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EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

APPLICATION No. 15306/89

Hedwig KIRALY

against

AUSTRIA

REPORT OF THE COMMISSION

(adopted on 2 September 1992)

TABLE OF CONTENTS

Page

I.INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 11) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 12 - 21). . . . . . . . . . . . . . . . . . . . . . . 3

A. Complaint declared admissible

(para. 12° . . . . . . . . . . . . . . . . . . . . . . . 3

B. Point at issue

(para. 13) . . . . . . . . . . . . . . . . . . . . . . . 3

C. Compliance with Article 6 para. 1 of the Convention

(paras. 14 - 20) . . . . . . . . . . . . . . . . . . . . 3

D. Conclusion

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

APPENDIX : Decision on the admissibility of the application . . . . 5

I. INTRODUCTION

1. The present Report concerns Application No. 15306/89 by

Hedwig KIRALY against Austria, introduced on 21 June 1989 and

registered on 27 July 1989.

The applicant, born in 1918, is an Austrian national and resident

at Hinterbrühl, Austria. Before the Commission she was represented by

Mr. A. Wanke, a lawyer practising in Vienna.

The Austrian Government are represented by their Agent,

Ambassador H. Türk, Head of the International Law Department at the

Federal Ministry of Foreign Affairs.

2. The application was communicated to the Government on

4 December 1989. On 7 October 1991 the application was referred to the

Second Chamber. Following an exchange of memorials, the complaint

relating to the length of criminal proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 9 December 1991. The

decision on admissibility is appended to this Report.

The Government have made further submissions on 10 February and

8 May 1992; the applicant submitted further observations on

11 May 1992.

3. 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 (Second Chamber), after

deliberating, adopted this Report in accordance with Article 31 para. 1

of the Convention, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

4. In this Report the Commission states its opinion as to whether

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

5. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In January 1984 criminal proceedings were instituted against the

applicant's husband and her son, who are managing two limited export

companies, on the suspicion of tax evasion (S. 33 of the Code of

Financial Offences - Finanzstrafgesetz). In the course of these

investigations, inter alia, jewellery contained in bank safes was

seized. The applicant's husband and son appealed against this seizure,

claiming that the applicant owned the jewellery concerned. The appeals

as well as later requests for restitution remained unsuccessful.

7. On 9 April 1985, in the course of the criminal proceedings

against the applicant's husband and her son, the Mödling Tax Office

(Finanzamt) requested the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) to institute proceedings against the applicant on

the suspicion of having committed tax evasion in that she had failed

to make gift and property tax declarations concerning the jewellery

allegedly owned by her.

8. On 19 March 1986 the Public Prosecutor's Office, having consulted

the files concerning the proceedings against the applicant's husband

and her son, returned these files to the Investigating Judge

(Untersuchungsrichter) at the Vienna Regional Court (Landesgericht).

The Prosecutor's Office forwarded at the same time the new charges

against the applicant of 9 April 1985, and requested the Investigating

Judge to hear the applicant, and to extend the investigations against

her husband to these items.

9. On 22 May 1986 the applicant was summoned for 17 June 1986. On

11 June 1986 she informed the Court that she would be absent at that

date. On 20 June 1986 she was summoned for 31 July 1986.

10. At her examination on 31 July 1986 the applicant refused to make

any statements in respect of the criminal proceedings against her as

well as the property rights concerning the seized objects. Thereupon,

the Investigating Judge at the Regional Court decided to join the

charges against her with the criminal proceedings against her husband

and son, and to extend the investigations against her husband in this

respect. Furthermore, the Mödling Tax Office was instructed to conduct

the investigations against the applicant and to file a report

subsequent to the final tax assessments.

11. The proceedings against the applicant are still pending.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that her case was not heard within a reasonable time.

B. Point at issue

13. The only point at issue is 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.

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

14. 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 ..."

15. 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.

16. The period to be taken into consideration started at the latest

on 31 July 1986 when the applicant was heard as a suspect. The

proceedings have not yet been terminated after more than six years.

17. 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).

18. According to the Government, the length of the period in question

was due to the link between the applicant's case and the very complex

criminal proceedings against her husband and her son. The criminal

proceedings against her were instituted in order to prevent

prescription in case her ownership of the jewellery should be

established in the course of the investigations against her husband and

her son.

19. The Commission notes that the criminal proceedings against the

applicant were opened in July 1986, and joined with the proceedings

against her husband and her son, which involve a tax inspection of two

companies managed by them. In July 1986 the Investigating Judge at the

Vienna Regional Court ordered the Mödling Tax Office to file a report,

following the final tax assessments. The criminal proceedings have not

been furthered pending these tax proceedings. The charge against the

applicant, namely evasion of gift and property tax on jewellery, raises

the question of ownership of the jewellery concerned, which was seized

in the course of the proceedings against her husband and her son.

However, the Government have not explained that the charge against the

applicant can only be determined after termination of all tax

investigations and proceedings against the applicant's husband and her

son.

20. 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.

D. Conclusion

21. The Commission concludes, unanimously, that there has been a

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

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KIRALY v. AUSTRIA

KIRALY v. AUSTRIA

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