Resolution ResDH (2003)48 concerning the judgment of the European Court of Human Rights of 14 November 2000 in the case of T. against Austria

(Adopted by the Committee of Ministers on 24 April 2003 at the 834th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the T. case delivered on 14 November 2000 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 27783/95) against Austria, lodged with the European Commission of Human Rights on 16 May 1995 under former Article 25 of the Convention by Mr T., an Austrian national, and that the Commission declared admissible the complaints relating, first, to the excessive length of certain civil proceedings and secondly, to a breach of his rights to a fair hearing and to defend himself in that, following his application for legal aid, a district court convicted him of abuse of process without having informed him that he was suspected of making false or incomplete statements concerning his lack of sufficient means and in that, as a result, he was sentenced to pay a fine of 30 000 Austrian Schillings which, for lack of payment, was subsequently converted to 10 days’ imprisonment;

Recalling that the case was brought before the Court by the applicant, under Protocol No. 9, on 21 December 1999;

Whereas in its judgment of 14 November 2000 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1, of the Convention as regards the length of proceedings;

- held that there had been a violation of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3 (a) and (b), of the Convention, as regards the proceedings resulting in the imposition of a fine for abuse of process;

- held that the government of the respondent state was to pay the applicant, within three months 5 218 Austrian schillings in respect of costs and expenses and that simple interest at an annual rate of 4% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 14 November 2000, having regard to Austria’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 11 January 2001, within the time-limit set, the government of the respondent state had paid the applicant the sum provided for in the judgment of 14 November 2000,

Declares, after having taken note of the information supplied by the Government of Austria, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2003)48

Information provided by the Government of Austria during the examination of the T. case by the Committee of Ministers

The Austrian Government considers that only the second violation i.e. that of Article 6, paragraph 1, taken in conjunction with Article 6, paragraph 3 (a) and (b), required general measures.

At the origin of this violation was the system established by Sections 69 and 220 of the Code of Civil Procedure, concerning the imposition of fines for abuse of process in connection with legal aid requests. More precisely, Section 69 of the Code of Civil Procedure provided that a court should impose a fine for abuse of process of up to ten times the amount provided for in section 220, paragraph 1, of the same Code on a litigant who obtained legal aid improperly by making false or incomplete statements. Section 220, paragraph1, provided inter alia that a fine for abuse of process might not exceed 40 000 Austrian schillings. In the event of an inability to pay, the fine should be converted into imprisonment. The length of imprisonment should be determined by the court, but might not exceed ten days (section 220, paragraph 3). The Code did not provide for any further hearing before the conversion of the fine into a prison term. These fines were not inscribed in the criminal records of the persons concerned.

In the present case, the European Court of Human Rights concluded (paragraph 67) that, having regard to the punitive nature and the large amount of the penalty at stake and its conversion into a prison term if it proves to be irrecoverable without the guarantee of a hearing, what was at stake for the applicant was sufficiently important to warrant classifying the offence as criminal within the meaning of Article 6, paragraph 1. Subsequently, it found (paragraphs 71-72) a violation of this Article in conjunction with Article 6, paragraph 3 (a) and (b).

Following the European Court’s judgment, Section 69 of the Code of Civil Procedure was amended by Section 94 of the “First law on the conversion to Euro” ( Erstes Euro- Umstellungsgezetz ) which entered into force on 8 August 2001 . According to the amendment, the maximum amount of fines for abuse of process was reduced from 400 000 Austrian schillings to 40 000 Austrian schillings (2 900 euros) and the conversion of fines into a prison term was abolished. In view of these changes, the Government is of the opinion that the punishment for abuse of process is no longer of such a nature and severity that might bring it, according to the Court’s case-law, into the criminal sphere.

The attention of the legal community has been drawn to the judgment of the European Court through its publication in Österreichische Juristenzeitschrift 2001, p.398, in Ecolex 2001, p. 490 and in Österreichisches Institut für Menchenrechte – Newsletter 2000, p.226. The judgment has also been disseminated to the judicial authorities directly concerned.

The Government of Austria considers that, given the developments mentioned above, there is no risk of new violations similar to that found in the present case and that Austria has consequently satisfied its obligations under Article 46, paragraph 1, of the Convention.