THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39205/98 by Franz DIRNBERGER against Austria

The European Court of Human Rights (Third Section) , sitting on 16 January 2003 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr J. Hedigan ,

Mrs H.S. Greve , Mr K. Traja ,

Mrs E. Steiner , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 24 September 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Franz Dirnberger, is a Austrian national, who was born in 1936 and lives in Vienna . He was represented before the Court by Mr G. Kollmann, a lawyer practising in Vienna.

A. The circumstances of the case

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

At the relevant time the applicant was the owner of several firms, whose business was trading in fowl and game as well as the processing, importation and exportation of meat. From 1975 onwards, one of the firms imported meat, processed it and re-exported it without putting it on the domestic market. Such an activity is exempted from restrictions to which the ordinary importation of meat is subject and the applicant was accordingly issued a permit for inward processing ( aktiver Veredelungsverkehr ) setting out the conditions for import and export.

On 25 June 1981 the Investigating Judge at the Vienna Regional Court ( Landesgericht ) instituted preliminary investigations against the applicant as he suspected him of having breached the conditions of the inward processing permit by having exported a different quality of meat than he had imported and by having put the imported meat onto the domestic market without having paid the custom duties. These acts constituted offences under the Act on Fiscal Offences ( Finanzstrafgesetz ), the Trade in Animals Act ( Viehwirtschaftsgesetz ) and the Export Act ( Aussenhandelsgesetz ). Subsequently, the Investigating Judge ordered searches at the offices of the applicant’s firms and at the cold storage depots where the meat had been put. The applicant’s stock of meat was seized.

On 24 June 1982 bankruptcy proceedings ( Konkursverfahren ) were opened against the applicant and, at an unspecified date, he was declared bankrupt. On 12 October 1983 the applicant was arrested and remanded in custody on suspicion of fraud. In 1984 he was convicted of that offence and sentenced to two and a half years’ imprisonment. Subsequently, he was convicted of other criminal offences on two occasions and sentenced to further terms of imprisonment. In 1992 he was eventually released.

Meanwhile, on 25 February 1987 the Vienna Customs Office submitted a report on the charges in respect of which the proceedings had been opened on 25 June 1981 to the Public Prosecutor’s Office and supplemented this report on 23 October 1987.

The Animals and Meat Commission ( Vieh - und Fleischkommission ), the authority competent under the Trade in Animals Act to decide on the relevant amount for the assessment of the fine, gave its decision on 30 December 1987. On 15 February 1988 the applicant appealed against this decision and on 31 October 1990 the competent Federal Minister dismissed the appeal. On 25 September 1991 the Administrative Court dismissed a complaint by the applicant against the Animals and Meat Commission’s decision.

In the meantime, on 26 February 1990, the Vienna Customs Office ( Zollamt ) issued tax orders claiming outstanding customs duty and importation turnover tax ( Einfuhrumsatzsteuer ). It considered that the customs privileges linked to the inward processing permit were no longer applicable to certain quantities of meat imported in 1980. On 7 May 1990 the applicant appealed.

On 28 January 1994 the Vienna Public Prosecutor’s Office filed an indictment against the applicant charging him with the offences in respect of which preliminary investigations had been opened on 25 June 1981. Subsequently an ex officio defence counsel was appointed for the applicant, who filed objections to the indictment. On 24 June 1994 the Regional Court dismissed these objections as unfounded.

On 31 May 1994 the applicant was summoned to attend trial before the Regional Court on 12 and 13 July 1994. Since the applicant was in hospital, the trial could not take place and was postponed to 14 and 15 July 1994. Again, the applicant did not appear. The trial was adjourned and a warrant of arrest issued.

On 13 February 1995 the Regional Court interrupted the proceedings as the applicant’s address was unknown.

On 31 Mai 1995 the Vienna Public Prosecutor requested the Regional Court to discontinue the proceedings in accordance with the 1995 Amnesty Act in respect of all criminal offences committed before 27 April 1980. According to Section 1 § 3 of this act criminal proceedings concerning charges with offences which had been committed before 27 April 1980 and where the maximum sanction did not exceed three years’ imprisonment may be discontinued.

On 19 December 1996 a new summons for trial on 22 April 1997 was served on him.

On 27 December 1996 the competent Regional Tax Authority ( Finanzlandesdirektion ) quashed the Customs Office’s orders of 26 February 1990. If found that, in part, the customs and tax assessment proceedings had become time-barred and, in respect of the remaining charges, it accepted the applicant’s argument that under the permit for inward processing he had exported the same meat as he had previously imported but, as a favour to his clients, he had entered a different quality of meat in the export declaration.

On 16 April 1997 the Regional Court discontinued the criminal proceedings.

B. Relevant domestic law

Section 91 of the Courts Act ( Gerichtsorganisationsgesetz ), which has been in force since 1 January 1990, provides as follows.

"(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith.

(2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request.

(3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal."

Section 73 of the General Administrative Procedure Act ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities’ duty to decide. So far as relevant and as in force at the time of the events, the provision reads as follows:

“(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay, and at the latest six months after the application or appeal has been lodged.

(2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request ( Devolutionsantrag ). ...This request has to be refused by the competent superior authority if the delay was not caused by preponderant fault of the authority.

(3) The period for giving a decision by the superior authority runs from the date the request for transfer of jurisdiction was lodged with it.”

Section 311 of the Federal Tax Code ( Bundesabgabenordnung ) deals with the tax authorities’ duty to decide. So far as relevant and as in force at the time of the events, the provision reads as follows:

“(1) The tax authorities must give a decision on applications by parties as provided for in the tax law without unnecessary delay.

(2) If a decision by a tax authority of first instance is not communicated to the party within a period of six months after the application has been lodged, jurisdiction will be transferred to the authority of second instance upon the party’s written request. ...”

Where the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, fails to decide within six months, an application under Article 132 of the Constitution against the administration’s failure to decide ( Säumnisbeschwerde ) can be lodged with the Administrative Court.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention of the length of criminal proceedings against him.

THE LAW

The applicant complains of the length of the criminal proceedings against him. He relies on Article 6 § 1 of the Convention which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submit that the applicant has failed to exhaust domestic remedies to speed up the proceedings. He failed to file a request for the setting of a time-limit under Section 91 of the Court Organisation Act once this remedy had become existent as from 1 January 1990 on. According to the Court’s case-law in the cases of Holzinger v. Austria and Holzinger v. Austria (No. 2), such a request is an effective remedy which has to be used in the context of complaints about the length of proceedings. Furthermore, the applicant  failed to file requests for transfer of jurisdiction to the superior authority in case the competent authority would fail to decide a matter within the statutory six months time-limit ( Devolutionsantrag ) in respect of those preliminary questions which had to be examined by administrative or tax authorities.

This is disputed by the applicant. He submits that in the particular circumstances of his case the remedies referred to by the Government could not be considered as efficient.

The Court recalls that in the cases of Holzinger (no. 1) v. Austria it found that an application under Section 91 of the Courts Act - which was an interlocutory application to a court whereby a higher court was requested to fix an adequate time-limit for taking a procedural measure which the lower court had failed to take - must be considered an effective and sufficient remedy which has to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria , no. 23459/94, 30.01.01, §§ 24-25, 30 January 2001). Nevertheless, the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole (loc. cit., § 22). If, during the course of proceedings the remedy under Section 91 is not available for a substantial part of those proceedings, then that remedy cannot be regarded as being one which is "effective" ( Holzinger (no. 2) v. Austria , no. 28898/95, §§ 21-22, 30 January 2001).

In the present case the proceedings started on 25 June 1981 and ended on 16 April 1997. While the proceedings were pending, Section 91 of the Courts Act entered into force on 1 January 1990. It was from that moment on that the applicant could have made an application under this provision. On that date, however, the proceedings had already lasted for some eight and a half years. This period during which the applicant had no remedy at his disposal against unreasonable delay was substantial. Even if the applicant would have filed an application under Section 91 of the Courts Act after 1 January 1990, any decision given under this provision which might have speeded up the proceedings could not have made up for delay which had already occurred. The present application must therefore be distinguished from the aforementioned Holzinger (no. 1) v. Austria case.

Accordingly, in the particular circumstances of the present case, a request under Section 91 of the Courts Act cannot be considered as an effective remedy.

The Government also argue that the applicant had a further remedy at his disposal which he had not made use of, namely a request for transfer of jurisdiction under Section 73 of the Code of General Administrative Procedure ( Allgemeines Verwaltungsverfahrensgesetz ) as regards preliminary proceedings pending before administrative authorities or, as regards custom authorities, under Section 311 of the Federal Tax Code ( Bundesabgabenordnung ).

The Court does not consider it necessary in the present case to decide in general whether an application for transfer of jurisdiction under the said provisions may constitute an effective remedy against delays attributable to administrative authorities. Rather it must decide whether such a remedy was an effective one which the applicant had been obliged to make use of in the particular circumstances of the case.

In the present case, the applicant was involved in criminal proceedings in the course of which several preliminary questions had to be decided by authorities not competent in the criminal proceedings but in tax assessment matters or administrative issues which were preliminary questions in tax matters.

The Court has accepted that also in criminal matters an applicant who complains about the excessive length of criminal proceedings has the obligation to make efforts for accelerating these proceedings ( Tomé Mota v. Portugal (Dec.), no. 32082/96, ECHR 1999-IX; Talirz v. Austria (Dec.), no. 37323/97, 30 May 2000). In the Court’s view, however, it would mean excessively to stretch the obligation to accelerate proceedings if it would  comprise the obligation to take such steps in all kinds of proceedings in which preliminary issues were decided. In any event, even if the applicant had made requests under Section 73 of the General Administrative Procedure Act or Section 311 of the Federal Tax Code, respectively, in the preliminary administrative proceedings, such a remedy would only have had an indirect effect because, before January 1990, he did not have a means to accelerate the criminal proceedings themselves. Thus, even if he had taken steps for accelerating the administrative proceedings, this would not have given him protection against undue delays in the criminal proceedings. In such circumstances the Court cannot find that the above requests are effective remedies either.

The Government’s preliminary objection of non-exhaustion must therefore be rejected.

As regards the merits of the complaint the Government submit that the criminal proceedings had been complex, as they involved numerous single charges, some of which only had been discovered in the course of the continuing investigations. Moreover, in the course of the investigations numerous request for administrative assistance had to be submitted to foreign custom and police authorities and at various stages the Austrian courts had to wait for decisions by domestic administrative authorities on preliminary questions. While the Austrian courts, once the preliminary investigations had been completed, dealt expeditiously with the applicant’s case, several delays were caused by him because he repeatedly appealed against interim decisions and, on two occasions, did not appear for the trial.

This is disputed by the applicant who maintains that the excessive length of the criminal proceedings against him is clearly the fault of the Austrian authorities.

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.

For these reasons, the Court unanimously

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

Vincent Berger Georg Ress Registrar President