GROGER v. AUSTRIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Mr Christian Gröger, is an Austrian national who lives in Vienna (Austria). He is represented before the Court by Mr K. Bernhauser, 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 facts of the case, as submitted by the parties, may be summarised as follows. On 7 March 2001 the applicant was questioned by the Vienna Police authority on suspicion of cigarette smuggling. Further examinations by the Vienna Customs Office (Zollamt Wien) took place on 9 March 2001 and 17 November 2005. On 5 April 2006 the Vienna Customs Office formally decided to institute proceedings for smuggling under the Tax Offences Act. On 27 April 2006 the applicant appealed against the decision to institute proceedings against him. In his appeal he submitted, inter alia, that the proceedings had already lasted an unreasonably long time and requested that they be discontinued. The proceedings against the applicant are still pending. Article 132 of the Federal Constitution Act, in its relevant part, reads as follows: “An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except as regards private prosecutions and prosecutions in respect of tax offences.” Section 57 (6) of the Code of Tax Offences (Finanzstrafgesetz) as amended by the Code of Tax Offences Amendment Act 2007 (Finanzstrafgesetz-Novelle 2007), Federal Law Gazette 2007 Part I No. 44 (BGBl. Nr. I 2007/44) as in force since 1 January 2008, reads as follows: “Financial criminal proceedings shall always be conducted expeditiously and without unnecessary delay and shall be terminated within adequate time. Proceedings during which an accused is detained shall be conducted with particular expedience. If a finance prosecution authority is dilatory in taking procedural action, the accused may file a request with the finance prosecution authority directed at the head of the Appeal Senate of the Independent Financial Senate (Berufungssenat des unabhängigen Finanzsenates) referred to in Section 62 (4) to set an adequate time-limit for the finance prosecution authority to take the procedural action. If the finance prosecution authority has taken the procedural action prior to the decision on the request, the request shall be deemed withdrawn.”