DUBOC v. AUSTRIA
Inadmissible
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
1. The applicant, Mr Claude Louis Duboc, is a national of the United States of America and France, who was born in 1942. He is currently detained in a prison in the United States of America. He is represented before the Court by Dr. J. Hock, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. The Government of France were given notice of the application, and they informed the Court on 11 June 2008 that they would not exercise their right to intervene in the present case. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In November 1988 the applicant opened a bank account with an Austrian bank, bank G. The account was registered under his name and all movements on the account were able to be followed. By 1998 the applicant’s account had a positive balance of approximately 17 million euros (EUR). 4. In 1994 the applicant was indicted in the United States on various drug and money laundering charges relating to drug trafficking on a particularly large scale, which he was involved in from 1982 until his arrest in 1994. The applicant entered into a Plea and Cooperation Agreement with the prosecution on 17 May 1994. Under that agreement, the applicant voluntarily forfeited to the United States approximately 50 million United States dollars (USD) in assets. He was also obliged to identify all his assets. However, the applicant did not disclose his account with bank G. 5. While in prison the applicant was induced by one of the other fellow inmates, who was cooperating with the FBI, to bribe a judge. The inmate also arranged a meeting between the applicant and W., an undercover lawenforcement officer, who presented himself as being able to assist the applicant. Subsequently, W. arranged several money transfers for the applicant from bank G. in Austria. 6. Thereupon, on 7 May 1998, the United States Department of Justice requested the Austrian authorities under letters rogatory to freeze the applicant’s assets as a preliminary step to forfeiture under US law, subject to the operation of Austrian law. It stated that the applicant’s funds deposited with bank G. were the proceeds of money laundering and drug offences to which the applicant had pleaded guilty in 1994. It further held that these funds had also been used in additional money laundering offences for which the applicant would be indicted later. 7. This request was based on the treaty regulating judicial assistance between Austria and the United States, namely the Treaty of Mutual Legal Assistance (“the MLAT”), which entered into force on 1 August 1998. 8. On 23 September 1999 the District Court for the Northern District of Florida issued a Final Order of Forfeiture including the applicant’s assets at bank G. (“the first forfeiture order”). Apparently, the applicant’s appeal against this decision was to no avail. 9. In a second set of criminal proceedings in the United States, the applicant was indicted for conspiracy to bribe a federal judge, conspiracy to tamper with a witness, conspiracy to money laundering and for money laundering. 10. On 1 February 2000 the District Court for the Northern District of Florida acquitted the applicant of bribery, but convicted him of all other charges. The court also ordered the forfeiture of his assets (“the second forfeiture order”). 11. On 26 August 2004 the United States Court of Appeals for the Eleventh Circuit partly granted the applicant’s appeal against the decision of 1 February 2000 and acquitted him with respect to money laundering. His conviction for conspiracy to tamper with a witness was affirmed. The court also reversed the second forfeiture order. 12. Based on the United States’ letters rogatory of 7 May 1998, the Vienna Regional Criminal Court (Landesgericht für Strafsachen) issued an interim measure on 23 June 1998 enjoining the applicant from disposing of all assets deposited with bank G. It also held that the interim measure would be suspended on deposit of USD 325,000. The applicant did not pay that deposit and did not appeal against the court’s decision. This interim measure was twice altered to reflect the increased value of the assets subject to it. 13. Additional criminal proceedings were instituted against the applicant on suspicion of money laundering on 19 June 1998. 14. On 23 April 1999 the Austrian Federal Ministry of the Interior (Bundesministerium für Inneres) issued a report listing all credits and debits on the applicant’s account that had been carried out via bank transfer or by means of crossed cheques (Verrechnungsschecks). 15. On 14 April 2000 the Regional Criminal Court dismissed the applicant’s request for the suspension of the criminal proceedings and for the lifting of the interim measure. It held that only the Public Prosecutor’s Office could suspend the proceedings at this stage and that the interim measure was still justified. 16. On 17 August 2000 the Vienna Court of Appeal (Oberlandesgericht) rejected the applicant’s request that it hold a hearing and dismissed his complaint against the Regional Criminal Court’s decision of 14 April 2000. It held that according to the findings of the United States authorities the applicant could reasonably be suspected of having committed the crime of receiving stolen property (Hehlerei) and, after the entry into force of the relevant amendment to the Austrian Criminal Code, the crime of money laundering. 17. Subsequently, the applicant applied to have the interim measure lifted three additional times between 27 June 2001 and 18 August 2003. All of his requests were to no avail. 18. Following the judgment of the United States Court of Appeals for the Eleventh Circuit of 26 August 2004 and the applicant’s acquittal of the charges of money laundering, the applicant applied again to have the interim measure lifted. 19. On 22 March 2005 the Vienna Regional Criminal Court dismissed this request and upheld the interim measure. It held that a distinction had to be made between the two different proceedings in the United States. The first forfeiture order was still in force and consequently the interim measure in Austria could not be quashed. Even if the second forfeiture order had been lifted, the corresponding judgment of the United States Court of Appeals for the Eleventh Circuit had stated that at least some of the money in the applicant’s account with bank G. had “doubtlessly derived from drug related money”. The interim measure was therefore still justified. 20. This decision was upheld by the Court of Appeal on 22 September 2005 and served on the applicant’s counsel on 10 October 2005. 21. On 18 May 2005 the Vienna Public Prosecutor’s Office asked the Regional Criminal Court to enforce the first forfeiture order. Furthermore, it discontinued the criminal proceedings against the applicant on the same date. It renewed the request on 26 February 2006. 22. Upon the request of the Vienna Regional Court of 16 March 2006, the U.S. Department of Justice submitted a certified written version of the judgment issued against the applicant. However, it did not do so until 6 March 2007. 23. On 25 April 2006 the Vienna Regional Court dismissed the Public Prosecutor’s request for the execution of the first forfeiture order for formal reasons. 24. On 19 June 2007 the Vienna Court of Appeal allowed the Public Prosecutor’s appeal and remitted the case back to the Regional Court. 25. On 1 February 2008 the Vienna Regional Court asked the U.S. authorities to inform the applicant of the request of the U.S. Department of Justice for enforcement of the first forfeiture order and to give him the opportunity to comment on it. 26. On 23 April 2008 the applicant and his former wife, both represented by counsel, requested in their comments that the first forfeiture order not be executed in Austria. 27. On 4 June 2008 the Vienna Regional Criminal Court, without holding a hearing, decided to take over the enforcement of the first forfeiture order and ordered the forfeiture of the applicant’s Austrian assets. The applicant appealed against this decision on 24 June 2008. 28. On 30 December 2008 the Vienna Court of Appeal dismissed the applicant’s subsequent appeal. That decision was served on the applicant’s counsel on 27 January 2009. Section 1 of the Extradition and Legal Assistance Act (Federal Law Gazette no. 529/1979) stipulates that the Act applies where international or bilateral agreements do not provide otherwise. Section 3 carries the heading “reciprocity” and, so far as relevant, provides as follows: “(1) Foreign requests may be granted only if it is ensured that the requesting State would also grant an equivalent Austrian request. ... (3) If there are doubts regarding compliance with reciprocity, information shall be obtained from the Federal Minister of Justice.” “(1) Enforcement or further enforcement of a decision by a foreign court which was pronounced with final and legal effect, in the form of a money fine or prison sentence, a preventive measure or a pecuniary measure (vermögensrechtliche Anordnung), is admissible at the request of another State if: 1. the decision of the foreign court was taken in the course of proceedings in compliance with the principles of Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (the Convention) (Federal Law Gazette No. 210/1958); 2. the decision was taken for an act that is sanctioned by a court sentence under Austrian law; 3. the decision was not taken for one of the offences listed in § 14 and § 15; 4. no time lapse has occurred under Austrian law regarding enforceability; 5. the person concerned by the decision of the foreign court – regarding this offence – is not prosecuted in Austria, was finally and effectively convicted or adjudicated in this matter or otherwise released from prosecution. ... (4) Enforcement of a decision by a foreign court which results in pecuniary measures is admissible only to the extent that the requirements under Austrian law for a money fine, a withdrawal of enrichment or forfeiture apply, and that no corresponding Austrian measure has yet been taken. ... (7) Fines, forfeited assets or enrichment withdrawn shall fall to the Republic of Austria.” 29. The Treaty was signed on 23 February 1995 and, following ratification, entered into force on 1 August 1998 (Federal Law Gazette Part III, no. 107/1998). “(1) The Contracting Parties shall provide mutual assistance, in accordance with the provisions of this Treaty, in connection with the investigation and prosecution of offences, the punishment of which at the time of the request for assistance would fall within the jurisdiction of the judicial authorities of the Requesting State, and in related forfeiture proceedings. (2) Assistance shall include: ... (h) assisting in proceedings related to forfeiture and restitution; ...” “(1) If the Central Authority of one Contracting Party becomes aware of fruits or instrumentalities of offences which are located in the territory of the other Party and may be forfeitable of otherwise subject to seizure under the laws of that Party, it may so inform the Central Authority of the other Party. If the other Party has jurisdiction in this regard, it may present this information to its authorities for a determination as to whether any action is appropriate. These authorities shall issue their decision and shall, through their Central Authority, report to the other Party on the action taken. (2) The Contracting Parties shall assist each other to the extent permitted by their respective laws in proceedings relating to the forfeiture of the fruits and instrumentalities of offences, restitution to the victims of crime, and the collection of fines imposed as sentences in criminal prosecutions. (3) A Requested State in control of forfeited proceeds or instrumentalities shall dispose of them in accordance with its law. To the extent permitted by its laws and upon such terms as it deems appropriate, either Party may transfer forfeited assets or the proceeds of their sale to the other Party.” “(3) This Treaty shall apply to requests whether or not the relevant offences occurred prior to the entry into force of this Treaty.”