FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27933/07 by Peter VIEHBÖCK against Austria

The European Court of Human Rights (First Section), sitting on 3 May 2011 as a Chamber composed of:

Nina Vajić , President, Anatoly Kovler , Christos Rozakis , Peer Lorenzen , Elisabeth Steiner , Khanlar Hajiyev , George Nicolaou , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 5 June 2007,

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 Peter Viehböck , is an Austrian national who was born in 1968 and lives in St Georgen . He was represented before the Court by Mr A. Piermayr , a lawyer practising in Linz . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Federal Ministry for Foreign Affairs.

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

The applicant was in the area of Fügen , Tyrol , from 16 to 17 December 1995. He went to a discotheque in the evening and said he had left between 1.30 a.m. and 2 a.m. When he left the discotheque, an unknown person hit him in the face and he fell to the ground. The applicant took a taxi and went back to his hotel, where he was sharing a room with two friends.

On 17 December 1995 Mr P reported to the police that at about 5 a.m. an unknown person had had an argument with him and kicked his car, which was parked in front of the discotheque, and damaged it.

The following day the applicant returned to Upper Austria by train. He was apprehended by the police, on account of his visible injuries, on suspicion of having participated in a fight. The police took two photographs of him. The applicant explained to the police what had happened to him but did not want to file an official complaint against the person who had hit him, as he thought it would not be possible to find the person.

On 22 December 1995 T, a barkeeper in the discotheque and a friend of P, was heard as a witness to the incident in which P ’ s car had been damaged. He stated that he had not witnessed the incident but remembered seeing a young man and had been told by P that it was that young man who had kicked the car.

On 16 January 1996 T was shown the photos of the applicant taken by the police. He said it was the person who had had the argument with P.

On 27 January 1996 P was also shown the same photos and stated that the applicant was the person who had kicked his car.

On 9 February 1996 an official notice of a criminal act, apparently together with a sheet of the applicant ’ s personal data, was sent to the District Public Prosecutor, who filed an indictment ( Antrag auf Bestrafung ) on 16 February 1996.

On 19 April 1996 a provisional penal order ( Strafverfügung ) was issued by the Zell am Ziller District Court (“the District Court”). The applicant was considered guilty of having wilfully damaged a car on 17 December 1995. He was sentenced to a fine totalling 2,500 Austrian schillings (approximately 180 euros (EUR)), suspended on probation.

According to the law, a provisional penal order had to be served personally on the addressee. The first attempt to serve the provisional penal order on the applicant failed. Although the applicant had a registered address in N between 3 October 1995 and 3 October 1996, the provisional penal order was returned to the District Court with a note that the applicant no longer lived at the address in N and had left a post office box address to which his mail should be forwarded.

On 9 May 1996 the District Court found that service of the provisional penal order at a post office box address was not lawful service and decided to adjourn the proceedings and asked the police to locate the applicant. The District Court received a letter from the local police station saying that the applicant did not live anywhere in the area.

By a letter dated 25 October 1996, the District Authority in Freistadt , Upper Austria , asked the District Public Prosecutor about the outcome of the case. The District Court replied on 4 November 1996 that a provisional penal order had been issued but could not be served on the applicant and had thus not become final.

On 6 June 2002, the District Court renewed the request to the police to locate the applicant. By a letter of 12 June 2002, the Strass im Zillertal police station informed the court that the accused ’ s personal data had been entered in the Electronic Criminal Police Information System and that a search in the data station had been ordered to find out the applicant ’ s place of abode.

By a letter dated 17 May 2004 the Grieskirchen District Authority in Upper Austria notified the District Court of the applicant ’ s registered address in W and stated that the applicant had been registered at that address since 2 December 1998.

On 28 May 2004 the applicant was served with the provisional penal order together with a notice informing him that if objections were lodged against the provisional penal order within two weeks of service, it would become void and a regular trial would be held.

The applicant lodged objections on 2 June 2004.

On 3 September 2004 the file was transmitted to the District Public Prosecutor at the Zell am Ziller District Court for her observations regarding a preliminary settlement ( Diversion ).

The trial before the District Court started on 4 January 2005. P was heard as a witness and the court asked him whether the applicant had kicked his car in December 1995. P stated that he could not remember whether the applicant had been the perpetrator and confirmed that when he had been shown the photos of the applicant on 27 January 1996 he had been certain that it had been the applicant who had kicked his car.

The applicant asked for evidence to be heard from the two friends with whom he had shared the hotel room. As they lived in Germany , the District Court adjourned the hearing and on 17 January 2005 issued letters rogatory , asking the German authorities to hear the witnesses. The public prosecution office in Munich sent back the witness statements on 17 February 2005. The witnesses had stated that they could not remember the applicant having returned to the hotel room at 2 a.m.

On 31 March 2005 the trial continued. The applicant was not represented by counsel. The judge had the witness statements as submitted by the public prosecution office in Munich read out. Relying on the witness statements of P and the applicant ’ s friends, the barkeeper ’ s statement and the notification from the Zillertal police station, the District Court found the applicant guilty of having damaged P ’ s car on 17 December 1995 and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, ordered him to pay the costs of the trial and ordered him to compensate P for the damage to his car.

On 21 April 2005 the judgment was served on the applicant ’ s counsel. An appeal on points of law and fact, as well as against sentence, and an appeal against the obligation to pay damages ( Berufung wegen Nichtigkeit , Schuld und Strafe und Berufung gegen den Privatbeteiligtenzuspruch ) was lodged on 19 May 2005.

On 2 November 2005 the Innsbruck Regional Court set aside the judgment on grounds of nullity as the District Court had failed to obtain the applicant ’ s consent to have the witness statements read out.

On 21 December 2005 a new trial was held. One of the applicant ’ s friends, who had been named as a witness, did not appear before the court. The other friend did appear and made a statement to the effect that he could not remember any details of the period when the incident had occurred. He also confirmed that when he had been heard by the German authorities after the Austrian court had issued the letters rogatory , he had told the truth. The barkeeper T was also heard as a witness. He stated that he did not remember what he had told the police when he gave his statements on 22 December 1995 and 16 January 1996, but was certain that he had told the truth.

After an adjournment, the trial continued on 18 May 2006. As the judge had changed, the trial started afresh. T, P and the applicant ’ s friend who had not appeared before the court on 21 December 2005 were heard as witnesses and, in essence, upheld their previous statements. The District Court, relying on T ’ s and P ’ s statements, again found the applicant guilty and sentenced him to a fine totalling EUR 1,080 (60 per diem rates of EUR 18 each), suspended on probation for three years, and ordered him to pay the costs of the trial. P was ordered to claim damages for the car in the civil courts.

The applicant appealed on points of law and fact, as well as against sentence, on 11 July 2006. On 15 December 2006 the Innsbruck Regional Court upheld the judgment. The decision was served on applicant ’ s counsel on 22 February 2007.

COMPLAINTS

1. The applicant complained that the proceedings had been unreasonably long. In his observations, the applicant also alleged a violation of Article 6 § 3 (a) of the Convention as he had not been informed promptly and in detail of the charges.

2. The applicant further complained, relying on Article 6 of the Convention, that the proceedings had been unfair because the witnesses who had been asked to identify the perpetrator had been shown only photos of the applicant.

THE LAW

1. The applicant complained about the length of the proceedings. The Court considers that this complaint should be examined under Article 6 § 1 of the Convention, which reads, in so 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 ...”

The Gov ernment con test ed the applicant ’ s claim, arguing that the period to be taken into consideration had started with official service of the provisional penal order. Accordingly, in the applicant ’ s case the relevant period had started on 28 May 2004, when the provisional penal order was served on him. Therefore, the proceedings, which had ended on 15 December 2006, had lasted only two and a half years.

The applicant argued that the period indicated by the Government was not correct in the present case. The applicant had been confronted with the information more than eight years after the incident, and at that point the decision about his punishment had already been made. The applicant further argued that even the period from when he had been served with the provisional penal order, on 28 May 2004, to the date when the proceedings ended, had been unreasonably long.

The Court reiterates that in criminal cases the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”. Being “charged” may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened. “Charge”, for the purposes of Article 6 § 1, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Reinhardt and Slimane-Kaïd v. France , 31 March 1998, § 93 , Reports of Judgments and Decisions 1998 ‑ II , and Eckle v. Germany , 15 July 1982, § 73 , Series A no. 51 ) .

Turning to the instant case, the applicant was only “substantially affected” when he first received the provisional penal order on 28 May 2004. This date is thus to be seen as the starting date for the calculation of whether the proceedings complied with the “reasonable time” requirement of Article 6 of the Convention. The proceedings ended on 22 February 2007, when the court ’ s final decision on the appeal was served on the applicant ’ s counsel. The proceedings thus lasted two years and approximately nine months for two levels of jurisdiction. The Court reiterates that the reasonableness of the duration of proceedings is examined under the following criteria: the complexity of the case and the conduct of the applicant and of the relevant authorities (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II) . The proceedings in the present case were of no particular complexity. However, the case was once referred back to the first-instance court on account of a procedural error of the District Court, and a new round of proceedings became necessary, prolonging the overall duration of proceedings for one year and approximately two months. No particular delays are attributable to the applicant, and – apart from the delay caused by the referral of the case back to the first-instance court – no particular delays are attributable to the authorities either. In sum, the Court considers that the overall duration did not exceed the “reasonable time” requirement.

The Court notes that the applicant was informed of the charges against him when he was served with the provisional penal order, that is, when he was “charged” within the meaning of Article 6 of the Convention.

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. As regards the alleged unfairness of the proceedings, the Court considers that this complaint concerns the assessment of evidence. The Court reiterates that while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28 , ECHR 1999 ‑ I ) .

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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vaji ć              Registrar President