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AS TO THE ADMISSIBILITY OF

Application No. 21154/93

by Gerhard HÖFLER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 6 November 1992

by Gerhard HÖFLER against Austria and registered on 14 January 1993

under file No. 21154/93;

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

of Procedure of the Commission;

Having regard to the Commission's decision of 29 June 1994 to

declare the application partly inadmissible and to communicate the

remainder to the respondent Government for observations on its

admissibility and merits;

Having regard to the observations submitted by the respondent

Government on 7 October 1994 and the observations in reply submitted

by the applicant on 22 November 1994 as well as the supplementary

observations of the Government submitted on 20 December 1994 and the

applicant's supplementary observations in reply of 26 January 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 is an Austrian national born in 1949 and residing

in Linz.

Before the Commission he is represented by Mr. A. Frischenschlager,

a lawyer practising in Linz.

On 16 June 1981 the applicant, who was then the managing director

of the H. Company doing business as a car retailer, filed in the course

of an inspection of the company by tax inspectors (Betriebsprüfung) a

report (Selbstanzeige) with the Linz Tax Office (Finanzamt), in which

he incriminated himself. He stated that in 1979 and 1980 he had bought

tractors from the P. company, and that in the sales contracts and

invoices higher prices than due had been entered. The exceeding

amounts had been refunded upon payment of the invoice. He, therefore,

had claimed input tax (Vorsteuerabzüge) on value added tax without

justification.

On 22 November 1984 the Tax Office instituted administrative

criminal proceedings under the Code of Tax Offences (Finanzstrafgesetz)

against the applicant on suspicion of evasion of taxes and instructed

the applicant to submit a written statement on the charges raised.

On 23 December 1986 the applicant submitted his statement. On

2 January 1986 the Tax Office submitted the case file in the

applicant's criminal proceedings to the competent Trial Board

(Spruchsenat) at the Linz Tax Office.

On 24 February 1987 the Trial Board convicted the applicant of

tax evasion and sentenced him to a fine of 400.000 AS or 90 days'

imprisonment in default. It found that the applicant in 1976, 1977 and

1978 had failed to enter numerous car sales into the bookkeeping which

lead to tax evasion in the amount of AS 202.933. Moreover, between

January 1979 and April 1981 the applicant had claimed without

justification input tax of altogether 675.256 AS by making incorrect

declarations of input tax.

In September 1987 the applicant lodged an appeal, which only

concerned his conviction for claiming input tax without justification.

He submitted that his report of 16 June 1981 should have led to the

discontinuation of the criminal proceedings regarding this charge.

On 16 September 1987 the Tax Office ordered the applicant to

remedy defects of the appeal (Mängelbehebungsauftrag). On

3 November 1987 the applicant complied with this order.

On 18 December 1987 the applicant's appeal was transmitted to the

Upper Austria Regional Tax Authority (Finanzlandesdirektion)

On 16 March 1989 an oral hearing took place before the Appeals

Board (Berufungssenat) at the Regional Tax Authority on the applicant's

appeal. On 30 March 1989 a further hearing took place.

On 11 September 1989 the Appeals Board partially granted the

applicant's appeal and reduced his sentence to a fine of 200.000 AS and

60 days' imprisonment in default. The Appeals Board found that on

7 June 1981 a tax inspector of the Linz Tax Office had started, at the

premises of the H. Company, an examination of the Company regarding

value added tax. At that time bankruptcy proceedings had already been

opened against the company. In the course of the concluding discussion

concerning the examination (Abschlußbesprechung) the applicant had

presented his self-incriminating report. This report, however, could

not lead to the discontinuation of the proceedings, as at that time,

his offence, at least partially, had already been discovered.

On 6 November 1989 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof).

On 7 March 1990 the Constitutional Court refused to entertain the

applicant's complaint.

On 3 July 1990 the applicant requested that his case be referred

to the Administrative Court (Verwaltungsgerichtshof).

On 25 October 1991 the Constitutional Court referred the case to

the Administrative Court.

On 7 January 1992 the applicant supplemented his complaint to the

Administrative Court.

On 22 April 1992 the Administrative Court dismissed the

applicant's complaint.

COMPLAINTS

The applicant complains that the criminal proceedings instituted

against him were not concluded within a reasonable time as required by

Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 November 1992 and registered

on 14 January 1993.

On 29 June 1994 the Commission decided to communicate the

applicant's complaint under Article 6 para. 1 of the Convention as

regards the length of the proceedings to the respondent Government,

pursuant to Rule 48 para. 2 (b) of the Rules of Procedure and declared

inadmissible the remainder of the application.

The Government's written observations were submitted on

7 October 1994. The applicant replied on 22 November 1994.

On 20 December 1994 the Government submitted a supplement to its

observations. On 26 January 1995 also the applicant supplemented his

observations.

THE LAW

1. The applicant complains that the criminal proceedings instituted

against him were not concluded within a reasonable time as required by

Article 6 para. 1 (Art. 6-1) of the Convention which, as far as

relevant, provides as follows:

"In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing

within a reasonable time by an independent and impartial

tribunal established by law."

2. The Government submit that the applicant failed to exhaust

domestic remedies as, in the appeal proceedings, he did not lodge a

complaint with the Administrative Court, pursuant to Article 132 of the

Federal Constitution, against the Appeal Board's inactivity in deciding

on his appeal.

The Commission recalls that Article 26 (Art. 26) of the

Convention only requires the exhaustion of remedies which relate to the

breaches of the Convention alleged and at the same time can provide

effective and sufficient redress (No. 11660/85, Dec. 19.1.89, D.R. 59

p. 85).

The Commission recalls further that a complaint with the

Administrative Court under Section 132 of the Federal Constitution is

a remedy which in certain cases must be instituted in order to exhaust

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention (No. 11782/85, Dec.16.7.87, unpublished). However, where

an applicant complains that he has not been tried within a reasonable

time on a criminal charge, Article 26 (Art. 26) of the Convention does

not require as a general rule that he should himself have taken steps

to accelerate the proceedings (No. 8261/78, Dec. 8.7.81, D.R. 25 p.

157).

Accordingly the present complaint cannot be declared inadmissible

for non-exhaustion of domestic remedies.

3. As regards the merits of the complaint the Government submit that

the proceedings at issue started when the Tax Office on

22 November 1984 instituted criminal proceedings against the applicant.

The applicant's self incriminating report of 16 June 1981 could not be

taken into account as it was up to the Tax Office to determine whether

on the submissions in the applicant's report criminal proceedings had

to be instituted. Before 22 November 1984 no criminal charge was

raised against him nor was he questioned by the authorities as suspect.

The Government submit further that delays occurred in the

proceedings were attributable to the applicant. In the proceedings at

first instance he failed for two years to submit his observations on

the charge raised against him. When he finally did so the Tax Office

referred his case without delay to the Trial Board which took its

decision speedily. Also the Constitutional Court and Administrative

Court decided speedily on the applicant's complaints. The applicant

could even have accelerated these proceedings by requesting the

transfer of his case to the Administrative Court already in his

complaint to the Constitutional Court.

The applicant submits that the criminal proceedings against him

started on 16 June 1981 when he submitted the self incriminating

reports to the tax authorities. From that time on a criminal charge

had been raised which the authorities had to decide upon.

He submits further that the case was neither complex nor

necessitated lengthy investigations. Delays occurred in the

proceedings had to be attributed to the authorities, in particular, it

took more than 15 months before the Constitutional Court decided on his

request to refer his case to the Administrative Court.

The Commission finds that this complaint raises questions of law

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

the application therefore cannot 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, by a majority,

DECLARES THE REMAINDER OF 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)

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TEN BERGE v. THE NETHERLANDS

TEN BERGE v. THE NETHERLANDS

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