KIMESWENGER v. AUSTRIA
Inadmissible
Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Mr Peter Kimeswenger, is an Austrian national who was born in 1968 and lives in Attnang-Puchheim. He was represented before the Court by Gabl, Kogler, Papesch and Leitner, a firm of lawyers practising in Linz. 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. On 30 September 1996, preliminary investigations (Vorerhebungen) were instituted against the applicant and ten other persons who were suspected of aggravated fraud, breach of trust, money laundering and forming a criminal organisation. During these proceedings the Wels Regional Court (Landesgericht) acting through its competent investigating judge, on 16 September 1997 confiscated three cars belonging to the applicant by an interim measure under section 144a of the Code of Criminal Procedure (Strafprozess-ordnung) in order to secure the levy (Abschöpfung) of property presumed to have been obtained by criminal acts. The court confiscated a Suzuki Kombi, a Chrysler Voyager Kombi and a Mercedes Cabrio. On 12 March 1998 the court further ordered that the cars be kept at a motor trading company in Gallspach. It dismissed the applicant’s argument that his friend and not he was the owner of the Suzuki Kombi. The applicant did not appeal against this decision. On 21 December 2004 the Wels Regional Court convicted the applicant of aggravated professional fraud and being a member of a criminal organisation. Under Article 20 of the Criminal Code (Strafgesetzbuch) it found that there should be a levy on the enrichment obtained from the crimes in the amount of 5,220.36 euros (EUR). The applicant made a plea of nullity to the Supreme Court. The applicant and the Public Prosecutor also filed appeals against the sentence. On 23 February 2005 the court, referring inter alia to section 401 of the Enforcement Act (Exekutionsordnung), ordered that the cars be sold at public judicial auction. It noted that the criminal proceedings were very complex and that the Supreme Court would presumably not render judgment until 2006. The sale of the cars was necessary in order to prevent excessive parking charges and loss of value due to the cars’ decreasing sales value. The court finally noted that the interests of the car owner were protected by the fact that he could recover the cars by participating in the judicial auction. Furthermore, he would obtain the proceeds of the sale revenue if no levy would be imposed. The decision was served on the applicant’s counsel on 18 March 2005. No formal remedy lies against this decision. Nevertheless, the applicant, assisted by counsel, lodged an appeal on 30 March 2005. He submitted that the reasons given for the sale were not plausible, as the cars had until now been kept for some seven and a half years, and considerable parking charges had accrued. Therefore, the fact that the cars should be kept for some further nine months was of minor importance. He was not in a position to buy the cars at the judicial auction as he was currently living on emergency assistance (Notstandshilfe). Furthermore, there was not sufficient legal basis for the court’s decision to sell his property. The applicant finally argued that he was not the owner of the Suzuki Kombi and that the court had failed to inform the real owner. On 30 May 2005 the Linz Court of Appeal (Oberlandesgericht) rejected the appeal as inadmissible, as no appeal lay against such an order. It noted that the provisions of the Code of Criminal Procedure alone were relevant and section 144a § 6 of the Code of Criminal Procedure only provided for the right to appeal against a decision ordering or cancelling an interim confiscation. This decision was served on the applicant’s counsel on 27 June 2005. On 16 August 2005 the cars were sold at a public auction. On 1 April 2008 the Supreme Court dismissed the applicant’s plea of nullity against the Regional Court’s judgment of 21 December 2004 and, on 29 May 2008, the Linz Court of Appeal dismissed the appeals lodged by the applicant and the Public Prosecutor. Under Article 20 § 1 of the Criminal Code (Strafgesetzbuch) a person who has obtained property of value by or as a result of criminal acts should be sentenced to a fine in the amount of the unlawful enrichment. If the exact extent of the enrichment cannot be established or can only be established by incurring disproportionate costs, the court has to assess the amount to be levied on an equitable basis. In case of suspicion of unlawful enrichment, presumably falling under the scope of Article 20 of the Criminal Code, and if there is reason to assume that otherwise the levy on the value of the property concerned is thereby placed at risk, section 144a § 1 of the Code of Criminal Procedure (Strafprozessrecht) authorises the investigating judge, at the request of the Public Prosecutor’s Office, to issue an interim order of confiscation. Section 144a § 1 further provides that, if not stipulated otherwise, the provisions of the Enforcement Act (Exekutionsordnung) apply to these interim measures. Section 144a § 6 provides that the Public Prosecutor’s Office, the accused and any other person concerned have the right to appeal to the second-instance court against a decision ordering or cancelling an interim confiscation. Section 401 § 1 of the Enforcement Act provides that, upon request, the court may issue any orders which are necessary to prevent obsolescence, disproportional costs or other losses concerning objects which belong to third parties and have been taken into legal custody. According to the legal doctrine, such a decision may also consist in the order to sell the objects concerned.