FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56483/00 by Helena JANCIKOVA against Austria

The European Court of Human Rights (First Section), sitting on 6 November 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 28 March 1999,

Having regard to the partial decision of 4 July 2002,

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

A. The circumstances of the case

The applicant, Mrs Helena Jancikova, is an Austrian [Note1] national, who was born in 1961 and lives in Vienna. She is represented before the Court by Mr G. Hahmann, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

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

The applicant is the owner of a plot of land in Vienna. At the time of the events she was building a house on her land.

On 16 October 1992 officers of the Regional Vienna Labour Office ( Landesarbeitsamt ) inspected the construction site and found four persons of Czech nationality who were carrying out plaster works. The four workers had no permit to work in Austria. When questioned by the officers, they stated that they were working for the applicant.

On 21 October 1992 the Labour Office submitted a report to the Vienna Municipal Office ( Magistrat ) stating that the applicant had illegally employed four foreigners for construction works on her land. Thereupon, the Vienna Municipal Office opened administrative criminal proceedings against the applicant under the Aliens’ Employment Act ( Ausländerbeschäftigungsgesetz ).

On 29 December 1992 the Municipal Office invited the applicant to comment on the charge against her ( Aufforderung zur Stellungnahme ). As the applicant was on holiday, this letter did not reach her.

On 20 January 1993 the Municipal Office convicted the applicant of an offence under the Aliens’ Employment Act and sentenced her to a fine of ATS 66,000. It found that the applicant had employed four foreigners who had no employment permit.

On 4 February 1993 this order was served on the applicant. According to the applicant this was the first time that she came to know that proceedings had been instituted against her.

On 11 February 1993 the applicant, assisted by counsel, filed a request for reinstatement into the first instance proceedings ( Wiedereinsetzungsantrag ) and an appeal against the order of 20 January 1993. In her appeal she argued that she had not concluded work contracts with the foreigners and requested to hear them as witnesses at the hearing. Further she requested that S. be heard, the neighbour of the applicant and two officers of the Labour Office (W.B. and W).

On 19 February 1993 the Municipal Office rejected the request for reinstatement into the proceedings. It found that the applicants’ absence on holiday could not be considered an unforeseeable or insurmountable obstacle as required by the law.

On 25 March 1993 the applicant filed an appeal against this decision and claimed that the letter of 29 December 1992 had not been properly served on her.

On 14 February 1995 the Independent Administrative Panel ( Unabhängiger Verwaltungssenat, IAP) summoned the parties to a hearing scheduled for 21 March 1995. This summon was served on the applicant’s counsel. On the same day she was asked to comment on the charge.

On 3 March 1995 the applicant filed her comments.

On 21 March 1995 the IAP, after having held a hearing on her appeal of 25 March 1993, dismissed the applicant’s appeal. It found that the request to comment on the charge of 29 December 1992 had been served in accordance with the provisions of the Official Notifications Act ( Zustellgesetz ) and that therefore the Municipal Office’s decision of 19 February 1993 to refuse reinstatement into the proceedings was lawful.

On the same day the IAP held another hearing on the applicant’s appeal of 11 February 1993. The applicant’s counsel attended the hearing. The IAP heard M.B., the officer who had written the Labour Office’s report. The IAP adjourned the hearing and summoned the applicant’s counsel to attend the public pronouncement of the decision in the same afternoon. However, the latter stated that, in view of the short notice, he could not attend the pronouncement. The IAP pronounced the decision in his absence. The applicant’s appeal was dismissed.

On 17 May 1995 the written version of the IAP’s decision on the dismissal of the request for the reinstatement, which had been orally pronounced in the first hearing of 21 March 1995, was served on the applicant.

On 21 June 1995 the applicant filed a complaint with the Administrative Court against this decision.

On 7 September 1995 the Administrative Court dismissed the applicant’s complaint and found that the conditions to grant reinstatement had not been fulfilled.

On 23 August 1996 the IAP issued the written version of its decision on the applicant’s appeal of 11 February 1993. It found that the applicant had concluded work contracts with foreigners which required a valid work permit under the Aliens’ Employment Act. As regards the request to hear further witnesses it found that the four foreigners, and S were unavailable witnesses as their addresses were unknown and moreover that it was not possible to file letters rogatory ( Rechtshilfeersuchen ) as there existed no legal assistance treaties ( Rechtshilfeabkommen ) concerning administrative proceedings with the Czech Republic and Slovakia where these persons probably lived. As regards the request to hear W.B. and W it found that the applicant had not substantiated that these persons could make any relevant statement. The IAP stated that the Labour Office’s report was sufficient evidence and that the applicant failed to submit any evidence that other persons than the four foreigners had effected the construction works on her land or that they had not worked for the applicant. This decision was served on 29 November 1996.

On 19 December 1996 the applicant filed a complaint with the Constitutional Court.

On 30 September 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. This decision was served on 9 December 1997.

On 9 April 1998 the IAP commented on the applicant’s complaint and on 20 May 1998 the applicant replied on these submissions.

On 13 September 1999 the Administrative Court dismissed the applicant’s complaint. In found that the applicant’s request to hear further witnesses had not been formulated properly and therefore the applicant’s complaint about the failure to hear further witnesses was unfounded. As to the complaint that only the applicant’s counsel was summoned to the hearing on 21 March 1995 the court found that an additional summon was not necessary under the applicable law. As to the complaint that the decision was taken after the period of prescription had expired, the court found that the decision was taken and orally pronounced on 21 March 1995 and therefore the IAP has taken the decision before the period of prescription had expired. The fact that the written version of the decision was only served on 29 November 1996 was without prejudice to the period of prescription. This decision was served on 30 September 1999.

B. Relevant domestic law and practice

Pursuant to Article 132 of the Federal Constitution in administrative criminal proceedings the Austrian law does not provide an application with the Administrative Court against the administrative authorities’ failure to decide ( Säumnisbeschwerde , “Article 132 request”). This provision was adopted in 1984 (BGBl. 296/1984). The legislative committee stated in its respective report (AB 345, XVI. GP), referring to the Code of Administrative Offences ( Verwaltungsstrafgesetz ), that the exclusion of this remedy was justified as the administrative authorities have to decide on appeals within a short time-limit. The provisions to which the legislative committee was referring to provide as follows:

Pursuant to Section 51 § 7 of the Code of Administrative Offences (“CAO”)administrative authorities have to decide on appeals within fifteen months and if they do not comply with this time-limit the proceedings have to be discontinued. This time-limit does not apply to proceedings, in which “not only the accused has a right to appeal”. Periods during which proceedings before the Constitutional Court and the Court of Justice of the European Communities are pending shall not be counted for the purpose of the fifteen months time-limit.

Pursuant to Section 31 §§ 1 and 2 CAO the prosecuting authority has to institute administrative criminal proceedings against a person suspected of having committed an administrative offence within six months or as regards specific offences – as the offence at issue – within one year after the perpetration of the offence.

Pursuant to Section 31 § 3 CAO the authorities may only sentence a person suspected of an administrative offence within a period of three years after the perpetration  of the offence. Periods during which proceedings before the Constitutional Court, the Administrative Court and the Court of Justice of the European Communities are pending shall not be counted for the purpose of the period of prescription.

In administrative criminal proceedings in which more than one party has the right to appeal, e.g. in proceedings where also the Labour Office has locus standi , legal protection against the authorities failure to decide is only safeguarded by the limitation of the period of three years within which a penal order has to be issued. The public pronouncement of the decision is sufficient for complying with this time-limit (Thienel, Verwaltungsverfahrensrecht, 2 nd edition, Vienna 2001, pp. 525 f)

Pursuant to Section 19 § 2 CAO in connection with Sections 32 to 35 of the Code of Criminal Procedure the administrative authorities have to consider an unreasonable length of proceedings as mitigating circumstance.

COMPLAINTS

The applicant’s remaining complaint relates to the length of the criminal proceedings against her. She also relied on Article 13.

THE LAW

1 . The applicant complained under Article 6 of the Convention about the length of the administrative criminal proceedings. Article 6 § 1, so far as relevant, provides as follows:

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

As to the period to be taken into consideration the Court notes that the proceedings started on 29 December 1992, when the Municipal Office invited the applicant to comment on the charge and ended on 30 September 1999, when the final decision of the Administrative Court was served on the applicant’s counsel. They, therefore, lasted six years and nine months.

The Government submitted that the Austrian authorities dealt expeditiously with the applicant’s case. As to the period between 17 May 1995, when the IAP publicly pronounced its decision, and 29 November 1996 when the written version of its decision was served, the Government pointed out that the applicant could have filed a complaint with the Constitutional Court and the Administrative Court prior to the delivery of the written decision and that the authorities could not therefore be held responsible for this delay. Further, they submitted that the proceedings were of a certain complexity as foreign nationals were involved in the proceedings, as the IAP had also to consider the applicant’s request for reinstatement and as the Regional Vienna Labour Office had also to be heard as a party.

The applicant contested the Government’s submissions. She submitted that it took the IAP two years to decide on her appeal and another year and eight months until the written decision was served. The proceedings before the Constitutional Court, which refused to deal with her case, lasted approximately nine months and the subsequent proceedings before the Administrative Court lasted another fifteen months. She stressed that the duration was not justified and that the periods of prescription in administrative criminal proceedings was not sufficient to safeguard expeditious proceedings. In particular, she contended that the proceedings before the IAP lasted approximately two years and one months until it decided on her appeal. Due to the hearing scheduled at short notice she and her counsel could not attend the pronouncement and, thus, did not learn the content of the IAP’s decision before the delivery of the written decision which happened one year and eight months later. Moreover, she submitted that the authorities fixing the sentence did not consider the length of the proceedings as mitigating circumstance.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant further complained of a violation of Article 13 of the Convention, which provides:

“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 stressed that Austrian law provided in administrative criminal proceedings for very short periods of prescription within which the authorities have to act (see above Relevant domestic law). This regulation ensured that a decision is taken within a reasonable time. Moreover, they asserted that the authorities determining the sentence have to take into account the duration of the proceeding.

The applicant contested the Government’s submission and pointed out that the fifteen months period referred to in Section 51 § 7 CAO did not apply in the present proceedings and that the IAP’s decision was only served on her four years after the perpetration of the offence. Thus, even the three years period provided for in Section 31 § 3 CAO did not prevent an unreasonable delay. Finally, she submitted that the authorities did not apply the rule that an unreasonable delay shall be considered as a mitigating circumstance

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President

[Note1] To be checked.