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FIRST
SECTION
CASE OF VITZTHUM v. AUSTRIA
(Application
no. 8140/04)
JUDGMENT
STRASBOURG
26 July
2007
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 Vitzthum 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 N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 5 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 8140/04) 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 Andreas
Vitzthum (“the applicant”), on 27 February 2004.
- The
applicant was represented by Mr J. Postlmayr, a lawyer practising in
Mattighofen. 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.
- On
15 September 2005 the
Court decided to give notice of the application 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. The
Government, in their observations, requested the Court to give a
separate decision on the admissibility of the application. However,
the Court has found no reasons to discontinue the application of
Article 29 § 3. It therefore rejected the request.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Geretsberg.
- On
24 June 1999 the Braunau District Administrative Authority
(Bezirkshauptmannschaft) charged the applicant with drunken
driving. The applicant, represented by counsel, submitted
observations on 13 July and 8 September 1999.
- On
21 September 1999 the District Administrative Authority issued a
penal order (Straferkenntnis) finding the applicant guilty of
drunken driving contrary to Sections 5 § 1 and 99 § 1 (a)
of the Road Traffic Act (Strassenverkehrsordnung). As to the
alcohol level the authority had regard to the results of a
breathalyser test and to the corroborating results of a blood alcohol
analysis carried out the following day. It imposed a fine of 16,000
Austrian schillings (approximately 1,160 euros) on him with 14 days'
imprisonment in default.
- The
applicant appealed on 12 October 1999.
- On
9 December 1999 the Upper Austria Independent Administrative Panel
(Unabhängiger Verwaltungssenat) held a hearing at which
it questioned the applicant and the two police officers who had
carried out the breathalyser tests and a further witness.
- By
decision of 21 December 1999 the Independent Administrative Panel,
having held a hearing, dismissed the applicant's appeal. It found
that the applicant had driven his car on 15 June 1999 at 8 p.m.
having a proportion of alcohol in his breath exceeding the statutory
level. He admitted to having consumed alcohol in the afternoon.
Having run out of petrol, the applicant had left the car and had gone
to the next petrol station. Upon his return, he had been requested by
two police officers to undergo breathalyser tests. The tests, carried
out at 8.52 and 8.54 p.m. respectively, had yielded results of 0.84
and 0.86 mg alcohol/litres. The Independent Administrative Panel
dismissed the applicant's request to take an expert opinion in order
to show that the difference in these results was due to his having
consumed one and a half litres of beer when he went to fetch petrol
and that he had, before that, not been driving his car in a state of
drunkenness. Having regard to the instructions for use of the
breathalyser at issue, the Independent Administrative Panel noted
that the difference in the two test results was not significant.
- In
any case, it found that the applicant's defence was not credible as
he had stated at his first interrogation to have parked his car at 8
p.m. and had explicitly answered the police officers' question
whether he had consumed alcohol after that in the negative. It was
only in his written submissions of 13 July that he had claimed to
have consumed more beer after 8 p.m. The bill submitted by the
applicant did not support his defence as the innkeeper had stated
that he had given the applicant this bill two weeks after the
incident on his explicit request. He had not remembered the applicant
and could not confirm whether he had actually consumed beer at his
inn at the relevant time.
- The
applicant lodged a complaint with the Administrative Court
(Verwaltungsgerichtshof) on 3 February 2000. He complained in
particular about the refusal of his request to take an expert
opinion. On 3 April 2000 the Independent Administrative Panel
submitted observations in reply. The applicant made further
submissions on 3 May and 21 June 2000.
- On
7 August 2003 the Administrative Court, having deliberated on 4 July
2003, dismissed the applicant's complaint as being unfounded. It
found in particular that the Independent Administrative Panel's
assessment of evidence did not suffer from any defects and that it
had given detailed and convincing reasons for its refusal to take the
expert opinion requested by the applicant.
- The
decision was served on the applicant's counsel on 1 September 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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.
- The
period to be taken into consideration began on 24 June 1999 and ended
on 1 September 2003. It thus lasted four years and two months for
three levels of jurisdiction.
A. Admissibility
- The
Court notes this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
- The
applicant maintained that the case was not complex and emphasised
that there was a long delay before the Administrative Court.
- The
Government asserted that the case was of a certain legal and factual
complexity. They underlined that the proceedings before the District
Administrative Authority and the Independent Administrative Panel
were conducted expeditiously. Noting that only a fine of some 1,160
euros was at stake for the applicant, they argued that the duration
of the proceedings could still be considered as reasonable.
- 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).
- The
present case, which was not complex, came before three levels of
jurisdiction. It was dealt with speedily by the authorities of first
and second instance. However, the proceedings were pending before the
Administrative Court between 3 February 2000 and 1 September 2003.
During that time, here was a period of complete inactivity lasting
for more than three years, namely from 21 June 2000 until 4 July
2003.
- 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, in particular, Fehr v. Austria, no. 19247/02, §§
19-26, 3 February 2005; Blum v. Austria, no. 31655/02, §§
22-24, 3 February 2005; and Yavuz v. Austria, no. 46549/99, §§
36-40, 27 May 2004, all relating to criminal administrative
proceedings which lasted somewhat longer than the present case but
came before four levels of jurisdiction instead of three, and in
which considerable delays occurred before the Administrative Court).
- 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained about the lack of a remedy in respect of
his complaint about the length of the proceedings. He relied on
Article 13 of the Convention, which, so far as material, 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...”
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
applicant asserted that no remedies were available against the length
of administrative criminal proceedings.
- For
their part, the Government 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 provide a remedy in
respect of the length of proceedings before those courts.
- 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-...).
- The
Government argue in essence that a Contracting State should not be
required under Article 13 to provide a remedy against delays caused
by one of its highest courts. The Court observes that the State's
primary duty is to organise its judicial system so as to ensure that
the overall duration of civil or criminal proceedings, including the
duration before the highest courts, remains “reasonable”.
As regards remedies against excessive length of proceedings, it
follows from the Court's case law cited above, that Contracting
States have a choice as regards their nature, since they may opt
either for a preventive or for a compensatory remedy. Moreover, they
remain free to establish the modalities for its exercise. The Court
therefore finds that the States enjoy considerable freedom in
complying with the requirements of Article 13.
- Turning
to the circumstances of the present case, the Court will examine
whether 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 on account of the
delays occurred before the Administrative Court (see paragraph 21
above). Since the Government have not shown that any form of relief –
either preventive or compensatory – was available for these
delays 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
(see, as a similar case, Hauser-Sporn v. Austria, no.
37301/03, § 40, 7 December 2006).
III. OTHER ALLEGED VIOLATIONS
Admissibility
- The
applicant alleged that the proceedings at issue were unfair in that
the administrative authorities refused to take an expert opinion. The
Government argued that the applicant had failed to exhaust domestic
remedies, sine he had not filed a complaint with the Constitutional
Court.
- The
Court notes that the applicant raised the issue before the
Administrative Court, which dealt with its merits. However, the Court
is not called upon to examine whether in the circumstances of the
cases the applicant can be considered to have exhausted domestic
remedies, since the complaint is in any case inadmissible for the
following reasons. The Court reiterates that the admissibility of
evidence is primarily a matter for regulation by national law and as
a general rule it is for the national courts to assess the evidence
before them. The Court's task is limited to ascertaining whether the
proceedings as a whole, including the way in which evidence was
taken, were fair (see, among many other authorities, Lucà
v. Italy, no. 33354/96, § 38, ECHR 2001-II). In the present
case, the authorities gave detailed and convincing reasons for their
refusal to take the evidence proposed by the applicant. There is no
indication, that the applicant, who was assisted by counsel, could
not duly forward his defence or that the proceedings were otherwise
unfair.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- Finally,
the applicant complained under Article 2 of Protocol No. 7 that he
did not have a proper review of his conviction as the Administrative
Court's scope of review is limited. Again the applicant has not
raised this complaint before the Constitutional Court. In any case,
even assuming exhaustion of domestic remedies, the complaint is
inadmissible, since the Court has already found in a comparable case
that the Administrative Court's scope of review in administrative
criminal proceedings complied with the requirements of Article 2 of
Protocol No. 7 (see Weh and Weh v. Austria (dec.), no.
38544/97, 4 July 2002).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. 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 1,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government commented that the finding of a violation would constitute
sufficient just satisfaction.
- The
Court, ruling on an equitable basis, awards the applicant EUR 1,000
under the head of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total amount of EUR 5,090, composed of EUR
1,090 for the costs and expenses incurred in the domestic proceedings
and EUR 3,000 for those incurred before the Court.
- The
Government contested these claims. Moreover, they submitted that they
assumed the sums claimed included value-added tax (VAT).
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court rejects the claim for
costs and expenses of the domestic proceedings since they were not
incurred in order to prevent or redress the violations found.
Furthermore, the Court having regard to the sums awarded in
comparable cases considers it reasonable to award EUR 2,000 in
respect of the costs and expenses incurred in the Convention
proceedings. 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
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, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage and 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 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr
Malinverni, joined by Mr Rozakis and Mr Jebens, is annexed to
this judgment.
C.L.R
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI
JOINED BY
JUDGES ROZAKIS AND JEBENS
(Translation)
I
concur with the operative provisions of the judgment according to
which there has been a violation of Article 13 of the Convention in
this case, on the ground that in the respondent State there was no
domestic remedy allowing the applicant to complain about the breach
of his right to a hearing within a reasonable time as guaranteed by
Article 6 § 1.
In
reaching this conclusion, the judgment states that Article 13 must be
construed as guaranteeing an
effective remedy before a national authority for the victim of an
alleged violation of Article 6 § 1. Referring to the judgment in
Kudła v. Poland
([GC], no. 30210/96, §
156, ECHR 2000-XI), the judgment goes on to say that domestic
remedies may be regarded as “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, §
158).
The
judgment thus concludes that Article 13 offers States 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”
(paragraph 28).
Further
on the judgment reasserts that “[a]s regards remedies against
excessive length of proceedings, it follows from the Court's case-law
... that Contracting States have a choice as regards their
nature, since they may opt either for a preventive or for a
compensatory remedy” (paragraph 29).
It is
on this latter point that I wish to make a few complementary remarks.
Contrary
to what the judgment would seem to imply, I do not believe that
preventive remedies and compensatory remedies are really equivalent
and it should not be open to States to choose or to opt for one or
the other of these two solutions.
In my
view, priority should be given to the preventive measures that
States must adopt in order to eradicate the phenomenon of an
excessive length of proceedings. Such measures are numerous and
varied, ranging from an increase in the number of judges and clerks,
or even the number of courts, to an overhaul of judicial
organisation, for example by generalising the system of single judge
at first instance. It is also important, however, not to
underestimate the benefits of more frequent recourse to methods of
alternative dispute resolution, such as mediation, arbitration or
conciliation, although the scope of such solutions is confined to
disputes arising in connection with certain private law matters.
Moreover, the solutions to the problem of an excessive length of
proceedings have to be divided into two main categories: those
concerning proceedings that have already ended and those applicable
to proceedings that are still pending.
Where
the proceedings have already ended, there is only one remedy that
would seem appropriate: redress for the damage caused to the victim,
in the form of compensation. But such a measure should be reserved
exclusively for proceedings that have already come to an end.
As
regards proceedings that are still pending, an award of compensation
to the victim cannot be regarded as equivalent to measures adopted in
order to expedite those proceedings. Where the proceedings
have not yet ended, preference must therefore be given to
“accelerative measures”, as they represent the most
effective way of enforcing the right to a hearing within a reasonable
time.
Examples
of “accelerative measures” to expedite proceedings are
numerous and varied: a higher court could set a time-limit within
which the court responsible for the delay has to bring the
proceedings to a close; the time allowed for pleadings to be
submitted by the parties, expert reports to be filed, possible
witnesses to be summoned, etc., could be reduced.
In
order to uphold the right to a hearing within a reasonable time, as
guaranteed by Article 6 § 1, States thus cannot confine the
solution to systematic compensation awards to victims of violations
of that right. Payment of compensation cannot therefore be regarded
as an adequate means for States to fulfil their obligations under
Articles 6 and 13 of the Convention.
In
conclusion, States must above all do their best to avert the
phenomenon of an excessive length of proceedings. An award of
compensation to victims is no more than a stopgap solution. It cannot
replace the obligation for States to organise their judicial systems
so as to address the root cause of the problem, in particular by
adopting “accelerative measures” to expedite proceedings
that are still pending.
