FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 29749/04
by Dietmar KARG
against Austria
The European Court of Human Rights (First Section), sitting on 6 May 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 22 July 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dietmar Karg, is an Austrian national who was born in 1960 and lives in Dornbirn. He was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a farmer operating a strawberry farm.
On 13 June 1997 the Bregenz Works Inspection (Arbeitsinspektorat) inspected the applicant’s farm and came across three persons presumed to be Bosnian nationals who were working there.
Subsequently, on 30 July 1997, the Works Inspectorate laid a criminal information against the applicant for illegal employment of foreigners under the Alien’s Employment Act (Ausländerbeschäftigungsgesetz).
On 13 August 1997 the Bregenz District Administrative Authority fined the applicant ATS 49,500 (i.e. approximately EUR 3,600), with imprisonment in default, for illegal employment of three foreigners on his farm.
The applicant filed an appeal against this decision with the Vorarlberg Independent Administrative Panel (IAP) on 1 September 1997 and asked for an oral hearing to be held.
On 8 October 1998 the IAP summoned the applicant to a hearing, scheduled for 10 November 1998.
On 5 November 1998 the applicant’s counsel asked for that hearing to be adjourned until April 1999, as the applicant was absent from Austria. Therefore, on 17 March 1999, the applicant was summoned again to appear on 29 April 1999.
On 27 April 1999 the applicant again filed a request for adjournment of the hearing. He submitted that injuries he had suffered in an accident would leave him incapable to stand trial.
On 31 May 1999 the Bregenz IAP granted the applicant’s request, on condition that he submit a medical statement giving information on his state of health and his ability to follow the hearing.
The applicant presented an abridged medical report indicating his injuries on 10 May 1999 .
On 31 May 1999 the IAP scheduled a hearing for 22 June 1999.
Subsequently, on 21 June 1999, the applicant again filed a request for adjournment of the proceedings sine die.
On 22 June 1999 an oral hearing was held, at which the applicant’s counsel was present.
On 14 December 1999 the IAP acquitted the applicant in respect of one of the foreigners, while upholding the decision as regards the other two.
The applicant lodged a complaint with the Constitutional Court on 28 February 2000 and requested that suspensive effect be granted to his complaint. Moreover he asked for the hearing to be suspended until he had recovered from his injuries.
On 13 March 2000 the Constitutional Court refused to grant his complaint suspensive effect as the execution of the IAP’s decision would not impose a disproportionate loss on the applicant.
On 13 June 2000 the Constitutional Court refused to deal with the applicant’s complaint as it lacked prospects of success. On 4 September 2000, at the applicant’s request, it transferred the case to the Administrative Court.
On 16 November 2000 the applicant submitted further observations to the Administrative Court and requested an oral hearing. In addition he again filed a request for suspensive effect.
On 30 January 2001 the Vorarlberg IAP submitted it’s observations on the applicant’s complaint.
On 26 June 2003 the Administrative Court quashed the IAP’s decision and remitted the case back to the IAP. It found that the IAP should have verified the applicant’s capacity to attend an oral hearing.
Subsequently, on 23 September 2003, the applicant filed further observations on the case.
On the same day the IAP held an oral hearing. In the presence of the applicant’s counsel it took evidence from one of the labour officials who had conducted the on-site inspection on 13 July 1997.
On 29 September 2003 the IAP summoned the applicant to another hearing scheduled for 28 October 2003. It explicitly asked the applicant if he wanted to be questioned. In addition it asked him to disclose the address of one of the labourers, M., in order to have him summoned to the planned hearing.
On 2 October 2003 the applicant requested that the hearing be adjourned as his counsel was retained by other business.
On 15 October 2003 he again commented on the proceedings, submitting inter alia that it was for the prosecuting authority to investigate M.’s whereabouts.
On 30 October 2003 the IAP held a further hearing in which it summoned another labour official and one of the labourers. Although represented by counsel, the applicant himself did not appear before the IAP.
On 6 November 2003 the IAP partly granted the applicant’s appeal and, explicitly referring to Article 6 of the Convention, held that the proceedings had exceeded a reasonable time. It took this fact into account as a mitigating circumstance and reduced the fine to 50 per cent less than the lowest generally applicable fine. The fine was therefore reduced by two-thirds to EUR 363 for each count. Moreover, the IAP held that M. could not be summoned, because he had left Austria and it had no current address at which he could be contacted. The applicant failed to provide the name and address of the other witness and did not give any reasons for the request.
On 22 December 2003 the applicant, alleging inter alia violations of Articles 6 and 7 of the Convention and of Article 1 of Protocol 1, filed a complaint to the Constitutional Court. Furthermore he requested that his complaint be granted suspensive effect.
On 15 December 2003 he filed a further complaint to the Administrative Court, in which he repeated his arguments concerning an alleged violation of Article 6 of the Convention.
On 12 January 2004 the Constitutional Court rejected his request for granting suspensive effect.
On 21 January 2004 the Administrative Court, relying on Article 33a of the Administrative Court Act, declined to deal with the case since the aggregate amount of the two penalties did not exceed EUR 726 and no significant legal problem was at stake.
By decision of 24 February 2004 the Constitutional Court declined to deal with the case as it lacked prospects of success. The decision was served on the applicant’s counsel on 16 March 2004.
COMPLAINTS
The applicant complained under Article 6 of the Convention about the length of the proceedings.
Under the same provision he complained that the Independent Administrative Panel had failed to examine M., one of the workers, and another witness for the defence. In addition he asserted that, in spite of his request for adjournment, an oral hearing was held in his absence on 22 June 1999. As he had not been questioned during the entire proceedings, his right to be heard had been violated. Moreover the applicant complained about the Administrative Court’s failure to conduct an oral hearing and that no prosecuting authority participated in the proceedings before the Independent Administrative Panel and that therefore the members of that Panel acted both as judge and prosecutor which would be contrary to the requirement of impartiality under Article 6.
Finally the applicant complained under Article 2 of Protocol 7 that the Administrative Court’s final refusal to deal with the case was contrary to the applicant’s right to appeal in criminal matters.
THE LAW
1. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, 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 and submitted that the applicant was no longer a victim, because he had already been granted compensation by a national court, i.e. the Independent Administrative Panel. This authority, on 6 November 2003, had expressly held that the length of the proceedings had been unreasonable and that therefore Article 6 of the Convention had been violated. As a result it had reduced the fine by two-thirds from a total of EUR 2,180 to EUR 726. The Government also maintained that after this decision of the Independent Administrative Panel the proceedings were terminated without any delay.
The applicant submitted that he was still a victim because even the reduced fine was too high given his incapacity to work due to his physical condition after the accident. Moreover, the Independent Administrative Panel had failed to state explicitly the exact effect the length of proceedings had on the reduced fine.
The Court recalls that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Beck v. Norway, judgment of 26 June 2001, § 27, and Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 66).
Applying these principles in the present case, the Court notes in the first place that the Independent Administrative Panel, referring to Article 6 § 1 of the Convention, expressly held that the proceedings had exceeded a reasonable time.
Secondly, the Court is satisfied that the applicant was afforded adequate redress for the alleged violation. On this point it should be recalled that the fine was reduced by two-thirds. The Independent Administrative Panel held expressly that because of the mitigating circumstances it could reduce the fine to 50% less than the lowest generally applicable fine, and it did so.
Against this background, the Court finds that the applicant was afforded adequate redress by the national authorities and can thus no longer claim to be a victim. This part of the application is accordingly inadmissible and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complained under Article 6 of the Convention that no prosecuting authority had participated in the proceedings, including the hearing before the Independent Administrative Panel, and that therefore the members of the Panel acted both as judge and prosecutor.
However, the Court reiterates that if an appeal is filed with the Independent Administrative Panel against a penal order, the authority which issued the impugned decision assumes the function of the prosecuting authority in appeal proceedings before the Panel. Furthermore, the absence of a representative of that authority from the hearing does not give rise to objectively justified fears as regards the Panel’s impartiality (see Weh and Weh v. Austria (dec.), no. 38544/97, 4 July 2002).
Under the same provision the applicant also complained about the lack of an oral hearing before the Administrative Court.
The Court reiterates that, as far as administrative criminal proceedings are concerned, the Administrative Court does not qualify as a tribunal within the meaning of Article 6 of the Convention as it does not have the required scope of review (see for instance Schmautzer v. Austria, judgment of 23 October 1995, Series A no. 328‑A, p. 15, §§ 34-36). However, several hearings were held by the Independent Administrative Panel, which, according to the Court’s settled case-law, meets the criteria of a “tribunal.” Therefore the applicant had his case reviewed at a public hearing before a tribunal required by Article 6 of the Convention.
Furthermore, the applicant complained that the Independent Administrative Panel had failed to examine M. and another witness.
Article 6 does not give the accused an unlimited right to have witnesses called. Neither is there a right which would compel the domestic authorities to examine the accused. Rather, they have some discretion in deciding whether the hearing of a witness is likely to help establish the truth. Only exceptional circumstances, such as complete silence in a judgment as to why the court rejected the hearing of a witness for the defence, could lead the Convention organs to conclude that the refusal to hear such witnesses violated Article 6 of the Convention (see Bricmont v. Belgium judgment of 7 July 1989, Series A no.158, p.32-33, §§ 33- 34). In the present case, the IAP gave reasons why it did not deem it necessary to examine certain witnesses. Moreover, as can be seen from the documents submitted by the applicant, he was explicitly asked whether he wished to be questioned. However, without giving any explanation, he chose not to attend the subsequent hearing on 30 October 2003.
Lastly, the applicant complained under Article 2 of Protocol No. 7 about the lack of a review.
According to the Court’s case-law, the Administrative Court has the competence to review the appeal decisions given by Independent Administrative Panels. Even if the Administrative Court declines to deal with or rejects an appeal for lack of important legal issues, that has to be regarded as a review within the meaning of Article 2 of Protocol No 7 (Weh and Weh v. Austria, (dec.) no. 38544/97, 4 July 2002, with a reference to Hauser v. Austria, no. 26808/95, Commission decision of 16 January 1996, D.R. 84-A, p 176).
Having regard to the above conclusions in respect of the complaints made by the applicant, the Court finds that all these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy