CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 13 novembre 2014

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AUSTRIA   (Application no. 10711/09)               JUDGMENT       STRASBOURG   13 November 2014                       This judgment is final but it may be subject to editorial revision. In the case of Stauder and Gabl v. Austria, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Mirjana Lazarova Trajkovska, President,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos, judges, and Søren Prebensen, Acting Deputy Section Registrar, Having deliberated in private on 21 October 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10711/09) 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 a German national, Mr Wolfgang Stauder (“the first applicant”), and an Austrian national, Mr Bernhard Gabl (“the second applicant”), on 10 February 2009. 2.     The applicants were represented by Mr R. Gabl, a lawyer practising in Linz. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. 3.     On 21 October 2011 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The first applicant was born in 1948 and lives in Rinschnach. The second applicant was born in 1964 and lives in Linz. 5.     In 1997 the Wels Regional Court (Landesgericht Wels, “the Regional Court”) instituted preliminary investigations (Vorerhebungen) against the two applicants and several other persons on account of the suspicion of aggravated fraud (schwerer gewerbsmässiger Betrug) by having set up and managed an internationally operated gambling system which was based on a pyramid scheme. 6.     On 19 January 1999 the Regional Court decided that the proceedings against the applicants were to be separated from those of the co-suspects to avoid delays. A.     Mr Stauder 7.     On 9 December 1997 the Regional Court issued an international arrest warrant (Steckbrief) in respect of the first applicant. He was in detention on remand from 26 to 27   May 1998. 8.     On 18 February 2008 the first applicant filed a request for the acceleration of the proceedings under Section 91 of the Courts Act (Fristsetzungsantrag). The Linz Court of Appeal (Oberlandesgericht, “the Court of Appeal”) dismissed the request on 11 September 2008, stating that it could only be directed against delays caused by the courts, not the Public Prosecutor. 9.     On 2 May 2013 the Regional Court acquitted the first applicant of all charges. The decision was served on his counsel on 15 October 2013. B.     Mr Gabl 10.     On 18   April 1997 the Regional Court issued an international arrest warrant in respect of the second applicant. He was in detention on remand from 22 May 1997 until 6 August 1999. 11.     On 12 April 2002 the preliminary investigations against the second applicant were closed and the file was transferred to the Wels Public Prosecutor (Staatsanwaltschaft, “the Public Prosecutor”) for further processing. However, no indictment was brought against him. 12.     On 4 December 2007 the second applicant filed a request for the acceleration of the proceedings under Section 91 of the Courts Act. The Court of Appeal dismissed the request on 11 September 2008, stating that it could only be directed against delays caused by the courts, not the Public Prosecutor. 13.     On 2 April 2010 the Public Prosecutor brought an indictment against the second applicant. The second applicant lodged an appeal against the indictment and a motion requesting the discontinuation of the proceedings. On 28 February 2011 the Court of Appeal rejected the indictment, but did not discontinue the proceedings. 14.     On 13 October 2011 the Public Prosecutor discontinued the proceedings against the second applicant. THE LAW I.     REQUEST TO DISJOIN THE APPLICATIONS 15.     On 27 February 2014 the applicants requested the Court to disjoin their applications. However, having regard to the similar nature of the facts and the substantive issues raised in their applications, the Committee dismisses this request. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.     The applicants 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...” 17.     The Government did not comment on the admissibility or the merits of the case. 18.     Concerning the first applicant, the period to be taken into consideration began on 9 December 1997 with the issuing of the arrest order, and ended on 5 October 2013 with the serving of the Regional Court’s decision on the applicant’s counsel. It has thus lasted 15 years, 10   months and 10 days for one level of jurisdiction. 19.     Concerning the second applicant, the period to be taken into consideration began on 18 April 1997 with the issuing of the arrest order, and ended on 13 October 2011 with the discontinuation of the proceedings by the Public Prosecutor. It has thus lasted 14 years, 5 months and 29 days for one level of jurisdiction. A.     Admissibility 20.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 21.     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 applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). 22.     Having regard to these criteria, the Court notes that the applicants’ cases were of a complex nature because of the (initially) significant number of accused and the international dimension of the alleged crimes. However, these factors alone cannot explain the overall duration of the pre-trial proceedings of fourteen and a half years in respect of the second applicant, and almost sixteen years in respect of the first applicant. Also, there were no discernible delays caused by the applicants, whereas there were significant periods of inactivity of the investigative bodies. 23.     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, among many other authorities, Tuma v. Austria , no. 22833/07, §§ 21-24, 18   October 2011; Hennig v. Austria , no. 41444/98, § 33 and 34, 2   October   2003; and Rösslhuber v. Austria , no. 32869/96, § 27, 28   November 2000). 24.     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. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 25.     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 26.     The first applicant claimed 30,000 euros (EUR), and the second applicant EUR 29,000 in respect of non-pecuniary damage. They did not make any claims in respect of pecuniary damage. 27.     The Government contested these claims, arguing that it was for the applicants to present evidence for the existence of a causal link between the violation of the Convention and the alleged damage, which they had not done. Further, the finding of a violation of a Convention right would in itself constitute sufficient reparation. They considered the claims in any event excessive. 28.     Having regard to its case-law in comparable cases and the specific circumstances of this case, the Court awards the first applicant EUR 26,000, and the second applicant EUR 22,000 in respect of non-pecuniary damage. It does not award any pecuniary damage since the applicants have not made such a claim. B.     Costs and expenses 29.     The applicants also claimed EUR 3,000 each for the costs and expenses incurred, without specifying whether these sums were incurred in the domestic proceedings or for the proceedings before the Court, or what they consist of. 30.     The Government contested these claims, arguing that the applicants had not differentiated them or adduced evidence to show that they had been actually and necessarily been incurred. They considered the claims in any event excessive. 31.     Regard being had to the information in its possession and to its case-law, the Court considers it reasonable to award each applicant the sum of EUR 1,000 covering costs and expenses under all heads. C.     Default interest 32.     The Court considers it appropriate that the default interest rate 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, 1.     Dismisses the applicants’ request to disjoin their applications;   2.     Declares the complaint concerning the excessive length of the proceedings admissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention;   4.     Holds (a)     that the respondent State is to pay, within three months, the following amounts: (i)     EUR 26,000 (twenty six thousand euros) to the first applicant in respect of non-pecuniary damage, plus any tax that may be chargeable to him on that amount; (ii)     EUR 22,000 (twenty two thousand euros) to the second applicant in respect of non-pecuniary damage, plus any tax that may be chargeable to him on that amount; (iii)   EUR 1,000 (one thousand euros) to each applicant, plus any tax that may be chargeable, 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;   5.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 13 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Søren Prebensen   Mirjana Lazarova Trajkovska   Acting Deputy Registrar   President