Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22604/93

by P. W.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 August 1993 by

P. W. against Austria and registered on 10 September 1993 under file

No. 22604/93;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 6 February 1995 and the observations in reply submitted

by the applicant on 3 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, an Austrian national born in 1942 and residing in

Vienna, is a tax consultant (Wirtschaftstreuhänder) by profession.

On 8 January 1990 the Linz Tax Office (Finanzamt) decided to

institute criminal proceedings under the Code of Financial Offences

(Finanzstrafgesetz) against the applicant as it suspected him of having

aided and abetted one of his clients to evade taxes.

On 12 January 1990 the applicant appealed against this decision

and also requested that suspensive effect be granted.

On 9 May 1990 the Upper Austria Regional Directorate for Finance

(Finanzlandesdirektion) dismissed his appeal finding that there were

sufficient reasons for instituting criminal proceedings against him.

The Regional Directorate did not deal with the applicant's request for

suspensive effect.

On 29 May 1990 the applicant filed a complaint with the

Administrative Court (Verwaltungsgerichtshof) against the Regional

Directorate's decision of 9 May 1990.

On 20 November 1991 the Linz Tax Office submitted its

observations in reply to the Administrative Court requesting the

Administrative Court to quash the decision complained of.

Meanwhile the applicant had instituted unsuccessfully proceedings

against the Regional Directorate's failure to grant suspensive effect.

In these proceedings the Administrative Court, on 18 March 1992,

dismissed the applicant's complaint. Furthermore, on 28 February 1991

the Regional Directorate served by mistake for a second time its

decision of 9 May 1990 on the applicant. The applicant introduced

again a complaint to the Administrative Court which the latter, on

18 March 1992, declared inadmissible.

On 22 February 1994 the Administrative Court quashed the Regional

Directorate's decision of 9 May 1990 and remitted the case back to the

Regional Directorate. It found that, notwithstanding the fact that the

applicant had failed to submit tax declarations on behalf of his

client, the tax liability and its amount had been known to the Tax

Office. The applicant's conduct could therefore not be qualified as

tax evasion.

On 19 October 1994 the applicant filed a complaint

(Säumnisbeschwerde) with the Administrative Court against the Regional

Directorate's inactivity in deciding again on his appeal of 12 January

1990. On 31 October 1994 the Administrative Court transmitted the

applicant's complaint to the Regional Directorate for observations.

On 7 November 1994 the Regional Directorate decided again on the

applicant's appeal of 12 January 1990 and discontinued the criminal

proceedings.

COMPLAINTS

The applicant complains that in the criminal proceedings

instituted against him, did not receive a hearing within a reasonable

time as required by Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 August 1993 and registered

on 10 September 1993.

On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

6 February 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 3 April 1995.

THE LAW

The applicant complains that in the criminal proceedings

instituted against him, he did not receive a hearing within a

reasonable time as required by Article 6 para. 1 (Art. 6-1) of the

Convention.

Article 6 para. 1 (Art. 6-1) provides, inter alia, that, in the

determination of any criminal charge against him, everyone is entitled

to a hearing within a reasonable time.

The Government submit that the proceedings were conducted within

a reasonable time. Before the tax authorities the proceedings were

conducted expeditiously and lasted for about four months. Before the

Administrative Court the proceedings lasted for some three years and

nine months. However, the latter period could not be taken into

account when assessing the reasonableness of the length of the

proceedings, as the Administrative Court did not determine the well-

foundedness of the criminal charge against the applicant but whether

the institution of criminal proceedings was admissible as such.

The Government submit further that the proceedings were complex

as they related to difficult questions of law in the area of double

taxation. Moreover the delays occurred in the proceedings were

attributable to the applicant who had filed numerous appeals which led

to the opening of parallel proceedings and thus delayed the main

proceedings.

The applicant disputes the above arguments. He submits that the

parallel proceedings to which the Government refer to did not prevent

the authorities from deciding within a reasonable time on the criminal

charge against him. The proceedings were also not complex. Moreover,

the authorities should have dealt with his case with particular

diligence as the charge of tax offence against him as a tax consultant

was extremely harmful for his professional reputation.

The Commission finds that this complaint raises questions of law

and fact which require an examination of the merits. The application

cannot, therefore, be declared manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring it inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

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

Menu

P.W. v. AUSTRIA

P.W. v. AUSTRIA

LEXI