EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20197/92

Ernst Körner

against

Austria

REPORT OF THE COMMISSION

(adopted on 6 September 1995)

TABLE OF CONTENTS

         Page

I. INTRODUCTION

(paras. 1-6) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7-21) 2

III. OPINION OF THE COMMISSION

(paras. 22-33)              4

A. Complaint declared admissible

(para. 22) 4

B. Point at issue

(para. 23) 4

C. Article 6 para. 1 of the Convention

(paras. 24-32)              4

CONCLUSION

(para. 33) 5

APPENDIX :  DECISION OF THE COMMISSION AS TO THE

            ADMISSIBILITY OF THE APPLICATION              6

I. INTRODUCTION

1. The present Report concerns Application No. 20197/92 by Ernst Körner against Austria, introduced on 10 June 1992 and registered on 22 June 1992.

2. The applicant is an Austrian national and resident in Krems. He is a fiscal officer by profession. Before the Commission he is represented by Mr. C. Rogler, a lawyer practising in Steyr.

The Government of Austria are represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

3. The application was communicated to the respondent Government on 12 January 1994. Following an exchange of memorials, the applicant's complaint about the length of the criminal proceedings against him (Article 6 para. 1 of the Convention) was declared admissible on 17 January 1995. The decision on admissibility is appended to this report.

4. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 6 September 1995 in accordance with Article 31 para. 1 of the Convention, the following members being present:

  Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIČ

5. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the Austrian Government.             

6. The text of this Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

7. On 16 August 1988 the Tax Office (Finanzamt) of Linz issued tax assessments for income, turnover, alcohol and trade tax for the period of 1983 to 1986 against the applicant who was, at the time, allegedly running a cafeteria.

8. On 19 October 1988 the Criminal Department of the Tax Office of Linz informed the applicant that criminal proceedings under the Code of Tax Offences (Finanzstrafgesetz) had been instituted against him on the suspicion of having committed tax evasion in connection with his failure to submit tax declarations for the years 1983 to 1986.  It further informed the applicant that, in due course, he would be given an opportunity to comment upon this suspicion.

9. On 22 February 1989 the applicant commented on the charges against him.  He submitted inter alia that he had only been the chairman of the association which owned and was running a cafeteria.  He requested the discontinuation of the proceedings.

10. On 21 July 1989 the applicant again filed observations and urged the Tax Office to make a decision by 16 August 1989.

11. On 26 July 1989 the Tax Office informed the applicant that it awaited, for reasons of expediency, the final decision of the Administrative Court in the tax assessment proceedings before deciding upon the continuation of the criminal proceedings.

12. On 9 August 1989 the applicant again urged the Tax Office to discontinue the criminal proceedings.

13. On 28 March 1990 in the tax assessment proceedings, the Upper Austrian Regional Directorate of Finance (Finanzlandesdirektion) confirmed the applicant's turnover, income, alcohol and trade tax assessments.

14. On 6 November 1990 the Austrian Administrative Court (Verwaltungsgerichtshof) quashed the decision of the Regional Directorate of Finance concerning the aforementioned tax assessments for errors of law.

15. On 20 December 1990 the applicant, referring to the Administrative Court's judgment, again urged the Tax Office to discontinue the criminal proceedings. He had also, on 25 October 1990, lodged a request for administrative review (Dienstaufsichtsbeschwerde) with the Ministry of Finance (Bundesministerium für Finanzen). On 28 February 1991 he was informed by the Ministry that the Administrative Court's judgment had not clarified all the questions which were relevant in the criminal proceedings.  Their discontinuation was, therefore, not justified.

16. On 17 May 1991 the applicant lodged a complaint about the administration's failure to make a decision (Säumnisbeschwerde) with the Administrative Court.

17. On 10 December 1991 the Administrative Court declared the applicant's complaint inadmissible.  The Administrative Court found no failure on the part of the tax authorities.  The Court referred to S. 55 of the Code of Tax Offences, which provides that, in administrative criminal proceedings relating to charges of tax evasion, the oral hearing must not be conducted before the relevant tax assessment has become final.  It considered that the authorities need not decide on requests to discontinue criminal proceedings, as long as a tax assessment was not final.

18. On 14 February 1992 the Upper Austria Regional Directorate of Finance fixed the applicant's income taxes due for 1983 and 1984 at 11.866,- ATS.  The decisions concerning the turnover, alcohol and trade tax assessments against the applicant were annulled.

19. On 6 October 1992, the Administrative Court, upon the applicant's appeal in the tax assessment proceedings, again quashed his income tax assessment for errors of law.  Subsequently, the tax authorities did not issue a new decision as regards the applicant's taxes due for 1983 and 1984.

20. On 11 December 1992 the Trial Board (Spruchsenat) of the Tax Office of Linz discontinued the criminal proceedings against the applicant.

21. The applicant also submits that, in the course of the criminal proceedings, he applied for three different posts of head of tax office in Upper Austria.  However, his applications remained unconsidered due to the suspicion and criminal proceedings and subsequent disciplinary proceedings against him.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

22. The Commission has declared admissible the applicant's complaint  about the length of the criminal proceedings against him.

B. Point at issue

23. The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. Article 6 para. 1 (Art. 6-1) of the Convention

24. The applicant complains under Article 6 para. 1 (Art. 6-1) about the length of criminal proceedings against him.

25. Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:

"In the determination of .... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ... "

26. The applicant, referring to the case-law of the Convention organs, submits that the case was not complex and that he did not contribute to the length of the proceedings. In particular, his complaints lodged with the Administrative Court in the framework of tax assessment proceedings which were conducted at the same time, twice had the result that the decisions in these proceedings were quashed for errors of law. Thus, they were necessary and should not be held against him. On the other hand, the authorities in the criminal proceedings remained inactive for most of the time.

27. The Government submit that the criminal proceedings at issue were complex because they were inseparably linked to the tax assessment proceedings. They point out that the Administrative Court, in its judgment of 10 December 1991, held that S. 55 of the Austrian Code of Tax Offences enabled the authorities to wait for the final tax assessment before taking a decision in the criminal proceedings.  Moreover, the Government submit that the applicant, by lodging several complaints with the Administrative Court, also indirectly contributed to the length of the proceedings.

28. The Commission considers that the criminal proceedings against the applicant lasted from 19 October 1988, when he was informed that such proceedings had been instituted against him, until 11 December 1992, when they were discontinued, that is for altogether four years, one month and twenty-two days.

29. The reasonableness of the length of proceedings is to be determined with reference to the criteria laid down in the Court's case law and in the light of the circumstances of the case, which in this instance call for an overall assessment (Eur. Court H.R. Boddaert judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 36).

30. The Commission considers that the present case, relating to charges of tax evasion, was not of any particular complexity. No delays are attributable to the applicant.

31. The Commission finds that the competent authorities, after having opened the criminal proceedings against the applicant, remained inactive, as they were waiting for the outcome of the related tax assessment proceedings in accordance with S. 55 of the Code of Tax Offences. However, this must not lead to an excessive duration of the criminal proceedings. Moreover, the duration of the tax assessment proceedings appears to be attributable to the authorities. In particular, the Administrative Court, upon the applicant's appeal, twice had to quash the respective decisions for errors of law, namely on 6 November 1990 and on 6 October 1992. In this context the Commission notes that the authorities only discontinued the criminal proceedings on 11 December 1992, following the second of the above-mentioned decisions by the Administrative Court. However, at that stage, the tax assessment proceedings were still not terminated.

32. In these circumstances, the Commission finds that a duration of four years one month and twenty-two days of the criminal proceedings against the applicant cannot be regarded as "reasonable" for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

33. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

Secretary to the First Chamber                                   President of the First Chamber

     (M.F. BUQUICCHIO)                                                     (C.L. ROZAKIS)