FIFTH SECTION

DECISION

Application no. 35449/16 Siegfried STECHER against Austria

The European Court of Human Rights (Fifth Section), sitting on 3 December 20 19 as a Committee composed of:

Yonko Grozev , President , Gabriele Kucsko-Stadlmayer, Lado Chanturia, judges, and Milan Blaško , Deputy Sect i on Registrar ,

Having regard to the above application lodged on 15 June 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

The applicant, Mr Siegfried Stecher , is an Austrian national who was born in 1964 and lives in Thalham . He was represented before the Court by Mr J. Kirschner , a lawyer practising in Wels.

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

On 15 April 2015 the Linz Regional Court ( Landesgericht ) convicted the applicant of aggravated fraud under Articles 146 and 147 § 3 of the Austrian Criminal Code. He was found guilty for having caused a pecuniary loss in the amount of 53,748 euros (EUR) to the Pension Insurance Office ( Pensionsversicherungsanstalt ). The applicant was sentenced to two years ’ imprisonment, of which twenty months were suspended for a probationary period of three years.

The applicant appealed against this judgment and filed a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal against the sentence ( Strafberufung ) with the Supreme Court ( Oberster Gerichtshof ). He claimed in his plea of nullity, inter alia, that during the trial, several provisions of the Code of Criminal Procedure had been violated. In his appeal against the sentence, the applicant argued that the sentence was disproportionate.

By decision of 17 November 2015, the Supreme Court rejected the plea of nullity and forwarded the files to the Linz Court of Appeal ( Oberlandesgericht ) to decide on the appeal against the sentence.

On 1 January 2016, the Criminal Law Amendment Act 2015 ( Strafrechtsänderungsgesetz ) entered into force, by which, among other things, the threshold for aggravated fraud, as defined in Article 147 § 3 of the Criminal Code, was increased from EUR 50,000 to EUR 300,000. For aggravated fraud not reaching the threshold of EUR 300,000, Article 147 § 2 provides for a maximum of three years ’ imprisonment.

By judgment of 27 January 2016, the Court of Appeal reduced the applicant ’ s prison term to eighteen months suspended for a probationary period of two years.

The Court of Appeal based its judgment on the version of Article 147 § 3 of the Criminal Code, as in force before the Criminal Law Amendment Act of 2015 entered into force. In its reasoning the court stated, inter alia, that the new threshold of EUR 300,000 indicated that the severity of the offence committed by the applicant must be considered lower and it therefore reduced the imposed sentence.

Article 363a of the Code of Criminal Procedure ( Strafprozessordnung ), under the heading “Renewal of criminal proceedings” ( Erneuerung des Strafverfahrens ), provides as follows:

“1. If it is established by a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette [ Bundesgesetzblatt ] no. 210/1958) or one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held upon request, in so far as it cannot be ruled out that the violation might have affected the decision in a manner detrimental to the person concerned.

2. All applications for the renewal of proceedings shall be decided by the Supreme Court. Such an application may be filed by the person affected by the violation or the Prosecutor General ’ s Office; Article 282 § 1 shall be applicable by analogy. The application must be lodged with the Supreme Court. If the Prosecutor General ’ s Office has lodged an application, the person affected must be heard; if the person affected has lodged an application, the Prosecutor General ’ s Office must be heard; Article 35 § 1 of the Convention shall be applicable by analogy.”

On 1 August 2007 (case no. 13 Os 135/06 m) the Supreme Court allowed an application for the renewal of criminal proceedings under Article 363a of the Code of Criminal Procedure in a case where the applicant had not previously filed a human rights complaint with the Court. In so far as relevant, the Supreme Court stated:

“Given that Article 13 of the Convention requires a Contracting State to provide any person who shows with some plausibility that there has been a violation of his or her rights under the Convention and its Protocols with an effective remedy, in other words to ensure that there is a court at domestic level which examines questions of whether there has been a violation of Convention rights, Article 363a § 1 of the Code of Criminal Procedure must not be interpreted so as to allow an application for the renewal of criminal proceedings only in those cases where the European Court of Human Rights has already issued a judgment finding a violation of the Convention.”

In the same judgment, the Supreme Court further stated that it would apply the criteria set out in Article 35 of the Convention on the admissibility of an application for renewal of criminal proceedings under Article 363a also in cases which had not been previously examined by the Court and in which no judgment of the Court had been issued. For an extensive summary of the Supreme Court judgment, see ATV Privatfernseh ‑ GmbH v. Austria ( dec. ), no. 58842/09 , § 19, 6 October 2015.

Since 2008, the Supreme Court has decided in numerous cases on requests lodged under Article 363a of the Code of Criminal Procedure (as a recent case-law example, 14 Os 142/18s of 25 June 2019).

In cases where an applicant had already filed a plea of nullity, the Supreme Court has regularly dismissed requests under Article 363a of the Code of Criminal Procedure (for example, the decisions of 23 October 2007, 11 Os 132/06f; 21 January 2008, 15 Os 156/07s; and 17 February 2009, 14 Os 178/08w). It found that “[ i ] f the alleged violation of human rights has already been raised in a plea of nullity previously lodged with the Supreme Court, a subsequent assertion of the alleged violation in an application for the renewal of proceedings is inadmissible on the ground of Art 35 § 2 (b) of the Convention, as it is substantially the same as a matter that has already been examined by the Supreme Court.” However, in its decision 14 Os 178/08w the Supreme Court specified that if the alleged violation of human rights had not previously been raised in the plea of nullity, the applicant had not complied with the requirement of exhaustion of all national remedies.

Pursuant to Article 61 of the Criminal Code, provisions of criminal law shall apply to offences committed after they came into force. They may only be applied to earlier offences if the laws in force at the time of their commission were, in their overall impact, less favourable for the offender.

However, the Court of Appeal can only take into account any legislative changes as long as a conviction has not become final (in whole or in part). The combination of a conviction pursuant to an old law and a sentence pursuant to a new law is not permitted (decision of the Supreme Court of 27 May 2003, 11 Os 95/02). This is the case if a person criminally convicted only appeals against his or her sentence and not the conviction as such, or if the Supreme Court has already rejected his or her plea of nullity. In such cases the Court of Appeal can no longer take into account legislative changes related to the classification of a criminal action (or omission) under a specific criminal law provision (RIS- Justiz RS0117810 , most recently reiterated in the decision of 5 April 2017, 13 Os 125/16).

COMPLAINT

The applicant complained under Article 7 of the Convention that the Court of Appeal in its judgment of 27 January 2016 applied the more stringent version of Article 147 § 3 of the Criminal Code, which at the time of the judgment was not in force anymore.

THE LAW

Article 7 of the Convention reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

The Government submitted that the applicant had failed to exhaust domestic remedies because he had not lodged an application for the renewal of the criminal proceedings under Article 363a of the Code of Criminal Procedure against the judgment of 27 January 2016. Such an application could have been lodged on the basis of the Supreme Court ’ s decision of 1 August 2007.

The Government further argued, in relation to a plea of nullity, that only the Supreme Court could decide on the nullity grounds raised therein. Since, at the time of the Supreme Court ’ s decision, the new version of Article 147 § 3 of the Criminal Code had not yet entered into force, neither the applicant nor the Supreme Court ex officio could have claimed nullity in the instant case. Therefore, the Supreme Court would have had to address for the first time the issue of applying a more favourable criminal law provision in appeal proceedings concerning the sentence. The Government concluded that an application for the renewal of criminal proceedings pursuant to Article 363a of the Code of Criminal Procedure would not have been futile from the outset and would therefore have constituted an effective legal remedy.

This was disputed by the applicant, who submitted that an application for renewal of criminal proceedings pursuant to Article 363a of the Code of Criminal Procedure was not a proper legal remedy, but an extraordinary remedy. That provision explicitly referred to a judgment of the Court. In addition, the Supreme Court ’ s case-law could change. The applicant would therefore run the risk that the deadline for filing a complaint with the Court would expire, if the Supreme Court changed its case-law to the effect that such an application could not be filed before a judgment of the Court was delivered.

The Court reiterates that the object of the rule on exhaustion of domestic remedies is to allow the national authorities to address allegations that a Convention right has been violated and, where appropriate, to afford redress before those allegations are submitted to the Court (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004 ‑ III and KudÅ‚a v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI).

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged (see Mifsud v. France ( dec. ) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII, with further references). Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non ‑ exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been discharged, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, inter alia , V v . the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999 ‑ IX). The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009; Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001-IX).

The Court has already found in ATV Privatfernseh -GmbH v. Austria (cited above) that an application for renewal of criminal proceedings under Art 363a of the Code of Criminal Procedure was an effective remedy. In the instant case, the applicant was unquestionably the defendant in the proceedings at hand. In principle, the applicant was therefore entitled to file an application for renewal of criminal proceedings. However, it remains to be examined whether the applicant was excluded from this right, as he had already filed a plea of nullity with the Supreme Court (see Batista Laborde v. Austria ( dec. ), no. 41767/09, §§ 30-32, 2 February 2016).

The Court notes that the Supreme Court explicitly applies the admissibility criteria of the Convention on applications for renewal of criminal proceedings (see the Supreme Court ’ s case-law as set out above). The Supreme Court – so far – has essentially stated two reasons for the inadmissibility of applications under Art 363a of the Code of Criminal Procedure when a plea of nullity had already been lodged with it at an earlier stage (for example, decision of 17 February 2009, 14 Os 178/08w):

1) The application was substantially the same, since the applicant had raised the alleged violations of the Convention already in his plea of nullity;

2) the applicant did not exhaust domestic remedies, since no plea of nullity was filed or the applicant failed to raise the alleged violations in the plea of nullity.

The Court notes that in the instant case, the applicant complains of the judgment of the Court of Appeal, which was rendered after the Supreme Court took its decision on the plea of nullity. The applicant therefore could not have raised the alleged violation of Article 7 of the Convention in his plea of nullity. Therefore, the plea of nullity which the Supreme Court determined on 17 November 2015 on the one hand, and a potential application for a renewal of the criminal proceedings in regard of the judgment of the Court of Appeal of 27 January 2016 on the other hand undoubtedly would not have been substantially the same. As regards the exhaustion of domestic remedies, the applicant cannot be reproached for not having raised the alleged violation already in his plea of nullity, as the alleged violation took place after the Supreme Court ’ s decision. However, as the alleged violation only occurred after the Supreme Court had decided on his plea of nullity, the Court, having regard to its own case-law as set out above (see Scoppola , cited above, § 70), agrees with the Government that an application under Article 363a of the Code of Criminal Procedure under the circumstances did not appear futile from the outset. In order to comply with the obligation of exhaustion of domestic remedies, the applicant therefore would have had to make use of this – meanwhile well-established – legal remedy.

Hence, the applicant failed to exhaust all domestic remedies and the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 January 2020 .

Milan Blaško Yonko Grozev Deputy Registrar President