FIRST SECTION

DECISION

Application no . 13665/09 Christian OBRIST against Austria

The European Court of Human Rights (First Section), sitting on 27 November 2012 as a Chamber composed of:

Isabelle Berro-Lefèvre , President, Elisabeth Steiner , Nina Vajić , Mirjana Lazarova Trajkovska , Julia Laffranque , Linos-Alexandre Sicilianos , Erik Møse , judges, and André Wampach , Deputy Section Registrar ,

Having regard to the above application lodged on 3 March 2009,

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

1. The applicant, Mr Christian Obrist , is an Austrian national, who was born in 1954 and lives in Zell am See.

2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry of European and International Affairs.

A. The circumstances of the case

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

4. On 3 March 2003 the applicant, a practising lawyer, was served with a decision dated 25 February 2003 by the Zell am See Tax Authority ( Finanz ­ amt Zell am See als Finanzstrafbehörde I. Instanz ) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax, through his submission of incorrect declarations of earnings in both the years 1999 and 2001.

5. The panel at the Salzburg Stadt Tax Authority ( Spruchsenat beim Finanz ­ amt Salzburg- Stadt ) held five hearings, namely on 20 April 2004 and 9 February, 6 April, 14 September and 18 October 2005, of which only the first two were attended by the applicant. The applicant was aware that his former employee, witness X, would be required to testify in the proceedings; however three hearings were postponed when witness X failed to appear. When X finally appeared at the hearing of 18 October 2005 it transpired that the applicant had relied on X ’ s duty of confidentiality on account of his previous employment contract with the applicant, and X could not then testify.

6. The applicant did not receive a transcript of the hearing. The applicant had not lodged a request to receive the transcript until the hearing was under way.

7. On 18 October 2005 the Tax Authority panel found the applicant guilty of having evaded tax in the amount of almost 51,000 euros (EUR) and ordered him to pay a fine of EUR 20,000, which would be replaced, in the event of default, by a prison term of four weeks. The applicant was, however, acquitted of having evaded turnover tax in 1999. In fixing the amount of the fine, the panel considered the following to be mitigating factors: the applicant ’ s lack of any prior convictions, his partial payment of the money owed, his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed. It did not find any aggravating factors. The written decision of 18 October 2005 was served on the applicant on 18 May 2006.

8. On 19 June 2006 the applicant appealed to the Independent Finance Panel ( Unabhängiger Finanzsenat ), which delivered its decis ion orally after a hearing on 6 December 2007. The Independent Finance Panel reduced the amount of the fine to EUR 12,500, with sixteen days ’ imprisonment in the event of default. Among the reasons given by the Independent Finance Panel for the reduction of the fine was the applicant ’ s low income, and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the Tax Authority panel. On the other hand, it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor. The written decision was served on the applicant on 14 August 2008.

9. The applicant lodged a complaint with the Constitutional Court ( Verfassungs ­ gerichtshof ) on 25 September 2008 against the decision of the Independent Finance Panel. In a decision dated 8 October 2008 the Constitutional Court declined to consider the case for its lack of prospects of success and sent it to the Administrative Court ( Verwaltungsgerichtshof ). The decision of the Constitutional Court was served on the applicant on 14 October 2008.

10. The applicant filed additional observations in support of his complaint to the Administrative Court as requested. On 8 July 2009 the Administrative Court dismissed the applicant ’ s complaint as ill-founded. It held that the Independent Finance Panel had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant ’ s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts ’ jurisprudence. It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started, as was provided for by law.

11. The decision was served on the applicant ’ s counsel on 27 August 2009.

B. Relevant domestic law

Criminal proceedings before the tax authorities

12. The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in the Tax Offences Act ( Finanzstrafgesetz ).

13. In accordance with section 135 of the above-mentioned Act, in force at the relevant time, oral hearings are to be recorded by the court reporter. Its subsection 3 provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted, at the latest, just after the opening of the oral hearing.

14. Section 33 § 5 of the Tax Offences Act provides, as a maximum penalty for the offence of tax evasion, for the imposition of a monetary fine of double the amount of tax evaded. It also provides for the imposition of a sentence of imprisonment for up to two years.

COMPLAINTS

15. The applicant complained under Article 6 of the Convention about the length of the proceedings.

16. Under the same Article the applicant complained that the proceedings had been unfair in that he had not received the transcripts of the oral hearings.

17. The applicant further complained under Article 1 of Protocol No. 1 about the amount of the monetary fine imposed on him in view of his low income.

THE LAW

18. The applicant complained of the length of the proceedings against him for tax evasion, relying on Article 6, which reads, as far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1. The parties ’ submissions

19. The Government maintained firstly that the applicant had not suffered any significant disadvantage from the delays in the domestic proceedings. They referred to the fact that the Independent Finance Panel had taken the length of the proceedings into account and had reduced the fine accordingly. There would also have been no need for the applicant to have waited for the written decision of the Independent Finance Panel to be served in order to lodge his complaint with the Constitutional Court and the Administrative Court . The Government contended that two of the highest courts in Austria had duly – and expeditiously – examined the applicant ’ s complaint and that respect for human rights did not require a further examination.

20. Furthermore, the Government argued that the applicant had not exhausted the domestic remedies in the present case, since he had not lodged an application with the Administrative Court, in accordance with Article 132 of the Federal Constitution, against the administration ’ s “failure to decide”, in order to prevent any delays until the oral delivery of the decision by the Independent Finance Panel.

21. Lastly, the Government contended that the applicant ’ s conduct had helped to delay the first-instance proceedings, and that the Constitutional Court and the Administrative Court had conducted the complaint proceedings before them very promptly. Furthermore, the monetary fine the applicant had been ordered to pay had been reduced in order to compensate for the length of the proceedings.

22. The applicant contested the Government ’ s arguments. As regards the possibility he had had of lodging an application under Article 132 of the Federal Constitution, the applicant stated that he had hoped for an acquittal until the very last and it would therefore not have been reasonable to use a remedy which might have accelerated the delivery of a decision to his disadvantage.

23. The applicant stated further that his absence from the last three hearings before the first-instance panel had not contributed to any delays in the proceedings as a whole.

2. The Court ’ s assessment

24. The Court observes that the proceedings in question were opened on 3 March 2003, when the applicant was informed that he would be tried on a charge of tax evasion, and ended on 27 August 2009, when he was served with the Administrative Court ’ s decision. In total, the proceedings lasted six years and almost six months for three levels of jurisdiction.

25. The Court finds that the facts of the present case do merit an examination of the question whether the applicant can still be considered a victim of the alleged violation of the Convention. The Court reiterates that it falls first to the national authorities to redress any violation of the Convention. However, a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a victim, unless the national authorities have acknowledged in a sufficiently clear way , and then afforded redress for, the breach of the Convention (see Eckle v. Germany , 15 July 1982, § 66, Series A no. 51, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-180, ECHR 2006 ‑ V and Mit terbauer v. Austria ( dec .), no. 2027/06, 12 February 2009). Whether such redress is appropriate and sufficient to remedy a breach of a Convention right at national level depends on all the circumstances of the case, having regard in particular to the nature of the Convention issue at stake (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010). Furthermore, as regards the duration of criminal proceedings, a possible form of redress can be the reduction of a sentence in an express and measurable manner (see Scordino , cited above, § 186).

26. As concerns the first requirement - namely the acknowledgment by the domestic authorities of a violation of the Convention - the Court observes that the Independent Finance Panel considered the lengthy duration of the proceedings to be a mitigating factor when setting the fine to be paid by the applicant (see, mutatis mutandis, Karg v. Austria ( dec .), no. 29749/04, 6 May 2008). The Court also notes that the Administrative Court explicitly acknowledged the unreasonably long duration of the proceedings when examining the applicant ’ s complaint and the measures taken by the Independent Finance Panel. It found that the Independent Finance Panel had appropriately addressed the overly long duration of the proceedings and had set the fine accordingly and in line with the domestic jurisprudence (see paragraph 10 above). With regard to the second requirement, the Court observes that the Independent Finance Panel reduced the applicant ’ s fine from EUR 20,000 to EUR 12,500, - a reduction of approximately 37 %. Accordingly, the prison term foreseen in the event of default was reduced from four weeks to sixteen days. As a further factor to be taken into account, the Court notes that the proceedings before the Constitutional Court and before the Administrative Court were conducted speedily and without any undue delays.

27. In conclusion, the Court is satisfied that the domestic authorities sufficiently acknowledged the unreasonable length of the proceedings conducted against the applicant and afforded him redress in an appropriately express and measurable manner. The applicant can therefore no longer claim to be a victim of the alleged violation.

28. In view of the above-mentioned conclusion, the Court does not find it necessary to examine the Government ’ s contention that the applicant had not suffered any significant disadvantage.

29. It consequently rejects the applicant ’ s complaint concerning the length of proceedings in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

30. The applicant, in his complaint that the proceedings were unfair in that he had not received transcripts of the oral hearings, further relied on Article 6 § 1 of the Convention, which reads, as far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

31. The Court observes that the domestic law affords the possibility of applying for a transcript of the proceedings before the start of the oral hearing (see paragraph 13 above). However, the applicant, in the present case, failed to do so, even though he was a legal practitioner and must therefore have been aware of the procedural requirements laid down in the domestic law.

32. The applicant ’ s complaint is therefore inadmissible for non-exhaustion of domestic remedies and must be dismissed according to Article 35 §§ 1 and 4 of the Convention.

33. Finally, in view of his low income, the applicant complained about the amount of the fine imposed on him, relying in this connection on Article 1 of Protocol No. 1 to the Convention. However, in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols. It follows that this part of the application is also manifestly ill-founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the app lication inadmissible.

André Wampach Isabelle Berro-Lefèvre Deputy Registrar President