FIFTH SECTION

DECISION

Applications nos. 10487/16 and 10502/16 Gordana SAVIC against Austria

The European Court of Human Rights (Fifth Section), sitting on 15 September 2020 as a Committee composed of:

Ganna Yudkivska, President, Gabriele Kucsko-Stadlmayer, Mattias Guyomar, judges, and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having regard to the above applications both lodged on 15 February 2016,

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

1 . The applicant in both cases, Ms Gordana Savic , is a national of Bosnia and Herzegovina, who was born in 1977 and lives in Bregenz . She is employed by a gaming company and works as regional manager. She was represented before the Court by Mr M. Paar , a lawyer practising in Vienna.

2 . The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy , Head of the International Law Department at the Ministry for Europe, Integration and Foreign Affairs. The Government of Bosnia and Herzegovina did not make use of their right to intervene .

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

4 . In the first case (application no. 10487/16), on 30 September 2011 the Hohenems police carried out an inspection under the Gaming Act ( Glücksspielgesetz ) in a gambling house ran by the gaming company the applicant has worked for. The applicant handed to the police officers the keys for the money deposit box of the gaming machines but refused to submit any information to the police officers. The police tested the gaming machines and finally confiscated them.

5 . On 19 June 2012 the Dornbirn District Authority ( Bezirkshauptmannschaft ) convicted the applicant under section 52 § 1 (5) in conjunction with 50 § 4 of the Gaming Act and fined the applicant EUR 1,000 (thousand euros) with 16 hours of imprisonment in case of default for violating her legal obligation to cooperate.

6 . On 16 September 2013 the Bregenz Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) did not grant the applicant ’ s appeal and confirmed the sanction imposed on the applicant. In the hearing the applicant had stated that she had refused to provide information to the police in order not to incriminate herself. Furthermore she had shown the police a private-law instruction of her employer prohibiting giving any information to the authorities concerning the company ’ s operating procedures.

7 . In the second case (application no. 10502/16), on 28 March 2012 the Bregenz financial police conducted an inspection under the Gaming Act in another gambling house of the same gaming company. The applicant handed over the keys and a chip card disclosing the accounting in respect of the gaming machines. Despite being legally instructed about the consequences of noncompliance, she refused to take part in a recorded questioning or to disclose any information. As in the first case, the police confiscated the gaming machines after having tested them.

8 . On 23 October 2012 the Bregenz District Authority convicted the applicant under section 52 § 1 (5) in conjunction with 50 § 4 of the Gaming Act and fined the applicant EUR 1,000 (thousand euros) with 15 hours of imprisonment in case of default for violating her legal obligation to cooperate.

9 . On 7 April 2014 the Vorarlberg Regional Administrative Court rejected the applicant ’ s appeal and confirmed the sanction imposed on the applicant. In the hearing before the Vorarlberg Regional Administrative Court the applicant had given the same reasons for her refusal to provide any information to the police as in the first case.

10 . On 20 February 2014 and on 5 June 2014 the Constitutional Court declined to deal with both of the applicant ’ s complaints against the decisions of the Bregenz Independent Administrative Panel and the Vorarlberg Regional Administrative Court because they lacked any prospect of success. The Constitutional Court emphasised that, on the one hand, there was no connection between the demand for information and any criminal proceedings. On the other hand, the obligation under section 50 § 4 of the Gaming Act to contribute to the establishment of the facts or to provide information in terms of facilities and their functionality were in accordance with the Constitution as its typical and intended consequence was not to coerce to confess to a crime. The case was subsequently referred to the Administrative Court.

11 . On 29 July 2015 the Administrative Court dismissed both applicants ’ complaints against the decisions of the Bregenz Independent Administrative Panel and the Vorarlberg Regional Administrative Court. It stated that the applicant was a person providing gaming facilities within the meaning of section 50 § 4 of the Gaming Act ( Bereithalten einer Gl ü ckspieleinrichtung ) since she had disposed of the corresponding keys and, in the second case, also of the chip card. For this reason she had been under the obligation to provide the authorities comprehensive information. The applicant, in the capacity of a regional manager, could not have been prosecuted under the Gaming Act apart from the noncompliance with the obligation to disclose information under section 50 § 4 of that Act, as she had to be considered a person providing gaming machines but not someone who organised the operaton of gaming machines ( Veranstalter , Anbieter ) . There was also no indication of criminal liability under the Penal Code ( Strafgesetzbuch ). These decisions were served on the applicant ’ s lawyer on 17 and 18 August 2015 respectively.

12 . Sections 50 and 52 of the Gaming Act ( Glücksspielgesetz ), as in force at the relevant time, read as follows in their relevant parts:

“SANCTIONS AND PROCEDURAL PROVISIONS

Authorities and procedures

Section 50

(1 ) ...

(4) The authority under § 1 and the bodies referred to in §§ 2 and 3 are entitled to enter premises and facilities to implement their monitoring functions, even if this is otherwise generally prohibited, to the extent that doing so is necessary to monitor compliance with the provisions of this Federal Law. Promoters and owners, as well as persons who provide gaming facilities shall be required to submit comprehensive information to the authority in accordance with § 1, the official experts (section 1 § 3) and the bodies of public supervision, enabling comprehensive audits and test games and to provide an insight into the records kept as well as the game descriptions to be issued in accordance with this Federal Law.”

“Administrative penalties

Section 52

(1) An administrative offence punishable by the authority with a fine of up to EUR 22,000 is committed by anyone who

1. hosts , organizes, or makes accessible in an entrepreneurial way, or participates as entrepreneur ... in prohibited gaming in the sense of Art. 2 § 4 for the participation from within domestic territory;

...

5. infringes a provision of the regulation required under section 2 § 3, the obligation to provide game descriptions, the obligation to display under section 4 § 6 or the duty to tolerate or to cooperate under section 50 § 4”

13 . In its decision of 20 June 2012, no. 2012/17/0114, the Administrative Court explained in more detail the term “providing gaming facilities” ( Bereithalten einer Glückspieleinrichtung ) within the meaning of section 50 § 4 of the Gaming Act. According to the Administrative Court a person who provides gaming facilities is someone who enables third persons in practical terms to use a gaming machine, an activity which the legislator distinguished from organising the use of gaming machines ( veranstalten , anbieten ). The term “providing” thus did not imply any legal and contractual connection to the gaming machines themselves such as being the contractual partner of the person using it. The intention of the legislator was to establish an obligation to give information for those persons who did not organise gaming themselves but who, by their conduct, made it possible that gaming took place and who in case of an inspection were typically the only ones who could give information to the authorities, as the organisers of gaming would not be present.

COMPLAINTS

14 . The applicant complained under Article 6 of the Convention that the penalties for not providing comprehensive information to the police violated her rights to remain silent and not to incriminate herself as well as the presumption of innocence. If the applicant had complied with the authorities ’ order she would have incriminated herself at least in terms of complicity in illegal gambling as she was in charge of the gaming machines to be operational. The test games and the confiscation of the gambling machines showed that the police, at the time of the questioning, already had the suspicion of illegal gambling.

THE LAW

15 . The applicant alleged, as set out above, that the punishment imposed on her infringed her right to remain silent and not to incriminate herself as well as the presumption of innocence under Article 6 § 1 and § 2 of the Convention which read as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

16 . The Government submitted that Article 6 of the Convention was not applicable under its “criminal” head because the applicant could not be punished under the Gaming Act (except for violating her duty to provide information). There were no judicial criminal proceedings against the applicant in connection with that duty. Furthermore, the Administrative Court had repeatedly held that in case of controls to review compliance with the provisions of the Gaming Act there was not yet a situation where the right to remain silent because of feared self-incrimination took effect. As to the merits, the Government pointed out that there was a difference between proceedings under section 50 § 4 of the Gaming Act ensuring compliance with the Gaming Act (and a possible punishment under section 52 § 1 (5) of the Gaming Act for violating the obligation to cooperate and to provide information) on the one hand, and administrative criminal proceedings relating to the hosting or organization of illegal gaming, or making such games accessible in an entrepreneurial way pursuant to section 52 § 1 (1) of the Gaming Act on the other hand. Information proceedings under section 50 § 4 of the Gaming Act were separate proceedings which did not necessarily lead to administrative criminal proceedings. Within the framework of monitoring compliance with the provisions of the Gaming Act, Section 50 § 4 of the Gaming Act, as the Constitutional Court had stressed in its decision of 20 February 2014 (see paragraph 10 above), rather contained a general obligation to contribute to the establishment of the facts, from which no coercion to confess to a criminal offence could be inferred.

17 . The applicant did not contest that she had been providing gaming machines within the meaning of section 50 § 4 of the Gaming Act and had been subject of this legal obligation. She argued however that the right to remain silent and the privilege against self ‑ incrimination in terms of Article 6 of the Convention might even apply when there was no connection to other proceedings. Otherwise the authorities were enabled to undermine these rights by not opening a case officially. Moreover, the obligation to provide information ended when there was a suspicion of a criminal offence which, in the present case, occurred when the police were testing the gaming machines. Furthermore, as the government bill for the Amendment of the Gaming Act (Federal Law Gazette I, no. 54/2010) showed, the obligation to provide information aimed at obtaining evidence for the prosecution of illegal gambling.

18 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

19 . The Court can, however, leave open whether or not Article 6 is applicable under its “criminal” head, because the present applications are, in any event, manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention for the reasons set out below.

20 . The Court accepts that the right to silence and the right not to incriminate oneself guaranteed by Article 6 § 1 are not absolute rights (see Heaney and McGuinness v. Ireland , no. 34720/97 , §§ 43 ‑ 45, ECHR 2000 ‑ XII).

21 . Similarly, a person ’ s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her is not absolute, since presumptions of fact or law operate in every criminal ‑ law system and are not prohibited in principle by the Convention, as long as States remain within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence (see Salabiaku v. France , 7 October 1988, § 28, Series A no. 141 ‑ A).

22 . It also follows from the Court ’ s case-law that the privilege against self-incrimination does not per se prohibit the use of compulsory powers to obtain information outside the context of criminal proceedings against the person concerned. For instance, it has not been suggested that the procedure whereby the applicant was requested to answer questions on his company and financial affairs, with a possible penalty of up to two years ’ imprisonment, in itself raised an issue under Article 6 § 1 ( Saunders v. the United Kingdom , 17 December 1996, § 67, Reports of Judgments and Decisions 1996 ‑ VI ; Weh v. Austria , no. 38544/97, § 44, 8 April 2004; Ibrahim and Others v. the United Kingdom , nos. 50541/08 and 3 others, § 267, 16 December 2014) . Moreover, in another case the Court found that a requirement to make a declaration of assets to the tax authorities did not disclose any issue under Article 6 § 1, although a penalty was attached to a failure to comply and the applicant was actually fined for making a false declaration. The Court noted that there were no pending or anticipated criminal proceedings against the applicant. The fact that he may have lied in order to prevent the revenue authorities from uncovering conduct which might possibly lead to a prosecution did not suffice to bring the privilege against self-incrimination into play (see Allen v. the United King dom ( dec. ), no. 76574/01, § 1, ECHR 2002 ‑ VIII). Indeed, obligations to inform the authorities are a common feature of the Contracting States ’ legal orders and may concern a wide range of issues (see for instance, as to the obligation to reveal one ’ s identity to the police in certain situations, Vasileva v. Denmark , no. 52792/99, § 34, 25 September 2003).

23 . In the present cases, before the police were able to ask concrete questions, the applicant refused to provide any information to the authorities with reference to the above-mentioned private ‑ law instruction of her employer. The applicant did not explain why she feared incriminating herself by answering questions under section 50 § 4 of the Gaming Act, e.g. as to the functionality of the gaming machines, the kind of games being offered or the amount of the stakes to be played with (see the decision of the Constitutional Court of 20 February 2014, paragraph 10 above).

24 . In the present cases, the compulsion to give information to the authorities flowed from the fact that persons who are providing games of chance subject themselves to a regulatory regime involving certain responsibilities and obligations (see for similar situations O ’ Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 57, ECHR 2007 ‑ III ; Lückhof and Spanner v. Austria , nos. 58452/00 and 61920/00, § 53, 10 January 2008).

25 . In addition, the applicant has not claimed that during the inspections there were proceedings pending against her concerning illegal gambling, either under administrative or under ordinary criminal law. Furthermore, it does not transpire from the file that the authorities suspected the applicant of any such offence (see Weh , cited above , § 53). As a result, there is nothing to show that the applicant was “substantially affected” so as to consider her being “charged” with the offence of providing illegal draws or any other criminal offence within the autonomous meaning of Article 6 § 1 (see Heaney and McGuinness , cited above, § 41, with a reference to Serves v. France , 20 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI; Weh , cited above , § 54).

26 . The Court reiterates that it is not called upon to pronounce on the existence or otherwise of potential violations of the Convention (see mutatis mutandis, Soering v. the United Kingdom , 7 July 1989, § 90, Series A no. 161). There is no reason to doubt that, had the authorities proceeded to put questions to the applicant suggesting a suspicion against her, she would have been free to invoke her right to remain silent. However, no such situation occurred in the present case. In the concrete circumstances of the present case, the Court considers that the link between the applicant ’ s obligation under Article 50 § 4 Gaming Act to provide comprehensive information to the authorities and possible criminal proceedings remained remote and hypothetical.

27 . Against this background, the penalties imposed on the applicant for the complete refusal to provide any information to the authorities under section 50 § 4 of the Gaming Act do not raise an issue with regard to the applicant ’ s right to remain silent and the privilege against self-incrimination under Article 6 § 1 or the presumption of innocence under Article 6 § 2.

28 . In view of the above, the Court finds that the complaints are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 8 October 2020 .

Anne-Marie Dougin Ganna Yudkivska Acting Deputy Registrar President