FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57080/00 by Karl POKORNY against Austria

The European Court of Human Rights (Fourth Section), sitting on 3 June 2003 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr R. Maruste , Mrs E. Steiner , judges ,

Having regard to the above application lodged on 20 March 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Mr Karl Pokorny, is an Austrian national, who was born in 1946 and lives in Gerasdorf-Seyring (Austria). He is represented before the Court by Mr Bernhauser, a lawyer practising in Vienna (Austria).

A. The circumstances of the case

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

On 2 October 1992 the Vienna Customs Office ( Zollamt ) opened investigations against a number of suspects under the Tax Offences Act ( Finanzstrafgesetz ) concerning charges of smuggling . Subsequently, these investigations were also directed against the applicant.

On 30 September 1993 the Customs Office transmitted the final investigations report concerning the applicant and seven other suspects to the Vienna Public Prosecutor’s Office ( Staatsanwaltschaft ).

On 3 June 1996 the Public Prosecutor filed a request with the investigating judge since the preliminary investigations had to be extended to numerous other suspects.

On 22 September 1998, after the investigating judge completed the investigations, the file was transmitted to the Vienna Public Prosecutor’s Office. Meanwhile, the case had been taken over by another official of the Public Prosecutor’s Office.

On 1 July 1999 the Public Prosecutor preferred the indictment on charges of smuggling against the applicant and two co-accused. The applicant was accused of having imported goods without paying customs duties. The indictment was served on the applicant on 10 August 1999.

On 24 August 1999 the applicant filed an appeal against the indictment and on 15 September 1999 the Court of Appeal dismissed this appeal.

On 30 November 1999 the Vienna Regional Criminal Court acquitted the applicant.

On 2 March 2000 the Vienna Customs Office filed a plea of nullity, against this decision, as well as an appeal against sentence and on 9 March 2000 the applicant commented on these submissions.

On 11 April 2000 the Vienna Public Prosecutor’s Office filed a plea of nullity against this decision.

On 12 September 2000 the Supreme Court dismissed the pleas of nullity and the appeal against sentence. The decision was served on the applicant on 5 October 2000.

B. Relevant domestic law

Section 37 of the Public Prosecutor’s Act ( Staatsanwaltschaftsgesetz ):

(1) Complaints against a public prosecutor challenging the performance of his duties, may be filed with any superior authority. Unless the complaint is filed with the authority directly superior to the public prosecutor, it shall, as a rule, be transmitted to that authority together with an order to submit a report, if necessary, for the purpose of taking further action.

(2) The public prosecutor concerned shall be informed of all complaints that are not manifestly unfounded and he shall be ordered to remedy the complaint within a certain period and to report thereon or to disclose any existing obstacles thereto.

COMPLAINT

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings against him.

THE LAW

The applicant’s complaint under Article 6 § 1 relates to the length of the criminal proceedings against him. 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...”

a. The Government contend that the applicant has failed to exhaust domestic remedies as he had not filed a hierarchical complaint ( Aufsichtsbeschwerde ) with any superior authority under Section 37 of the Public Prosecutor’s Act ( Staatsanwaltschaftsgesetz ) in order to accelerate the proceedings at the preliminary stage. Referring to the cases of Holzinger v. Austria (no. 23459/94, §§ 24-25, ECHR 2001-I) in which the Court found that a request under Section 91 of the Courts Act constitutes an effective remedy and Basic v. Austria (no. 29800/96, §§ 39-40, ECHR 2001-I) in which the Court found that an application under Article 132 of the Constitution against the administration’s failure to decide constitutes an effective remedy, they argue that the same applies to a hierarchical complaint under Section 37 of the Public Prosecutor’s Act. The applicant contests the Government’s view.

The Court reiterates that hierarchical appeals in the Austrian legal system do not give the right to an individual to the exercise by the State of its supervisory powers, and that any proceedings which do subsequently take place do not involve the participation of the individual who made the hierarchical appeal in the first place ( Lagler v. Austria , no. 16942/90, Commission decision of 13 April 1994, unreported). The Court also notes that the Government have not specified how this avenue could have remedied the length of the proceedings complained of. Thus, the Government’s preliminary objection on non-exhaustion has to be dismissed.

b. As to the period to be taken into consideration, the Court observes that the proceedings started at the latest on 30 September 1993, when the Customs Office transmitted its final investigation report to the Public Prosecutor’s Office and where terminated on 5 October 2000, when the final decision was served on the applicant’s counsel. They, therefore lasted more than seven years.

The Government contend that the length of the proceedings may still be regarded as reasonable and argue that they were extraordinarily  complex. In particular the great number of suspects some of which had absconded, the scope of the file and the necessary comprehensive investigation justified a longer duration of the proceedings. Moreover, they contend that the new Public Prosecutor appointed in the course of the preliminary proceedings had to be given some time to become familiar with the file. Lastly, they point out that after the indictment had been filed the courts dealt with the case with expedition.

The applicant contests the Government’s view and stresses that the change of the official competent at the Public Prosecutor’s Office may not justify the length of the preliminary proceedings of approximately six years.

T he Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

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

Michael O’Boyle Nicolas bratza Registrar President