Communicated on 4 January 2021 Published on 25 January 2021

FOURTH SECTION

Applications nos. 50715/18 and 51649/18 Kurt AIGNER against Austria and Helmut HOPPEL against Austria lodged on 23 October 2018 and 24 October 2018 respectively

SUBJECT MATTER OF THE CASE

The applications concern criminal proceedings for tax evasion on a commercial basis against the applicants and other defendants. Preliminary investigation proceedings were initiated against the applicant in application no. 50715/18 (“the first applicant”) on 22 June 2006 but discontinued on 25 January 2011. In the meantime, on 22 March 2007 the Tax Office ( Finanzamt ) filed new criminal charges with the Vienna public prosecutor ’ s office (hereinafter, “the public prosecutor”) against two persons for tax evasion. Those investigation proceedings were extended to the first applicant on 22 October 2007, when he was summoned as a defendant. On 18 November 2009 the applicant in application no. 51649/18 (“the second applicant”) was summoned as a defendant as well.

On 21 October 2014 the public prosecutor filed a bill of indictment, charging the applicants and other defendants for tax evasion on a commercial basis ( gewerbsmäßige Abgabenhinterziehung ). Both applicants filed objections against the indictment, which were dismissed by the Vienna Court of Appeal ( Oberlandesgericht Wien ). On 13 February 2018 the trial before the Vienna Regional Criminal Court ( Landesgericht für Strafsachen Wien ) started. On 25 April 2018 both applicants were acquitted of their charges. The decision became final on 2 May 2018.

The applicants complain under Article 6 § 1 of the Convention that the criminal proceedings had lasted unreasonably long.

On 1 January 2008 Article 108 of the Code of Criminal Procedure ( Strafprozessordnung ), published in the Federal Law Gazette No. 631/1975 as amended by No. 19/2004 and No. 71/2014, came into force. In so far as relevant, it reads as follows:

“Application for discontinuation

(1) The court shall discontinue the preliminary investigation upon request of the accused if

1. it is established based on the criminal charges or the results of the investigation that the offence on which the investigation proceedings are based is not a punishable act or that further prosecution of the accused is otherwise inadmissible for legal reasons, or

2. the suspicion of the offence does not justify its continuation in terms of urgency and weight as well as with regard to the duration and scope of the preliminary investigation so far, and a further clarification of the facts is not expected to intensify the suspicion.

...”

The applicants did not file an application for discontinuation under Article 108 of the Code of Criminal Procedure.

QUESTIONS TO THE PARTIES

1. Did the applicants exhaust domestic remedies by taking all legal steps available to expedite the proceedings?

In particular, would Article 108 of the Code of Criminal Procedure as in force since 1 January 2008 have been applicable to the present case?

If yes, would a request pursuant to this provision have constituted an effective remedy against the allegedly excessive length of the proceedings in the applicants ’ case?

2. What was the starting date of the material proceedings in respect of each applicant?

3. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, for example, Vitzthum v. Austria , no. 8140/04, §§ 21-23, 26 July 2007; Donner v. Austria , no. 32407/04, §§ 34-38, 22 February 2007; and KudÅ‚a v. Poland [GC], no. 30210/96, §§ 124-31, ECHR 2000 ‑ XI)?