Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15886/89

Stanislava Kremzow

against

Austria

REPORT OF THE COMMISSION

(adopted on 6 April 1994)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7 - 20) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 21 - 37). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaints declared admissible

(para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Points at issue

(para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4

C. Article 6 para. 1 of the Convention

(paras. 23 - 32) . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5

D. Article 13 of the Convention

(paras. 34 - 36) . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 6

Recapitulation

(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 6

APPENDIX : DECISION ON THE ADMISSIBILITY OF THE APPLICATION . . . . 7

I. INTRODUCTION

1. The present Report concerns Application No. 15886/89 by

Stanislava Kremzow against Austria, introduced on 22 November 1989 and

registered on 11 December 1989.

2. The applicant is an Austrian and Czech national born in 1943 and

residing in Vienna. Before the Commission she is represented by

Mr. W. L. Weh, a lawyer practising in Bregenz, and Mr. H. Mühlgassner,

a lawyer practising in Vienna.

The application is directed against Austria. The Austrian

Government were 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

7 January 1991. Following an exchange of memorials, the applicant's

complaint under Article 6 para. 1 of the Convention relating to the

length of the criminal proceedings and her complaint under Article 13

of the Convention that the Code of Fiscal Offences does not provide for

any effective remedy to challenge unreasonable delays in the

proceedings were declared admissible by the Commission (Second Chamber)

on 5 May 1993. The decision on admissibility is appended to this

Report.

4. With a view to securing a friendly settlement of the case within

the meaning of Article 28 para. 1 (b) of the Convention, consultations

took place with the parties between 14 May 1993 and 19 November 1993.

5. Having noted that there is no basis upon which such a settlement

can be effected, the Commission (Second Chamber), after deliberating,

adopted this Report in pursuance of Article 31 of the Convention, the

following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Austria.

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 17 February 1983 the Tax Office (Finanzamt) for the 6th, 7th

and 15th District of Vienna instituted administrative criminal

proceedings under the Code of Fiscal Offences (Finanzstrafgesetz)

against the applicant on suspicion of tax evasion.

8. On 22 April 1983 the applicant was interrogated as an accused.

9. On 6 June 1984 the Administrative Court (Verwaltungsgerichtshof)

rejected a complaint by the applicant challenging the delay in the

criminal proceedings.

10. In the tax assessment proceedings the Tax Office on 23 March 1984

completed the tax audit and concluded that due to unreported income

taxes of more than AS 170,000 had not been paid. On 30 April 1984 the

Tax Office issued tax assessment orders (Abgabenbescheide) concerning

value added tax from 1979 to 1983 and income tax from 1978 to 1982.

On 4 June 1984 the applicant appealed against these assessment orders

without giving reasons for her appeal. The time-limit for filing the

reasons was extended three times, the last time until 30 June 1985.

Following a reminder the applicant finally filed her reasons for the

appeal on 4 November 1985. On 10 July 1986 the Regional Directorate

of Finance (Finanzlandesdirektion) decided on the applicant's appeal

and partly quashed the Tax Office's assessment orders. On

28 August 1986 the Tax Office decided again in the tax assessment

proceedings. This decision became final on 5 November 1987 when the

applicant withdrew her appeal.

11. In the meantime, the criminal proceedings had not progressed.

On 18 December 1987 the applicant filed a request for transfer of

jurisdiction (Devolution) in respect of the criminal proceedings from

the Tax Office to the higher authority, claiming that her right to a

decision within a reasonable time under Article 6 para. 1 of the

Convention had been violated. This request was rejected by the

Regional Directorate on 2 March 1988. It found that the Code of Fiscal

Offences did not provide for a transfer of jurisdiction.

12. On 29 April 1988 the applicant filed a complaint with the

Constitutional Court (Verfassungsgerichtshof) against the Regional

Directorate's decision of 2 March 1988, invoking Articles 6 and 13 of

the Convention.

13. On 3 October 1988 the Constitutional Court refused to entertain

the applicant's complaint. Referring to its earlier case-law the

Constitutional Court considered that the applicant's complaint did not

show a sufficient prospect of success. The Administrative Court, to

which the complaint was referred, eventually discontinued the

proceedings as the applicant had not complied with that Court's order

to remedy defects of the complaint (Mängelbehebungsauftrag).

14. Meanwhile, on 9 May 1988, the Tax Office informed the applicant

of the amount of evaded taxes determined in the course of the

assessment proceedings and instructed her to submit a written statement

by 10 June 1988.

15. On 25 May 1988 the applicant asked for an extension of the time-

limit for filing her written statement because she had no access to the

file which had been transmitted to the Constitutional Court. On

26 June 1989 the file was returned to the Regional Directorate of

Finance.

16. On 11 October 1989 the applicant lodged a complaint (Beschwerde)

against the notice and instruction of the Tax Office of 9 May 1988.

17. On 26 April 1990 the applicant introduced a complaint

(Säumnisbeschwerde) with the Administrative Court against the

inactivity of the Directorate of Finance in dealing with her complaint

of 11 October 1989. On 21 September 1990 the Administrative Court

ordered the Directorate of Finance to decide on the applicant's

complaint. On 28 September 1990 the Regional Directorate of Finance

rejected the applicant's complaint of 11 October 1989.

18. On 20 November 1990 the applicant filed a complaint with the

Administrative Court against the Regional Directorate's decision of

28 September 1990. Following a reminder by the applicant, the

Administrative Court initiated proceedings on 5 February 1991, and on

2 April 1991 the Regional Directorate filed written observations in

reply.

19. On 20 March 1992 the Tax Office discontinued the criminal

proceedings against the applicant.

20. According to the applicant the Administrative Court has not yet

decided on her complaint of 20 November 1990.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

21. The Commission has declared admissible the applicant's complaint

that her case was not heard within a reasonable time and her complaint

that the Code of Fiscal Offences does not provide for any effective

remedy to challenge unreasonable delays in the proceedings.

B. Points at issue

22. The points at issue to be determined are:

- Whether the length of the criminal proceedings complained of

exceeded the "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

- Whether the absence of a remedy in the Code of Financial Offences

to challenge unreasonable delays in the proceedings violated Article 13

(Art. 13) of the Convention.

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

23. 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 ..."

24. The applicability of Article 6 para. 1 (Art. 6-1) to the criminal

proceedings against the applicant concerning charges of tax evasion

within the meaning of the Austrian Code of Financial Offences is not

in dispute.

25. These proceedings started on 17 February 1983 when administrative

criminal proceedings were instituted against the applicant and ended

with the Tax Office's decision of 20 March 1992 to discontinue the

proceedings. The proceedings thus lasted nine years and one month.

In this respect the Commission considers that the complaint lodged by

the applicant on 20 November 1990 with the Administrative Court

concerning a procedural issue which still has not been decided upon,

is of no relevance after the discontinuation of the criminal

proceedings.

26. The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to its complexity, the

conduct of the parties and the conduct of the authorities dealing with

the case. In this instance the circumstances call for an overall

assessment (see Eur. Court H.R., Ficara judgment of 19 February 1991,

Series A no. 196-A, p. 9, para. 17).

27. The applicant submits that delays occurred in the proceedings

which were due to the inactivity of the authorities.

28. According to the Government the length of the period in question

was due to the applicant's conduct, namely her filing as many appeals

as possible, which continuously delayed the proceedings in that the

files were not available to the Tax Office. In particular, in the

course of the tax assessment proceedings she filed an appeal on

4 June 1984 without submitting reasons and requested three times an

extension of the time-limit for doing so. When she finally submitted

the reasons on 4 November 1985 the authority decided expeditiously.

29. The Commission notes that the criminal proceedings against the

applicant concerned charges of tax evasion, whereby the amounts of tax

due were fixed in tax assessments on 30 April 1984 which became final

on 5 November 1987. On the whole, the case was not particularly

complex.

30. The applicant's conduct did contribute to the overall length of

the proceedings. However, the Commission considers that she cannot be

held responsible for having taken resort to remedies available to her

under Austrian law, which to a large extent related to complaints about

the delay in the proceedings.

31. As regards the conduct of the Austrian authorities, the

Commission finds that the proceedings were not conducted with the

necessary expediency. In particular, between 5 November 1987, when the

tax assessment orders became final, and 9 May 1988, when information

on the evaded amount as determined was sent to the applicant, the Tax

Office did not take any steps in the proceedings. From 26 June 1989,

when the Administrative Court returned the case file to the Regional

Directorate of Finance, until 28 September 1990, when the Regional

Directorate rejected a complaint by the applicant, no steps in the

proceedings were taken by the authorities. Also between 26 April 1990,

when the applicant lodged a complaint with the Administrative Court,

and 21 September 1990, when the Administrative Court acted on her

complaint, there was a period of inactivity.

32. In these circumstances, the Commission finds that the length of

the proceedings complained of has exceeded the "reasonable time"

referred to in 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 (Art. 6-1) of the

Convention.

D. Article 13 (Art. 13) of the Convention

34. Article 13 (Art. 13) of the Convention states as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by a person acting in an

official capacity."

35. In view of its opinion concerning Article 6 (Art. 6), the

Commission does not consider it necessary also to examine the case

under Article 13 (Art. 13) of the Convention.

CONCLUSION

36. The Commission expresses unanimously the view that it is not

necessary to examine the case under Article 13 (Art. 13) of the

Convention.

Recapitulation

37. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention (para. 33 above).

The Commission expresses unanimously the view that it is not

necessary to examine the case under Article 13 (Art. 13) of the

Convention (para. 36 above).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA