FOURTH SECTION

DECISION

Application no . 24714/12 Eduard MOSCHITZ against Austria

The European Court of Human Rights (Fourth Section), sitting on 12 January 2016 as a Committee composed of:

Vincent A. D e Gaetano, President, Egidijus KÅ«ris , Gabriele Kucsko-Stadlmayer, judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 19 April 2012,

Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Eduard Moschitz, is an Austrian national, who was born in 1969 and lives in Vienna. His application was lodged on 19 April 2012. He was represented before the Court by Ms M. Windhager and Mr R. Soyer, two lawyers 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 Federal Ministry for European and International Affairs.

3. On 8 July 2013 the application was communicated to the Government.

A. The circumstances of the case

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

5. The applicant is a journalist and the editor of “At the Scene” (“ Am Schauplatz ”), a documentary series produced by the Austrian Broadcasting Corporation ( ORF ). As part of this series, the applicant worked on a report entitled “At the right edge” (“ Am rechten Rand ”), aimed at documenting the conditions for the development and dissemination of extremist right-wing ideologies in Austria.

6. On 12 March 2010, in the course of the production of the report, a shooting took place at an election rally of the Austrian Freedom Party ( FPÖ ) in Wiener Neustadt, where the applicant and his film team met with the protagonists of the report, two young men who were apparently affiliated to the Austrian neo-Nazi scene and had also shown an interest in the FPÖ and its chairman, H.-C. S. After having held a speech, H.-C. S. gave autographs for his supporters and thus also came into contact with the applicant, his film team, and the protagonists. Thereby, a dispute arose between the applicant and H.-C. S., in the course of which the latter claimed to have heard someone shouting “Heil Hitler” or “Sieg heil”. Following this encounter, H.-C. S. alleged that the applicant had prompted the protagonists to shout “Sieg heil”.

7. On 13 March 2010, upon information laid by the FPÖ, the Wiener Neustadt Public Prosecutor ’ s Office opened investigations under Section 3g of the Prohibition Act ( Verbotsgesetz ) against the applicant and ordered the seizure of the material recorded at the election rally.

8. On the same day, the applicant handed over the requested tape to the Lower Austria Public Security Authority ( Sicherheitsdirektion ). The Public Security Authority also wanted to interview the applicant. The applicant, however, stated that he wanted to consult with the legal department of his employer prior to making any statements.

9. On 18 March 2010 H.-C. S. informed the Public Prosecutor ’ s Office about his suspicion that the tape had been manipulated before its seizure. The Public Prosecutor ’ s Office therefore started investigating against the applicant on suspicion of falsification of evidence ( Fälschung eines Beweismittels ).

10. On 23 March 2010 the Public Prosecutor ’ s Office appointed an expert, asking whether the seized tape contained the original recordings and whether there were any indications that the recordings on the tape had subsequently been manipulated.

11. On 30 March 2010 the Public Security Authority submitted its final report concerning the suspected offences under the Prohibition Act.

12. On 21 June 2010 the expert issued his opinion, stating that the tape had been stopped and restarted numerous times during the recording, but that this was not unusual for documentary reports. Whilst the expert could not exclude the probability that the tape had been cut in order to purport a specific content, he held that this was not very likely.

13. H.-C. S., who had joined the proceedings as a private party, thereupon requested an addendum to the expert opinion and submitted a privately commissioned expert report.

14. On 16 December 2010 the Public Prosecutor ’ s Office ordered the official expert to amend his opinion, taking into account the privately commissioned expert report.

15. On 31 March 2011 the expert submitted his amended opinion and held that he could not conclusively clarify whether the tape had been edited or not. One option was just as likely as the other. He therefore recommended appointing other experts who had more specific analysis tools available in order to carry out further forensic examinations of the audio material.

16. On 1 June 2011 the applicant filed a request for the discontinuation of the proceedings against him, pursuant to Section 108 of the Code of Criminal Procedure.

17. Due to the public interest in the case, a meeting took place on 6 June 2011 at the Federal Ministry of Justice, with the Public Prosecutor in charge of the case and two Senior Public Prosecutors ( Oberstaatsanwälte ) present, in order to discuss the further course of action. The Public Prosecutor reported on her intention to discontinue the proceedings against the applicant under the Prohibition Act. With regard to the suspected falsification of evidence, she reported that it was intended to ask the German Federal Office of Criminal Investigation ( Bundeskriminalamt ) in Wiesbaden to carry out the forensic examinations as recommended by the official expert in order to clarify whether the seized audio material had been manipulated or not. The Public Prosecutor ’ s intended course of action was approved.

18. On 24 June 2011 the Public Prosecutor ’ s Office informed the applicant about the discontinuation of the proceedings as regards the investigations under the Prohibition Act.

19. On 5 August 2011 the Wiener Neustadt Regional Court dismissed the applicant ’ s request for discontinuation of the proceedings in relation to the suspicion of falsification of evidence. It held that since the expert could not exclude that the tape had been manipulated, the applicant was still under suspicion of its falsification. Moreover, a fur ther clarification of the facts – and thus a possible intensification of the suspicion – could be expected by the intended forensic examination of the audio material in question. Therefore, and given that the proceedings had not yet lasted unreasonably long, the continuation of the investigations was justified.

20. On 22 August 2011 the applicant filed an appeal against this decision, claiming in essence that the proceedings had already lasted unreasonably long and that it was unlikely that another expert opinion would produce any relevant results.

21. On 5 December 2011 the Vienna Court of Appeal dismissed the applicant ’ s appeal. It held that there existed sufficient grounds for suspicion against the applicant and that the length of the proceedings was not yet unreasonable, especially given the complexity of the case.

22. On 14 March 2012 the applicant filed a supervisory complaint with the Senior Public Prosecutor ’ s Office ( Rechtsschutzersuchen ) and complained that the Public Prosecutor ’ s Office had still not requested the Federal Office of Criminal Investigation in Wiesbaden to carry out the forensic examination of the tape as announced in the meeting on 6 June 2011. As no investigative steps had been taken by the Public Prosecutor ’ s Office in the last three months, he requested the acceleration of the proceedings.

23. According to a file note from 20 March 2012, the Public Prosecutor ’ s Office had contacted an expert of the Federal Office of Criminal Investigation in December 2011 in order to ask whether he could carry out the necessary examinations of the tape. The expert had replied that he could not be directly appointed, but that he would clarify how to proceed in this case. As the expert had not gotten back to the Public Prosecutor, the latter contacted the Federal Office of Criminal Investigation, who informed him that a request for legal assistance ( Rechtshilfeersuchen ) should be filed with the Wiesbaden Public Prosecutor ’ s Office.

24. Therefore, on 21 March 2012, the Public Prosecutor ’ s Office filed such a request for legal assistance. As they had been informed that the Wiesbaden Public Prosecutor ’ s Office was equipped with the necessary technical tools, the latter was requested to carry out a forensic examination of the seized tape.

25. On 3 April 2012 the Senior Public Prosecutor ’ s Office informed the applicant about the abovementioned steps taken by the Public Prosecutor ’ s Office.

26. On 27 April 2012 and then again on 10 May 2012 the Vienna Regional Court (the competent court in parallel proceedings, and whose investigations had been joined with the proceedings at hand) urgently requested the Public Prosecutor ’ s Office to inform them when the expert report was to be expected or, if an expert had not yet been appointed, to submit the original tape so that the court could order an expert opinion itself.

27. On 15 May 2012 the Public Prosecutor ’ s Office replied that they had ordered an expert opinion through a request for legal assistance, but that they did not know when the opinion would be issued.

On 11 June 2012 the Wiesbaden Public Prosecutor ’ s Office informed the Public Prosecutor ’ s Office that the Federal Office of Criminal Investigation lacked the necessary device to examine the tape and that, in any event, they would not be able to begin with the examination before July 2013 as the task was very time-consuming.

28. On 20 September 2012 the Public Prosecutor ’ s Office commissioned a new expert opinion, asking whether the recordings on the tape were original and whether the tape had subsequently been manipulated. On the same day it ordered the Public Security Authority ( Sicherheitsdirektion ) to question the applicant, with the appointed expert being present so that he could ask the applicant specific questions in connection to the recordings.

29. On 7 November 2012 the applicant was questioned by the Public Security Authority and in the presence of the expert.

30. On 20 February 2013 the expert submitted his opinion. He concluded in essence that it was not possible to clarify whether the recordings on the tape were the original ones or whether the tape had subsequently been edited. Even if someone had shouted “ Sieg heil ” or “ Heil Hitler” during the recordings, it could not be assumed that these statements had actually been recorded.

31. On 22 May 2013 the Public Prosecutor ’ s Office informed the applicant about the discontinuation of the proceedings due to lack of proof, pursuant to Section 190 (2) of the Code of Criminal Procedure.

B. Relevant domestic law

1. The Criminal Code

32. Section 293 of the Criminal Code, as in force at the relevant time, read as follows:

“Anyone who creates false evidence or who falsifies real evidence with the intention that this evidence will be used in ordinary or administrative proceedings, or in investigation proceedings under the Code of Criminal Procedure, shall be liable to imprisonment not exceeding one year, provided that the offence is not punishable under Sections 223, 224, 225 or 230 of the Criminal Code.”

33. Sections 223, 224, 225, and 230 of the Criminal Code penalise the falsification of (specifically protected) documents, public certification signs or boundary markers.

2. The Code of Criminal Procedure

34. Section 108 § 1 of the Code of Criminal Procedure, as in force at the relevant time, read as follows:

“The court shall, upon the accused ’ s request, discontinue the proceedings if

35. Section 190 of the Code of Criminal Procedure reads as follows:

“The Public Prosecutor ’ s Office shall refrain from prosecuting a criminal offence or shall discontinue investigation proceedings insofar as

COMPLAINTS

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

37. The applicant further complained under Article 13 of the Convention that there was no effective remedy available to him to accelerate these proceedings.

THE LAW

38. The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention which, so 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...”

39. The Government submitted that the applicant had failed to exhaust domestic remedies, as he had not filed an objection pursuant to Section 106 § 1 of the Code of Criminal Procedure, which confers on everyone the right to complain about a violation of his or her subjective rights by the Public Prosecutor ’ s Office. The Government claimed that according to case-law, this remedy may also be used in order to combat procedural delays, if they were disproportionate to the severity of the charge and the complexity of the case. Therefore, the applicant could have filed an objection pursuant to Section 106 § 1 of the Code of Criminal Procedure and request the acceleration of the investigation proceedings against him.

40. As to the merits, the Government submitted that the reasonable time requirement had been complied with in the present case. First, the investigation proceedings had been extremely complex and had not been of minor relevance, given the public interest in the case. Further, there had been no periods of inactivity attributable to the Public Prosecutor ’ s Office or the courts. Rather, the duration of the proceedings was due to the necessary investigations, which had required several expert opinions, complicated technical analyses and time-consuming examinations. Given the complexity of the investigation proceedings, Article 6 § 1 had not been violated in the present case.

41. The applicant contested the Government ’ s arguments. Referring to the respective government bill, he claimed that Section 106 § 1 of the Code of Criminal Procedure did not constitute an effective legal remedy for accelerating the investigation proceedings, as it may only be lodged in exceptional cases. In general, procedural delays should first and foremost be remedied with a supervisory complaint addressed to the Senior Public Prosecutor ’ s Office. He further held that he did file such a complaint with the Senior Public Prosecutor ’ s Office on 14 March 2012 and that he also requested the discontinuation of the proceedings pursuant to Section 108 of the Code of Criminal Procedure.

42. Turning to the merits, the applicant maintained that the duration of the investigation proceedings had lasted unreasonably long. The subject matter of the proceedings had not been particularly complex and had not required elaborate investigations. Further, lengthy periods of inactivity had been caused by the Public Prosecutor ’ s Office, in particular in connection with the expert opinion ordered from the Federal Office of Criminal Investigation in Wiesbaden, where it had taken the Public Prosecutor ’ s Office nine months (i.e. between June 2011 until March 2012) to file the respective request. The applicant, in contrast, had always cooperated with the authorities. Also, given the public interest in the case and that the applicant ’ s reputation as a journalist had been at stake, the proceedings should have been conducted more speedily.

43. As regards the question relating to the exhaustion of domestic remedies, the Court considers that it need not examine whether the applicant had exhausted domestic remedies in the proceedings at hand, because the complaint about the length of these proceedings is, in any event, manifestly ill-founded for the following reasons:

44. The period to be taken into consideration started on 13 March 2010 when the investigation proceedings against the applicant were initiated, and ended with the information about their discontinuation on 22 May 2013. The proceedings had thus an overall duration of about three years and two months.

45. The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case, the applicant ’ s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999 ‑ II).

46. The Court notes that the proceedings were of considerable complexity, illustrated by the fact that several experts had been appointed on the same issue.

47. The applicant did not contribute to the length of the proceedings. In fact, he complained about the duration and the alleged inactivity of the competent authorities in his appeal of 22 August 2011 and in the supervisory complaint of 14 March 2012.

48. However, the Court considers that no major delays are attributable to the authorities either. In particular, as the Court of Appeal ’ s decision concerning the applicant ’ s request to discontinue the proceedings was issued on 5 December 2011, the Public Prosecutor ’ s Office took three and a half months to ask the German authorities for legal assistance, a period which cannot be regarded excessive. Whilst some delays occurred in connection to the commission and the submission of some of the expert opinions, they were not substantial in the present case. In this respect the Court observes that the first expert himself had recommended to appoint other experts who had more specific analysis tool available. Taking into account the public interest in this case, the appointment of more than one expert was reasonable diligence. When it emerged on 11 June 2012 that the Wiesbaden expert would need more than one year for the task, a new expert was immediately appointed.

49. Therefore, the Court concludes that, in the particular circumstances of the case, the overall duration of the proceedings can still be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.

50. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

51. The applicant further complained under Article 13 that no effective remedy was available to him in order to accelerate the investigation proceedings against him.

52. The Government argue that Sections 106 and 108 of the Code of Criminal Procedure both offered an effective remedy against unreasonable delays occurring at investigative stage.

53. The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, for example, Kudla v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

54. Referring to the foregoing considerations under Article 6 § 1, the Court notes that in the present case the applicant has no “arguable complaint” under that provision.

55. It follows that the complaint under Article 13 is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 February 2016 .

FatoÅŸ Aracı Vincent A. D e Gaetano              Deputy Registrar President