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FIRST
SECTION
CASE OF MÜLLER v. AUSTRIA (no. 2)
(Application
no. 28034/04)
JUDGMENT
STRASBOURG
18
September 2008
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 (no. 2),
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28034/04) 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 Pierre Müller
(“the applicant”), on 14 July 2004.
- The
applicant was represented by Mr H. Pochieser, a lawyer practising in
Vienna. 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.
- The
applicant alleged, in particular, that the criminal proceedings
against him had lasted an unreasonably long time and that there had
been a breach of his right not to be tried or punished twice.
- On
14 March 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Vienna. He is the owner and
managing director of M, a building company.
- On
10 October 1997 a worker employed by the M company mounted a scaffold
(which was owned, however, by another building firm) at one of the
company’s building sites at M. Street in Vienna. He fell and
died a few days later.
- Subsequently
the Vienna District Public Prosecutor (Bezirksanwalt) started
preliminary inquiries (Vorerhebungen) against the applicant on
suspicion of having caused death by negligence (fahrlässige
Tötung), an offence under Article 80 of the Criminal Code.
On 27 March 1998 he discontinued the inquiries.
- On
31 March 1998 the Vienna Municipality issued a penal order
(Straferkenntnis) against the applicant as manager of the M
company, imposing a fine for an administrative offence under section
130(1), no. 16, of the Industrial Safety Act
(Arbeitnehmerschutzgesetz) read in conjunction with several
provisions of the Construction Worker Safety Regulations
(Bauarbeiterschutzverordnung). It found that the applicant had
disregarded the duties of an employer concerning the properties,
conditions, use, inspection or maintenance of equipment
(Verpflichtungen betreffend die Beschaffenheit, die Aufstellung,
die Benutzung, die Prüfung oder die Wartung von Arbeitsmitteln)
as, on 10 October 1997, a scaffold used at the building site at M.
Street, Vienna, had lacked protective barriers on three sides at
head, chest and foot level and the protective barriers on the fourth
side had not been properly secured.
- On 31 March 1998 the applicant, assisted by counsel,
appealed to the Vienna Independent Administrative Panel (“the
IAP” – Unabhängiger Verwaltungssenat). He
submitted that at the building site at M. Street in Vienna 25
scaffolds owned by different construction companies had been in use.
While the one belonging to the M company had all the necessary
protective elements, the defective scaffold used by the employees of
the M company, which had led to the industrial accident, was
owned by another company. On 29 May 2000 the applicant submitted
further that the IAP should quash the penal order as the
administrative criminal proceedings had been conducted in breach of
the principle of ne bis in idem.
- On
20 June 2000 the IAP quashed the penal order of 31 March 1998.
Referring to the Constitutional Court’s case-law on Article 4
of Protocol No. 7, the IAP found that criminal proceedings for
causing death by negligence under Article 80 of the Criminal Code and
proceedings under section 130(1), no. 16, of the Industrial Safety
Act, read in conjunction with the Construction Worker Safety
Regulations, concerned essentially the same conduct as in both cases
the authorities and courts had to examine whether the provisions for
the protection of construction workers had been complied with. In
such circumstances, the person responsible for compliance with these
rules was also criminally liable under Article 80 of the Criminal
Code in the event of an accident at work leading to the death of the
victim. Therefore the IAP was prevented from conducting
administrative criminal proceedings against the applicant even though
finally the District Public Prosecutor had discontinued his inquiries
into the charge of causing death by negligence against the applicant.
- On
25 August 2000 the Federal Minister for Economy and Labour
(Bundesminister für Wirtschaft und Arbeit) filed a
complaint with the Administrative Court against the IAP’s
decision. The Federal Minister pointed to the Constitutional Court’s
case-law, according to which a conviction under Article 80 of the
Criminal Code concerned essentially the same punishable conduct as
the offence under section 130(1), no. 16, of the Industrial Safety
Act. Thus, to conduct two sets of criminal proceedings concerning
these offences would be in breach of Article 4 of Protocol No. 7. The
IAP had, however, overlooked the fact that in the present case no
proceedings had been conducted against the applicant before a
criminal court. The inquiries by the District Public Prosecutor, an
employee of the Public Prosecutor’s Office, had the purpose of
verifying whether or not a charge should be brought against a person
and whether proper criminal proceedings should be opened. As a result
the District Public Prosecutor had discontinued the preliminary
inquiries since he had not found sufficient reasons to prosecute the
applicant. That being so, it could not be said that an act had been
committed which fell within the scope of Article 80 of the Criminal
Code. The ne bis in idem principle did not therefore apply.
- On
26 April 2002 the Administrative Court quashed the IAP’s
decision of 20 June 2000. The Administrative Court found that the ne
bis in idem principle was not at stake if a public prosecutor
discontinued preliminary inquiries on a criminal information pursuant
to Article 90 of the Code of Criminal Procedure, as in such a case
the public prosecutor – either immediately or after
conducting inquiries – arrived at the conclusion that the
criminal information was unfounded, and that the act to which it
referred was not punishable or did not justify prosecution. Such a
case must be distinguished from the material facts in the
Constitutional Court’s decision to which the IAP had referred,
as that case had not concerned the termination of investigations
under Article 90 of the Code of Criminal Procedure.
- On
11 February 2003 the IAP gave a fresh decision on the applicant’s
appeal and this time upheld the Municipality’s penal order
after having held oral hearings on 16 October and 13 December 2002.
The IAP noted that the workers present at the building site had used
a scaffold belonging to another building company. The applicant, as
the person responsible, had not installed a properly functioning
control system, verifying that the scaffolds and other materials used
by the workers complied with safety regulations and that the workers
had been trained in complying with these regulations. The applicant
had therefore been responsible for the non-compliance with the safety
regulations.
- On
11 June 2003 the applicant lodged a complaint with the Constitutional
Court, alleging, inter alia, that the impugned decision
disregarded the principle of ne bis in idem.
- On
23 September 2003 the Constitutional Court declined to deal with the
applicant’s complaint for lack of prospect of success, and on
19 December 2003 the Administrative Court also declined to deal
with the applicant’s complaint for lack of prospect of success
in accordance with section 33a of the Administrative Court Act.
II. RELEVANT DOMESTIC LAW
- Sections
84 to 115 of the Code of Criminal Procedure (Strafprozeβordnung)
concern the conduct of preliminary inquiries (Vorerhebungen)
and preliminary investigations (Voruntersuchungen).
- In
order to procure the necessary evidence for the institution of
criminal proceedings or for the closing of the file (Zurücklegung)
on a criminal information, the public prosecutor may first have
preliminary inquiries carried out by the investigating judge, the
District Court or the police authorities (Section 88 § 1).
- Where
the public prosecutor is satisfied that there are sufficient grounds
for bringing a criminal prosecution, he or she must either request
the institution of preliminary investigations or file a formal
indictment (Anklageschrift, Strafantrag; Section 90 §
1). Section 91 § 2 provides that preliminary investigations
pursue the aim of provisionally examining the criminal charges laid
against a person and of establishing the facts to the extent
necessary to decide whether to discontinue the criminal proceedings
or to commit the person for trial and prepare the taking of evidence
at the trial.
- Section
93 § 1 provides that preliminary investigations are in principle
conducted by the investigating judge personally and directly.
- 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 proceedings had been
incompatible with the “reasonable time” requirement as
provided in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
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
applicant submitted that the subject matter of the present case was
not of a nature to raise complex legal questions since there already
existed a clear decision of the Constitutional Court regarding a
similar case. Furthermore, no delays had been caused by him and all
the delays that had occurred must be attributed to the Austrian
authorities and courts.
- The
Government contended that the length of proceedings before the Vienna
Municipality and the IAP had complied with the “reasonable
time” requirement. The IAP had had to deal with a particular
question of law, namely whether the ruling issued by the
administrative authority of first instance, after the criminal
information had been set aside by the public prosecutor, had violated
Article 4 of Protocol No. 7. At that time no relevant case-law of the
highest Austrian courts had existed on this specific matter.
Moreover, given the complex questions of law the Administrative Court
had had to decide on, the length of the proceedings before that court
should also be regarded as reasonable.
- The
Court observes that the period to be taken into consideration began
at the latest on 31 March 1998, when the Vienna Municipality issued a
penal order, and ended on 19 December 2003, when the Administrative
Court decided on a complaint by the applicant. The proceedings
therefore lasted approximately five years, eight months and two
weeks. During this period the case was dealt with by various
authorities: the Vienna Municipality and the Constitutional Court
once, the IAP and the Administrative Court twice.
- 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 Court is not persuaded that the questions the
authorities and courts had to decide on were so complex that they
could justify the whole period that elapsed until the final decision
was taken. As regards the conduct of the parties, the Court cannot
find that the applicant contributed to the duration of the
proceedings. As regards the conduct of the authorities, the Court
observes that the IAP and the Administrative Court dealt twice with
the applicant’s case. However, it notes that there was a period
of inactivity of one year and eight months before the Administrative
Court, namely from 25 August 2000 (when the Federal Minister for
Economy and Labour filed his complaint) until 26 April 2002 (when the
Administrative Court gave its decision). Having regard to this and 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 accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Admissibility
- The
applicant further complained of a breach of the ne bis in idem
principle, relying on Article 4 of Protocol No. 7, which, in so far
as relevant, reads as follows:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.”
- The
Government argued that the effect of setting aside an information
after preliminary investigations by the public prosecutor was that no
criminal proceedings were conducted at all. The applicant had only
been questioned by the police and not a judge; thus, he had not
attained the status of an accused or a suspect. The public
prosecutor’s refraining from prosecution could not be
considered a final judicial decision within the meaning of Article 4
of Protocol No. 7.
- The
applicant contested these arguments. He submitted that the
preliminary investigations carried out by the District Public
Prosecutor on suspicion of his having caused death by negligence and
the subsequent administrative proceedings for breaching workers’
safety regulations had concerned essentially the same conduct. In his
view, the preliminary investigations had been carried out on behalf
of the Döbling District Court, and during these investigations
he had been questioned as a suspect and the police had acted as
officers of the court.
- The
Court notes that the main accusation against the applicant in the
criminal proceedings, namely that he had failed to prevent an
accident at work, and the charge against him in the administrative
criminal proceedings, namely that he had failed to ensure compliance
by his employees with safety regulations, were essentially the same.
- The
Court reiterates that the aim of Article 4 of Protocol No. 7 is to
prohibit the repetition of criminal proceedings that have been
concluded by a final decision. In the case of Sundqvist v. Finland
the Court found that under Finnish law, the decision by a State
prosecutor not to prosecute the applicant did not constitute a final
decision (see Sundqvist v. Finland (dec.), no. 5602/01,
2 November 2005).
- The
Court observes that according to the wording of the Austrian Code of
Criminal Procedure, the aim of preliminary investigations is to
examine provisionally the criminal charges laid against a person and
to establish the facts to the extent necessary to decide whether to
discontinue the criminal proceedings. Therefore, the setting aside of
an information by the public prosecutor in the present case cannot be
regarded as a final decision either. Hence it is not relevant what
status the applicant had when he was questioned by the police. In
these circumstances the Court finds no appearance of a violation of
Article 4 of Protocol No. 7 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.
- Furthermore
the applicant complained under Article 2 of Protocol No. 7 of
the Convention of a lack of 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 as to the facts and the law, and that the Administrative
Court did not generally hold oral hearings in administrative criminal
proceedings. He also relied on Article 13 in respect of that
complaint.
- 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 Article 2 of Protocol No. 7 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).
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 (see Müller v. Austria (no.
1), no. 12555/03, § 25, 5 October 2006). As
regards Article 13, the Court notes that the
effectiveness of a remedy for the purposes of that Article does not
depend on the certainty of a favourable outcome.
- 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 lastly 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 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 presumptions 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 any means of defence,
as he had the opportunity to show that he had established an
effective control system ensuring that the workers employed by the M
company were informed about safety regulations and that compliance
with such regulations was checked. The
Austrian authorities found, however, that the applicant had not set
up an effective system to check whether his orders had been complied
with. The Court cannot find that in so holding, the Austrian
authorities overstepped the limits set by Article 6 § 2
(see, mutatis mutandis, Bruckner v. Austria, no.
21442/93, Commission decision of 18 October 1994, and Müller
(no. 1), cited above, § 34).
- It
follows that this complaint must likewise 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 1,417.13 euros (EUR) in respect of pecuniary
damage, corresponding to the amount of the fine he had to pay, and
EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested the applicant’s claim for pecuniary damage
as not justified and his claim for non-pecuniary damage as excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
On the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage. Ruling on an equitable basis, it
awards the applicant EUR 1,500 under that head, plus any tax that may
be chargeable on this amount.
B. Costs and expenses
- The
applicant also claimed EUR 16,025.66 including value-added tax (VAT)
for costs and expenses incurred before the domestic courts and
EUR 6,833.88 including VAT for those incurred before the Court.
- The
Government contested the claim for costs as being excessive.
- 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, Müller (no. 1), cited above, §
42). 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 as
regards the costs of the domestic proceedings.
- As
to the costs of the proceedings before the Court, the Court notes
that the applicant, who was represented by counsel, did not have the
benefit of legal aid and that he was only partly successful.
It
considers it reasonable, having regard to similar cases, to award him
EUR 1,670 under this head.
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 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;
- 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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable to the applicant;
(b) EUR
1,670 (one thousand six hundred and seventy euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant;
(c) 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 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
