AS TO THE ADMISSIBILITY OF
Application No. 12593/86
by R. & R.
against Austria
The European Commission of Human Rights sitting in private
on 10 October 1990, the following members being present:
MM. J. A. FROWEIN, Acting President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 September 1986
by R. and R. against Austria and registered on 19 November 1986 under
file No. 12593/86;
Having regard to:
- the Commission's decision of 6 March 1989 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
19 June 1989 and the observations in reply submitted by the
applicants on 10 August 1989;
- the applicants' supplementary observations of 23 April
and 27 August 1990;
- the parties' oral submissions at the hearing on 10 October 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are two banks established as co-operatives
(Genossenschaften) in the area of Salzburg. They are represented by
Rechtsanwalt Dr. Herwig Liebscher of Salzburg.
The facts submitted by the parties may be summarised as
follows:
One of the applicants' clients had taken out loans against
securities in the form of pledged jewellery (valued at approximately
12 million AS) which was deposited in the applicants' safes.
Financial difficulties subsequently prevented the client from repaying
the loans and in 1982 he agreed to the sale of the pledged jewellery by
the applicants in order to fulfil his obligations. The applicants
then commissioned a jeweller in Salzburg to organise a sales
exhibition. It was visited by officers of the Customs Office
(Zollamt) of Salzburg who on 10 April 1982 seized (Beschlagnahme) the
jewellery pledged to the second applicant, which was displayed at the
exhibition. On 14 April 1982 the Customs Office seized the remaining
jewellery which still was in the first applicant's safe. The seizures
were made for the purpose of securing evidence (Beweissicherung) in
connection with investigations conducted against the applicants'
client on the suspicion of his having committed financial offences.
The applicants and their client successfully challenged the
seizures before the Constitutional Court (Verfassungsgerichtshof). As
regards the seizure of 14 April 1982, the Court found by a decision of
26 November 1982 that Section 89 of the Code of Financial Offences
(Finanzstrafgesetz) had been violated in that the seizure had been
effected without a prior administrative decision, although an
immediate danger (Gefahr in Verzug), justifying a seizure without such
a decision, had not existed. As a consequence the constitutional
right to the inviolability of property had been violated. As regards
the seizure of 10 April 1982, the Constitutional Court, by a decision
of 12 June 1984, quashed certain provisions of Section 25 of the Code
of Financial Offences on which it had been based, finding that these
provisions violated the constitutional principle of equality before
the law and lacked the clarity required by Article 18 of the Federal
Constitution (Bundes-Verfassungsgesetz), in particular as regards the
delimitation of the scope of application of Sections 25 and 89 of the
Code.
Notwithstanding these decisions, the seized objects were not
returned to the applicants. On 14 October 1982 the Customs Office in
Salzburg reported a suspicion of financial offences (smuggling,
evasion of import duties) by the applicants' client to the public
prosecutor's office in Salzburg. In this context the Customs Office
found that the applicants were not responsible for careless conduct
within the meaning of Section 17 para. 3 of the Code of Financial
Offences. The public prosecutor's office then requested the opening
of criminal proceedings before the Regional Criminal Court
(Landesgericht für Strafsachen) of Vienna, where other criminal
proceedings against the applicants' client were already pending. By
decisions of 5 and 25 November 1982 an investigating judge of this
Court "confirmed" the seizure of the jewellery on the ground that
there was "a grave suspicion of a financial offence".
Upon appeal by the applicants' client this decision was in
part confirmed by the Review Chamber (Ratskammer) of the Regional
Court on 5 January 1983. It held that the investigating judge's above
decisions constituted new seizures under Sections 98 and 143 of the
Code of Criminal Procedure (Strafprozessordnung); therefore it was
irrelevant that the first seizures by the Customs Office had been
found to be unconstitutional. The Review Chamber ordered the
exclusion of certain pieces of jewellery, but simultaneously issued a
preliminary injunction (einstweilige Verfügung) in respect of these
objects in order to secure the payment of the fines which were
expected to be imposed on the applicants' client. It further held it
lawful that the jewellery continued to be detained for the Regional
Court of Vienna by the Customs Office in Salzburg.
The criminal proceedings against the applicants' client
concerning the financial offences at issue were subsequently
transferred to the Regional Court of Salzburg. On 13 May 1983,
the investigating judge of that Court ordered the seizure of
further objects which had previously been confiscated by the Customs
Office of Innsbruck. The Review Chamber of the Regional Court of
Salzburg on 6 and 13 July 1983 confirmed this decision.
The applicants made repeated requests to the Customs Office
and the courts in order to obtain the restitution of the jewellery.
The first requests, made by each of the applicants on
27 April 1982, and their further requests of 14 December 1982 to
recognise that the seized objects had been validly pledged to them,
were not dealt with until 11 March 1983. The Customs Office rejected
them as inadmissible, considering that, after the new seizures ordered
by the Regional Court of Vienna, it was no longer competent to deal
with the matter. These decisions were confirmed by the Salzburg
Regional Directorate of Finance (Finanzlandesdirektion, decisions of
6 and 10 May 1983) and by the Administrative Court (Verwaltungsgerichts-
hof). On 18 April 1985 the Administrative Court held, inter alia,
that the delays in the Customs Office's procedure (the fact that it
had reported the case to the public prosecutor more than six months
after the initial seizure and that it had dealt with the applicants'
request for restitution almost a year after it had been made) did not
make its decision unlawful. The investigating judge's decision to
order a new seizure had been given within the statutory time-limit
under Section 54 para. 2 of the Code of Financial Offences, and the
fact that it had been partially quashed by the Review Chamber was
irrelevant because the Chamber had at the same time issued a
preliminary injunction.
On 1 February 1983 the second applicant, being an interested
party (Verfallsbeteiligter) in the criminal proceedings against its
client, made a request to the Regional Criminal Court of Vienna to
restitute the seized jewellery. On 9 June 1983 the first applicant
also made a request for the restitution of the seized jewellery. On
20 December 1983 the investigating judge of the Salzburg Regional
Court rejected both requests, finding it necessary to await the final
judgment in the case against the applicants' client. He observed that
the final judgment might order the forfeiture of the seized objects,
notwithstanding the fact that they were pledged to the applicants, if
their responsibility for careless conduct (Section 17 para. 3 of the
Code of Financial Offences) was established. As to a possible priority
of the applicants' pledge, the investigating judge referred them to an
action (Pfandvorrechtsklage) under the Enforcement Proceedings Act
(Exekutionsordnung). The Review Chamber of the Salzburg Regional
Court confirmed this decision on 18 January 1984.
On 5 December 1985 the applicants again requested the
restitution of the seized objects, but the investigating judge,
without taking a formal decision, informed them on 23 April 1986 that
these objects were still needed as evidence.
As the applicants thus could not realise their claims by the
sale of the jewellery pledged to them, they brought a civil action against
their client for payment of bills of exchange (Wechselzahlungsauftrag)
in the amount of the sums due to them (some 7,3 million AS plus
interest in the case of the first applicant, and some 9 million AS
plus interest in the case of the second applicant). The action was
allowed by the Regional Court of Salzburg on 1 October 1985, but as
the applicants' client had in the meantime lost his property the
applicants refrained from introducing enforcement proceedings.
After an indictment had been preferred against the applicants'
client on 27 February 1987 and after they had been informed by the
client's defence counsel that the indictment did not include offences
relating to the seized jewellery, the second applicant on 2 April 1987
again requested the restitution of this jewellery. As no decision had
been taken the second applicant repeated this request on 12 May 1987.
Already on 27 February 1987 the public prosecutor had also
requested the Regional Court to return the seized jewellery to the
applicants. However, the Customs Office, consulted under Section 46
para. 3 of the Customs and Excise Act (Zollgesetz), objected on the
ground that the jewellery was needed as security for unsatisfied
customs claims (import duties) in the amount of some 3,5 million AS.
On 3 July 1987 the Regional Court lifted the seizure in respect of
the jewellery not covered by the indictment, but at the same time
conferred the power to dispose of this jewellery to the Customs
Office. On 15 July 1987, the Review Chamber of the Regional Court
furthermore lifted the preliminary injunction of 5 January 1983
ordering that the jewellery affected by this measure should also
remain with the Customs Office for further action.
Only two pieces of jewellery continued to be seized by the
Court as they were covered by the indictment against the applicants'
client. The indictment of 27 February 1987 was quashed by the Linz
Court of Appeal (Oberlandesgericht) on 20 May 1987 following
objections by the applicants' client and the case was referred back to
the investigating judge. On 1 June 1988 the Review Chamber of the
Salzburg Regional Court decided to refer the case to the Customs
Office since it considered that the courts were no longer competent
having regard to the value of the objects concerned by the
proceedings. However, on 13 July 1988 this decision was quashed by
the Linz Court of Appeal at the request of the public prosecutor. It
noted an error in the assessment of the relevant value, which was in
fact slightly more than 200,000 AS. Consequently the case still came
within the jurisdiction of the courts. On 17 January 1990 a new
indictment was preferred against the applicants' client. The trial
against him has not yet taken place.
In the customs proceedings, the applicants' client had been
ordered on 16 September 1983 to pay import duties in the amount of
AS 2,946,081. His appeal against this decision was rejected by the
Customs Office on 9 March 1988 and by the Regional Directorate of
Finance on 4 October 1989. In a further decision of 24 July 1985 he
had been ordered to pay import duties of AS 1,360,507. The latter
decision had apparently also become final.
On 13 August 1987, the Customs Office seized the pledged
jewellery (which it still detained) as security for the above customs
duties under Section 178 of the Customs and Excise Act (Sachhaftungs-
bescheid mit Beschlagnahmeanordnung). Both applicants appealed
against the relevant decisions. However, as no decision was taken by
the Regional Directorate of Finance within the statutory time limit of
six months, the second applicant on 3 April 1989 filed an action for
default (Säumnisbeschwerde) with the Administrative Court. That Court
set a time limit for the Regional Directorate's decision.
On 25 October 1989, the Regional Directorate rejected the
second applicant's appeal subject to a rectification concerning the
amount of the import duties claimed in respect of the jewellery
concerned (2,621,699 AS instead of 2,521,683 AS). It noted that the
decision prescribing the import duties had become final and that the
conditions for claiming the object liability of the jewellery were
therefore met. This liability was not limited to customs duties in
the strict sense, but also concerned import turnover tax. While
object liability arose ex lege irrespective of the rights of third
persons, the Customs Office's power to claim object liability was
nevertheless discretionary. It had to exercise its discretion having
regard to the criteria laid down in Section 20 of the Federal Code of
Taxation Procedure (Bundesabgabenordnung), i.e. in accordance with
equity and expediency having regard to all relevant circumstances.
"Equity" meant the justified interests of the party, and "expediency"
the public interest in the securing of duty. In the present case the
discretion had been correctly exercised, in particular the principle
of equity had not been violated because it appeared that from the
outset the second applicant must have anticipated difficulties in the
realisation of its right of pledge, the value of the pledged objects
exceeding by far the amount of the loans.
On 7 December 1989 the second applicant lodged a
constitutional complaint against this decision in which it invoked
inter alia Article 6 of the Convention and Article 1 of Protocol No. 1
and the principle of equality. The Constitutional Court has not yet
decided on this complaint.
The first applicant also filed an appeal against the Customs
Office's decision to claim object liability. This appeal was allowed
by the Regional Directorate of Finance on 1 March 1990. It found that
regarding the relevant items of jewellery the conditions of object
liability were not met in respect of this applicant. On 28 March 1990
the Customs Office thereupon issued a new seizure order claiming the
object liability in respect of the second applicant.
COMPLAINTS
The applicants claim that Article 6 of the Convention was
applicable to them as interested parties to the criminal proceedings
against their client. For these proceedings could lead to a decision
declaring the seized objects forfeited under Section 17 para. 5 of the
Code of Financial Offences despite their being pledged to the
applicants, if the applicants' responsibility (careless conduct within
the meaning of Section 17 para. 3 of the Code of Financial Offences)
was established. The applicants observe that such a responsibility
had been ruled out in the Customs Office's report to the public
prosecutor of 14 October 1982.
The applicants claim that under Article 6 para. 1 of the
Convention they were entitled to a determination of the case within a
reasonable time, and that this requirement was not respected as
the criminal proceedings against their client, which had grave
financial repercussions for them, remained pending before the Austrian
courts from November 1982 until the release of the jewellery in
July 1987. Even after the latter date the seized objects have not
been returned to them as they were newly seized in connection with
the customs proceedings. The applicants claim that the latter
proceedings, which are still pending, also involve a determination of
their civil rights and that in this respect they must be regarded as a
prolongation of the earlier criminal proceedings.
PROCEEDINGS
The application was introduced on 29 September 1986 and
registered on 19 November 1986. On 6 March 1989 the Commission
decided to bring the application to the notice of the respondent
Government and to invite them, pursuant to Rule 42 para. 2 (b) of the
Rules of Procedure (former version), to submit before 19 May 1989
observations in writing on the admissibility and merits of the
application.
At the Government's request, the time limit was extended to
9 June 1989. The Government submitted observations on 19 June 1989
and the applicants replied thereto on 10 August 1989.
On 23 April 1990 the applicants submitted information on the
further development of the domestic proceedings.
On 7 May 1990 the Commission decided to invite the parties,
pursuant to Rule 42 para. 3 (b) of the Rules of Procedure (former
version), to submit further observations orally at a hearing on the
admissibility and merits of the case.
On 27 August 1990 the applicants submitted supplementary
written observations in preparation of the hearing.
The hearing took place on 10 October 1990. The parties were
represented as follows: the Government by their Agent, Ambassador
Dr. Helmut Türk of the Federal Ministry of Foreign Affairs, who was
assisted by Ministerialrat Dr. Wolf Okresek of the Federal Chancellery
and Staatsanwalt Dr. Irene Gartner of the Federal Ministry of Justice;
the applicants by Rechtsanwalt Dr. Christoph Liebscher of Salzburg.
THE LAW
The applicants allege a violation of Article 6 para. 1
(Art. 6-1) of the Convention because of the length of proceedings
bearing on the seizure of objects which had been pledged to them by
their client.
The first sentence of Article 6 para. 1 (Art. 6-1) reads as follows:
"In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal established by law."
The applicants originally invoked this provision claiming that
no decision on their civil rights was taken within a reasonable time in
the criminal proceedings against their client in which the objects
pledged to them were threatened with forfeiture. More recently, the
applicants have extended their complaint to the customs proceedings
taken against their client in which the objects in question were
seized again after the seizure pronounced in the criminal proceedings
had been lifted. The applicants claim that their civil rights
continue to be affected by this measure.
The Government submit that the Commission's examination must
be limited to the applicants' original complaint which concerned
exclusively the criminal proceedings against their client. While
admitting that the applicants' right of pledge is a civil right within
the meaning of Article 6 para. 1 (Art. 6-1), the Government contend
that this civil right could not be directly affected by the criminal
proceedings in question for the following reasons.
First, it was a subsidiary right depending on the continued
existence of the underlying financial claim which the applicants could
have satisfied also by other means, in particular by taking
enforcement measures against their client. They had obtained orders
for the payment of bills of exchange which their client had given to
them as an additional security. As they failed to take enforcement
proceedings on the basis of these orders the applicants in this
respect failed to exhaust the domestic remedies in conformity with
Article 26 (Art. 26) of the Convention.
Secondly, the Government note the applicants' submission
that the Customs Office had not found that they were responsible for
careless conduct within the meaning of Section 17 para. 3 of the Code
of Financial Offences. The applicants' right of pledge would
consequently have had to be recognised under Section 17 para. 5 of
that Code, irrespective of the outcome of the criminal proceedings
against their client. Even if they had not been able to assert their
claim in the criminal proceedings, a civil action against the State
would have been open to them within 30 years after a final declaration
of forfeiture. Thus in the present case forfeiture was only a
theoretical possibility. As the conditions of Section 17 para. 3 of
the Code of Financial Offences were not met, the applicants were
at no risk of losing their rights. In these circumstances the
proceedings did not actually involve a determination of their civil
rights and obligations.
Finally the Government submit that even if the criminal
proceedings involved a determination of civil rights, their length was
justified by the volume and complexity of the issues which had to be
investigated.
The Commission finds that both the criminal proceedings and
the customs proceedings may have involved a determination of the
applicants' civil rights in that a decision had to be taken on the
applicants' right of pledge. While that right was subsidiary in the
sense that it depended on the continued existence of the underlying
financial claim, there is no indication that this claim had been
satisfied and that the right of pledge had thereby lost its basis.
The Government's submission that the claim might have been
satisfied by other means is contested by the applicants, who point out
that their client had lost his property and that their securities
would have been diminished by any decision not to recognise their
right of pledge. The Commission therefore finds that the applicants
were not required under Article 26 (Art. 26) of the Convention to
exhaust the remedy indicated by the Government, namely to take
enforcement proceedings against their client on the basis of the order
for the payment of the bills of exchange which he had given to the
applicants as an additional security.
The Commission further accepts that in the criminal proceedings
the objects pledged to the applicants risked to be declared forfeited.
The declaration of the Customs Office of 14 October 1982 was
apparently not considered as binding by the competent criminal court.
It expressly reserved the decision on forfeiture, and the related
decision on recognition of the applicants' right of pledge, to the
final decision in the criminal case. Thus the applicants may have had
to expect a determination of their civil rights in the criminal
proceedings in question and Article 6 para. 1 (Art. 6-1) of the
Convention was therefore applicable to those proceedings insofar as
the applicants were concerned.
It is disputed between the parties whether the subsequent
customs proceedings must be seen as a prolongation of the criminal
proceedings or whether the seizure in the customs proceedings
constituted a new and separate matter for the purpose of Article 6
(Art. 6). The Commission observes that the customs proceedings were
already pending at the time of the introduction of the application,
but that in connection with these proceedings the applicants were only
affected when the seizure of the pledged objects was lifted in the
criminal proceedings. The competent criminal court then did not order
the immediate return of these objects to the applicants, but reserved
the final decision on their status to the customs authorities which
subsequently pronounced a new seizure of these objects with a view to
their being used to satisfy the State's claim to the payment of import
duties by the applicants' client. The relevant proceedings are still
pending. They involve a determination whether the customs authorities
have correctly exercised their discretion in claiming the object
liability of the jewellery pledged to the applicants. In these
circumstances it cannot be ruled out that there was a continuing
situation as regards the determination of the applicants' civil rights
in relation to the objects pledged to them by their client.
The applicants also have complained in time of the customs
authorities' proceedings. They could not be expected to complain of
these proceedings before they were affected by them, i.e. before the
customs authorities claimed the object liability of the jewellery
pledged to them and ordered its seizure. The relevant decisions have
not yet become final and therefore this part of the application cannot
be rejected for failure to comply with the six months' time-limit
under Article 26 (Art. 26) of the Convention. Nor can it be rejected
for failure to exhaust the domestic remedies, the applicants'
complaint concerning the length of the customs authorities'
proceedings and not their final result.
The Commission notes the Government's arguments as to the
justification of the length of the proceedings complained of.
However, it finds that the applicants' complaint that their
"civil rights" have not been determined "within a reasonable time"
is not manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. This issue - including the question
whether the period to be considered is limited to the criminal
proceedings or whether it also comprises the customs proceedings -
must be reserved for a consideration on the merits, no other ground of
inadmissibility having been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy