Information Note on the Court’s case-law 26
January 2001
Basic v. Austria - 29800/96
Judgment 30.1.2001 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Length of proceedings: application under Article 132 of the Federal Constitution
Facts: In February 1990 the applicant was found by the police in possession of jewellery, including a valuable watch. He claimed that the jewellery had been pledged to him for gambling debts. The police filed an information against him on suspicion of receiving goods for which no import duties had been paid. The Customs Office ordered seizure of the jewellery with a view to possible forfeiture. Criminal proceedings were insituted against another person, E.W., who claimed to be the owner of the jewellery, and the applicant, whose request for return of the watch had remained unanswered, was called to join these proceedings as a private party. E.W. was found guilty of evading import duties and forfeiture of the watch was ordered. This was confirmed in January 1995 by the Appeals Board of the Regional Directorate of Finance, which stated that the forfeiture also took effect against the applicant, as he had not proved ownership and had not acquired a valid pledge. The decision was served in March 1996. In the meantime, object liability proceedings had been instituted by the customs authorities, who decided to seize the watch as security for the import duties. However, this decision was quashed on the ground that the watch had already been seized in the context of the criminal proceedings.
Law: Government's preliminary objection (non-exhaustion) – In its admissibility decision of 16 March 1999, the Court dismissed the Government's argument that an application against the administration's failure to decide, under Article 132 of the Constitution, was an effective remedy to speed up proceedings. However, it has in the meantime accepted that a similar remedy in Portugal is effecive and must now review the Austrian position. Austrian law provides in the field of administrative proceedings that the competent authority has, unless provided otherwise, to decide within six months upon any request by a party. If this time-limit is not complied with, the party may - in a case like the present one where the possibility to request a transfer of jurisdiction to the higher authority is excluded - lodge an application under Article 132 of the Constitution with the Administrative Court. If deemed admissible, it results in an order addressed to the authority to give the decision within three months, which can be renewed only once. Moreover, the Government have supplied information which shows that in the vast majority of cases such an application does not cause a further delay in the proceedings, as the Administrative Court usually takes no more than a month to issue such an order. With regard to the applicant's assertion that an application under Article 132 lies against the failure of the "highest authority", the Government have adduced case-law of the Constitutional Court, according to which an application also lies against a first instance authority’s failure to decide where - as in the present case - a request for a transfer of jurisdiction is excluded. Since the applicant failed to use this remedy, he has not exhausted domestic remedies: preliminary objection allowed.
(This case raises the same issue as that addressed in the case Pallanich v. Austria, no. 30160/96, judgment of 30 January 2001. This case concerns the length of administrative proceedings. The Court allowed the Government's preliminary objection, on the ground that the applicant, in failing to lodge an application under Article 132 of the Federal Constitution, had not exhausted domestic remedies).
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