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FIRST
SECTION
CASE OF POLZ v. AUSTRIA
(Application
no. 24941/08)
JUDGMENT
STRASBOURG
25 October
2011
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 Polz v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 24941/08) 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 Norbert Polz (“the applicant”), on
5 May 2008.
2. The
applicant was represented by Mr J. Buchmayr, a lawyer practising in
Linz. 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.
- On
8 December 2009 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Wels.
He worked as an official for the Austrian customs office.
- Apparently
in 1998, suspicions of smuggling, bribery and abuse of authority
arose against the applicant and one other person, W. On 29 January
1998 the Review Chamber (Ratskammer) of the Linz Regional
Court authorized the applicant’s telephones to be intercepted
and the data on and content of the calls to be recorded.
- On
15 May 1998 the investigating judge at the Linz Regional Court
decided to open preliminary investigations on suspicion of abuse of
authority (Amtsmißbrauch) and a number of offences under
the Tax Offences Act against the applicant and, apparently, also
against his co-accused. On 16 September 1998 the Review Chamber of
the Linz Regional Court again authorized an interception of the
applicant’s telephone lines.
- On
25 November 1998, the Linz Public Prosecutor introduced a bill of
indictment against the applicant’s co-accused W. On an unknown
date, the proceedings against the applicant were separated from the
ones against W. The applicant’s case was transferred to the
Wels Regional Court.
- On
18 December 1998 the investigating judge at the Wels Regional Court
extended the preliminary investigations against the applicant to
include suspicions of aggravated tax evasion and a number of further
offences under the Tax Offences Act. On 21 December 1998 the
investigating judge ordered the Regional Finance Directorate for
Upper Austria (Finanzlandesdirekton Oberösterreich) to
conduct investigations in respect of these offences. It appears that
the Regional Police Command for Upper Austria (Landespolizeikommando
Oberösterreich) was also involved in these investigations.
- On
24 September 1999 the investigating judge at the Wels Regional Court
issued decisions to inspect the applicant’s bank accounts in
Austria. By letters rogatory, the judge also requested to inspect
bank accounts in Germany.
- On
an unknown date, a search had been carried out at the applicant’s
work place, and on 24 November 1999 the Wels Regional Court decided
to seize the evidence discovered during that search.
- On
24 December 1999 the applicant was suspended from his office.
- From
20 December 2000 to 16 February 2001 the applicant was in pre-trial
detention as he allegedly tried to influence witnesses. On 2 February
2001 and 20 February 2001, further decisions to inspect bank accounts
were taken. On 13 March 2001 the investigating judge extended the
preliminary investigations against the applicant to include the
suspicion of inciting a witness to give false testimony.
- On
23 May 2001 an expert was appointed to give an opinion about the
money flows on the applicant’s accounts. The expert asked twice
for an extension of the deadline for submission of the opinion, and
the extensions were granted. The court urged the expert three times
for delivery of the opinion (on 4 January 2002, 4 February 2002 and
18 March 2002). The opinion was eventually delivered on 24 April
2002.
- A
questioning of the applicant by the investigating judge scheduled for
17 May 2002 had to be postponed to 24 June 2002 as the applicant,
despite having received the expert’s opinion at some time in
April 2002, had requested an adjournment on 17 May 2002.
- A
report drawn up by the Regional Finance Directorate for Upper Austria
reached the court on 27 August 2002.
- On
20 November 2002 the investigating judge urged the Regional Police
Command for Upper Austria to submit its final report on the case. On
18 March 2003 the file including the final report was submitted to
the Public Prosecutor’s Office.
- On
5 November 2003 the public prosecutor issued the bill of indictment,
charging the applicant with abuse of authority, accepting bribes
(Geschenkannahme durch Beamte), smuggling, interference with
the tobacco monopoly, having received goods for which no import
duties had been paid (Abgabenhehlerei), breaking of official
seals (Verletzung der Verschlußsicherheit) and
infliction of bodily harm, all in conjunction with Section 313 of the
Criminal Code, a provision which provides for higher penalties when
offences have been committed by a civil servant abusing this
position.
- The
applicant lodged objections against the bill of indictment on
24 November 2003. The objections were rejected on an unknown
date.
- The
Wels Public Prosecutor’s Office amended the bill of indictment
on 1 December 2003. The Linz Court of Appeal (Oberlandesgericht
Linz) confirmed the bill of indictment on 8 March 2004.
- The
case was tried before the Wels Regional Court sitting as a panel of
two professional and two lay judges (Schöffensenat).
Hearings were held on 15 June 2004, 14, 15 and 16 September 2004, 15
October 2004, 18 and 19 October 2004, 18 May 2006, 12 June 2006 and
29 March 2007. The court heard the applicant, an expert on
accountancy, and a number of witnesses, namely colleagues of the
applicant.
- At
the hearing on 19 October 2004, the hearing was adjourned for an
indefinite period in order to review the summonses of the witnesses
living abroad. The summons that had been issued to those witnesses
for the hearing on 19 October 2004, had been sent to the Ministry of
Justice on 23 July 2004, and returned to the court on 5 August
2004, as the Ministry could not forward them to the respective
authorities without a certified translation. The reply from the
Ministry had been put into the file without having been shown to the
presiding judge, who had assumed that the summonses had been
forwarded. Only in the preparation of the hearing did the judge
discover the error. Subsequently, the judge addressed a new request,
via the Ministry of Justice, to the Turkish and Bulgarian authorities
requesting them to summon the witnesses concerned. On 1 July 2005 the
judge scheduled a hearing for 13 October 2005, which was cancelled
because none of the witnesses had appeared: It follows from the file
that in some cases the Turkish and Bulgarian authorities had, despite
their investigations, not been able to establish their addresses. In
the other cases the authorities had not provided any reply despite
repeated requests from the Austrian Ministry of Justice.
- At
the hearing on 18 May 2006 the applicant’s counsel lodged
objections to the expert’s opinion being read out. The opinion
was discussed at the hearing of 12 June 2006, and the Public
Prosecutor’s Office moved that the expert’s opinion be
supplemented. Further decisions to inspect savings and bank accounts
were issued on 10 November 2006, and the court received the
supplementary opinion of the expert on 30 January 2007.
- The
statements of the witnesses, whom the court had not been able to
summon (see paragraph 21 above), were read out in the trial during
the hearing on 29 March 2007. Those statements had been made by the
witnesses during the pre-trial investigations in the presence of the
defence counsel. During the trial, the defence counsel objected to
having those statements read out.
- By
judgment of 29 March 2007 the Wels Regional Criminal Court found the
applicant guilty of abuse of authority and accepting bribes. The
court relied on the witness’ statements. In the judgment it
gave reasons why it found these statement which had been read out
credible and noted that they had been partly corroborated by the
statements of the witnesses heard. Moreover, it had regard to certain
pieces of documentary evidence. The applicant, who was acquitted of
all the other charges, including some charges of accepting bribes,
was sentenced to 14 months’ imprisonment suspended for a
one-year probationary period. When fixing the sentence, the court
noted that the law provided for a prison term between six months and
five years. It went on to say:
“In fixing the sentence, the long period over
which the offences were committed and the repetition of the offences
were considered as aggravating circumstances. The fact that the
offences were committed quite some time ago, that the accused has
shown proof of good conduct in the meantime and that he previously
led a law abiding life were seen as mitigating factors ... as
was the fact that the proceedings lasted a disproportionately long
time, through no fault of the accused or his defence counsel.
Given the above-mentioned mitigating and aggravating
factors, a sentence of fourteen months’ imprisonment would
appear to be proportionate to the nature and seriousness of the
offence. The sentence is less than one third of the maximum five year
sentence; however, in view of the aggravating circumstances, the
court considered that a sentence in excess of one year should be
imposed.“
- The
applicant lodged a plea of nullity and an appeal against the sentence
and asked for a hearing to be held. The Public Prosecutor lodged an
appeal against the sentence.
- On
16 October 2007 the Supreme Court rejected the applicant’s plea
of nullity pursuant to Article 285d of the Code of Criminal
Procedure, without having held a hearing. It found that the
conditions laid down in Article 252(1) subparagraph (1) of the
Criminal Code for reading out the statements of the witnesses living
abroad had been met, as it had not been possible to summon these
witnesses and the statements had been made in an adversarial manner
at the pre-trial stage. Moreover, the Supreme Court noted that the
applicant’s further submissions amounted to an inadmissible
attempt to challenge the first instance court’s assessment of
evidence. The case was transferred to the Court of Appeal to decide
on the appeals.
- By
judgment of 22 November 2007 the Linz Court of Appeal, after having
held a hearing in presence of the applicant and his counsel,
dismissed the applicant’s appeal and partly granted the Public
Prosecutor’s appeal, sentencing the applicant to 14 months’
imprisonment of which 12 months were suspended for a one-year
probationary period. Its reasoning reads as follows:
“On the basis of the comprehensive sentencing
guidelines the decision by the panel of judges (Schöffensenat)
to impose a term of barely one fifth of the possible sentence, within
the range of six months to five years, takes into account above all
the numerous and significant mitigating factors. There is therefore
no scope for further reduction; by the same token, however, the
sentence should not be increased.
Nevertheless, the prosecuting authorities rightly point
out that there are no grounds for suspending the sentence in full,
not least on account of the nature of the offences, which also
constitute a serious breach of official duty. Contrary to the view of
the first instance court, it is therefore deemed necessary, if
only on general crime prevention grounds ... for a portion of the
sentence to be served in prison...”
The
judgment was served on the applicant’s counsel on 23 January
2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION WITH RESPECT TO THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, as 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...”
- The
Government contested that argument.
A. Admissibility
1. Exhaustion of domestic remedies
- The
Government argued that the applicant had not exhausted domestic
remedies, as he did not file a request for the setting of a
time-limit under Section 91 of the Courts Act
(Gerichtsorganisationsgesetz). The applicant could have filed
such a request during the preliminary investigations. After the
hearing was postponed on 19 October 2004 to review the service of the
witness summons, the applicant could also have filed a request under
Section 91 of the Courts Act.
- The
applicant argued that the preliminary investigations lasted from
January 1998 to August 2002 and during that time, a request under
Section 91 of the Courts Act was not an effective remedy, as
such a request can only be made against delays caused in judicial
proceedings. In the present case, however, the investigations carried
out by the Regional Finance Directorate had caused the delay in the
preliminary investigations, and no remedy lay against that delay.
- The
applicant further stated that a request under Section 91 of the
Courts Act also would not have remedied the delay in the proceedings
after the hearing of 19 October 2004 had been postponed. The summons
had accidentally been put into the file, and by filing a request
under Section 91 of the Courts Act, a new hearing might have been
scheduled only to find out that the summons had not been served on
the witnesses accordingly, and the hearing would have been cancelled
again.
- The Court reiterates that it held in numerous cases
that the application under Section 91 of the Courts Act is in
principle an effective remedy against court delays, both in the
context of civil proceedings (see Holzinger v. Austria (no. 1),
no. 23459/94, § 25, ECHR 2001-I) as well as in the context of
criminal proceedings (see Talirz v. Austria (dec.),
no. 37323/97, 11 September 2001). However, the Court also held
that the effectiveness of a remedy to accelerate proceedings may
depend on whether it has a significant effect on the length of the
proceedings as a whole (see Holzinger, cited above, §
22). Thus, where proceedings include a substantial period during
which there is no possibility to accelerate them by making a request
under Section 91, such remedy cannot be considered effective (see
mutatis mutandis, Holzinger (no. 2) v. Austria, no. 28898/95,
§§ 21-22).
- Turning
to the present case, the Court notes that the investigations before
the indictment was issued had already lasted for more than five
years, and the investigations and drawing up of reports by the
Regional Police Command for Upper Austria and the Regional Finance
Directorate for Upper Austria took a considerable amount of time.
Section 91 of the Courts Act does not provide an effective remedy
against delays caused by these administrative authorities. Also the
delay in the trial after the hearing was adjourned on 19 October 2004
was unlikely to have been effectively remedied by a request under
Section 91 of the Courts Act. On the basis of the file it appears
that the delay was linked to the difficulties in summoning the
witnesses living abroad. There is no indication that the court
remained inactive. Attempts to summon the witnesses were made, a
hearing was scheduled for 13 October 2005 but had to be cancelled. In
these specific circumstances the Court considers that the applicant
was not required to make use of the remedy provided for by Section 91
of the Courts Act.
- The
Court thus rejects the Government’s argument that the applicant
failed to exhaust domestic remedies.
2. The applicant’s victim status
- While
the Government did not explicitly raise the issue of whether the
applicant can claim to be a victim of a violation of Article 6 of the
Convention, the Government referred to the fact that the courts took
the long duration of the proceedings into consideration as a
mitigating circumstance when fixing the sentence.
- The
Court reiterates that the applicant can loose his victim status only
where the state has acknowledged, either expressly or in substance,
the breach of the Convention and has afforded adequate redress for
such breach, such as reducing the sentence in an express and
measurable manner (see Jensen v. Denmark (dec.), no. 48470/99,
ECHR 2001 X, Beck v. Norway, no. 26390/95, 26 June 2001,
§27, and Eckle v. Germany, 15 July 1982, § 66,
Series A no. 51).
- Turning
to the present case, the Court notes that the penalty for the
offences the applicant was convicted of was in a range between six
months’ and five years’ imprisonment. The first instance
court noted the long period of time during which the offences were
committed and repeated as an aggravating circumstance. The time that
had elapsed since the commission of the offences, the applicant’s
good conduct in the meantime, his previous law-abiding life and the
disproportionately long duration of the criminal proceedings were
considered as mitigating circumstances.
- The
first instance court fixed the sentence at 14 months’
imprisonment, all of which were suspended on probation. It did not
state how the duration of the proceedings was taken into account, but
relied on an overall view of the circumstances. The Court of Appeal
fixed the sentence at 14 month’s imprisonment, of which 12
months were suspended on probation, also without explicitly stating
in how far the duration of the proceedings was taken into
consideration.
- In
these circumstances the Court considers that, even assuming that the
statement of the domestic authorities that the proceedings had lasted
disproportionately long amounted to an implicit acknowledgement of a
breach of Article 6 of the Convention, the second requirement for
removal of the applicant’s victim status, namely the adequate
redress for such a breach, is not fulfilled.
- Consequently,
the Court finds that the applicant can still claim to be a victim of
an alleged violation of Article 6 of the Convention.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes the applicant’s argument that 29 January 1998, when
the Review Chamber of the Linz Regional Court authorized the
interception of his telephones should be taken as a starting point
for the calculation of the length of the proceedings. The Government
have not commented on this issue.
- The
Court reiterates that in criminal cases the period of proceedings
which have to be terminated within the “reasonable time”
referred to in Article 6 § 1 begins to run as soon as a person
is “charged”. Being “charged” usually occurs
on a date prior to the case coming before the trial court, such as
the date of arrest, the date when the person concerned was officially
notified that he would be prosecuted or the date when preliminary
investigations were opened. “Charge”, for the purposes of
Article 6 § 1, may be defined as “the official
notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence”, a
definition that also corresponds to the test whether “the
situation of the [suspect] has been substantially affected”
(see Reinhardt and Slimane-Kaïd v. France, 31 March 1998,
§ 93, Reports of Judgments and Decisions 1998-II; and
Eckle v. Germany, 15 July 1982, § 73, Series A no. 51).
- The
Court is not convinced by the applicant’s argument that
29 January 1998 should be taken as a starting point of the
proceedings. At that time he was not “charged” within the
meaning of Article 6 § 1: He was not given any official
notification of an allegation that he had committed a criminal
offence, nor can it be said that his situation has been
“substantially affected”. In the Court’s view, the
proceedings started on 15 May 1998, when preliminary investigations
were opened against the applicant. They ended on 23 January 2008,
when the Court of Appeal’s judgment was served on his counsel.
The proceedings lasted thus for nine years and eight months for three
levels of jurisdiction.
- 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 (see, among
many other authorities, Pélissier and
Sassi v. France [GC], no. 25444/94, §
67, ECHR 1999-II).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see Pélissier and Sassi,
cited above, Rösslhuber v. Austria (no. 32869/96,
§ 27, 28 November 2000 and Hennig v. Austria, no.
41444/98, § 33 and 34, 2 October 2003 ).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that although the case was of some complexity the overall length of
the proceedings was excessive and failed to meet the “reasonable
time” requirement. There has accordingly been a breach of
Article 6 § 1.
II. FURTHER ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND
ARTICLE 6 §§ 2 AND 3 OF THE CONVENTION IN RESPECT OF THE
ALLEGED UNFAIRNESS OF THE PROCEEDINGS
- Relying
on Article 6 § 1 of the Convention, the applicant complained
that the Supreme Court did not hold a hearing when deciding on his
plea of nullity, despite him having applied for one.
- Under
Article 6 § 2 and § 3 of the Convention, the applicant
complained that his conviction violated the right to be presumed
innocent and that his conviction was based on statements of witnesses
whom he could not question during the trial.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application is manifestly ill-founded and must be
rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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 reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect
of pecuniary damage and EUR 20,000 in respect of non-pecuniary
damage.
- The
Government contested these claims, arguing that the pecuniary damage
claimed for loss of income was not caused by the duration of the
proceedings. The Government further argued that the amount claimed in
respect of non-pecuniary damage was excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. It therefore rejects this claim. On
the other hand, it awards the applicant EUR
6,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 12,000 for the costs
and expenses incurred before the domestic courts and the Court.
- The
Government contested the claim, arguing that the applicant was
represented by legal aid counsel and did thus not have to bear any
costs at the domestic proceedings; furthermore the costs and expenses
incurred in the domestic proceedings did not serve to prevent the
long duration of the proceedings. Moreover, the costs claimed for the
proceedings before the Court were excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these costs have been actually and necessarily incurred
and are reasonable as to quantum. In the present case, regard
being had to the documents in its possession and the
above criteria, the Court notes that none of the costs
incurred in the domestic proceedings served to prevent or redress the
violation found. Consequently, it does not make an award in respect
of the domestic proceedings. Moreover, it considers it reasonable to
award the sum of EUR 1,500 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a
violation of Article 6 § 1 of the Convention with regard to the
length of the proceedings;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 6,000 (six thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage and
EUR 1,500 (one thousand and five hundred euros), plus any tax that
may be chargeable on the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 25 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
