FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2027/06 by Bernhard MITTERBAUER against Austria

The European Court of Human Rights (First Section), sitting on 12 February 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 12 December 2005,

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 Bernhard Mitterbauer, is an Austrian national , who was born in 1969 and lives in Handenberg. He was represented before the Court 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 Legal Department at the Federal Ministry for European and International Affairs.

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

On 21 March 1999 the applicant was caught during a traffic control driving under the influence of alcohol and without carrying his driving licence and the car ’ s registration documents with him.

On 7 May 1999 the Braunau District Administrative Authority convicted the applicant under sections 5(1) and 99(1)(a) of the Road Traffic Act 1960 ( Straßenverkehrsordnung ) of driving under the influence of alcohol. In addition it found him guilty of driving without carrying his driving licence and registration documents with him and issued a fine of 16,000 Austrian schillings (ATS – 1,162 euros (EUR) ) with 14 day s ’ imprisonment in default.

Subsequently, on 26 May 1999, the applicant lodged an appeal against the first part of the decision concerning the offence of driving under the influence of alcohol.

On 18 June 1999 the Upper Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) dismissed the applicant ’ s appeal.

Thereupon the applicant, on 19 July 1999, lodged a complaint with the Administrative Court ( Verwaltungsgerichtshof ). He complained, inter alia, that the Independent Administrative Panel had failed to hold an oral hearing despite his request to do so.

On 26 April 2002 the Administrative Court quashed the Independent Administrative Panel ’ s decision and remitted the case.

On 8 August 2002 the Independent Administrative Panel partly granted the applicant ’ s appeal and reduced the fine to EUR 650 with 8 day s ’ imprisonment in default pursuant to section 20 of the Act on Administrative Offences ( Verwaltungsstrafgesetz ). In its reasoning it noted that the long duration of the proceedings had to be considered as a special mitigating circumstance. Referring to Article 6 § 1 of the Convention, the Independent Administrative Panel found that the duration of the proceedings before the Administrative Court, given that no complex issues had been raised, violated the principle of diligence required in criminal proceedings.

Subsequently, on 8 October 2002 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ) complaining, inter alia , about the lack of an oral hearing before the Independent Administrative Panel.

On 26 November 2002 the Constitutional Court dismissed the application for lack of prospects of success and, on 31 January 2003, remitted the case to the Administrative Court , upon the applicant ’ s request.

On 21 February 2003 the applicant substantiated his complaint with the Administrative Court , alleging, inter alia, a failure to hold an oral hearing.

On 15 April 2005 the Administrative Court granted the applicant ’ s appeal and remitted the case back to the Independent Administrative Panel. It ordered an oral hearing to be held.

On 22 November 2005 the Independent Administrative Panel, having held a hearing, partly granted the applicant ’ s appeal and reduced the fine to EUR 581 with 7 day s ’ imprisonment in default. It noted that the offence at issue was punishable with a fine between EUR 1,162 and 5,813. Pursuant to section 20 of the Act on Administrative Offences, the minimum fine could be reduced to half if the mitigating circumstances considerably outweighed the aggravating circumstances. It noted that the proceedings had so far lasted more than six and a half years. Such duration had to be considered as excessive and constituted a mitigating circumstance. The fine was thus to be fixed at the minimum of EUR 581. However, Article 6 § 1 of the Convention did not require lifting the fine entirely.

The decision was served on the applicant ’ s counsel on 5 December 2005.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings and under Article 13 that he had no remedy in respect of the duration of the proceedings before the Administrative Court .

THE LAW

The applicant complained about the length of the proceedings and the lack of an effective remedy. He relied on Article 6 § 1 of the Convention which, so far as relevant, provides as follows:

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

Furthermore, he relied on Article 13 which reads 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.”

The Government submitted that the applicant failed to exhaust domestic remedies in that he did not lodge a complaint against the Independent Administrative Panel ’ s decision of 22 November 2005 to the Constitutional Court . By doing so he could have obtained a declaratory ruling on the violation of Article 6 § 1 of the Convention on account of the excessive duration of the proceedings.

Furthermore the Government argued that the applicant could no longer claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention. Referring to the Court ’ s case-law, they asserted that the Independent Administrative Panel had expressly accepted that the duration of the proceedings had failed to meet the “reasonable time” requirement. By reducing the fine to the statutory minimum it had provided adequate redress.

The applicant contested these arguments. In respect of the alleged failure to exhaust domestic remedies, he asserted that a mere declaratory decision does not provide an effective remedy against the excessive duration of proceedings.

The applicant argued that he could still claim to be a victim of the alleged violation. The Independent Administrative Panel had already reduced the fine to EUR 650 in its decision of 8 February 2002. The reduction to the minimum fine of EUR 581 in the subsequent decision of 22 November 2005 could not sufficiently compensate him for the further delay in the proceedings.

The Court will first examine whether the applicant can still claim to be a victim of a violation of Article 6 § 1 of the Convention on the grounds of the length of the criminal proceedings against him.

In this regard the Court reiterates that the mitigation of a sentence on the ground of the excessive length of the 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 ( Eckle v. Germany , 15 July 1982, § 66 , Series A no. 51; Beck v. Norway , no. 26390/95, § 27, 26 June 2001; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X ).

In the present case the Independent Administrative Panel, in its decisions of 8 August 2002 and 22 November 2005 expressly acknowledged that the duration of the proceedings had been excessive.

In its first decision the Independent Administrative Panel reduced the fine from EUR 1,162 to 650 finding that the length of the proceedings had to be considered as a special mitigating circumstance. In its second decision it reduced the fine to the applicable minimum of EUR 581 on account of the excessive duration of the proceedings. Compared to the initial fine which was twice as high, namely EUR 1,162, this constitutes a considerable reduction. It was granted expressly to compensate for the excessive duration of the proceedings. The Court is therefore satisfied that redress for the unreasonable length of the proceedings was afforded in an express and measurable manner.

The Court concludes that the applicant can no longer claim to be a victim of the alleged violation of Article 6 § 1. Consequently, no issue arises under Article 13.

It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President