CEDH · CASELAW;CLIN;ENG — 5 juillet 2007

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Austria - 69917/01 Decision 5.7.2007 [Section I] Article 6 Civil proceedings Article 6-1 Civil rights and obligations Enforcement of a foreign court’s forfeiture order: article   6 applicable (civil limb) Criminal charge Enforcement of a foreign court’s forfeiture order: article 6 not applicable (criminal limb) In 1993, the applicant, a citizen of the United States of America, was convicted of large-scale money laundering by a United States court. In 1997, the US court issued a forfeiture order concerning his assets and a letter Rogatory requesting its enforcement in Austria. In 1998, the Vienna Regional Criminal Court, as an interim measure, ordered the confiscation of the applicant’s assets, to approximately EUR   5,8   million, for that purpose. The applicant appealed unsuccessfully. In 2000, without holding a hearing, the Vienna Regional Criminal Court ordered the forfeiture of his assets. The Vienna Court of Appeal, sitting in camera , dismissed his appeal. Article   6 § 1 – Applicability – Criminal limb : The proceedings before the Austrian courts relating to the enforcement of the forfeiture order had not involved the determination of a new criminal charge against the applicant, but an examination of whether or not his acts would have been punishable under Austrian law. However, this assessment had been an abstract one and had not related to a determination of his guilt. Such an abstract assessment of criminal liability was also typical for extradition proceedings which according to the Court’s established case-law did not involve a “determination of a criminal charge”. The proceedings at issue had not been not akin to a sentencing procedure either, since the Austrian courts had had no discretion to determine the amount or the assets to be forfeited. The Court was not convinced by the applicant’s argument that the proceedings had gone beyond a mere execution of the forfeiture order. Since the matters relating to the execution of a sentence did not fall under the criminal limb of Article   6, there was no reason for the Court to draw a different conclusion regarding the exequatur of a sentence imposed by a foreign court. Article   6 § 1 under its criminal limb was therefore inapplicable . Applicability – Civil limb : the United States court’s final forfeiture order had involved a determination of the applicant’s civil rights and obligations. The applicant and the Austrian authorities had been in dispute as to whether or not the conditions for its enforcement in Austria had been met. The outcome of the dispute had been decisive for whether or not he could exercise his rights over the assets at issue. It was through the Austrian courts’ decisions that the forfeiture order had become effective and that he had been permanently deprived of these assets. Article   6 § 1 had, therefore, applied under its civil limb to the proceedings before the Austrian courts. Compliance : Admissible (lack of a hearing in the proceedings relating to the enforcement of the United States court’s forfeiture order in Austria). Remainder inadmissible (fairness of proceedings): Inter alia , the Court found that the Austrian courts had duly satisfied themselves, before authorising its enforcement, that the forfeiture order had not been the result of a flagrant denial of justice. The Court was not called upon to decide in the abstract which level of review had been required from a Convention point of view, since – in any case – domestic law required the Austrian courts to make sure that the decision to be executed had been given in proceedings complying with the principles of Article   6 of the Convention: manifestly ill-founded . Article   7 – In contrast with Welch v . the United Kingdom (judgment of 9 February 1995), the forfeiture of the applicant’s assets had been foreseen in the relevant laws of the United States at the time of the commission of his offences. The applicant complained in essence that the enforcement of the forfeiture order in Austria had not been foreseeable. This issue had not concerned the penalty itself but its execution. However, Article   7 did not apply to the execution of a penalty: incompatible ratione materiae . Article   1 of Protocol No. 1: admissible .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes