FIRST SECTION

CASE OF DONNER v. AUSTRIA

( Application no. 32407/04 )

JUDGMENT

STRASBOURG

22 February 2007

FINAL

22/05/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Donner v. Austria ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Mr C.L. Rozakis , President , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni, judges , and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 1 February 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 32407/04) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Mr Karl Friedrich Donner (“the applicant”), on 7 September 2004 .

2 . The applicant was first represented by Mr Zwerger and subsequently by Mr Kreibich , both lawyer s practising in Salzburg . The Austrian Government (“the Government”) were represented by their Agent, Mr F. Trauttmansdorff , Head of the International Law Department at the Federal Ministry for Foreign Affairs .

3 . On 10 January 2006 the Court decided to communicate the complaint s concerning the length of the proceedings and the lack of remedies in that respect to the Government . Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1955 and lives in Salzburg .

5 . In the autumn of 1989 the Salzburg Tax Office ( Finanzamt ) star ted investigations into a large- scale fraud relating to the “WEB/IMMAG” group.

6 . On 20 December 1989, the applicant, member of the board of directors and managerial director of one of the concerned companies, wrote a letter to the Salzburg Tax Office and requested that his income tax declaration for the year 1987 be corrected in that the losses declared therein be cancelled.

7 . Thereupon, t he Salzburg Tax Office, on 27 December 1989, informed the applicant that he was suspected of tax evasion and invited him to submit his comments in writing. On 23 January 1990 it further informed the applicant that his letter of 20 December 1989 was considered as “self-accusation” ( Selbstanzeige ). On 16 February 1990 the applicant transferred the amount of 1,973.07 euros ( EUR ) for evaded taxes to the Tax Office.

8 . In the following years t he Tax Office conducted extensive inspections into the WEB/IMMAG group together with the Tax Office for the Investigations of Large Enterprises in the course of which investigation reports were published and administrative criminal fiscal proceedings were instituted against a multitude of persons .

9 . On 19 August 1993 the Salzburg Tax Office heard the applicant . Subsequently, it submitted criminal information against the applicant to the Public Prosecutor ' s Office ( Staatsanwaltschaft ) concerning suspicion s of tax evasion. The Public Prosecutor ' s Office received this informat ion on 15 March 1994, together with criminal information against four other suspects related to the WEB/IMMAG group.

10 . Subsequently, on 4 May 1994 the investigating judge at the Salzburg Regional Court ( Landesgericht ) instituted criminal investigations ( Voruntersuchungen ) against the applicant and other accused. It further included these proceedings into already pending proceedings against other accused. This decision was confirmed by the Chamber ( Ratskammer ) of the Regional Court on 1 February 1995.

11 . Having received suppl ementary criminal information from the Tax Office, the investigating judge, in April 1995, summoned the applicant and the other accused to six hea rings scheduled in May and June 1995 respectively. T he applicant ' s request that the criminal investigations be stayed was dismissed. On 30 April 1996 the investigating judge forwarded the file to the Public Prosecutor ' s Office .

12 . On 13 January 1998 the Salzburg Public Prosecutor ' s Office preferred a bill of indictment against the applicant and three co-accused. It charged the applicant with evasion of income tax and participation in evasion of taxes of the WEB/IMMAG group in 1987 and 1988. Proceedings against other accused were separated from those of the applicant ' s. The applicant ' s appeals against these decisions remained unsuccessful.

13 . On 16 May, 4 July, 22 August and 3 October 2000 the Regional Court examined the case . At the e nd of 2000 the presiding judge of the chamber dealing wit h the applicant ' s case retired and a new presiding judge was appointed in July 2001.

14 . Having held further hearings on 18 and 19 February 2002, the Regional Court convi cted the applicant pursuant to s ection 33 of the Code of Tax Offences ( Finanzstrafgesetz ) of income tax evasion in the amount of 1,973.07 EUR and partly attempted evasion of other taxes in the total amount of 1,074,891.60 EUR. It sentenced him to a fine of 300,000 EUR of which the payment of 200,000 EUR was suspended with a probation period. When fixing the sentence the court took into account the applicant ' s good conduct until the offences and since then, that the applicant had paid the evaded taxes, the fact that the offences had partly only been attempted and the length of the proceedings. The court noted that these circumstances as well as the scale of the unlawfulness of the offences justified that the sentence amounted only to one sixth of the maximum penalty ( Höchststrafe ). The court finally noted that the length of the proceedings and the other mitigating circumstances justified the suspension of part of the sentence.

15 . During the trial the applicant requested to hear N.G. as a witness due to the fact that , when assessing the losses relevant for his and others ' income taxes, he had only followed a system which N.G . had developed and instructed him to use . The court rejected the request and noted inter alia that even assuming this to be correct , there was no reason why the applicant should not bear responsibility. Referring to the fact that the applicant had completed university studies it did not accept the applicant ' s arguments as to his limited knowledge in this matter.

16 . On 8 May 2002 the written version of the judgment was served on the applicant ' s counsel. The applicant thereupon, on 5 June 2002 , filed a plea of nullity ( Nichtigkeitsbeschwerde ) with the Supreme Court ( Oberster Gerichtshof ). On 16 September 2003 the Public Prosecutor ' s Office submitted its observations. The applic ant filed further comments on 9 October 2003.

17 . On 12 February 2004 the Supreme Court rejected the applicant ' s plea of nullity and transmitted the applicant ' s appeal to the Linz Court of Appeal. It confirmed inter alia the Regional Court ' s refusal to hear N.G. Having regard to all other evidence a gainst the applicant obtained during the trial including his own statements , and the fact that N.G. had denied any concrete knowledge about the case at issue when heard as a suspect in his own criminal proceedings before absconding to Germany, it found that the applicant had not given any convincing reason why hearing N.G. again was relevant. This judgment was served on the applicant ' s counsel on 10 March 2004.

18 . On 19 August 2004 the Linz Court of Appeal rejected the applicant ' s appeal.

II. RELEVANT DOMESTIC LAW

19 . 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.

20 . Section 37 of the Public Prosecutor ' s Act ( Staatsanwaltschafts - gesetz ) reads as follows:

“(1) Complaints against a public prosecutor challenging the performance of his duties, may be filed with any superior authority. Unless the complaint is filed with the authority directly superior to the public prosecutor, it shall, as a rule, be transmitted to that authority together with an order to submit a report, if necessary, for the purpose of taking further action.

(2) The public prosecutor concerned shall be informed of all complaints that are not manifestly unfounded and he shall be ordered to remedy the complaint within a certain period and to report thereon or to disclose any existing obstacles thereto. ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

21 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” r equirement, laid down in Article 6 § 1 of the Convention, which 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... ”

22 . The Government contested that argument.

23 . In the circumstances of this case the Court considers that t he period to be taken into consideration began on 27 December 1989 when the Tax Office informed the applicant that he was suspected of tax evasion and ended on 19 August 2004 when the Court of Appeal dismissed the applicant ' s appeal. It thus lasted for 14 years and some 8 months before three level s of jurisdiction .

A. Admissibility

24 . The Government pointed out that the long duration of the proceedings was taken into account by the court when fixing the sentence.

25 . The applicant did not comment on that issue.

26 . The Court recalls that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress ( Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, § 66; for the application of this principle in the context of Article 6, see Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238 at § 34 and Schlader v. Austria (dec.), no. 31093/96, 7 March 2000 ). In this regard the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victi m within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle v. Germany , cited above, § 66, Beck v. Norway , no. 26390/95, § 27, 26 June 2001 and Cocchiarella v. Italy [GC], no. 64886/01, § 77, ECHR 2006-...).

27 . In the present case, while it is true that the Regional Court stated that it was taking into account the length of proceedings in reducing the sentence of the applicant, it is not apparent from its judgment what this reduction was in the applicant ' s case. On this point, the Court notes that the excessive length of the proceedings was taken into account amongst four other factors of mitigating circumstances. W hile it is true that the applicant ' s sentence was at the lower end of the scale of punishment authorised by the relevant penal provisions, it is not clear from court ' s reasoning that the time/delay element stood out as being the primary mitigating factor. The Court cannot find, therefore, that the reduction in sentence on account of the length factor was measurable in the present case, and had a decisive impact on the applicant ' s sentence. The applicant has, thus, not been afforded express and quantifiable redress for the alleged breach of the reasonable time requirement (see, mutatis mutandis , Beck v. Norway , cited above, §§ 27-29; also Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X). The applicant may , therefore , still claim to be a victim within the meaning of Article 34 of the Convention.

28 . Referring to the Court ' s case-law, the Government further argued that the applicant had not exhausted domestic remedies as he did not make use of the remedy under section 91 of the Courts ' Act. They submitted that the applicant could have made use of this remedy as from 15 March 1994, when the Public Prosecutor ' s Office received the criminal information against him, until 19 August 2004, when the Court of Appeal dismissed his appeal, except for the insignificant periods between 15 March and 4 May 1994 and 30 April 1996 and 13 January 1998 respectively during which the Public Prosecutor was dealing with the case. Furthermore, during the latter periods the applicant could have filed a supervisory complaint under section 37 of the Public Prosecutor ' s Act which remedy he did not use.

29 . The applicant contested these argum ents. He submitted that section 91 of the Courts ' Act could not be regarded as an effective remedy in his case in particular because it was not available during a substantial period of time, namely from the beginn ing of the proceedings until 13 January 1998 when the competence of the judicial courts was finally established.

30 . The Court finds that the question of exhaustion of domestic remedies is inextricably linked to the merits of the applicant ' s further complaint under Article 13 of the Convention . Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits of that complaint.

31 . The Court notes that the complaint about the length of the proceedings under Article 6 § 1 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

32 . The Government asserted that the length of the proceedings was reasonable. The proceedings were extremely complex as they were closely linked to the proceedings in the WEB/IMMAG case concerning a multitude of persons suspected of embezzlement, fraud, breach of trust and fraudulent bankruptcy, one of the biggest white-collar criminal proceedings ever conducted in Austria . While the courts dealt expeditiously with the case, the accused were responsible for some delay. In particular, the courts ' decisions to separate the fiscal criminal proceedings from the main WEB proceedings in order to accelerate the proceedings were repeatedly challenged by various accused. Furthermore, the defence repeatedly submitted requests for the taking of evidence which obviously caused delay.

33 . The applicant maintained that the length of the proceedings breached the “reasonable time” requirement laid down in Article 6 § 1. He could not be held responsible for any delay which had incurred. He further contested that his case was complex and submitted in this regard that his proceedings concerning tax evasion had to be distinguished from the more complex WEB/IMMAG proceedings concerning fraud. He finally referred to the Court ' s judgments in the cases Hennig v. Austria ( no. 41444/98, 2 Oct ober 2003) and Rösslhuber v. Austria ( no. 32869/96, 28 November 2000).

34 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

35 . The Court acknowledges that the proceedings at issue were of a certain complexity. However, it finds that the present case which concerned merely tax evasion should be distinguished from the undoubtedly more complex investigations into the whole WEB group and its financial network. In any event, even a certain complexity of the proceedings does not in itself suffice to justify a substantial duration (see mutatis mutandis Hennig v. Austria , § 33, cited above).

36 . As to the applicant ' s conduct, the applicant partly contributed to the length of the proceedings while they were pending before the court, namely by contesting the court ' s decision to separate his proceedings from those of other accused. However, as regards the conduct of the competent authorities, the Court notes that the case was for altogether more than six years before the investigating administrative authorities, namely from 27 December 1989 until 15 March 1994 before the Tax Office and between 15 March and 4 May 1994 and 30 April 1996 and 13 January 1998 before the Public Prosecutor. The Court finds that no sufficient explanation has been submitted for this period of time . Furthermore, while pending before the court the case was not dealt with from the end of 2000 until February 2002.

37 . Having regard to these delay s and the overall length of the proceedings, the Court finds that the duration of the proceedings was excessive and failed to meet the “reasonable time” requirement.

38 . There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

39 . The applicant further complained under Article 13 of the Convention of the lack of a remedy in respect of his complaint about the length of the proceedings. He submitted, in particular, that he should have been given the possibility to request his acquittal or the discontinuation of the proceedings because of the excessive length.

Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Admissibility

40 . The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

41 . The Gove rnment contested that there had been a violation of Article 13 of the Convention. They stressed that the applicant had at his disposal effective domestic remedies, n amely the request under section 91 of the Courts ' Act and the hierarchical complaint under section 37 of the Public Prosecution Act.

42 . The applicant did not file any further comments in this regard.

43 . The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

44 . The Court notes that in the case of Holzinger v. Austria the Court found that a request under s ection 91 of the Austrian Courts Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings (no. 23459/94, §§ 24-25, ECHR 2001-I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, relating to criminal proceedings). It stated, however, that the effectiveness of such a remedy may depend on whether it has a significant effect on the length of the proceedings as a whole ( ibid ., § 22). Thus, where proceedings include a substantial period during which the applicant has no remedy to expedite the proceedings at his /her disposal, a request under s ection 91 cannot be considered an effective remedy (see mutatis mutandis, Holzinger (no. 2) v. Austria , no. 28898/95, §§ 21-22, ECHR 2001-I).

45 . T urning to the present case, the Court notes that during the proceedings before the Regional Court the applicant could have made use of the section 91 request. However, when finding a violation of Article 6 of the Convention the Court had in particular regard to the substantial delays occurred before the Tax Office and the Public Prosecutor ' s Office. In this regard, the Court observes that while the case was pending before the Tax Office the applicant had no remedy at his disposal to speed up the proceedings. As to the subsequent proceedings before the Public Prosecutor ' s Office, t he Government contended that during this period the applicant could have made use of a hiera rchical complaint under section 37 of the Public Prosecutor ' s Act. The Court reiterates, however, that hierarchical appeals in the Austrian legal system are not to be considered as effective remedies as t hey do not grant to an individual the right to exercise supervisory powers, and any proceedings which do subsequently take place do not involve the participation of the individual who made the hierarchical appeal in the first place (see Maier v. Austria (dec.), no. 70579/01, 15 September 2003, with further references).

46 . T he Government have , therefore, not s hown that a n y form of effective relief was available for the substantial delays cau sed by the domestic authorities. Accordingly, their objection as to the non-exhaustion of domestic remedies concerning the applicant ' s complaint under Article 6 § 1 of the Convention about the length of the proceedings fails. Furthermore, there has been a violation of Article 13 of the Convention in that the applicant had no domestic remedy whereby he could effectively enforce his right to a hearing within a reasonabl e time as guaranteed by Article 6 § 1 of the Convention.

I II . ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE FAIRNESS OF THE PROCEEDINGS

A. Admissibility

47 . The applicant complained under Article 6 § 3 d of the Convention about the Austrian courts ' failure to hear N. G . as a witness.

48 . The Court recalls, however, that as a general rule it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to add uce. More specifically, Article 6 § 3 (d), in principle, leaves to them the assessment whether it is appropriate to call witnesses, in the “autonomous” sense given to that word by the Convention. The Convention does not require the attendance and examination of every witness on the accused ' s behalf ( Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, § 89; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention ( Bricmont v. Belgium , loc. cit).

49 . The Court observes that the Regional Court rejected the applicant ' s request for evidence, explaining why such evidence was irrelevant. The Supreme Court, giving extensive reasons, found that the Regional Court had acted correctly in its refusal.

50 . Having regard to this , t he Court finds no indication in the case-file that the refusal to take all the evidence requested by the applicant was incompatible with Article 6, or that thereby the applicant ' s defence rights were unduly restricted or the proceedings unfair (see mutatis mutandis Hennig v. Austria (dec.), no 41444/98, 4 September 2001).

51 . It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

52 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial rep ara tion to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

53 . The applicant did not submit a claim for just satisfaction within the set time-limit . Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the merits the Government ' s objection that the applicant has not exhausted domestic remedies concerning the excessive length of the proceedings and rejects it;

2 . Declares the complaint s concerning the excessive length of the proceedings and the lack of an effective remedy admissible and the remainder of the application inadmissible ;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention;

4 . Holds that there has been a violation of Article 13 of the Convention;

5. Holds that there is no call to award just satisfaction.

Done in English, and notified in writing on 22 February 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen C hristos Rozakis Registrar President