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RADOLF v. AUSTRIA

Doc ref: 25965/94 • ECHR ID: 001-2501

Document date: November 29, 1995

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RADOLF v. AUSTRIA

Doc ref: 25965/94 • ECHR ID: 001-2501

Document date: November 29, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 25965/94

by Helmut RADOLF

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, 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. MARXER

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 18 October 1994

by Helmut RADOLF against Austria and registered on 16 December 1994

under file No. 25965/94;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant, born in 1936, is an Austrian citizen and resident

at Sulz im Wienerwald. He is a mechanician by profession. In the

proceedings before the Commission, he is represented by

Mr. K. Arlamovsky and Mr. M. Brunner, lawyers practising in Vienna.

On 5 November 1980 the Vienna Tax Authority (Finanzamt) for the

12th, 13th, 14th and 23rd District, acting as tax prosecution

department (Finanzstrafbehörde), laid information with the Vienna

Public Prosecutor's Office (Staatsanwaltschaft), charging the applicant

with tax evasion.

On 7 November 1980 the Vienna Regional Court (Landesgericht)

instituted preliminary investigations against the applicant on the

suspicion of having acted as an accomplice to tax evasion between 1977

and 1979. It also issued a search warrant regarding the applicant's

premises and an arrest warrant. The search of the applicant's premises

and his arrest took place on 20 November 1980. During his detention

the applicant was questioned on the charges against him, in particular

by the Vienna Tax Office. The applicant was released from prison on

28 November 1980.

On 4 March 1983 the Mödling Tax Office, competent for

investigations as regards other suspects, filed a report with the

Vienna Regional Court regarding the results of its investigations to

the extent that they related to the applicant. It noted that the final

report on the applicant had to be prepared by the Vienna Tax Office.

A further report was prepared by the Mödling Tax Office in the context

of the tax assessment proceedings against the applicant dated

8 July 1983.

On 7 October 1992 the Vienna Public Prosecutor's Office drew up

the bill of indictment against the applicant on charges of tax evasion

committed between 1978 and 1979, which was received at the Vienna

Regional Court on 21 October 1992 and served upon the applicant on

30 November 1992.

On 14 December 1992 the applicant lodged an objection (Einspruch)

against the bill of indictment. On 24 February 1993, following

inquiries, the Investigating Judge at the Vienna Regional Court

rejected the objection as having been lodged out of time. The

applicants appeal (Beschwerde) was dismissed by the Review Chamber

(Ratskammer) at the Vienna Regional Court on 31 March 1993.

On 27 April 1993 the Regional Court directed that the trial

should be held on 5 August 1993. Upon the applicant's request the

hearing was adjourned and the trial scheduled for 4 November 1993.

Upon his further request, the trial was postponed until

25 November 1993.

On 25 November 1993 the Vienna Regional Court held the trial in

the presence of the applicant, assisted by defence counsel. The

proceedings were postponed sine die in order to take further evidence,

as requested by the defence.

On 28 April 1994 the Vienna Regional Court, following a further

hearing, acquitted the applicant.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

about the length of the criminal proceedings against him.

2. The applicant also complains under Article 6 para. 1 that the

proceedings against him were unfair in that he was not duly granted

access to seized documents.

THE LAW

1. The applicant complains about the length of the criminal

proceedings against him. He invokes Article 6 para. 1 (Art. 6-1) of

the Convention.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of this complaint and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of this complaint to the respondent

Government.

2. The applicant further complained about the alleged unfairness of

the criminal proceedings against him.

The Commission notes that the Vienna Regional Court acquitted the

applicant on 28 April 1994. The Commission finds that the applicant

cannot, therefore, claim to be a victim of a violation of his right to

a fair trial, as guaranteed by Article 6 (Art. 6) (cf. No. 8083/77,

Dec. 13.3.80, D.R. 19 p. 223).

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

that, in the determination of the criminal charges against him,

he did not have a hearing within a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

LEXI

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