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FIRST SECTION
CASE OF MÜLLER v. AUSTRIA
(Application no. 12555/03)
JUDGMENT
STRASBOURG
5
October 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 Müller v. Austria,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs N. Vajić,
Mr A. Kovler,
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 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 12555/03) 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 Pierre
Müller (“the applicant”), on 3 April 2003.
- The applicant was
represented by Mr Herbert Pochieser, a lawyer practising in Vienna.
The Austrian Government (“the Government”)
were represented by their Agent, Mr Ferdinand Trauttmansdorff, Head
of the International Law Department at the Federal Ministry for
Foreign Affairs.
- On 15 September 2005
the Court decided to communicate the complaint concerning the length
of the proceedings 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 FACTS
I. The circumstances of
the case
- The applicant was born in 1968 and lives in Vienna. He
is the managing director (Geschäftsführer) of the M
company.
- On 24 January 1994 an officer of the Vienna Employment
Office (Landesarbeitsamt) found Mr S, a Polish national,
working on the construction site of the M company without employment
or work permit.
- Having obtained the applicant's submissions on 11
August 1994, the Vienna municipality (Magistrat), on 10 August
1995, issued a penal order (Straferkenntnis) against the
applicant in which it convicted him under ss. 28 and 3 of the
Employment of Aliens Act (Ausländerbeschäftigungs-gesetz)
of illegal employment of a foreigner and sentenced him to a fine of
10,000 ATS (approximately 700 EUR).
- On 28 May 1996 the Vienna Independent Administrative
Panel (Unabhängiger Verwaltungssenat, IAP), having held
two public hearings, confirmed this decision. It did not follow the
applicant's argument that he was not guilty as he had not known about
the illegal employment of Mr S and had ordered a subordinate to
observe the legality of the M company's employment policy. The IAP
noted that the applicant had failed to set up an effective
supervising system and had not shown how and when he had exercised
control whether his orders were respected. It concluded that the
applicant had not convincingly shown that no fault lay with him
within the meaning of section 5 § 1 of the Code of
Administrative Offences (Verwaltungsstrafgesetz).
- The applicant filed a complaint with the Constitutional
Court (Verfassungsgerichtshof) on 22 July 1996. On the same
day he lodged a further complaint against another penal order of the
IAP concerning also illegal employment of foreigners. The
Constitutional Court joined these proceedings and, on 24 September
1996, granted the applicant's requests for suspensive effect.
- At the same time, proceedings concerning complaints
lodged by another managing director of the M company and the M
company itself were pending before the Constitutional Court which
involved the review of the constitutionality of a specific provision
of the Employment of Aliens Act.
- On 15 October 1998 the Constitutional Court declined
to deal with the applicant's complaint for lack of prospect of
success. It referred to its decision of 2 October 1997 in which it
had found that the Independent Administrative Panels in principle
qualified as “tribunals” but that the IAP in this case
lacked “independence” as the deciding judge was a former
civil servant of the federal authority which had issued the impugned
decision and was likely to return after his term of office to the
federal authority which had issued the impugned decision. The
Constitutional Court noted that in the present case there was no
concrete indication of lack of independence of the deciding member of
the Vienna IAP. Upon the applicant's request, it transferred the case
to the Administrative Court (Verwaltungsgerichtshof).
- On 26 March 1999 the applicant submitted his amended
complaint and submitted that the IAP's decision was unlawful on
account of its content and the breach of procedural rules. The
Administrative Court instituted preliminary proceedings on 6 April
1999. On the same date it granted suspensive effect to the
applicant's complaint. On 17 May 1999 the Administrative Court
obtained the IAP's submissions. On 3 September 2002 it
dismissed the applicant's complaint. On the same day it also
confirmed the applicant's conviction concerning illegal employment of
three other Polish nationals. These decisions were served on the
applicant's counsel on 3 October 2002.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Austrian Federal
Constitution (Bundes-Verfassungsgesetz) concerning the
establishment of Independent Administrative Panels which entered into
force on 1 January 1991 read as follows:
Article 129
“It is the task of the Independent Administrative
Panels in the regions and the Administrative Court in Vienna to
ensure the lawfulness of the entire public administration.”
Article 129b
“(1) Independent Administrative Panels are
composed of a president, a deputy president and a sufficient number
of further members. Its members are appointed by the Regional
Government for a period of at least six years. ...
(2) In fulfilling their tasks under Articles 129a
and 129b the members of the Independent Administrative Panel are not
bound by any instructions. The court business shall be distributed
among the members in advance for the period provided for in the
regional legislation. A matter which according to such a schedule is
the business of one member may only be withdrawn from him or her in
case of impediment by a decision of the president.
(3) Before the end of their term of office members
of Independent Administrative Panels may only be removed from office
in the cases specified by the law and upon a decision of the
Independent Administrative Panel itself.
- The Vienna Act on the Independent Administrative
Panel, Regional Gazette no. 53/1990 (Gesetz vom 26. Juni über
den Unabhängigen Verwaltungssenat Wien, Landesgesetzblatt no.
53/1990), as in force at the time of the events, repeated the
provisions of the Federal Constitution as regards appointment,
removal and freedom from instructions of the members of the Vienna
Independent Administrative Panel (ss. 4-6). It further stated that
the members of the Independent Administrative Panel should be chosen
in a procedure including public announcement of the vacancy and a
hearing of the Panel's president. At least a quarter of the members
of the Independent Administrative Panel should be taken from
departments of the federal authorities.
- Section 5 § 1 of the Code of Administrative
Offences provides:
“Unless a provision of administrative law states
otherwise, negligent behaviour is sufficient to establish guilt.
Negligence is to be assumed in the case of failure to observe a
prohibition or a prescription where damage or danger is not an
element of the administrative offence, and the defendant does not
convincingly show that no fault lies with him for the contravention
of the provision of administrative law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION CONCERNING THE LENGTH OF THE PROCEEDINGS
- The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement provided in Article 6 § 1 of the Convention,
which, as far as relevant in the present case, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by an independent and impartial tribunal...”
- The Government contested that argument.
- The period to be taken into consideration began on
11 August 1994 when the applicant was invited to comment on
the charge against him and ended on 3 October 2002 when the
Administrative Court's decision was served on the applicant's
counsel. It thus lasted for eight years and nearly two months before
four levels of jurisdiction.
A. Admissibility
- The Court notes that 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 Government argued that the proceedings before the
Vienna municipality and the IAP had been handled without long delay.
The longer duration of the proceedings before the Constitutional
Court was proportionate in regard of the complexity of the case which
resulted from a global consideration of all proceedings concerning
the M company and its managing directors. These proceedings were
connected to one another in factual and legal aspects. In addition,
the applicant's complaint raised complex legal questions concerning,
firstly, the independence of the IAP and its quality as a tribunal
and, secondly, the issue of double punishment.
- The applicant contested these arguments. He submitted
that the proceedings concerning the M company and another of its
managerial directors did not have any effects on the proceedings at
issue. No delays had been caused by him and the case was not really
complex.
- 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. The Court further 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 this court,
referring to its previous case-law, declined to deal with the
applicant's complaint for lack of prospect of success. In any event,
the Court observes that there was a period of inactivity of three
years three months and some two weeks before the Administrative
Court, namely from 17 May 1999 (when the IAP filed its
observations) until 3 September 2002 (when the
Administrative Court decided). In the absence of any explanation for
this period and having regard to the overall duration of the
proceedings, the Court finds that the applicant's case has not been
determined within a reasonable time.
- There has thus been a violation of Article 6 § 1
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Admissibility
- The applicant complained that his case was not
considered by a tribunal within the meaning of Article 6 § 1. In
this regard he complained about the alleged lack of independence of
the IAP which judges might be civil servants liable to return to
lower instances after their term of office. He further referred to
the possibility of removal of judges from office before end of term.
He submitted that in proceedings under the Aliens' Act the Vienna IAP
allegedly aligns itself to some extent to the opinion of the
competent executive authorities. He finally referred to alleged
interrelations between the Vienna municipality and the Vienna IAP but
did not give any further details in this regard. In any event, the
applicant complained under Article 2 of Protocol No. 7 of the
Convention about a lack of review by a higher tribunal. He submitted
that the Administrative Court's review was insufficient as it cannot
be regarded as a judicial body with full jurisdiction on facts and
law, and that the Administrative Court generally does not hold oral
hearings in administrative criminal proceedings.
- The Court notes that the applicant's case was first
considered by the Vienna municipality, a body which does not satisfy
the above requirements of Article 6 § 1. The applicant's appeal
against the penal order of the Vienna municipality was dealt with by
the Vienna IAP. The Court has repeatedly found that the Independent
Administrative Panel has to be regarded as a tribunal within the
meaning of Article 6 § 1 of the Convention (see, for example,
Liedermann v. Austria, (dec.), no. 54272/00,
5 December 2002, with further reference to Baischer v.
Austria, no. 32381/96, § 25, 20 December 2001). The
applicant does not submit any argument sufficient to call these
findings into doubt.
As regards the complaint under Article 2 of Protocol no. 7, the Court
recalls that the Contracting States may limit the scope of the review
by a higher tribunal by virtue of the reference in § 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)). In the present case, there is no
indication that the scope of review of the Administrative Court was
insufficient for the purposes of Article 2 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.
- The applicant further complained about the amount of
his fine of ATS 10,000 (approximately 700 EUR) which he
considered excessive in comparison to his monthly salary of ATS
25,000 (approximately 1,820 EUR) and, generally, to the fines
imposed in criminal proceedings under the Criminal Code
(Strafgesetzbuch). The applicant did not invoke any Article of
the Convention in this regard.
- The Court recalls that matters of appropriate
sentencing largely fall outside the scope of Convention, as it is not
the Court's role to decide what is the appropriate sentence
applicable to a particular offence (see, mutatis mutandis,
Sawoniuk v. the United Kingdom (dec.), no. 63716/00,
ECHR 2001 VI). The sentence imposed on the applicant
neither appears arbitrary nor disproportionate and, therefore, does
not raise any issue under 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.
- The applicant alleged a breach of Article 4 of
Protocol no. 7 of the Convention in that subsequent to the present
proceedings he had been punished for the illegal employment of other
foreigners and that the other managing director of the M company had
also been punished in this respect. He further referred to ss. 28b
and 30 of the Employment of Aliens Act providing that a company's
previous illegal employment of a foreigner may be disclosed by the
Minister of Finance in tendering procedures and may justify the
refusal of an employment permit to the company concerned.
- The Court notes that Article 4 of Protocol no.7 of the
Convention relates to a new set of proceedings against the same
person in respect of the same offence. Consequently, neither the
applicant's conviction of illegal employment of other foreigners, nor
the conviction of another person in this respect raises an issue
under this Article. The Court further does
not find it necessary to consider the compliance of ss. 28b
and 30 of the Employment of
Aliens Act with the guarantees
under the Convention as such, as it
is not the Court's task to examine the domestic legislation in the
abstract.
- 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 finally alleged a violation of Article 6
§ 2 of the Convention and submitted that he was required by
section 5 § 1 of the Code of Administrative Offences to
exculpate himself, rather than the burden being on the prosecution.
- The Court notes that section 5 § 1 of the Code of
Administrative Offences contains a presumption that a person who
contravened a prohibition has acted at least with negligence, unless
he or she is able to show that no fault lies with him or her. The
Court reiterates that Article 6 § 2 does not
prohibit the use of presumption of fact or law, if they remain within
reasonable limits which take into account the importance of what is
at stake and maintain the rights of the defence (see
Salabiaku v. France, judgment of 7 October 1988,
Series A no. 141 A, § 28). In the present case, the
applicant was not left without means of defence: Mr S, a Polish
national was found to be working on the construction site of the M
company without an employment or work permit. The applicant, the
managing director of the M company, tried to allege that he was not
at fault as he had not known about the illegal employment of Mr S
and had ordered a subordinate to observe the legality of the
company's employment policy. The Austrian authorities rejected this
argument as they found that the applicant had not set up an effective
control system on whether his orders had been respected. The Court
cannot find that by doing so, the Austrian authorities overstepped
the limits set out by Article 6 § 2 (see mutatis
mutandis Bruckner v. Austria, no. 21442/93, Commission
decision of 18 October 1994).
35. It follows that also this complaint must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. 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 6,000 euros (EUR) in respect of
non-pecuniary damage.
- The Government contested the claim and submitted that
in the present case a finding of violation constituted in itself
sufficient just satisfaction.
- The Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards award him EUR 4,000 under that head.
B. Costs and expenses
- The applicant also claimed EUR 4,348.45 including VAT
for the costs and expenses incurred before the domestic courts and
EUR 2,001.96 including VAT for those incurred before the Court.
- The Government contested the claim concerning the
costs of domestic proceedings for lack of causal link with the
alleged violation of the length of the proceedings.
42. 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 in order to prevent or obtain redress for the matter found
to constitute a violation of the Convention and were reasonable as to
quantum (see, for instance, Alge v. Austria, no.
38185/97, § 39, 22 January 2004). In the present case, it
does not appear from the applicant's submissions that any specific
costs were incurred in an attempt to accelerate the proceedings.
Therefore, no award can be made under the head of the costs of the
domestic proceedings.
- As to 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. It considers that the sum claimed
should be awarded in full. The Court considers it reasonable to award
the applicant the full amount claimed, namely EUR 2,001.96 under this
head. This amount includes any taxes chargeable on this amount.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings;
- 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 4,000 (four thousand euros) in respect of
non-pecuniary damage and EUR 2,001.96 (two thousand and one euros and
ninety six cents) 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 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
