Information Note on the Court’s case-law

November 2022

Aigner and Hopper v. Austria (dec.) - 50715/18 and 51649/18

Decision 18.10.2022 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Failure to exhaust effective domestic remedies introduced in 2008 by the Criminal Procedure Reform Act to expedite investigation proceedings: inadmissible

Facts – The two applicants complained under Article 6 § 1 of the Convention about the length of criminal proceedings against them for commercial tax evasion at the end of which they were acquitted.

Law – Article 35 § 1: The Court had to examine whether the applicants had complied with the requirement to exhaust domestic remedies in the light of the remedies to expedite investigation proceedings provided for in Articles 106 and 108 of the Code of Criminal Procedure (CCP) introduced by the Criminal Procedure Reform Act on 1 January 2008. In this connection, it noted that the applicants had had at least two remedies available to them to expedite the investigation proceedings forming the subject of their complaint.

(a) Article 106 CCP – The applicants could have lodged an objection on grounds of a breach of rights under Article 106 § 1 (1) and (2) of the CCP against any delays that might have resulted from the public prosecutor’s failure to comply with the requirement of reasonable expedition in Article 9 of that Code. The Government had submitted national case-law showing that Article 106 could have been relied on by the applicants to remedy a breach of their rights and it could be seen from the explanatory notes on the Criminal Procedure Reform Act that that provision could have been used to challenge any disproportionate delay in the investigation proceedings. The Government had thus satisfied the burden of showing that that remedy, which had been available at the relevant time, had been in principle effective to expedite investigation proceedings where delays had been caused by the public prosecutor. Consequently, that remedy had been sufficiently known to the applicants and thus available to them not only in theory but also in practice. The applicants, however, had merely submitted that Article 106 had not been applicable to their case, an allegation that had been refuted by reference to the national case-law and the explanatory notes.

The delays in the investigation proceedings seemed to have been attributable to the public prosecutor. Indeed, the applicants had complained about periods of inactivity on the part of the public prosecutor throughout the whole proceedings. The available information indicated that this remedy would have had a reasonable prospect of expediting the proceedings by means of a court order for the public prosecutor to issue the indictment promptly. The applicants should have thus attempted to make use of that remedy, even if they had doubts as to its effectiveness.

(b) Article 108 § 1 (2) CCP – The wording of that provision directly referred to the duration of the investigation proceedings as an aspect to be taken into consideration for expedition of proceedings through termination. The Court was therefore persuaded that an application for discontinuance under this provision was in principle effective in the given circumstances. As to its use and prospects of success in practice, the applicants had not disputed the statistics submitted by the Government showing a success rate of 28%.

The applicants had not shown that this remedy had been inadequate and ineffective in the particular circumstances of the case or that there had existed special circumstances exempting them from the requirement to make use of it. The fact that the applicants had mentioned that another accused person had apparently made use of one of the remedies provided for in Article 108 indicated that they had been aware of that possibility. Their allegations that he had been unsuccessful were unsubstantiated. Mere doubts as to the effectiveness of the remedy, however, had not released them from the obligation to attempt it. Nor did the dismissal of an application made by the second applicant under Article 108 in independent defamation proceedings against him lead to the conclusion that such an application would have been equally unsuccessful in the investigation proceedings. In addition, the applicants had not explained how the alleged retention of evidence had hindered their lodging of an application under Article 108. Rather, their argument implied that they could not have ruled out the effectiveness of such an application because they had not been aware of any evidence that incriminated them.

Lastly, the applicants had claimed that an application under Article 108 had been unrealistic once the expert opinion which had heavily incriminated them had been submitted. The applicants had had four years and one month and two years and two months respectively until that expert opinion had been obtained to lodge an application for discontinuance of the proceedings. While such an application might have lacked any prospect of success once the indictment had been issued, another two years and nine months had elapsed between the delivery of the expert opinion and the date of the indictment. Doubts as to the chances of success of such an application had not released the applicants from their obligation to attempt it.

(c) Conclusion – Both the above remedies appeared to have been effective, available both in theory and in practice and capable of providing a reasonable prospect of success. The applicants had not demonstrated otherwise. Either of those remedies, had they been attempted, could have had a significant effect on the overall length of the proceedings. The Court concluded that without applying excessive formalism, both applicants could have been reasonably expected to avail themselves of one of these remedies in the proceedings in question.

Although, the Court had not previously had the opportunity to express its view on the effectiveness of those remedies in cases concerning the length of proceedings, it had identified them as remedies which applicants in other cases had availed themselves of to seek the expedition of proceedings before lodging complaints with the Court. This was a further indication of their common use in practice.

It would have been inconsistent with the subsidiarity principle for the Court to accept the applicants’ applications without their having made use of their opportunities to have the proceedings reviewed by a domestic court in terms of the expeditious conduct of the investigation. Therefore, and in order to allow the domestic judicial authorities to further develop the available remedies, the Court found that the domestic courts should have been given an opportunity to rule on the applicants’ cases first. In this connection, the Court emphasised that its position might be subject to review in the future, depending, in particular, on the domestic courts’ capacity to establish consistent case-law in line with the Convention requirements.

Accordingly, the applicants had failed to exhaust domestic remedies during the investigation proceedings complained of as required by Article 35 of the Convention.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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