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FIRST
SECTION
CASE OF HAUSER-SPORN v. AUSTRIA
(Application
no. 37301/03)
JUDGMENT
STRASBOURG
7
December 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Hauser-Sporn v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L.
Rozakis, President,
Mr L. Loucaides,
Mrs F.
Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 16 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37301/03) 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 Alois
Hauser-Sporn (“the applicant”), on 19 November 2003.
- The
applicant was represented by Mr J. Postlmayr, a lawyer practising in
Mattighofen. The Austrian Government (“the
Government”) were represented by their Agent, Mr F.
Trauttmansdorff, Head of the International Law Department at the
Federal Ministry of Foreign Affairs.
- On
19 September 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time. In this respect, the Court decided to reject the
Government's request to discontinue the application of Article 29 §
3 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Ameisberg.
- On
21 November 1994, while driving his car in reverse gear, he knocked a
pedestrian over and drove off.
- On
8 March 1995 the Salzburg District Court (Bezirksgericht)
issued a provisional penal order (Strafverfügung),
following which the applicant was found guilty under Article 88 of
the Criminal Code (Strafgesetzbuch) of having negligently
caused bodily harm and under Article 94 of the Criminal Code of
having abandoned the victim. The applicant was ordered to pay a fine
of 12,800 Austrian schillings (ATS) (approximately 930 euros (EUR)).
The applicant objected and the District Court opened ordinary
criminal proceedings.
- On
11 July 1995 the court held a hearing in which it examined several
witnesses, the applicant and an expert who submitted that the
applicant had not necessarily noticed the accident. Subsequently, on
1 August 1995, the court convicted the applicant of having
negligently caused bodily harm and acquitted him of having abandoned
the victim. It sentenced him to a fine of ATS 3,200
(approximately EUR 230), suspended on probation. The applicant did
not appeal.
- Meanwhile,
having interviewed the applicant in February 1995, the Salzburg
Federal Police Authority (Bundespolizeidirektion) issued a
penal order on 17 May 1995 whereby the applicant was found guilty
under section 4(2) in conjunction with section 99(2)(a) of the Road
Traffic Act (Straßenverkehrsordnung) of having failed to
inform the next police station about the accident. The applicant was
ordered to pay a fine of ATS 4,000 (approximately EUR 290). He
appealed on 6 June 1995.
- On
19 February 1996 the Salzburg Independent Administrative Panel (“the
IAP” – Unabhängiger Verwaltungssenat), having
held a public hearing on 12 February 1996 in which it heard evidence
from several witnesses in the presence of the applicant's counsel,
dismissed the applicant's appeal. It found that the applicant should
have looked behind him when he reversed his car and, therefore, was
to be blamed for carelessly failing to notice the accident. It
further dismissed the applicant's argument that he had been tried
twice in respect of the same offence in breach of Article 4 of
Protocol No. 7, as it found that the administrative offence in issue
did not relate to the same conduct as the criminal offences.
- On
9 April 1996 the applicant lodged a complaint with the Constitutional
Court (Verfassungsgerichtshof). On 4 September 1996 he amended
his complaint.
- During
the period in question the Constitutional Court was in the process of
reviewing the lawfulness of specific provisions of the Road Traffic
Act. This review was concluded on 9 October 1997, when the
Constitutional Court declared part of these provisions
unconstitutional.
- Subsequently,
on 10 October 1997, the Constitutional Court quashed the IAP's
decision of 19 February 1996. This decision was served on the
applicant's counsel on 5 November 1997.
13
Thereafter, on 17 November 1997, the IAP allowed the applicant's
appeal of 6 June 1995 in part and reduced the fine to ATS 2,500
(approximately EUR 180). It further ordered him to pay the costs of
the proceedings. The IAP stressed that there was no breach of Article
4 of Protocol no. 7 to the Convention. In particular, the
offence of abandoning a victim under the Criminal Code presupposed
intent while the offence under the Road Traffic Act also included
negligent behaviour. The offences for which the applicant had been
tried in the proceedings before the District Court had not exhausted
the scope of unlawfulness (Unrechtsgehalt) of the applicant's
conduct. On 2 January 1998 the applicant lodged a complaint with the
Constitutional Court. On 27 August 1998 he filed further comments.
- On
17 June 2000 the Constitutional Court, referring to its previous
case-law, refused to deal with the applicant's complaint.
- On
25 July 2000 the applicant filed a request for reopening of the
proceedings before the Constitutional Court and argued that the
Constitutional Court had meanwhile repealed another provision of the
Code of Administrative Offences upon which the IAP had based its
findings. On 25 September 2000 the Constitutional Court rejected
this request but granted the request to transfer the case to the
Administrative Court (Verwaltungsgerichtshof).
- On
20 December 2000 the applicant amended the complaint transferred to
the Administrative Court. The IAP submitted its observations in reply
on 9 April 2001.
- On
16 October 2003 the Administrative Court refused, under section 33(a)
of the Administrative Court Act (Verwaltungsgerichtshofgesetz)
to deal with the applicant's complaint since the fine did not exceed
EUR 726 and no important legal question was at stake. This
decision was served on the applicant's counsel on 6 November 2003.
II. Relevant domestic
law
1. Criminal Code
- Under
Article 83 of the Criminal Code (Strafgesetzbuch), it is an
offence, punishable by up to one year's imprisonment or a fine of up
to 360 day-rates, to cause physical harm to another person. Under
Article 88 § 1 of the Criminal Code, it is an offence,
punishable by up to three months' imprisonment or a fine of up to 180
day-rates, to cause physical harm by negligence.
- Article
94 § 1 of the Criminal Code provides that “anyone who
fails to assist another person (Imstichlassen eines Verletzten)
to whom he has caused bodily injury (Article 83), albeit unlawfully,
shall be liable to up to one year's imprisonment or up to 360
day-rates. ”
2. Road Traffic Act
- Section
4 of the Road Traffic Act (Straßenverkehrsordnung)
provides:
“(1) All persons whose conduct at the
scene of a traffic accident was causally related to the accident
shall
(a) if they are driving a vehicle, stop
immediately;
...
(2) If anyone has been injured in a traffic
accident, the persons referred to in subsection one above shall
provide assistance; if they are not capable of doing so, they shall
arrange for assistance without delay. They shall further inform the
nearest police station immediately...”
- Under
section 99(2)(a) of the Road Traffic Act, in the version at force at
the material time, it was an administrative offence
(Verwaltungsűbertretung), punishable by a fine of not
less than ATS 500 and not exceeding ATS 30,000 or, in default of
payment, by one day to six weeks' imprisonment, for any driver having
caused a traffic accident occasioning bodily injury to act contrary
to section 4(1) and (2).
- Section
99(6)(c) of the Road Traffic Act provides that proceedings shall not
be instituted in respect of an administrative offence that is based
on facts that constitute an offence falling within the jurisdiction
of the ordinary courts.
3. Administrative Court Act
- The
procedure before the Administrative Court is governed by the
Administrative Court Act (Verwaltungsgerichtshofgesetz).
Pursuant to section 42(1), the Administrative Court must in principle
either dismiss a complaint as ill-founded or quash the impugned
decision. It shall quash the impugned decision if it is unlawful by
reason of its content; or because the respondent authority lacked
jurisdiction; or on account of a breach of procedural rules. A breach
of procedural rules is relevant insofar as the respondent authority
has made findings of fact which are in an important respect
contradicted by the case file, require further investigation on an
important point, or when compliance with the relevant rules could
have led to a different decision by the respondent authority (section
42 (2)).
- Under
section 33(a) of the Administrative Court Act, the Administrative
Court may decline to deal with a complaint against a decision of an
Independent Administrative in an administrative criminal case if a
fine not exceeding EUR 726 has been imposed and the Administrative
Court's decision would not involve the determination of a legal
question of fundamental importance.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the administrative criminal
proceedings was 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.
- The
period to be taken into consideration began in February 1995, when
the applicant was first interviewed by the Federal Police Authority,
and ended on 6 November 2003 when the Administrative Court's final
decision was served on the applicant's counsel. It thus lasted eight
years and some nine months for four levels of jurisdiction (once
remitted back).
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government argued that the proceedings before the Federal Police
Authorithy and the IAP had been conducted without significant delay.
The length of the proceedings before the Constitutional Court had
been proportionate to the complexity of the case, which had resulted
from a global consideration of many similar proceedings pending
before it at the same time. These proceedings had been connected to
each other in factual and legal respects. In addition, the
applicant's complaint raised complex legal questions concerning,
firstly, the issue of double punishment and secondly, in the second
set of proceedings, a request for review of the legislation governing
the allocation of cases at the IAP. Furthermore, the applicant had
attempted to reopen the proceedings in the Constitutional Court.
Finally, the Government pointed out that the proceedings had
concerned only a small fine.
- The
applicant contested these arguments. He maintained that the
proceedings had not been complex and had been unreasonably long.
- 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 conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- In
the present case, the applicant did not contribute to the duration of
the proceedings. Furthermore, the Court cannot find that the
proceedings were particularly complex. As to the Government's
argument that the case raised complex legal questions before the
Constitutional Court, the Court notes that in the Constitutional
Court proceedings which commenced on 2 January 1998 that court,
referring to its previous case-law, declined to deal with the
applicant's complaint for lack of prospects of success. However, it
took the Constitutional Court two years and some six months, namely
until 17 June 2000, to take this decision. Another two years and
some six months elapsed in the proceedings in the Administrative
Court, which, having received the parties' comments in April 2001,
declined to deal with the applicant's complaint in October 2003. The
case had thus remained pending before the highest courts for more
than five years. Having regard to this delay and the overall duration
of the proceedings, the Court finds that the applicant's case was not
determined within a reasonable time.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention about
the lack of a remedy in respect of his complaint about the length of
the proceedings.
Article 13
of the Convention provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government contested that there had been a violation of Article 13
of the Convention. They stressed that the Constitutional Court
examined complaints about the length of proceedings before the lower
courts. According to the Constitutional Court's case-law, excessive
length was also a mitigating circumstance which might lead to a
reduction of sentence. As far as the proceedings before the
Constitutional Court and the Administrative Court itself were
concerned, the Government contended that under the Convention there
was no obligation for a State to provide for additional levels of
appeal and a further legal remedy by which to challenge decisions of
last-instance courts. Such a requirement would affect basic issues of
the Austrian Federal Constitution and most likely also the
legislation of most Contracting States and their freedom to organise
their judicial system. Having regard to the average duration of
proceedings before the Constitutional Court and the Administrative
Court: eight and a half months and twenty-two months respectively,
the Austrian legislator had found no need to also provide a remedy in
respect of the length of proceedings before those courts.
- The
applicant argued that, given the absence of any remedy for the
excessive length of administrative criminal proceedings and the
excessive length of proceedings before the Administrative Court,
there had been a violation of his right under Article 13 of the
Convention. He referred to the judgment Jancikova v. Austria
(no. 56483/00, 7 April 2005).
- The Court reiterates that the correct interpretation
of Article 13 of the Convention is
that this provision guarantees an effective remedy before a national
authority for an alleged violation of the requirement under Article 6
§ 1 to hear a case within a reasonable time (see Kudła
v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI). As established in its
case-law, it reiterates that the remedies available to a litigant at
domestic level for raising a complaint about the length of
proceedings are “effective”, within the meaning of
Article 13 of the Convention if they “[prevent] the alleged
violation or its continuation, or [provide] adequate redress for any
violation that [has] already occurred” (see Kudla,
cited above,
§ 158). Article 13
therefore offers an alternative: a remedy is “effective”
if it can be used either to expedite a decision by the courts dealing
with the case, or to provide the litigant with adequate redress for
delays that have already occurred (see Kudla, cited above,
§ 159; see also Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§ 186-87,
ECHR 2006-...).
- Furthermore,
the Court is not called upon to examine the relevant law and practice
in abstracto, but to determine whether, in the light of the
Kudla judgment (cited above), there had been a remedy
compatible with Article 13 of the Convention available to grant
the applicant appropriate relief as regards his complaint about the
length of proceedings.
- The present proceedings exceeded the reasonable-time
requirement under Article 6 of the Convention as delay occurred while
the case was pending before the Constitutional Court and the
Administrative Court (see paragraph 32 above). Since the Government
have not shown that any form of relief – either preventive or
compensatory – was available for the delays caused by these
authorities, there has been a violation of Article
13 of the Convention in that the applicant had no domestic
remedy whereby he could enforce his right to a hearing within a
reasonable time as guaranteed by Article 6 § 1 of the
Convention.
III. ALLEGED
VIOLATION OF ARTICLE 4 OF PROTOCOL NO. 7 TO THE CONVENTION
Admissibility
- The
applicant complained under Article 4 of Protocol No. 7 that he was
convicted by the administrative authorities under section 4(2) of the
Road Traffic Act of failure to stop and inform the police of a road
traffic accident in which a person was injured whereas he had already
been convicted of the offence of negligently causing bodily harm
under Article 88 § 1 of the Criminal Code and acquitted of
the offence under Article 94 § 1 of the Criminal Code of
abandoning the victim. Relying on the Court's Gradinger v. Austria
judgment (judgment of 23 October 1995, Series A no. 328 C),
he alleged that the conviction under the Road Traffic Act was based
on the same conduct, namely having negligently caused and not noticed
an accident and therefore driven away, as that constituting the
offences under the Criminal Code which had been considered by the
ordinary court.
- The
Court reiterates its findings in the Franz Fischer v. Austria
judgment (no. 37950/97, § 35, 29 May 2001). In that case,
after having analysed its previous judgments in the cases of
Gradinger (cited above) and Oliveira v. Switzerland
(judgment of 30 July 1998, Reports of Judgments and Decisions
1998 V), the Court found that the mere fact that one act
constitutes more than one offence is not contrary to Article 4 of
Protocol No. 7. However, where different offences based on one
act are prosecuted consecutively, one after the final decision of the
other, the Court has to examine whether or not such offences have the
same essential elements.
- The
Court notes in the first place that the offence under the Criminal
Code of negligently causing bodily harm clearly does not relate to
the same act or omission as the administrative criminal offence under
the Road Traffic Act of subsequent failure to inform the police about
such an accident. No issue under Article 4 of Protocol No. 7 arises
in this regard.
- The
Court further finds that the criminal offence of abandoning the
victim under Article 94 § 1 of the Criminal Code and the
administrative criminal offence of failure to inform the police about
such an accident under section 4(2), second sentence, of the
Road Traffic Act also concern different acts and omissions.
- The
Court considers that the two offences differ in their essential
elements (see paragraph 44). This finding is supported by the fact
that failure to provide assistance to a person injured in an accident
constitutes an offence of its own under section 4(2), first sentence,
of the Road Traffic Act, for which the applicant was not prosecuted
after his acquittal under Article 94 § 1 of the Criminal
Code. Moreover, the offences differ in that Article 94 § 1
of the Criminal Code requires an omission committed with intent,
while the offence under section 4(2) of the Road Traffic Act may also
be committed by negligence.
- Thus,
having regard to the differences in the offences' essential elements,
the Court does not find that the applicant was “tried ...
again...for an offence of which he had already been finally
acquitted” within the meaning of Article 4 of Protocol No. 7.
It follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. OTHER Alleged
violations of Article 6 §§ 1 and 2 of the Convention
Admissibility
-
The applicant complained under Article 6 § 1 about the lack of
an oral hearing in the second set of proceedings before the IAP and
the Administrative Court.
-
The Court reiterates in the first place that the IAP is the only body
deciding in administrative criminal proceedings which qualifies as a
tribunal and has a full scope of review. The applicant was therefore
in principle entitled to a hearing before the IAP (see Baischer v.
Austria, no. 32381/96, §§ 25-30, 20 December
2001).
- The
Court notes that the IAP held a hearing in the first set of
proceedings and that, in the second set, the sole new question to be
considered was a question of law which did not raise complex issues.
Furthermore, taking into account the national authorities' demands of
efficiency and economy, the Court finds that the IAP could abstain
from holding a further oral hearing in the second set of proceedings
(see Faugel v. Austria, (dec.) nos. 58647/00 and
58649/00, 20 November 2003). It follows that this complaint must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
- The
applicant also complained, under Article 6 § 2 of the
Convention, about the IAP's findings as regards his negligence in
failing to notice the accident. The Court observes that the IAP based
its findings of fact on the applicant's defence that he had not
actually noticed the accident. As regards the legal assessment, the
Panel, giving detailed reasons, concluded that the applicant had
acted negligently as he could have noticed the accident had he
applied the necessary diligence. In these circumstances the Court
considers that the applicant's complaint does not disclose any
appearance of a violation of the presumption of innocence (see, a
contrario, Telfner v. Austria, no. 33501/96, §
15, 20 March 2001). It follows that this complaint must also be
rejected as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
V. Alleged violation of
Article 2 of Protocol no. 7 TO the Convention
Admissibility
-
The applicant complained under Article 2 of Protocol No.7 that he did
not have a review by a higher tribunal. He submitted that the
Administrative Court's review was insufficient as it could not be
regarded as a judicial body with full jurisdiction regarding facts
and law, and that, in the present case, the Administrative Court, in
any event, refused to deal with his complaint. He further invoked
Article 13 in this respect.
- The
Court reiterates that the Contracting States may limit the scope of
the review by a higher tribunal by virtue of the reference in
paragraph 1 of this Article to national law. In several Member States
of the Council of Europe such a review is limited to questions of law
or may require the person wishing to appeal to apply for leave to do
so (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and
27619/95, ECHR 2000 I (extracts)). There is no indication that,
in the present case, the scope of review of the Administrative Court
under the relevant Austrian legislation (see the relevant domestic
law above) was insufficient for the purposes of Article 2 of
Protocol No. 7. The Administrative Court's decision under section
33(a) of the Administrative Court Act not to deal with the
applicant's complaint may be equated to a decision given on an
application for leave to appeal (see Weh and Weh v. Austria
(dec), no. 38544/97, 4 July 2002, with further references). Thus,
there is no appearance of a violation of Article 2 of Protocol No. 7
nor of Article 13 of the Convention. It follows that this complaint
must be rejected as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed EUR 199.85 in respect of pecuniary damage for the
fine and the costs of the proceedings he was ordered to pay. He
further claimed EUR 1,000 in respect of non-pecuniary damage.
-
The Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage and finds it appropriate to award the
full sum claimed.
B. Costs and expenses
- The
applicant also claimed EUR 3,823.81 for the costs and expenses
incurred before the domestic courts and EUR 3,000 for those incurred
before the Court.
-
The Government contested the claim concerning the costs of the
domestic proceedings and further submitted that they assumed these
claims already included VAT.
- As to the costs of the domestic proceedings, the
Court notes that, insofar as the length
of proceedings is concerned, only the costs incurred in an
attempt to accelerate the proceedings can be regarded as having been
necessary to prevent the violation found. Accordingly, no award can
be made under this head.
- As
regards the costs of the Convention proceedings, the Court notes that
the applicant, who was represented by counsel, did not have the
benefit of legal aid. Making an assessment on an equitable basis and
having regard to the sums awarded in similar cases, the Court awards
the applicant EUR 2,000 under this head. This sum includes VAT.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaints concerning the excessive
length of the proceedings and the lack of an effective remedy
therefor admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 December 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
