CASE OF BERGER v. AUSTRIA

FOURTH SECTION

CASE OF BERGER v. AUSTRIA

(Application no. 58049/11)

JUDGMENT

STRASBOURG

11 April 2017

This judgment is final but it may be subject to editorial revision.

In the case of Berger v. Austria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,

and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 21 March 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 58049/11) 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 Michael Berger (“the applicant”), on 8 September 2011.

2. The applicant was represented by Mr J.S. Mertens, a lawyer practicing in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs.

3. On 27 August 2014 the complaint concerning the length of the proceedings was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1971 and lives in Mondsee.

5. On 3 October 2000 the Vienna public prosecutor’s office (Staatsanwaltschaft – hereinafter, “the prosecutor’s office”) requested the Vienna Regional Criminal Court (Landesgericht für Strafsachen – hereinafter, “the Regional Court”) to institute criminal proceedings against the applicant. The prosecutor’s office sought to obtain information about the outcome of criminal proceedings against the applicant in the United States, where he had been charged with aggravated fraud in his function as director of the M. investment fund and the M. capital management company. Among the injured parties there were also Austrian banks. The criminal proceedings against the applicant in Austria were suspended in accordance with Article 412 of the Code of Criminal Proceedings (hereinafter, the “CCP”) pending the outcome of the proceedings in the United States.

6. On 27 November 2000 the applicant was convicted of bond fraud by the New York Southern District Court in the United States. However, he subsequently absconded and did not appear at the court hearing in which his sentence was to be determined. On 1 March 2002 the United States issued an arrest warrant against the applicant.

7. On 29 May 2002 the Regional Court opened a judicial investigation (Voruntersuchung) against the applicant and issued an arrest warrant.

8. On 6 July 2007 the applicant was arrested in Austria on the basis of the arrest warrant of 29 May 2002 (see paragraph 7 above) and subsequently placed in pre-trial detention.

9. On 23 July, 17 August and 24 September 2007 the applicant filed complaints against the continuation of the pre-trial detention. While the first two complaints were withdrawn by the applicant, the third was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 5 November 2007. The applicant unsuccessfully requested his release also on 28 January, 8 May and 12 August 2008. The applicant’s complaints against the continuation of his pre-trial detention lodged on 7 February, 27 May and on 27 August 2008 were dismissed by the Vienna Court of Appeal on 27 March, 24 June and 23 September 2008.

10. On 25 October 2007 the applicant submitted a statement of facts to the authorities, presenting his view of the situation.

11. On 16 November 2007, 21 April and 15 July 2008 the applicant applied to be granted access to his case-file. On an unspecified date the Regional Court dismissed his requests.

12. On 27 December 2007 the case file was transferred to the prosecutor’s office for further investigation.

13. On 10, 29 and 30 January 2008 the applicant filed submissions with the Regional Court. Among other things, he declared that he was willing to give a statement concerning the accusations against him. On 26 March 2008 the Regional Court rejected his requests on formal grounds.

14. On 14 April 2008 the applicant lodged a complaint relating to his fundamental rights (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof), which was dismissed on 19 June 2008.

15. On 1 May 2008 the applicant lodged an objection because of alleged violations of his rights (Einspruch wegen Rechtsverletzung) and again applied to be granted access to his case-file. On 8 July 2008 the Regional Court dismissed the objection.

16. On 21 July, 29 August and 1 September 2008 the applicant lodged further objections because of alleged violations of his rights. On 16 October 2008 the Regional Court dismissed all of them. The applicant appealed against this decision.

17. On 30 December 2008 the Vienna Court of Appeal dismissed the objection of 1 September 2008, but granted the two objections of 21 July and 29 August 2008, holding that the refusal to grant the applicant access to his case file and to provide him with copies thereof constituted a violation of his rights.

18. On 27 August 2008 the applicant filed another complaint against the continuation of his pre-trial detention. On 23 September 2008 the Vienna Court of Appeal dismissed this complaint.

19. On 23 September 2008 the prosecutor’s office informed the applicant about the intended appointment of expert S.J.

20. On 29 September 2008 the applicant objected to this appointment, stating that S.J. would not have the necessary knowledge to deal with the case and could possibly be biased as she was cooperating with the companies involved in the alleged fraud.

21. On 6 October 2008 the expert S.-J. was nonetheless appointed to provide an opinion relating to the applicant’s businesses.

22. On 9 October 2008 the applicant lodged another complaint relating to his fundamental rights with the Supreme Court. On 4 November 2008 his complaint was dismissed by the Supreme Court.

23. On 21 October 2008 he unsuccessfully lodged another request to be released. On 6 April 2009 the applicant again requested his release from pre-trial detention.

24. On 24 April 2009 the applicant was released from pre-trial detention. He alleged that he had not even once been questioned in relation to the accusations against him during the entire time he spent in pre-trial detention, even though he had tried to contribute to the clarification of the facts by submitting statements as well as requests for the taking of evidence.

25. On 13 September 2009 the applicant lodged another objection because of an alleged violation of his rights, arguing that the expert S.-J. had close connections with potential victims and was therefore biased. On 19 January 2010 the Regional Court granted this objection.

26. On 8 September 2010 the applicant filed an application for the discontinuation of the criminal proceedings against him. He argued that he had already been tried and sentenced in the United States for the same offences. Moreover, according to the laws in force at the time and place of the commission of the offences, the latter had become time-barred. On 7 October 2010 the Regional Court dismissed the application. On 14 March 2011 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that even though it was difficult to clarify the facts of the case after more than ten years, the applicant had significantly contributed to the length of the investigations by having absconded.

27. On 7 April 2011 a new expert, W.-A., was appointed to provide an opinion. The applicant again objected to the expert and complained about the length of the pre-trial investigations. On 11 May 2011 the Regional Court granted the objection concerning the expert, but dismissed the applicant’s complaint concerning the length of the proceedings, holding that it had been proportionate to the complexity of the case. Further, it held that the main reason for their length was that the applicant had filed a large number of objections and appeals. Hence, the duration of the proceedings was not in violation of Article 6 of the Convention.

28. On 16 August 2011 the prosecutor’s office informed the applicant that it intended to appoint a new expert, B. The applicant objected, alleging that B. had close relations with investors who could potentially have sustained damages because of his activities. On 25 October 2011 B. was nonetheless appointed by the prosecutor’s office and given a deadline of nine months to provide the opinion. The applicant’s objection was dismissed by the Regional Court on 5 December 2011. On 16 April 2012 the Vienna Court of Appeal rejected the applicant’s appeal as being lodged out of time.

29. On 14 August 2013 the applicant lodged an objection because of an alleged violation of his rights, repeating his arguments that the expert B. was not impartial. He further argued that B. had significantly exceeded the time-limit for providing his opinion. On 26 December 2013 the Regional Court granted the objection, holding that the prosecutor’s office had not adequately reacted to the exceeding of the time-limit by the expert, who should have been discharged as a consequence. It therefore found that the applicant’s right to have the proceedings conducted within a reasonable time was violated.

30. On 4 March 2014 the expert B. was discharged and on 5 May 2014 another expert, M., was appointed.

31. On 9 October 2016 the prosecutor’s office submitted an indictment against the applicant on suspicion of embezzlement and aggravated fraud on a commercial basis. On an unspecified date, the applicant’s appeal against the indictment was rejected by the Vienna Court of Appeal. Therefore, it has become legally binding.

32. At the date of the latest information available to the Court (15 November 2016), the criminal proceedings against the applicant were still pending at first instance.

II. RELEVANT DOMESTIC LAW

33. 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 announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time‑limit for the taking of the particular procedural step; unless sub-section (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 so 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.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

34. The applicant complained that the length of the proceedings was incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows in its relevant parts:

“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

35. The period to be taken into consideration began on 6 July 2007, when the applicant was arrested in Austria (see paragraph 8 above). The criminal proceedings against him were still pending at first instance on the date of the latest information available to the Court (15 November 2016 – see paragraph 32 above). At that point they had already lasted more than nine years and four months for one level of jurisdiction.

A. Admissibility

36. The Government argued that the applicant has failed to exhaust domestic remedies as he did not lodge a request for setting a time-limit pursuant to section 91 of the Court Act (see paragraph 33 above), which had been possible until 1 January 2008. The Government further alleged that as of 1 January 2008 the applicant had the possibility to make use of remedies pursuant to the CCP. At the same time, the Government admitted that these remedies were in fact used.

37. The applicant did not comment on the Government’s submissions concerning the question of exhaustion of domestic remedies.

38. The Court reiterates that in accordance with Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The Court further recalls that in the case of Holzinger v. Austria (No. 1) (no. 23459/94, § 24-25, ECHR 2001-I, relating to civil proceedings; see also Talirz v. Austria (dec.), no. 37323/97, 11 September 2001, relating to criminal proceedings) it found that a request under section 91 of the Court Act is, in principle, an effective remedy which has to be used in respect of complaints about the length of court proceedings. It stated, however, that the effectiveness of such a remedy 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 the applicant has no remedy to expedite them at his or her disposal, a request under section 91 cannot be considered an effective remedy (see, mutatis mutandis, Holzinger (no. 2) v. Austria, no. 28898/95, § 21-22, ECHR 2001-I).

39. Turning to the present case, the Court reiterates that the period taken into consideration began on 6 July 2007, when the applicant was arrested (see paragraph 35 above). He therefore had less than six months to lodge a request under section 91 of the Courts Act, as after 31 December 2007 it was not possible anymore to make use of this remedy in the course of a pre-trial investigation. In any event, the duration of the criminal proceedings had not been excessive at that time. The Court therefore considers that the remedy under section 91 of the Courts Act would not have been effective for the purposes of Article 35 § 1 of the Convention in the circumstances of the present case.

40. As to the part of the proceedings which took place from 1 January 2008 onwards, the Court observes that the Government themselves admitted that the applicant had made use of the available appeals (see paragraph 36 above). The applicant filed several complaints against the continuation of the pre-trial detention (see paragraphs 9 and 18 above), objections for alleged violations of his rights, some of which were granted (see paragraphs 14, 15, 16, 25 and 29 above), and a request for the discontinuation of the criminal proceedings (see paragraph 26 above). The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed.

41. Lastly, the Court notes that the complaint about the length of the proceedings 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

42. The applicant argued that the criminal proceedings were needlessly protracted by the Austrian authorities especially because of the frequent changes of judges and long periods of inactivity of the investigating authorities. The appointment of biased experts prolonged the proceedings by at least three years.

43. The Government submitted that in the beginning, the investigation was instituted only to prevent the offences of which the applicant was convicted in the United States from becoming time-barred, in case the applicant would abscond to Austria. Therefore, no further investigative steps were taken until the applicant’s arrest. After that, the applicant contributed to the length by causing procedural interruptions by his legal submissions and the complexity of the case required obtaining an expert opinion. As the applicant adduced grounds of bias in relation to the first expert when she had already terminated her report (see paragraphs 25 and 26 above), he had significantly contributed to the delays in this part of the proceedings. Therefore, these delays could not be attributed to the Austrian authorities and courts, which had made enormous efforts to find impartial experts.

44. 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 applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

45. The Court considers that the criminal proceedings against the applicant were of some complexity, as the alleged criminal acts had been committed in the United States and required to obtain an expert opinion. However, the Court considers that the complexity of the case cannot in itself justify the overall duration of the proceedings.

46. As to the conduct of the authorities, the Court notes that it took the prosecutor’s office more than nine years and three months from the applicant’s arrest until the submission of the indictment (see paragraphs 8 and 31 above). Major delays occurred in relation to the appointment of an expert. Indeed, upon the applicant’s objections two experts had to be replaced because of actual bias (see paragraph 25 and 27 above); a further expert was eventually discharged because he had failed to meet the time-limit assigned to him (see paragraph 29-30 above). Even assuming that the difficulties in finding an impartial and efficient expert could not be entirely attributed to the domestic authorities, the Court considers excessive an overall delay of almost five years and seven months to accomplish this task (from 6 October 2008 until 5 May 2014 – see paragraphs 21-30 above).

47. When it comes to the applicant’s conduct, the Court notes that his objections to the court-appointed experts (see paragraphs 25 and 27-29 above), as well as his other legal submissions (see paragraphs 14, 15, 16 and 22 above) had contributed to the length of the criminal proceedings. However, as several of his claims had been successful (see paragraphs 17, 25, 27 and 29 above), it does not appear that the applicant had abused his rights or deliberately caused the proceedings to be protracted. Quite the opposite, the domestic courts held on 26 December 2013 that the applicant’s rights had been violated because the prosecutor’s office had not adequately reacted to the exceeding of the time-limit by the expert (see paragraph 29 above).

48. 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, among other authorities, Hennig v. Austria, no. 41444/98, 2 October 2003; Tuma v. Austria, no. 22833/07, 18 October 2011; and Wallnöfer v. Austria, no. 64346/09, 11 June 2015).

49. 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 in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. 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

51. The applicant claimed 4,500,000 United States dollars (USD) in respect of pecuniary damage and 700,000 euros (EUR) in respect of non‑pecuniary damage.

52. The Government contested these claims.

53. The Court observes that the applicant has not shown the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court however considers that the applicant must have suffered non-pecuniary damage and awards him EUR 12,000 under this head.

B. Costs and expenses

54. The applicant further claimed EUR 490,185 in respect of costs and expenses incurred as a consequence of the length of proceedings and the delay caused by the prosecutor’s office. The costs incurred before the Austrian authorities amounted to approximately EUR 100,000, while the remaining costs were sustained for the proceedings initiated by the United States’ authorities. The applicant did not submit a claim for the costs and expenses incurred before the Court.

55. The Government contested the claim.

56. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as they were necessary in trying to prevent the violation found. Regard being had to the documents in its possession and the above criteria, the Court rejects the claim for the costs and expenses sustained at the domestic level and in the United States of America. As the applicant has not claimed the reimbursement of the costs incurred in the proceedings before it, the Court does not make any award in that respect.

C. Default interest

57. The Court considers it appropriate that the default interest rate 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,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident

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