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AS TO THE ADMISSIBILITY OF

Application No. 19165/91

by Friedrich KREMZOW

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, 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

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 4 October 1991 by

Friedrich Kremzow against Austria and registered on 6 December 1991

under file No. 19165/91;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

11 January 1994 and the observations in reply submitted by the

applicant on 9 March 1994;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarized as follows.

The applicant, born in 1938, is an Austrian national. At present

he is serving a life sentence for murder in the prison of Vienna-

Mittersteig. Before the Commission he is represented by Mr. W.L. Weh,

a lawyer practising in Bregenz, and Mr. H. Mühlgassner, a lawyer

practising in Vienna.

In connection with the criminal proceedings at issue in the

present case the applicant's wife had also introduced an application

to the Commission (Appl. No. 15886/89, pending before the Committee of

Ministers). The applicant has introduced a further application in

relation to the criminal proceedings at issue in the present case

(No. 23506/94). In the latter application he complains again under

Article 6 para. 1 about the alleged unfairness of the proceedings, but

also under Article 6 para. 2 that the decision to discontinue the

proceedings violated the presumption of innocence.

On 29 June 1984 the Tax Office (Finanzamt) for the 6th, 7th and

15th District of Vienna instituted administrative criminal proceedings

under the Code of Tax Offences (Finanzstrafgesetz) against the

applicant on suspicion of evasion of taxes in the years 1977 to 1982

as co-offender together with his wife. The Tax Office stated that the

exact amount of the evaded tax would have to be established in separate

tax assessment proceedings, and indicated the applicable provisions of

the Code of Tax Offences.

On 30 April 1984 the Tax Office issued tax assessment orders

(Abgabenbescheide) against the applicant's wife concerning value added

tax from 1979 to 1983 and income tax from 1978 to 1982. On

4 December 1987 the Tax Office dealing with the criminal proceedings

was informed that these tax assessment orders had become final.

On 18 December 1987 the applicant, referring to the length of the

proceedings, requested that they be transferred to the Regional

Directorate of Finance for Vienna, Lower Austria and the Burgenland

(Finanzlandesdirektion). On 2 March 1988 the Regional Directorate

dismissed this request.

On 9 May 1988 the Tax Office informed the applicant on the amount

of taxes evaded in the years between 1979 and 1981 and instructed him

to submit a written statement by 10 June 1988. The applicant's appeal

in this respect was eventually dismissed by the said Regional

Directorate of Finance on 14 November 1990, a further appeal was to no

avail.

In 1988 and 1992 the applicant unsuccessfully lodged requests for

access to the complete case-file. Further proceedings before the

Administrative Court (Verwaltungsgerichtshof) concerned his complaints

about inactivity of the administrative authorities in dealing with his

case.

On 18 May 1992 the applicant's case file was transmitted to the

Trial Board, together with a detailed statement of the charges against

the applicant. This statement of the Tax Office was served on the

applicant on 21 May 1992.

On 25 June 1992 the Trial Board discontinued the criminal

proceedings against the applicant. The Trial Board found that, as

regards the taxes for the years 1979 and 1980, the proceedings had

meanwhile become time-barred. As regards the taxes for the year 1981,

it could not be established that the applicant had deliberately

committed tax evasion and that the sums negligently evaded by the

applicant would not require the continuation of the criminal

proceedings. Furthermore, as the applicant was serving a prison

sentence for life, there was no necessity for issuing a formal warning

(Verwarnung) against him.

On 14 June 1993 the Constitutional Court (Verfassungsgerichtshof)

refused to entertain the applicant's complaint against the Trial

Board's decision of 25 June 1992.

COMPLAINTS

1. The applicant complains that the criminal proceedings instituted

against him had not been concluded within a reasonable time as required

by Article 6 para. 1 of the Convention.

2. The applicant further complains under Article 6 para. 3 (a) of

the Convention that he had not been informed in detail of the nature

and cause of the accusations against him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 October 1991 and registered

on 6 December 1991.

On 13 October 1993 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on the admissibility and merits.

The Government's observations were submitted on 11 January 1994.

On 9 March 1994 the applicant submitted his observations in reply.

THE LAW

1. The applicant complains about the length of the criminal

proceedings instituted against him under the Code of Tax Offences. He

relies on 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."

The Government submit that the applicant can no longer claim to

be a victim of an alleged violation of Article 6 para. 1 (Art. 6-1) of

the Convention as regards the length of the proceedings, because these

criminal proceedings had been discontinued. They consider that the

discontinuation of the proceedings should be regarded as a compensation

under domestic law for unreasonable length of proceedings.

The Commission recalls that only if a domestic authority

expressly or in substance acknowledges the existence of a breach of

Article 6 para. 1 (Art. 6-1) of the Convention on account of the length

of the proceedings and if redress has been given, an applicant can no

longer claim to be a victim of such a violation of the Convention (see

Eur. Court H.R., Eckle judgment of 15.7.82, Series A No. 51, p. 30,

para. 66; No. 10884/84, Dec. 13.12.84, D.R. 41 p. 252; Pannetier v.

Switzerland, Comm. Report 12.7.85, para. 73, D.R. 46 p. 32).

In the present case the Commission notes that the Trial Board's

decision of 25 June 1992 to discontinue proceedings was based on the

grounds that they have become time barred and that there were no

reasons warranting their continuation. These findings do neither

constitute an acknowledgment of the existence of a breach of the

Convention, nor redress. In these circumstances, the applicant can

still claim to be a victim of an alleged violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the length of the proceedings.

The Government submit further that delays in the proceedings were

due to the applicant's conduct, in particular the filing of his

numerous appeals, which continuously delayed the proceedings as the

files were not available to the Tax Office.

The applicant submits that delays in the proceedings were due to

the inactivity of the authorities.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time" (the complexity of the case, the applicant's

conduct and that of the competent authorities), and having regard to

all the information in its possession, that a thorough examination of

this complaint is required, both as to the law and as to the facts.

2. The applicant further complains under Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention that he had not been informed in detail

of the nature and cause of the accusations against him.

The Commission recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific

aspects of the general concept of fair trial set forth in paragraph 1

of this Article (see Eur. court H.R., Isgrò judgment of 19 February

1991, Series A no. 194-A, p.12, para. 31).

The question whether a trial is in conformity with the

requirement of fairness of Article 6 para. 1 (Art. 6-1) of the

Convention must be considered on the basis of the examination of the

proceedings as a whole. However, an examination of the proceedings as

a whole is not possible where they have been discontinued (see No.

10300/83, Dec. 12.12.84, D.R. 40 p. 180).

In the present case the Trial Board by decision of 25 June 1992

discontinued the criminal proceedings against the applicant. On

14 June 1993 the Constitutional Court refused to entertain the

applicant's complaint against the Trial Board's decision.

Accordingly there is no appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention in this respect.

This part of the application, therefore, is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint regarding the length of the criminal

proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

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

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA

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