FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41444/98 by Otto HENNIG against Austria

The European Court of Human Rights (First Section), sitting on 23 May 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 March 1998 and registered on 2 June 1998,

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 partial decision on admissibility by the European Court of Human Rights of 4 September 2001,

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, Otto Hennig , is an Austrian national, born in 1938 and living in Oberwart (Austria). He is represented before the Court by Amhof , Damian & Partners, a law firm practising in Vienna.

A. The circumstances of the case

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

In December 1989, the Salzburg Tax Office ( Finanzamt ), in the course of investigations into a large scale fraud relating to the “WEB/IMMAG” group, instituted criminal proceedings against 97 persons, requesting them to submit in writing their comments as suspects.

On 14 December 1989 the applicant, an auditor and tax consultant ( Wirtschaftstreuhänder ), who, inter alia , assisted the “WEB/IMMAG” group, wrote a letter to the Oberwart Tax Office. In this letter he asked that his income tax declarations for the years 1985 to 1987 be corrected, so that the losses declared therein be cancelled and, following a re-calculation of his income, new tax assessment orders be issued.

1. Investigations by the Tax Authorities against the applicant for tax evasion

On 27 and 28 December 1989 the Salzburg Tax Office informed the applicant that he was suspected of tax evasion in that he had acted in three cases as a sham holder of shares of a total value of some ATS 1,76 million. It further invited him to submit his comments in writing.

After the applicant’s request of 15 January 1990 for an extension of the time-limit had been granted, he submitted his comments on 31 January 1990.

Until 29 October 1992 the Salzburg Tax Office for the Audit of Large-scale Companies ( Großbetriebsprüfung ) examined the WEB/IMMAG group.

On 22 March 1993 the Salzburg Tax Office requested the Oberwart Tax Office to transmit the applicant’s tax files in order to determine the amount of evaded taxes.

On 17 May 1993 the Oberwart Tax Office replied to the Salzburg Tax Office that the file could not be transferred because of pending investigations.

Following another request for transfer of the file by the Salzburg Tax Office on 23 July 1993, the Oberwart Tax Office, on 24 January 1994, replied that the file had been sent to the Vienna Tax Office for the Audit of Large-scale Companies and could only be transmitted after these investigations had been completed.

Upon the Salzburg Tax Office’s request of 28 January 1994, the Vienna Tax Office for the Audit of Large-scale Companies transferred the applicant’s files on 25 May 1994.

On 3 June 1994, the Salzburg Tax Office informed the Salzburg Public Prosecutor’s Office of the result of its investigations and requested that the applicant be prosecuted.

On 8 August 1994, the applicant, when interrogated by the Oberwart District Court, stated that he wished to submit his comments in writing directly to the Salzburg Regional Court by 31 August 1994. On that date and on 30 September 1994, he requested extensions of the time-limit as he had fallen ill. On 27 January 1995, he submitted his comments and observations in writing.

2. Court proceedings against the applicant

On 9 February 1995 the Public Prosecutor’s Office preferred a bill of indictment against the applicant charging him with tax evasion, in that he had made false statements in his income tax forms between 1985 and 1987.

On 31 March 1995, the presiding judge of the chamber dealing with the applicant’s case informed the President of the Regional Court that he considered himself biased since he had been the deputy investigating judge in proceedings against other accused relating to the same case. On 21 June 1995, the President decided that the presiding judge should not stand down from the case. He found that, as investigating judge, the presiding judge had not interrogated any of the persons involved in the present proceedings. Nor had he taken any other action, which might indicate that he was biased.

On 4 September 1995 the applicant requested that the trial scheduled for 13 September 1995 be adjourned, since his defence counsel had been summoned to participate in a manoeuvre of the armed forces from 6 to 15 September 1995 and he did not wish to be represented by a substitute lawyer.

On 22 November 1995 the Regional Court convicted the applicant, pursuant to section 33 § 1 of the Code of Tax Offences ( Finanzstrafgesetz ), of tax evasion.

On 29 October 1996 the written version of the judgment was served on the applicant’s counsel. Thereupon, on 26 November 1996, the applicant filed a plea of nullity ( Nichtigkeitsbeschwerde ) and requested that the transcripts of the trial be corrected. On 4 February 1997 the Salzburg Regional Court, after having obtained various statements, corrected the transcripts.

On 28 May 1997 the Procurator General ( Generalprokurator ) submitted his observations on the applicant’s plea of nullity.

On 25 June 1997 the Supreme Court scheduled the hearing on the plea of nullity for 29 July 1997. On that day the Supreme Court dismissed the applicant’s plea of nullity. This decision was pronounced orally. On 2 October 1997 the written version of the judgment was served on the applicant’s counsel.

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 91 of the Courts Act applies to all kind of proceedings before the ordinary courts, be it civil or criminal ones. It does not apply to proceedings before administrative authorities.

COMPLAINT

The applicant’s complaint concerns the length of the criminal proceedings against him under Article 6 § 1 of the Convention.

THE LAW

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

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

a) The Government contend that the applicant failed to exhaust domestic remedies as he did not make an application under Section 91 of the Courts Act. In the Government’s view such an application is an effective remedy as its use would have reduced the length of the proceedings.

The applicant submits that a Section 91 request could not have been made while the proceedings were pending before the administrative authorities. In any event it would not have significantly accelerated the proceedings.

The Court recalls that in the case of Holzinger v. Austria it found that a request under Section 91 of the Austrian Courts Act was, in principle, an effective remedy which had to be used in respect of complaints about the length of court proceedings ( Holzinger v. Austria , no. 23459/94, §§ 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, more than five years and one month elapsed before the Public Prosecutor filed the bill of indictment. During this time investigations were pending against the applicant before the tax authorities. The Court observes that under Austrian law a Section 91 request can only be made in respect of proceedings pending before ordinary courts, whereas no such request could have been made while the tax authorities carried out their investigations. The Court finds that the period, during which these investigations were conducted, was substantial and that in such circumstances a Section 91 request cannot be regarded an effective remedy. Accordingly, the Government’s preliminary objection must be dismissed.

b) As regards the length of the period to be taken into consideration under Article 6, the Government submit that the proceedings lasted from 27 December 1989 until 25 June 1997, when the Supreme Court pronounced its judgment . The Government submit further that the proceedings were particularly complex as they concerned highly complicated and time consuming investigations into a sophisticated network of some 400 companies and the financial relations among them within the framework of the WEB/IMMAG group. During the preliminary investigations the disclosure of some 800 bank accounts was ordered in Austria and abroad, 410 letters rogatory were prepared and transferred to foreign judicial authorities and some 8,000 volumes of documents were seized and examined. Moreover, several delays were caused by the applicant who repeatedly requested extensions of time-limits, adjournment of the proceedings and that the transcripts of the hearings be corrected.

In the applicant’s view the relevant time ended on 2 October 1997, when the written version of the judgment was served on his lawyer. He further submits that his case was not complex as the amount of additional taxes due was not in dispute. On the contrary, he himself had provided the information necessary for his tax assessments to be corrected. Considerable delays had been caused by the tax authorities before the bill of indictment had been drawn up by the Public Prosecutor. Thus, the “reasonable time” requirement laid down in Article 6 § 1 of the Convention has not been complied with.

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 by a majority

Declares admissible, without prejudging the merits, the applicant’s complaint about the length of the criminal proceedings.

Erik fribergh Christos rozakis Registrar President

HENNIG v. Austria

41444/98

Summary of the applicant’s observations in reply

As regards the Government’s preliminary objection, the applicant contends that an application of Section 91 of the Courts Act would not have been an effective remedy to expedite the proceedings, since it was not applicable during the time of the investigations conducted by the Tax Office and when the case was pending before the Prosecutor’s Office.

a) As regards the period before the drawing up of the bill of indictment, the applicant contests the Government’s view that his case was complex. He submits that his case has to be considered separately from proceedings instituted and pending against other persons. In particular, the Government failed to explain the delay for the transfer of his files to the Salzburg Tax Office.

b) As to the judicial proceedings, he states that any delays caused by him were of minor importance and did not significantly prolong the proceedings.

c) In the applicant’s view, an overall assessment, reference being made to the Court’s findings in the Schweighofer v. Austria case, leads to the conclusion that the proceedings exceeded the reasonable time requirement.