FOURTH SECTION
DECISION
Applications nos. 50715/18 and 51649/18
Kurt AIGNER and Helmut HOPPEL
against Austria
The European Court of Human Rights (Fourth Section), sitting on 18 October 2022 as a Chamber composed of:
Tim Eicke, President,
Gabriele Kucsko-Stadlmayer,
Yonko Grozev,
Armen Harutyunyan,
Pere Pastor Vilanova,
Jolien Schukking,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to the above applications lodged on 23 October 2018 and 24 October 2018 respectively;
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants;
Having deliberated, decides as follows:
THE FACTS
1. Details of the applicants are set out in the appendix. The applicant in the first case, Mr Kurt Aigner (“the first applicant”), is an Austrian national who was born in 1944 and lives in Vienna. The applicant in the second case, Mr Helmut Hoppel (“the second applicant”), is an Austrian national who was born in 1949 and lives in Halbturn. Both applicants were represented before the Court by Mr C. Hirtzberger, a lawyer practising in St Pölten.
2. 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.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
First set of proceedings against the first applicant only4. On 22 June 2006 a tax office (Finanzamt) in Vienna submitted reports of suspected criminal activity (Strafanzeige) to the Vienna public prosecutor’s office (Staatsanwaltschaft Wien – hereinafter “the public prosecutor”). These concerned suspicions that the first applicant and another person had been involved in turnover tax evasion from 1996 to 2002 under the provisions of the Tax Offences Act (Finanzstrafgesetz) in connection with their functions in a limited liability company, Telesignal Kabelfernsehanlagen GmbH (hereinafter “Telesignal”). The public prosecutor instituted investigation proceedings in respect of the first applicant and another person on suspicion of turnover tax evasion.
5. Following the investigation, on 31 December 2007 the public prosecutor filed a bill of indictment against the first applicant and his co-accused. On an objection lodged by the first applicant, the Vienna Court of Appeal (Oberlandesgericht Wien – hereinafter “the Court of Appeal”) rejected the indictment. After having obtained an opinion from an expert, S., the public prosecutor discontinued the proceedings on 25 January 2011.
Second set of proceedings against both applicants6. On 22 March 2007 a tax office in Vienna reported suspicions of criminal activity by two persons to the public prosecutor. The suspicions concerned turnover tax evasion in 2005 and 2006 under the provisions of the Tax Offences Act in connection with the applicants’ functions in a limited liability company, tplus Kabel und Kommunikation GmbH (hereinafter “tplus”).
7. It appears from the applicants’ submissions that the public prosecutor included the investigation proceedings regarding tplus in the case file of the first set of proceedings (see paragraph 4 above).
8. In the course of the investigation, the tax office reported its suspicion that the first applicant had been involved in the tax evasion connected with tplus. On 7 December 2007 the investigating judge at the Vienna Regional Criminal Court (Landesgericht für Strafsachen Wien – hereinafter “the Regional Court”) heard him as an accused person (Beschuldigtenvernehmung).
9. According to the Government’s submissions, from July 2008 to July 2009 orders were made to obtain telecommunication data (Auskunft über Daten einer Nachrichtenübermittlung) with regard to several telephone numbers, and information from banks (Bankenauskünfte) was obtained. The tax office submitted several reports on its investigation to the public prosecutor.
10. The investigations were extended to the business relations between tplus and another company, Memorex Telex Communications AG (hereinafter “Memorex”), and further accused persons, including M., were recorded on the file.
11. On 18 November 2009 the second applicant, who in the meantime had been recorded on the file as an accused person, was summoned for questioning by the public prosecutor. A request for legal assistance (Rechtshilfe) was sent to the Berlin public prosecutor’s office.
12. On 16 December 2009 the public prosecutor questioned the second applicant.
13. The response to the request for legal assistance arrived in February 2010. In April 2010 the public prosecutor questioned a further accused person.
14. According to the applicants, on 12 August 2010 M. (see paragraph 10 above) lodged an application for discontinuance of the proceedings under Article 108 of the Code of Criminal Procedure (“ the CCP” – see paragraph 34 below), which was dismissed by the Regional Court on 15 April 2011 because further evidence was expected. No documents were submitted in that regard during the contentious phase of the proceedings before the Court.
15. On 31 August 2010 the tax office submitted its audit report on Memorex (see paragraph 10 above) to the public prosecutor.
16. On 17 January 2011 the public prosecutor appointed S. as an expert on questions concerning the turnover of tplus and the connection between that turnover and Memorex between October 2004 and December 2007.
17. On 18 January 2011 two more people were recorded on the file as accused persons. In March 2011 M. submitted a privately commissioned expert opinion.
18. According to the Government’s submissions, between May 2011 and November 2011 two witnesses were questioned by the public prosecutor and the tax office respectively. The accused were questioned by the public prosecutor. The public prosecutor’s offices in Berlin and Ravensburg, Germany, were asked to interview further witnesses by way of legal assistance.
19. On 28 January 2012 S.’s expert opinion arrived (see paragraph 16 above). The accused, including both applicants, submitted comments on the invoice produced by S.
20. According to the applicants, on 2 March 2012 M. lodged a second application pursuant to Article 108 of the CCP (see paragraph 34 below), which was allegedly dismissed by the Regional Court on 16 May 2012. No documents were submitted in that regard.
21. In February, March and May 2012, the applicants and M. complained about the invoice submitted by S. On 30 March 2012 the statements of the witnesses interviewed by the Berlin public prosecutor’s office arrived and on 15 May 2012 Memorex filed a submission. On 26 June 2012 the first applicant submitted an expert assessment of S.’s opinion, which was forwarded to the expert on 20 July 2012.
22. On 16 May 2012 the public prosecutor received a data storage device from Memorex. In July 2012 the public prosecutor noted that the two tax offices involved were already preparing their final report and that the data storage device was being inspected. On 19 October 2012, following a request by the public prosecutor, S. received the data storage device from the tax office for inspection.
23. On 12 December 2012 one of the tax offices submitted a final report on the applicants and other accused persons to the public prosecutor.
24. According to the applicants, on 14 January 2013 M. lodged a third application under Article 108 of the CCP (see paragraph 34 below). It appears from the applicants’ submissions that on 7 February 2013 the public prosecutor proposed to M.’s lawyer not to forward the third application to the Regional Court, allegedly stating that he would close the investigation soon. According to the applicants, the third application was therefore neither forwarded to, nor decided by the Regional Court. No documents were submitted in that regard.
25. On 6 February 2013 S. submitted his expert report on the data he had inspected (see paragraph 22 above) and in March 2013 he stated that, having reviewed the private expert opinion submitted by the first applicant (see paragraph 21 above), he confirmed his earlier opinion.
26. Between March and May 2013 the public prosecutor interviewed one witness and two further accused persons. The tax office interviewed one witness. At the request of the public prosecutor, in August 2013 the tax office submitted further documents.
27. On 21 October 2014 the public prosecutor filed a bill of indictment against the two applicants and three other persons, including M., charging the applicants with commercial tax evasion (gewerbsmäßige Abhgabenhinterziehung) during the years 2005 and 2006 in connection with tplus.
28. On 12 and 19 November 2014 respectively, the applicants filed objections to the indictment (Einspruch gegen die Anklageschrift). On 8 January 2015 the Court of Appeal dismissed both objections and the indictment became final. The court reasoned that, on the basis of the evidence available, especially the expert opinion, the requirements for an indictment were met and it was for the Regional Court to weigh up the evidence before it.
29. On 28 September 2017 the applicants were summoned before the Regional Court. Hearings took place on 13, 14, 27 and 28 February, 1 and 14 March and 25 April 2018. On the last-mentioned date, the Regional Court acquitted the applicants of all charges. One defendant, M., was found guilty in respect of part of the accusations. The judgment became final on 2 May 2018.
Defamation proceedings against the second applicant30. In January or February 2016 the public prosecutor instituted investigation proceedings against the second applicant on suspicion of defamation after he had made statements accusing S. of giving false evidence. On 14 July 2016, 13 April and 18 December 2017 and 18 March 2018 the second applicant lodged applications under Article 108 of the CCP (see paragraph 34 below), which were eventually all dismissed by the Regional Court and then by the Court of Appeal. The public prosecutor discontinued the defamation proceedings on 3 May 2018, following the second applicant’s acquittal in the second set of proceedings (see paragraph 29 above). The second applicant requested reasons for the discontinuance, which were given on 9 May 2018. On 30 May 2018 the Court of Appeal dismissed the second applicant’s appeal against the latest dismissal of his application under Article 108 of the CCP, as in the light of the discontinuance of the defamation proceedings, he could no longer claim to be a victim of a violation of his rights.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
Code of Criminal Procedure (“CCP”)31. On 1 January 2008 the CCP (Strafprozessordnung, published in the Federal Law Gazette no. 631/1975), was amended by the Criminal Procedure Reform Act (Strafprozessreformgesetz, published in the Federal Law Gazette no. 19/2004). The amended provisions of the CCP were applicable to criminal proceedings, such as those against the applicants, in which no verdict at first instance had yet been pronounced.
32. Article 9 § 1 of the CCP in its amended version, as published in the Federal Law Gazette no. 19/2004, reads as follows:
Requirement of reasonable expedition (Beschleunigungsgebot)
“(1) Every accused person has the right to the termination of proceedings within a reasonable time. Proceedings must always be conducted expeditiously and without unnecessary delay.”
33. Article 106 of the CCP in its amended version as published in the Federal Law Gazette No. 19/2004 and as valid at the time of the applicants’ proceedings (not including further amendments published in the Federal Law Gazette Nos. 93/2007, 1/2011, 195/2013 and 85/2015) read as follows:
Objection on grounds of a breach of rights (Einspruch wegen Rechtsverletzung)
“(1) In investigation proceedings, any person who claims a breach of his or her individual rights by the public prosecutor’s office or the criminal police because
1. he or she has been denied the opportunity to exercise a right under this Act, or
2. an investigative or coercive measure has been ordered or implemented in breach of the provisions of this Act,
shall be entitled to lodge an objection with the court. There shall be no breach of individual rights where the law does not regulate the conduct of the public prosecutor’s office or the criminal police in a binding manner and where such discretion has been made use of within the meaning of the law.
...
(5) If the public prosecutor’s office does not satisfy the objection or if the person who has lodged the objection requests a ruling from the court, the public prosecutor’s office must immediately forward the objection to the court. The court shall send statements by the public prosecutor’s office and the criminal police to the person who has lodged the objection for his or her comments within a period of time to be fixed, which shall not exceed seven days.”
34. Article 108 of the CCP in its amended version as published in the Federal Law Gazette No. 19/2004 and as valid at the time of the applicants’ proceedings (not including a further amendment published in the Federal Law Gazette no. 71/2014) read as follows:
Application for discontinuance (Antrag auf Einstellung)
“(1) The court shall discontinue the investigation proceedings upon the request of the accused if
1. it is established on the basis of 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 an offence does not justify the continuation of the proceedings in terms of urgency and seriousness and in the light of the duration and scope of the investigation proceedings so far, and further clarification of the facts is not expected to intensify the suspicion.
(2) ... The public prosecutor’s office shall discontinue the proceedings (Articles 190, 191) or forward the request to the court, accompanied by a statement as appropriate. The last sentence of Article 106, paragraph 5, shall apply accordingly.”
Explanatory notes on the Criminal Procedure Reform Act35. The explanatory notes on the draft law of the Criminal Procedure Reform Act (Erläuternde Bemerkungen zur Regierungsvorlage, RV 25 BlgNR XXII. GP, pp 142 et seq.) state that in principle an omission also constitutes a valid subject of objection under Article 106 § 1 (1) of the CCP (see paragraph 33 above) if it obstructs procedural rights under that Act. On the other hand, in cases of delay, this will only apply exceptionally, principally where the delay in the proceedings becomes disproportionate in relation to the seriousness of the offence and the complexity of the investigation.
36. With regard to Article 108 of the CCP (see paragraph 34 above), the explanatory notes state that investigation proceedings that are not pursued with the appropriate vigour may be in breach of the requirement of reasonable expedition in Article 9 of the CCP (see paragraph 32 above). Accordingly, the court must also discontinue the investigation proceedings if, on the basis of the results of the proceedings so far, the seriousness of the alleged offence and the duration and intensity of the investigation proceedings so far, continuation of the proceedings does not appear to be justified because it cannot be expected that this would result in further specification and/or substantiation of the suspicion so as to lead to the termination of the proceedings by means of diversion or indictment.
Domestic case-law and practice37. According to the case-law of the Austrian Supreme Court, in order to comply with Article 35 of the Convention, applicants have to have availed themselves of existing remedies in respect of the excessive length of proceedings, namely objections on grounds of a breach of rights under Article 106 § 1 (1) of the CCP (see paragraph 33 above) where the public prosecutor has not complied with the requirement of reasonable expedition in Article 9 § 1 of the CCP (see paragraph 32 above). By means of this remedy, applicants may obtain a specific court order for the public prosecutor to comply with the requirement of reasonable expedition by ensuring the effective continuation of the investigation (gehörige Fortführung), discontinuing the proceedings or filing an indictment. The public prosecutor would be bound by such an order (see the Supreme Court’s judgments of 14 July 2011, 11 Os 53/11 w; 29 February 2012, 15 Os 118/11h; and 10 December 2013, 11 Os 131/13 v).
38. Even before it had developed this line of case-law, as of 2008 the Supreme Court had held that the public prosecutor had to comply with court decisions upholding objections on grounds of a breach of rights (under Article 106 § 1 (2) of the CCP – see paragraph 33 above) by establishing the relevant legal situation with the means at its disposal. The court was therefore at liberty to order specific measures to expedite the proceedings (under Article 108 § 1 (2) of the CCP – see paragraph 34 above). Under certain circumstances, such measures could also be required to prevent a violation of fundamental rights (RIS Justiz RS0124006 based on the Supreme Court’s judgments of 13 August 2008, 14 Os 108/08a, of 27 August 2008, 13 Os 122/08b and of 7 May 2009, 13 Os 37/09d, all relied on by the Government).
39. In a published decision relied on by the Government dated 13 June 2013 (10 Bs 139/13 m), the Graz Court of Appeal granted an application under Article 108 § 1 (2) of the CCP, after considering the investigative measures taken and the duration of the investigation proceedings, which had lasted more than three years with regard to an offence for which the penalty was two years’ imprisonment. It stated that the public prosecutor’s office had to specify the suspicion in concrete terms when the court reviewed its actions as provided for by law and, where a court decision on an application for discontinuance pursuant to Article 108 § 1 (2) of the CCP was required, the public prosecutor had to explain what was expected from the results of the further investigative proceedings that was specifically relevant for the clarification of the case (RIS Justiz RG0000097).
40. As to the distinction between the remedies in Articles 106 and 108 of the CCP (see paragraphs 33 and 34 above), the Supreme Court has held that where the requirement of reasonable expedition under Article 9 of the CCP (see paragraph 32 above) has been breached, the defendant can lodge an objection on grounds of a breach of rights in order to seek a finding of that breach together with a judicial order for the public prosecutor to expedite the proceedings. Alternatively, the defendant can apply for the proceedings to be discontinued under Article 108 § 1 (2), which provides for a balancing exercise to be carried out between the urgency and seriousness of the case on the one hand and the duration and scope of the investigation proceedings on the other. Depending on the outcome of that proportionality assessment, the court can order the discontinuance of the proceedings (Supreme Court’s judgment of 5 March 2019, 14 Os 16/19 p).
41. In the legal literature, applications for discontinuance pursuant to Article 108 of the CCP have been described as effective preventive remedies against the excessive length of proceedings (see, for example, Herbst and Wess in Jahrbuch Wirtschaftsstrafrecht & Organverantwortlichkeit 2015, pp. 246 et seq.). In particular it has been said that Article 108 of the CCP provides for a judicial review of a public prosecutor’s investigation as to its compliance with the principles of proportionality and the requirement of reasonable expedition (Article 9 of the CCP), thus ensuring that Article 6 of the Convention is complied with during the investigation proceedings (see Pilnacek/Stricker in Fuchs/Ratz, WK StPO, in its version of 13 November 2017, § 108, Rz 9, 10).
Statistics on Article 108 of the CCP42. According to statistical information provided by the Government and not disputed by the applicants, between 2008 and 2020 the Austrian public prosecutor’s offices received a total of 3,745 applications under Article 108 of the CCP (no distinction was made between applications under paragraph 1 (1) and those under paragraph 1 (2) of that Article). The public prosecutor’s offices granted 642 of those applications. The courts granted a further 413 applications. Accordingly, a total of approximately 28% of applications to discontinue proceedings pursuant to Article 108 of the CCP were granted. The average time taken to decide on such an application was around fifty-four days.
Section 91 of the Courts Act43. 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 timetabling or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to that court for a superior court to impose an appropriate time‑limit for the taking of the particular procedural step; unless subsection (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 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.”
COMPLAINT
44. The applicants complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against them had been incompatible with the “reasonable time” requirement.
THE LAW
Joinder of the applications45. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).
Complaint under Article 6 § 1 of the Convention46. The applicants considered that the criminal proceedings against them had been too lengthy. They relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”
Submissions by the parties(a) The Government
47. The Government submitted that, despite the fact that the first applicant had been represented by a lawyer and the second applicant was himself a retired lawyer (emeritierter Rechtsanwalt), the applicants had failed to exhaust domestic remedies. An application for discontinuance under Article 108 § 1 (2) of the CCP (see paragraph 34 above) could result in discontinuing the investigation proceedings if the suspicion of the offence and the previous course of the proceedings were such that their continuation appeared disproportionate, taking into account the duration of the proceedings up to that point. Had the applicants lodged such an application, the public prosecutor would have either discontinued the proceedings or forwarded the request to the court. The court would have then decided on the matter, either by dismissing the request or by deciding that the proceedings should be discontinued. Relying on statistics (see paragraph 42 above) and on national case-law (see paragraph 39 above), the Government argued that such an application would have been effective. They submitted it could not be concluded from the dismissal of another defendant’s applications (see paragraphs 14 and 20 above) that the applicants’ applications would have been equally unsuccessful. They noted that, differently from the applicants, that defendant, M., had later been convicted (see paragraph 29 above).
48. Relying on national case-law (see paragraph 40 above), the Government further submitted that an objection on grounds of a breach of rights under Article 106 of the CCP (see paragraph 33 above) would also have been an effective remedy, as it was aimed at ensuring the expeditious conduct of the proceedings.
49. In the Government’s submission, once the indictment had become final, the applicants could also have lodged an application under section 91 of the Courts Act (see paragraph 43 above) to expedite the proceedings.
50. As regards the first set of proceedings concerning the first applicant (see paragraphs 4 and 5 above), the Government noted that those proceedings had been discontinued on 25 January 2011, whereas the application had not been lodged until 2018. The first applicant’s complaint in that regard was therefore belated.
(b) The applicants
51. Regarding the period to be taken into consideration, the first applicant argued that the first and second sets of proceedings (see paragraphs 4-29 above) should be seen as one process.
52. The second applicant argued that the second set of proceedings and the defamation proceedings (see paragraphs 6-30 above) should be taken together. They had ended on 30 May 2018, when the Court of Appeal dismissed the appeal against his last application under Article 108 of the CCP.
53. The applicants submitted that they had in fact exhausted all effective remedies. Applications under Article 108 of the CCP (see paragraph 34 above) were aimed at discontinuing the investigation, not at expediting it. That provision did not allow courts to set a time-limit for the public prosecutor to complete the investigation. A discontinuance under Article 108 of the CCP was only possible if an indictment could not be expected. Since in fact the public prosecutor had brought an indictment against both applicants (and three other persons – see paragraph 27 above) it was obvious that an application under Article 108 of the CCP would not have been effective. This was proved by the decision of the Court of Appeal of 8 January 2015 which had confirmed the indictment (see paragraph 28 above). In the present case, once the expert opinion that heavily incriminated the applicants had been obtained (see paragraphs 19 and 25 above), an application under Article 108 of the CCP was all the less likely to succeed.
54. The fact that three applications under Article 108 CCP by a co‑defendant had been unsuccessful (see paragraphs 14, 20 and 24 above) showed that this remedy would not have been effective for the applicants either.
55. The unsuitability of applications under Article 108 of the CCP for expediting proceedings had also been shown in the defamation proceedings (see paragraph 30 above), in which the second applicant had lodged four such requests. All of them had been unsuccessful.
56. Overall, the proceedings against the applicants could have been discontinued by December 2010. The relevant witnesses had been known to the public prosecutor since the middle of 2009 and there had been no viable reason not to interview them within a reasonable time. The evidence collected by the end of 2010 would not have been sufficient for an indictment. However, the applicants had been prevented from lodging an application under Article 108 of the CCP because certain evidence had been unlawfully withheld from the case file. The applicants had therefore been left in the dark about the fact that the evidence obtained had not provided any proof of their guilt. Obtaining the expert report had prolonged the proceedings for another four years. Consequently, from 17 January 2011, the date on which the expert opinion had been ordered (see paragraph 16 above), the investigating authorities had been responsible for the delay. The applicants provided an Excel spreadsheet which in their submission showed that there had been periods of inactivity on the part of the public prosecutor, including between February and July 2009, January and July 2010, June 2013 and September 2014 and for some months in between.
57. As to the Government’s argument that a request under Article 106 of the CCP would have been effective (see paragraph 48 above), the applicants responded that Article 108 of the CCP (see paragraph 34 above) was a lex specialis in relation to Article 106 of the CCP (see paragraph 33 above) and thus the latter provision had not been applicable. Article 106 of the CCP was aimed only at remedying individual illegal acts. The Austrian legal system did not provide a remedy for long-lasting, slow investigations.
58. As to section 91 of the Courts Act (see paragraphs 43 and 49 above), the applicants argued that they had not lodged an application under that provision because it had been in their interests to have the Regional Court wait for the outcome of the defamation proceedings against the second applicant before starting the trial.
The Court’s assessment(a) Periods to be taken into consideration
59. The Court does not agree with the first applicant’s submission (see paragraph 51 above) that the first and second sets of proceedings should be taken together to determine the overall length of the proceedings against the first applicant. Although both sets of investigation proceedings may have formed part of a single case file for administrative reasons (see paragraph 7 above), they concerned accusations in relation to different companies and different time periods (see paragraphs 4, 6 and 27 above). This is why each set of proceedings led to different results, one being terminated on 25 January 2011 (see paragraph 5 above) and one leading to an indictment on 21 October 2014 (see paragraph 27 above). The Court will therefore examine the periods of each set of proceedings separately.
60. The Court notes that the first set of proceedings ended on 25 January 2011, when the public prosecutor ordered their discontinuance (see paragraph 5 above). Given that the first applicant introduced his application on 23 October 2018, the complaint in relation to this set of proceedings must be declared inadmissible for failure to comply with the six-month time-limit in accordance with Article 35 §§ 1 and 4 of the Convention.
61. The Court does not share the applicants’ view that the defamation proceedings should be taken together with the second set of proceedings to determine the overall length of the proceedings against the second applicant (see paragraph 52 above). The defamation proceedings were only indirectly linked to the second set of proceedings, being independent of them and concerning an unrelated accusation. The Court will therefore not take into consideration the period of the defamation proceedings. It notes that the second applicant’s complaint about the length of the defamation proceedings taken alone was declared inadmissible by the President of the Section sitting in a single-judge formation on 4 January 2021.
62. It follows that in the ambit of the present decision the Court will only examine the complaint concerning the excessive length of the second set of proceedings which started in respect of the first applicant on 7 December 2007, when he was heard as an accused person (see paragraph 8 above), and in respect of the second applicant on 18 November 2009, when he was summoned for questioning (see paragraph 11 above). The proceedings ended in respect of both applicants on 2 May 2018, when their acquittal became final (see paragraph 29 above). It follows that the second set of proceedings lasted approximately ten years and five months for the first applicant and eight years and five months for the second applicant.
(b) Available remedies
63. The general principles regarding exhaustion of domestic remedies have been summarised in the case of Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014), to which reference is made.
64. Mere doubts on the part of the applicant as to the prospect of success of a particular remedy which is not obviously futile are not a valid reason for failing to exhaust that avenue of redress (ibid., §§ 74 and 84, and see also Holzinger v. Austria (no. 1), no. 23459/94, § 22, ECHR 2001-I, each with further references).
65. As to the effectiveness of domestic remedies in cases concerning the length of proceedings, the Court has found that a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy was the most effective solution and that this type of remedy was “effective” in so far as it hastened the decision by the court concerned (see Cocchiarella v. Italy [GC], no. 64886/01, §§ 74-75, ECHR 2006-V, and the cases cited therein).
(i) Remedies during the investigation proceedings
(α) Article 106 CCP
66. The applicants could have lodged an objection on grounds of a breach of rights under Article 106 § 1 (1) and (2) of the CCP (see paragraph 33 above) 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 the CCP (see paragraph 32 above), in the case of the first applicant from 1 January 2008, when the relevant provision under Article 106 entered into force (see paragraph 31 above), and in the case of the second applicant from the commencement of the proceedings against him on 18 November 2009 (see paragraph 11 above). The Government relied on relevant case-law of the national courts (see paragraph 38 above) to show that Article 106 CCP could have been relied on by the applicants to remedy a breach of their rights, and it can 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 (see paragraph 35 above). The Government thus satisfied the burden of showing that this remedy, which was available at the relevant time, was in principle effective to expedite investigation proceedings where there were delays caused by the public prosecutor (see Vučković and Others, cited above, § 77). Although the Court notes that the law does not provide time-limits for the courts to decide on an objection as to delay or for the public prosecutor to comply with any directions by the courts, there is no indication – and nor did the applicants submit – that in practice applications under Article 106 were not dealt with expeditiously.
67. The Court is satisfied that this remedy was sufficiently known to the applicants and thus available to them not only in theory but also in practice, the first applicant being represented by a lawyer and the second applicant being a retired lawyer himself (see paragraph 47 above).
68. It fell to the applicants to establish that the remedy suggested by the Government was in some way inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting them from the requirement to make use of it (see Vučković and Others, cited above, § 77). However, they only submitted that Article 106 of the CCP had not been applicable to their case (see paragraph 57 above), an allegation that has been refuted by reference to the national case-law and explanatory notes referred to above (see paragraphs 35 and 38 above).
69. The facts of the case show clearly that it took the public prosecutor almost three years to issue an indictment after the expert opinion had been obtained (see paragraphs 19 and 27 above). This delay was apparently partly caused by the tax offices taking about a year after the opinion had been obtained to finish their final report (see paragraph 23 above) and by the public prosecutor taking five months to forward a data storage device to the expert to have him examine it (see paragraph 22 above). Even after the last investigative measure had been completed (see paragraph 26 above), it took the public prosecutor more than one year to issue the indictment. All those delays seemed attributable to the public prosecutor and could therefore have been challenged by means of an objection. The available information indicates that that 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 (see paragraph 37 above).
70. The applicants themselves in their submissions complained about periods of inactivity on the part of the public prosecutor throughout the whole proceedings (see paragraph 56 above). This confirms the conclusion of the Court that they should have attempted to make use of the remedy provided by Article 106 of the CCP, even if they had doubts as to its effectiveness (see the case-law quoted in paragraph 64 above).
(β) Article 108 § 1 (2) CCP
71. The Government relied on domestic case-law and the explanatory notes on the Criminal Procedure Reform Act (see paragraphs 36 and 39 above) to show that the remedy provided for in Article 108 § 1 (2) of the CCP (see paragraph 34 above) would have been effective to expedite the proceedings by terminating them. The wording of that provision directly refers to the duration of the investigation proceedings as an aspect to be taken into consideration. The Court is therefore persuaded that the remedy in question was in principle effective in the given circumstances. As to its use and prospects of success in practice, the Government submitted statistics, showing a success rate of 28% (see paragraph 42 above), which were not disputed by the applicants.
72. The applicants, for their part, have not shown that this remedy was inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances exempting them from the requirement to make use of it. They submitted that another accused person, M., had lodged three applications pursuant to Article 108 of the CCP without success (see paragraph 54 above). However, they did not provide any evidence in that regard and the Court has no information as to whether M. had even complained about the length of the proceedings in his case. He may also have lodged his applications under Article 108 § 1 (1) rather than Article 108§ 1 (2) of the CCP without referring to any delay. Moreover, as noted by the Government (see paragraph 47 above), M.’s position may have been different from that of the applicants, and this might have had an impact of the prospect of success of the remedy allegedly attempted by him. In the Court’s view, the fact that the applicants mentioned that another accused person had apparently made use of one of the remedies provided for in Article 108 of the CCP indicates that they were aware of that possibility. Mere doubts as to the effectiveness of the remedy, however, did not release them from the obligation to attempt it (see the case-law quoted in paragraph 64 above).
73. As to the applicants’ argument that the second applicant had been unsuccessful with his applications for discontinuance under Article 108 of the CCP in the defamation proceedings (see paragraphs 30 and 55 above), the Court notes that those proceedings took only a little more than two years in total. The domestic courts therefore had no reason to consider the length of those proceedings to be problematic and the Court has already dismissed the second applicant’s complaint in that regard as inadmissible (see paragraph 61 above). It follows that the dismissal of the second applicant’s applications under Article 108 of the CCP in the defamation proceedings does not lead to the conclusion that such an application would have been equally unsuccessful in the second set of proceedings.
74. It is striking that according to the applicants’ own submissions, the investigation proceedings should have been concluded by 2010 as there had been no relevant evidence against them up to that point but they had been hindered from lodging an application under Article 108 of the CCP, since evidence had been withheld by the public prosecutor (see paragraph 56 above). In support of that allegation, the second applicant submitted a table with handwritten entries from the investigation case file, from which it appears that three notes regarding telephone surveillance (Telefonüberwachungsprotokolle) dated December 2009 had only been included in the case file in October 2012. The applicants did not explain how the alleged retention of those three documents had hindered their lodging of an application under Article 108 of the CCP. Rather, their argument implies that they could not rule out the effectiveness of such an application because they were not aware of any evidence that incriminated them.
75. Lastly, the applicants submitted that an application under Article 108 of the CCP had been unrealistic once the expert opinion which heavily incriminated them had been submitted (see paragraph 53 in fine above). The Court notes that the expert opinion was only received on 28 January 2012 (see paragraph 19 above). Even according to that argument the first applicant would have had four years and one month from 1 January 2008, when Article 108 of the CCP came into force, until the expert opinion was obtained (see paragraphs 8 and 19 above) and the second applicant would have had two years and two months from the beginning of his proceedings on 18 November 2009 until the expert opinion was obtained (see paragraphs 11 and 19 above) to lodge an application for discontinuance of the proceedings.
76. While an application under Article 108 § 1 (2) of the CCP may have lacked any prospect of success once the indictment had been issued, another two years and nine months elapsed between the delivery of the expert opinion and the date of the indictment on 21 October 2014 (see paragraph 27 above). Doubts as to the chances of success of such an application did not release the applicants from their obligation to attempt it (see the case-law quoted in paragraph 64 above).
(ii) Remedies during the proceedings before the Regional Court
77. The Court observes that in Holzinger (no. 1) (cited above, §§ 24-25, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, relating to criminal proceedings) it found that an application under section 91 of the Courts Act (see paragraph 43 above) was in principle an effective remedy which had to be used in respect of complaints about the length of court proceedings. It stated, however, that the effectiveness of such a remedy could depend on whether it had a significant effect on the length of the proceedings as a whole (see Holzinger (no. 1), cited above, § 22). The Court notes that the applicants could have made an application under section 91 of the Courts Act during the proceedings before the Regional Court. Those proceedings began on 8 January 2015, when the indictment became final (see paragraph 28 above), and ended on 2 May 2018, when the applicants were acquitted (see paragraph 29 above).
78. The Regional Court judge delayed timetabling a hearing from January 2015 until 28 September 2017 (see paragraph 29 above). During that period, an application under section 91 of the Courts Act could have expedited the proceedings. However, no decision on such an application could have made up for the delay which had already occurred during the investigation proceedings, about which the applicants actually complained (see, mutatis mutandis, Holzinger v. Austria (no. 2), no. 28898/95, § 21, 30 January 2001). The applicants explicitly submitted that it had not been in their interests to have the Regional Court schedule a hearing before the termination of the defamation proceedings. Having already stated that the applicants had at their disposal two remedies which had not been used (see paragraphs 70 and 76 above), the Court does not consider it necessary to rule on the effectiveness of an application under section 91 of the Courts Act in the particular circumstances of the present case.
(iii) Conclusion
79. Both applicants had at least two remedies available to expedite the investigation proceedings forming the subject of their complaint, neither of which they made use of. Those remedies appear to have been effective, available both in theory and in practice and capable of providing a reasonable prospect of success. The applicants did not demonstrate otherwise. Either of those remedies, had they been attempted, could have had a significant effect on the overall length of the proceedings. The Court concludes 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.
80. The Court has not previously had the opportunity to express its view on the effectiveness of applications for discontinuance under Article 108 § 1 (2) of the CCP (see paragraph 34 above) or of objections on grounds of a breach of rights under Article 106 of the CCP (see paragraph 33 above) in cases where the length of proceedings was in issue. It has, however, previously 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 (see Berger v. Austria [Committee], no. 58049/11, § 40, 11 April 2017, and Auerbach v. Austria [Committee], no. 907/13, § 36, 28 February 2017). This is a further indication of their common use in practice.
81. The Court considers that it would be inconsistent with the subsidiarity principle (see Vučković and Others, cited above, § 69) 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 finds that the domestic courts should have been given an opportunity to rule on the applicants’ cases first. In this connection, the Court emphasises that its position may 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 (see, mutatis mutandis, Treial v. Estonia (dec.), no. 32897/12, § 43, 28 January 2014, with further references).
82. In view of the foregoing considerations, the Court concludes that the applicants failed to exhaust domestic remedies during the investigation proceedings complained of as required by Article 35 of the Convention.
83. It follows that their complaints concerning the length of the second set of criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 10 November 2022.
Ilse Freiwirth Tim Eicke
Deputy Registrar President
Appendix
List of applicants
No.
Application no.
Case name
Lodged on
Applicant
Year of birth
Place of residence
Nationality
Represented by
1.
50715/18
Aigner v. Austria
23/10/2018
Kurt AIGNER
1944
Vienna
Austrian
Christian HIRTZBERGER
2.
51649/18
Hoppel v. Austria
24/10/2018
Helmut HOPPEL
1949
Halbturn
Austrian
Christian HIRTZBERGER