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AS TO THE ADMISSIBILITY OF

Application No. 20682/92

by K.H.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, 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

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 3 August 1993 by

K.H. against Germany and registered on 23 September 1992 under file No.

20682/92;

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, born in 1945, is a German national and resident

at Wallaf, Germany. When lodging his application, he was serving a

sentence of imprisonment in a prison in Frankfurt/Main. Before the

Commission he is represented by Mr. A. Rosenberg, a lawyer practising

in Frankfurt/Main.

A. Particular circumstances of the case

On 26 August 1991 the Wiesbaden Regional Court (Landgericht)

convicted the applicant of tax evasion on two counts and sentenced him

to two years' and eight months' imprisonment.

The Regional Court found that between 1985 and September 1988,

the applicant, as the owner and manager of several firms working on the

renovation of old property, had evaded turnover tax amounting to almost

DM 350,000, and had failed to pay to the competent tax office the

income tax on the salaries of numerous employees which amounted

altogether to about DM 150,000.

The Regional Court, when fixing the applicant's sentence, took

the applicant's behaviour subsequent to the offence in question into

account. It stated in particular:

"An aggravating factor to be taken into consideration is that,

since the criminal offences in question, the accused, in his position

as a construction supervisor as from May 1991, continues not to comply

with his obligations under tax law: if the applicant's present

occupation is subject to income tax - and the fact that he receives

binding instructions suggests that it is - he would have had ... to

produce his tax card upon taking up his duties in order to enable his

employer to transfer the monthly amounts of income tax to the Tax

Office ... If he is to be considered as an independent professional,

as the accused himself suggests, he would have had to file, by 10 July

1991 at the latest, a preliminary return regarding his turnover tax for

the months of May and June, assuming in his favour that he had only to

submit a quarterly return. Thus the accused again infringed his fiscal

obligations. The Chamber considered that both the accused's behaviour

when committing the offences in question and his later conduct showed

his attitude not to abide by the law calling for a severe punishment."

"Strafschärfend ist weiter zu berücksichtigen, daß der Angeklagte

auch nach der Tat nunmehr trotz einer Tätigkeit als Bauleiter seit Mai

1991 seinen steuerrechtlichen Verpflichtungen nicht nachkommt: Soweit

seine jetzige Tätigkeit der Einkommensteuer zu unterwerfen ist, wofür

die Weisungsgebundenheit der Tätigkeit des Angeklagten spricht, hätte

er seinem Arbeitgeber ... bei Eintritt in das Dienstverhältnis die

Lohnsteuerkarte vorlegen müssen, damit der Arbeitgeber die zutreffende

Lohnsteuer monatlich an das Finanzamt abführen kann ... Unterstellt,

die Tätigkeit des Angeklagten könnte als diejenige eines freien

Unternehmers gewertet werden, wie der Angeklagte meint, so hätte er

spätestens bis zum 10.7.91 die Umsatzsteuer aus seiner Tätigkeit für

die Monate Mai/Juni voranmelden müssen, wenn zu seinen Gunsten von

einem Voranmeldungszeitraum von einem Kalendervierteljahr ausgegangen

wird. ... Der Angeklagte hat damit erneut gegen steuerrechtliche

Pflichten verstoßen. Sowohl aus dem Verhalten des Angeklagten bei der

Tat als auch aus diesem Verhalten nach der Tat zieht die Kammer den

Schluß auf die Rechtsuneinsichtigkeit des Angeklagten, die zur

Einwirkung auf ihn erheblicher Bestrafung bedarf."

On 12 May 1992 the Federal Court of Justice (Bundesgerichtshof)

dismissed the applicant's appeal on points of law (Revision).

On 26 June 1992 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Constitutional Court found that the criminal

court judgments could not be objected to from a constitutional point

of view. The Constitutional Court, referring to its previous case-law,

considered in particular that the judgments complained of did not

amount to a violation of the presumption of innocence. The Regional

Court, in finding that, subsequent to the tax offences in question, the

applicant had continued to breach his fiscal obligations, and

concluding that he was dishonest, had only regarded the applicant's

subsequent behaviour as one circumstance in the fixing of the

punishment. The question whether thereby the applicant had again

committed a criminal offence had been left open. The Constitutional

Court observed that a trial judge was entitled to bear in mind acts of

the accused beyond the facts charged if necessary for sentencing.

B. Relevant domestic law

The applicant's conviction of having evaded turnover tax and

failed to pay to the competent tax office the income tax on the

salaries of his employees was based on the German Tax Act

(Abgabenordnung).

The Income Tax Act (Einkommenssteuergesetz) regulates the

calculation and payment of income tax, including the payment of income

tax on the salaries of employees. According to S. 39 of the Income Tax

Act, employees have to present to their employer a tax form with

indications as to their fiscal particularities (Lohnsteuerkarte) when

taking up their duties. On the basis of this form the employer

regularly calculates the monthly income tax on the salary of the

employee concerned (S. 39 a). S. 39 b provides that, should the

employee fail to present his tax form to his employer, the latter will

calculate the income tax due with reference to the highest rate of

taxation.

The Turnover Tax Act (Umsatzsteuergesetz) concerns the

calculation and payment of turnover tax. In respect of the procedure

of calculation, S. 18 of the Turnover Tax Act provides that the

contractor has to file, by the 10th of the following month, a monthly

preliminary return regarding his turnover tax, or, in case of a minor

rate of turnover tax, only a quarterly return. In case of failure to

file the preliminary return or incorrect calculation, the tax office

is entitled to assess the turnover tax due.

COMPLAINTS

The applicant complains under Article 6 para. 2 of the Convention

that the Wiesbaden Regional Court, in its judgment of 26 August 1991,

considered his subsequent behaviour in fixing the punishment and

thereby failed to comply with the presumption of innocence.

THE LAW

The applicant complains about the Wiesbaden Regional Court's

judgment of 26 August 1991, as confirmed by the Federal Court of

Justice on 12 May 1992 and the Federal Constitutional Court on 26 June

1992. He submits that the presumption of innocence, as guaranteed in

Article 6 para. 2 (Art. 6-2) of the Convention, was violated.

Article 6 para. 2 (Art. 6-2) provides as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission considers that the applicant's conviction by the

Wiesbaden Regional Court and the sentence of imprisonment imposed upon

him, as confirmed upon appeal, do not in themselves offend the

presumption of innocence. However, the judgments concerned could raise

an issue under Article 6 para. 2 (Art. 6-2) if supporting reasoning

which cannot be dissociated from the operative provisions amounts in

substance to a determination of the accused's guilt in respect of

matters other than the facts charged without his having previously been

proved guilty according to law and, in particular, without his having

had an opportunity to exercise the rights of the defence (cf., mutatis

mutandis, Eur. Court H.R., Sekanina judgment of 25 August 1993, Series

A no. 266-A, para. 26).

In the present case, the Wiesbaden Regional Court, in sentencing

the applicant following his conviction for tax evasion, took his

conduct subsequent to the facts charged into account. The Wiesbaden

Regional Court, in its judgment stated that the applicant's dishonesty,

as shown by his behaviour when committing the offences he was found

guilty of as well as his later conduct, called for a severe punishment.

As regards the applicant's conduct subsequent to the offences in

question, reference was made to his continued non-compliance with his

fiscal obligations, namely, depending on the fiscal nature of his then

occupation, either his duty to submit his tax card to his new employer,

or to file a preliminary return. The Federal Constitutional Court, in

its decision upon the applicant's constitutional complaint, stated that

the Regional Court had thereby only assessed one circumstance in fixing

the applicant's punishment, and had left the question open whether he

had committed a further criminal offence.

The Commission considers that the Wiesbaden Regional Court, in

fixing the applicant's sentence in the light of all circumstances

relevant at the time of its judgment, also had regard to his conduct

subsequent to the facts charged in order to assess his personality. The

Regional Court indicated in general terms that the applicant had

continued not to comply with his fiscal obligations. These obligations

related to the presentation of a tax form with his employer or, in the

alternative, the filing of preliminary returns on turnover tax. Failure

to comply with these duties did not, as such, amount to a criminal

offence. The Commission finds that, reading the Regional Court's

statements as a whole and in their proper context, they do not contain

any finding of any criminal offence.

In these circumstances, there is no appearance of a violation of

the presumption of innocence guaranteed to the applicant under

Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that 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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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K.H. v. GERMANY

K.H. v. GERMANY

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