Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 14184/88

REZEK

v.

Austria

REPORT OF THE COMMISSION

(adopted on 1 September 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10 - 14) . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 75) . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 15 - 72) . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 73 - 75) . . . . . . . . . . . . . . . . . 6

III. OPINION OF THE COMMISSION

(paras. 76 - 97) . . . . . . . . . . . . . . . . . . . . 8

A. Complaint(s) declared admissible

(para. 76) . . . . . . . . . . . . . . . . . . . . 8

B. Point at issue

(para. 77) . . . . . . . . . . . . . . . . . . . . 8

C. Compliance with Article 6 para. 1 of

the Convention

(para. 78 - 96). . . . . . . . . . . . . . . . . . 8

CONCLUSION

(para. 97) . . . . . . . . . . . . . . . . . . . . . . .10

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .11

APPENDIX II : DECISION ON THE ADMISSIBILITY. . . . . . . . . .12

I. INTRODUCTION

1. The following is an outline of the case as submitted by the

European Commission of Human Rights and of the procedure before the

Commission.

A. The application

2. The applicant, an Austrian citizen, born in 1940 is a car dealer

and living in Vienna. Before the Commission he is represented by

Mr. Karl Bernhauser, a lawyer practising in Vienna.

3. The application is directed against Austria. The Government are

represented by their agent, Ambassador Helmut Turk, Deputy Secretary

General and Legal Counsel of the Federal Ministry of Foreign Affairs.

4. The case concerns the applicant's complaints under

Article 6 para. 1 of the Convention of the length of two sets of

criminal proceedings instituted against him, namely proceedings for

smuggling and proceedings for tax evasion.

B. The proceedings

5. The application was introduced on 11 July 1988 and registered on

6 September 1988.

6. On 6 September 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

7. The Government's observations were received on 29 December 1990

and the applicant's observations in reply on 11 February 1991.

8. On 16 October 1991 the Commission declared the application

admissible and it was referred to the First Chamber.

9. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction the Commission now

finds that there is no basis upon which such a settlement can be

effected.

C. The present report

10. The present report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

N. BRATZA

11. The text of this report was adopted on 1 September 1993 and is

now transmitted to the Committee of Ministers of the Counsel of Europe

in accordance with Article 31 para. 2 of the Convention.

12. The purpose of the report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the Convention.

13. The Commission's decision on the admissibility of the application

is attached hereto as Appendix I.

14. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

15. The applicant is a car dealer against whom the tax authorities

as well as the customs authorities started investigations in 1978 which

developed as follows:

A. General Investigation

16. On 30 March 1978 the Regional Tax Authorities

(Finanzlandesdirektion) informed the Vienna Customs Authorities

(Zollamt) that the applicant was suspected of dealing in used foreign

cars without declaring his turnovers. The Customs Office took no

immediate action.

17. On 29 November 1978 the Customs Authorities were informed of

thefts of foreign cars and on 13 December 1978 sent a rogatory request

for investigations to the German authorities.

18. On 19 January 1979 an audit (abgabenrechtliche Prüfung) was

carried out with respect to the applicant.

19. On 14 May 1979 a search and seizure (Hausdurchsuchung) was

carried out on the premises of the applicant, who was suspected of

having stolen cars abroad. In connection with this charge the

applicant was detained on remand from 16 May to 19 June 1979.

20. On 21 August 1979 the applicant was heard for the first time as

a suspect of tax offences (Finanzvergehen). In order to check the

correctness of his statements, a rogatory request was sent to the

German authorities. On 12 May 1980 the documents seized were sent to

the Customs Authorities for examination. They were returned on

3 November 1980 and on 13 and 18 November 1980 the applicant was heard

as a suspect.

21. Subsequently, further investigations and rogatory requests became

necessary concerning a great number of customs declarations related to

car imports.

22. On 24 and 28 September 1981, in October 1981 and between 9 July

and 4 August 1982, as well as repeatedly in the course of 1983, the

applicant was again interrogated. A number of Austrians who had bought

cars were likewise interrogated as suspects.

23. On 24 January 1984 a valuer (Schätzmeister) was heard as a

further suspect.

24. The results of the criminal investigations were continuously

communicated to the tax authorities for auditing purposes in order to

assess the taxes due (abgabenrechtliche Würdigung).

25. On 1 August 1984 the latest notices of assessment

(Abgabenbescheide) were communicated to the criminal investigation

branch of the Customs Authorities which then prepared a final report

for the Public Prosecution.

26. On 1 February 1985 this report, comprising two large files, was

terminated.

B. Criminal Proceedings for smuggling (N° 26c VR 3 030/85)

27. On 19 February 1985 the Customs Authorities' report reached the

Public Prosecution. According to this report the applicant was

suspected of continuous import tax evasion (gewerbsmässige

Hinterziehung). Fourteen other persons were suspected of aiding and

abetting.

28. On 8 March 1985 the Public Prosecution requested the competent

investigating judge to hear all suspects and obtain their criminal

records. Originally 15 persons were considered as being involved.

29. The applicant was summoned to appear on 1 April 1985 but failed

to present himself. Police investigations made thereupon revealed that

on 3 April 1985 he had left his last known place of residence without

leaving a forwarding address.

30. On 12 April 1985 an order to find out the applicant's whereabouts

was issued.

31. On 9 September 1986 an indictment (Anklageschrift) of 249 pages

was filed against the applicant and three co-accused. At the same time

a request was made to issue a warrant of arrest against the applicant.

32. On 17 September 1986 a warrant of arrest was issued.

33. On 23 September 1986 the police authorities reported that the

applicant's whereabouts were still unknown.

34. On 10 October 1986 Mr. Bernhauser informed the Court that the

applicant had chosen him as defence counsel.

35. On 14 October 1986 the applicant personally called at the

Regional Court to indicate his address. He was handed a copy of the

indictment. The warrant of arrest was revoked subject to the applicant

respecting certain conditions.

36. On 27 October 1986 the applicant filed objections against the

indictment.

37. On 27 November 1986 the Vienna Court of Appeal

(Oberlandesgericht) rejected these objections.

38. Following a proposal made by the Public Prosecution on

12 December 1986, the proceedings relating to eleven other persons were

discontinued on 22 December 1986.

39. On 20 February 1987 the Court decided to hold the trial from

11 to 15 May 1987.

40. After hearings on 11 and 12 May 1987 the applicant was convicted

of continuous import tax evasion and other offences

(Abgabenhinterziehung und Abgabenhehlerei). He was fined AS 1,800,000

or three months' imprisonment in case of non-payment of the fine.

41. The judgment relates to 318 different cases.

42. On 18 May 1987 the applicant lodged an appeal (Berufung) and a

plea of nullity (Nichtigkeitsbeschwerde).

43. On 8 January 1988 the text of the judgment was communicated to

the accused. It comprised 166 pages.

44. On 22 January 1988 the applicant submitted his grounds of appeal.

45. On 30 June 1988 the Supreme Court (Oberster Gerichtshof) rejected

the applicant's remedies and ordered that his detention on remand in

other proceedings (No. 1b Vr 1719/84) be deducted.

C. Proceedings for tax evasion (No. 26d Vr 1646/89)

1. Proceedings before the Tax Authorities (Finanzamt)

46. On 28 April 1978 tax evasion charges were laid against the

applicant and he was heard by the Tax Authorities on 17 May 1978.

47. On 29 November 1978 further charges were laid and the applicant

was again heard on 9 May 1979. The Government submitted that these

hearings did not give any reason to suspect the applicant of tax

evasion.

48. On 24 April 1981 the Tax Authorities instituted administrative

criminal tax proceedings against the applicant and proceeded to an

audit (Betriebsprüfung) in view of the reports established by the

Customs Authorities in March 1981 in the parallel import tax evasion

proceedings.

49. On 28 April 1981 a search and seizure order was given against the

applicant and others.

50. On 26 February 1982 the result of the audit was discussed with

the applicant.

51. On 22 March 1982 new tax assessments were issued concerning

turnover tax 1976 and 1978, income tax 1977, turnover and income tax

1979.

52. On 30 March 1982 another assessment was issued concerning

turnover tax 1975 and 1977.

53. On 17 May 1982 the applicant lodged an appeal against the

assessment orders.

54. On 30 July 1982 the Tax Authorities refused to grant the appeal

(Berufungsvorentscheidung).

55. On 19 August 1982 the applicant requested that his appeal be

decided by the Regional Tax Authorities (Finanzlandesdirektion).

56. On 2 October 1987 the applicant was requested to comment on the

audit report.

57. On 22 October 1987 and on 18 April 1988 he was heard by the

authorities on his grounds of appeal.

58. On 7 July 1988 the Regional Tax Authorities rejected the appeal.

2. Criminal tax proceedings

59. In view of the Regional Tax Authorities' decision of 7 July 1988

criminal charges were laid against the applicant on 15 December 1988.

60. On 7 February 1989 the Public Prosecution requested the

Investigating Judge to hear the applicant.

61. On 13 February 1989 the applicant was summoned to appear on

27 February 1989.

62. On 28 February 1989 the applicant's counsel, Mr. Bernhauser,

informed the Court that his client was on holiday.

63. On 6 March 1989 the applicant submitted that his tax adviser had

died and that consequently the decision of the Regional Tax

Authorities, which had been sent to his tax adviser's successor, had

not been communicated to him in an effective manner and was therefore

void.

64. On 7 March 1989 the Public Prosecution submitted observations on

this issue.

65. On 8 March 1989 the Regional Court requested the applicant's

counsel to submit observations within six weeks.

66. On 22 May 1989 counsel was reminded to submit observations.

67. On 14 June 1989 counsel submitted that the tax assessment orders

were not final.

68. On 24 August 1989, following a request made in the meantime by

the Public Prosecution, the Tax Authorities submitted evidence showing

that the Regional Tax Authorities' decision of 7 July 1988 had been

duly served on the applicant's tax adviser.

69. On 28 August 1989 an indictment was filed.

70. On 22 September 1989 the applicant raised objections which were

rejected by the Vienna Court of Appeal on 11 December 1989.

71. On 20 December 1989 the trial was fixed for 1 February 1990.

72. On 1 February 1990 the applicant was convicted of tax evasion and

fined AS 200,000 or ten days' imprisonment. He accepted the judgment.

B. Relevant domestic law

73. The relevant provisions of the Criminal Tax Act

(Finanzstrafgesetz - FinStrG) read:

Sec. 33 "(1) Everyone who deliberately evades taxes by violating

his fiscal obligation of making true and correct tax declarations

is punishable."

Sec. 35 "(1) Everyone who deliberately conceals goods for which

import or export taxes are due is punishable."

74. According to Sec. 38 of the Criminal Tax Act the statutory fine

may be quadrupled in case of continuous smuggling.

Sec. 53 "(1) The Court is competent to deal with a tax offence

a) if aggravated punishment in accordance with

Sec. 38 is in question,

b) if the tax evasion has been committed

deliberately and exceeds AS 500,000 (according to

the latest revised version: AS 1 million)."

75. According to Sec. 55, a court trial may not be conducted on a

charge of tax evasion before the tax for the period in question has

been assessed by final decision.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

76. The Commission has declared admissible the applicant's complaints

that his two cases relating to smuggling offense and an offense of tax

evasion were not heard within a reasonable time.

B. Point at issue

77. The only points at issue are whether the length of the two sets

of criminal proceedings complained of exceed "reasonable time" referred

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

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

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

following provision:

"In the determination ...criminal charge against him, everyone

is entitled...hearing within a reasonable time by an

....tribunal..."

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

proceedings against the applicant which concern charges of continuous

import tax evasion, tax evasion and other offences within the meaning

of the Austrian code of financial offences is not in dispute.

80. As regards the period to be taken into consideration the

Government submit however that the tax authorities investigations with

a view to establishing correct tax assessments did neither concern a

criminal charge nor a civil right within the meaning of Article 6

(Art. 6) and therefore the relevant period was not started before the

tax authorities had determined the arrears of taxes due by the

applicant and subsequently decided to lay criminal charges against him.

Consequently in the proceedings 26c Vr3030/85 the relevant period

started on 17 September 1986 when a warrant of arrest was issued

against the applicant and in the proceedings 26d Vr1646/89 on

13 February 1989 when the applicant was summoned to a hearing as an

accused. The prior investigation measures such as the search and

seizure of 14 May 1979 did not in the Government's submission seriously

affect the applicant.

81. The applicant's detention on remand from 16 May to 19 June 1979,

so the Government point out, did not relate to the criminal tax

proceedings here in question.

82. The applicant has not contested the Respondent Government's

statement about the detention on remand. However, he submits that in

relation to both proceedings in question he was substantially affected

by the tax authorities' investigations which began in April 1978.

83. The Commission first observes that the proceedings No. 26c Vr

3030/85 instituted by the customs authorities were apparently linked

with the proceedings No. 26d Vr1646/89 as the tax authorities proceeded

to an audit in view of the reports established by the customs

authorities in March 1981. The Commission therefore considers that the

security search and seizure effected on 14 May 1979 in one of these

proceedings was already of a nature as to substantially affect the

applicant's situation (cf. Eur. Court H.R., Eckle judgment of

5 July 1982, Series A No. 51, p. 33, para. 73).

84. It is true that tax assessment proceedings normally do not relate

to a criminal charge until as a result of such proceedings suspicion

of tax evasion is established and thereupon criminal tax proceedings

are instituted (Comm. Report of 8.2.73, No. 4517/70, D.R. 2, p. 11 et

seq. at p. 21, para. 71). In the present case however, the security

search and seizure and the subsequent hearing of the applicant on

21 August 1979 as a suspect of tax offences made it sufficiently clear

to the applicant that not only was he suspected of smuggling but most

probably he also had to face severer measures than a simple tax

investigation and assessment.

85. The period to be taken into consideration with regard to both

proceedings in question started therefore at the latest on

21 August 1979 when the applicant was heard as a suspect.

86. The proceedings No. 26c Vr3030/85 were terminated on 30 June 1988

when the Supreme Court gave a final judgment. They thus lasted nearly

9 years.

87. The proceedings No. 26d Vr1646/89 were terminated by first

instance judgment given on 1 February 1990 which the applicant

accepted. The proceedings consequently lasted 10 years and 8 months.

88. The reasonableness of the length of the 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 matter. In this instance

the circumstances call for an overall assessment (cf. Eur. Court H.R.,

Cesarini judgment of 12 October 1992, Series A No. 245-B, para. 17).

89. As to the complexity of the two cases the Government pointed out

that the investigations related to 218 questionable imports of foreign

cars necessitating extensive investigations many of them abroad which

had to be carried out in the Federal Republic by rogatory request. The

Government furthermore stress that the applicant did not comply with

a summons to appear on 27 February 1989. It is further submitted that

the applicant's defence counsel was requested on 8 March 1989 to submit

observations on behalf of the applicant within six weeks. He did

however not submit these observations before 14 June 1989 although they

were limited to one sentence.

90. The applicant submits that in all circumstances the overall

periods in question are too long.

91. The Commission considers that in view of the great number of

questionable import transactions which had to be examined and the

number of years with regard to which income and turnover tax

assessments had to be established, both proceedings in question were

complex and difficult.

92. While the general investigation proceedings were complex and

difficult it is nevertheless objectionable that they dragged on for

nearly six years. In fact, the Commission finds that there appear to

be periods of inactivity or of slow progress which are not sufficiently

explained. In particular, it appears questionable that all of 1983 was

needed for cross examination of the applicant and others although at

least the applicant had repeatedly been questioned already in 1981 and

1982. Furthermore, it has to be noted that the report resulting from

the general investigation proceedings was not ready before

1 February 1985 while the last hearing of a suspect had taken place on

24 January 1984.

93. The subsequent criminal proceedings for smuggling have then been

carried out with adequate speed taking into account that the

applicant's whereabouts were unknown to the authorities between

1 April 1985 and 10 October 1986 and taking further into account the

complexity of the case which is illustrated by the volume of the

indictment which comprises 249 pages.

94. On the other hand, the length of the proceedings relating to tax

evasion again appears to be objectionable, in particular as the

applicant's appeal of 17 May 1982 was not decided before 7 July 1988.

95. In these particular circumstances the Commission finds that the

length of both of the proceedings complained of has exceeded the

"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the

Convention. The proceedings for smuggling offences in view of

unexplained delays during the investigations and the tax evasion

proceedings both in view of these delays and in view of further delays

in the course of the proceedings before the tax authorities.

96. In these circumstances the Commission finds that the length of

both of the proceedings complained of has exceeded the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

97. The Commission concludes by six votes against three that there

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

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

11 July 1988 Introduction of the application

6 September 1988 Registration of the application

Examination of Admissibility

6 September 1990 Commission's deliberations and

decision to invite the Government

to submit observations on the

admissibility and merits of the

application

29 December 1990 Government's observations

11 February 1991 Applicant's observations in reply

16 October 1991 Commission's deliberations,

decision on admissibility and

reference to Chamber

Examination of the merits

24 October 1991 Decision on admissibility

transmitted to the parties

22 November 1991 Government's further observations

22 January 1992 Applicant's further observations

on the merits

12 January 1993 Commission's consideration of the

state of proceedings

1 September 1993 Commission's deliberations on the

merits, final vote and adoption

of the Report

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REZEK v. AUSTRIA

REZEK v. AUSTRIA

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