Lexploria

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 29 June 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

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 deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, 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 car retailer, filed in the course

of an examination 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 24 February 1987 the Trial Board (Spruchsenat) at the Linz Tax

Office 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.

At an unspecified date 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 March 1989 an oral hearing took place before the Appeals

Board (Berufungssenat) at the Regional Directorate of Finance for Upper

Austria (Finanzlandesdirektion) on the applicant's appeal. In the

course of the hearing the applicant's lawyer requested that two

witnesses be heard, namely the former company's tax consultant and one

of his employees. They were to give evidence that the applicant's

business partner had the obligation to pay as value added tax the same

amount as the applicant had claimed as input tax.

On 30 March 1989 a further hearing took place. The witnesses

requested appeared before the Appeals Board but refused to give

evidence as the questions concerned the bookkeeping of the H. Company.

They submitted that the applicant was no longer its managing director

and they had not been discharged of their obligation of professional

secrecy by the company's receiver. The applicant's lawyer then

requested the Appeals Board to obtain from the receiver of the H.

Company the above discharge. He further requested that the contracts

and accounting vouchers be examined by a bookkeeping expert in order

to find out which rate of value added tax would have been applicable

if correct invoices had been used. The Appeals Board dismissed these

requests.

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. The

Appeals Board found however that mitigating circumstances should be

taken into account to a larger extent and reduced the fine.

On 6 November 1989 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). He submitted that the

relevant provisions of the Code of Fiscal Offences violated the

constitutional principle of separation of powers. The criminal

proceedings against him should have been conducted by ordinary criminal

courts and not by tax authorities dealing with tax offences.

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. He now complained that the Appeals Board had

refused to take evidence requested by him. He further submitted that

the Appeals Board had failed to comply with its duty to establish ex

officio the true facts and had relied instead on the amounts calculated

in the applicant's own report of 16 June 1981. If the evidence

requested would have been taken, it might have resulted in lower

amounts than those mentioned in the applicant's report.

On 22 April 1992 the Administrative Court dismissed the

applicant's complaint. The Administrative Court found that the Appeals

Board should have given reasons for refusing to take the evidence

requested by the applicant. However, this procedural mistake had no

effect on the correctness of the decision as the refusal of the

applicant's requests was justified. The hearing of the witnesses had

not been necessary because in order to establish that the applicant had

evaded taxes by claiming input tax without justification, it did not

matter whether the amounts evaded corresponded to higher value added

tax due by a third person. Moreover, the requested expert opinion was

not necessary because the question which rate of value added tax was

applicable if the applicant had issued correct receipts was of no

relevance to the input tax the applicant had actually claimed.

Furthermore, neither at the oral hearing before the Appeals Board nor

in his complaint to the Administrative Court the applicant had alleged

that his tax consultant had made mistakes in drafting the report of

16 June 1981 to the Tax Office.

COMPLAINTS

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 of the Convention.

2. He also complains under Article 6 para. 3 (d) of the Convention

that the Appeals Board refused to hear two witnesses, to obtain a

declaration from the receiver of the applicant's company to discharge

these witnesses from their obligation of professional secrecy and to

order the taking of the opinion of a bookkeeping expert.

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.

The Commission considers 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 also complains under Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention as regards the taking of evidence by the

Appeals Board.

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

(Art. 6-1). In the circumstances of the present case, it will consider

the applicant's complaint under the two provisions taken together

(see Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A

no. 194-A, p. 12, para. 31). In order to determine whether the aim of

Article 6 (Art. 6) - a fair trial - has been achieved, regard must be

had to the entirety of the domestic proceedings conducted in the case

(Eur. Court H.R., Imbroscia judgment of 24 November 1993, Series A

no. 275, para. 38,).

The applicant submits that the Appeals Board refused to hear two

witnesses, to obtain a declaration from the receiver of the H. Company

discharging these witnesses from their obligation of professional

secrecy and to order the taking of the opinion of a bookkeeping expert.

The Commission recalls further that Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention does not give an absolute right to

examination of every witness proposed by the defence (Eur. Court H.R.,

Engel and others judgment of 6 June 1976, Series A no. 22, p. 38,

para. 91). In particular a court is justified in refusing to summon

witnesses when it considers that their statements could not be of

relevance to the case (see No. 4124/69, Dec. 13.7.70, Collection 35 p.

132; No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86 at 102).

The Commission notes that the Appeals Board, in dismissing the

applicant's requests for evidence, did not indicate reasons for its

decision. The Administrative Court in its decision of 22 April 1992

found that the Appeals Board should have done so but that this

procedural mistake had no effect on the outcome of the proceedings, as

the Appeals Board had acted correctly in refusing the applicant's

requests. The Commission notes further that the Administrative Court

in its decision indicated the reasons why the evidence requested by the

applicant was irrelevant for the case. The Administrative Court found

that the witnesses' statements were irrelevant because for the offence

of evading taxes by claiming input tax without justification it did not

matter whether the amounts evaded corresponded to higher value added

tax due by a third person. It also found that the requested expert

opinion was not necessary, because the question which rate of value

added tax was applicable if the applicant would have had issued correct

receipts was of no relevance to the input tax which the applicant had

actually claimed.

The Commission finds that the Administrative Court sufficiently

explained that the evidence requested by the applicant was irrelevant

to the proceedings. There is no indication that the proceedings were

otherwise conducted in an unfair manner.

Under these circumstances the Commission, looking at the

proceedings as a whole, finds that there is no appearance of a

violation of the applicant's right to a fair hearing within the meaning

of Article 6 (Art. 6) of the Convention.

It follows that this part of the application is manifestly

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

Convention.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaint as regards

the length of the 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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HÖFLER v. AUSTRIA

HÖFLER v. AUSTRIA

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