s judgment of 21 December 2004 and, on 29 May 2008, the Linz Court of Appeal dismissed the appeals lodged by the applicant and the Public Prosecutor.

Under Article 20 § 1 of the Criminal Code (Strafgesetzbuch) a person who has obtained property of value by or as a result of criminal acts should be sentenced to a fine in the amount of the unlawful enrichment. If the exact extent of the enrichment cannot be established or can only be established by incurring disproportionate costs, the court has to assess the amount to be levied on an equitable basis.

In case of suspicion of unlawful enrichment, presumably falling under the scope of Article 20 of the Criminal Code, and if there is reason to assume that otherwise the levy on the value of the property concerned is thereby placed at risk, section 144a § 1 of the Code of Criminal Procedure (Strafprozessrecht) authorises the investigating judge, at the request of the Public Prosecutor’s Office, to issue an interim order of confiscation.

Section 144a § 1 further provides that, if not stipulated otherwise, the provisions of the Enforcement Act (Exekutionsordnung) apply to these interim measures.

Section 144a § 6 provides that the Public Prosecutor’s Office, the accused and any other person concerned have the right to appeal to the second-instance court against a decision ordering or cancelling an interim confiscation.

Section 401 § 1 of the Enforcement Act provides that, upon request, the court may issue any orders which are necessary to prevent obsolescence, disproportional costs or other losses concerning objects which belong to third parties and have been taken into legal custody. According to the legal doctrine, such a decision may also consist in the order to sell the objects concerned.

The applicant complained that the Regional Court’s decision to sell his cars at a public auction constituted an interference with his right to property under Article 1 of Protocol no. 1 of the Convention. In addition he complained that no appeal lies against the order for judicial auction, which is why he did not have an effective remedy under Article 13 of the Convention. In this respect he also relied on Article 6 of the Convention.

The applicant complained that the Regional Court’s decision to sell his cars at a public auction constituted an interference with his right to property as provided for in Article 1 of Protocol No. 1. He also complained that contrary to the requirements of Article 13 of the Convention he did not have at his disposal an effective remedy against the order for judicial auction, and in this respect also relied on Article 6. These provisions, in so far as relevant, read 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.”

“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.”

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Government submitted that under the second paragraph of Article 1 of Protocol No.1 the Contracting States were entitled to control the use of property in accordance with the general interest by enforcing such laws as they deem necessary for that purpose. The investigating judge, relying on explicit provisions of the Enforcement Act and upon the Public Prosecutor’s request, issued an injunction to secure the levy of an unlawful enrichment, before proceedings for a judicial auction started. The mere fact that subsequently a public auction was ordered was not in itself an interference with any property rights, as this order was exclusively aimed at preventing a disproportionate loss in the value of movable property which had already been seized. The applicant could have furnished a security deposit in order to avoid the judicial auction, which he failed to do. Therefore the seizure of the cars by the decision of 16 September 1997 and the subsequent injunction of 12 March 1998 were the decisive steps, but the applicant had failed to react appropriately to these decisions.

The applicant submitted that the confiscation of the goods merely constituted a preliminary act, whereas the order for the compulsory auction led to a final and irreversible interference with his property rights, as by the judicial sale he had ultimately been deprived of those rights.

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

The Court observes that in the instant case the applicant did not appeal against the decision to confiscate his property, although he could have done so. Instead he lodged an appeal against the order for judicial auction. The Court need not determine whether the applicant, who failed to contest the decision to confiscate his property, has properly exhausted domestic remedies available to him because, for the following reasons, it considers that he has failed to comply with the six-months time-limit under Article 35 § 1 of the Convention. In this respect the Court reiterates that where an applicant has tried a remedy that the Court considers inappropriate, the time taken to do so will not interrupt the running of the six-month time-limit, which may lead to the application to be rejected as out of time (see Prystavka, Rezgui v. France, no. 49859/99, decision of 7 November 2000).

The Court notes that on 30 March 2005 the applicant, assisted by counsel, lodged an appeal against the Regional Court’s decision of 23 February 2005 ordering the sale of the cars at public judicial auction. On 30 May 2005 the Linz Court of Appeal rejected the appeal as inadmissible, as no appeal lies against such an order. In the Court’s view such an appeal was therefore an ineffective remedy and could not interrupt the running of the six-month time-limit. Accordingly, the relevant period for calculating the six-month time-limit started on 18 March 2005, when the Regional Court’s decision of 23 February 2005 was served on the applicants counsel. However, the applicant only lodged his application with the Court on 22 December 2005.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application in accordance with Article 35 §§ 1 and 4 of the Convention as it has been introduced out of time.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Peter KIMESWENGER v Austria - 87/06 [2010] ECHR 600 (30 March 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/600.html Cite as: [2010] ECHR 600