Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17617/91

by Walter POSCHER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 23 November 1990

by Walter POSCHER against Austria and registered on 8 January 1991

under file No. 17617/91;

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 they have been submitted by the

parties, may be summarised as follows.

The applicant, born in 1924, is an Austrian national and resident

in Vienna. Before the Commission he is represented by

Mr. K. Bernhauser, a lawyer practising in Vienna.

In 1976 criminal proceedings were instituted against the

applicant and others on the suspicion of corruption, smuggling and

other tax offences under SS. 2 and 24 para. 1 of the Exchange Control

Regulations (Devisengesetz), S. 33 para. 1 and S. 37 para. 1 of the

Code of Tax Offences (Finanzstrafgesetz) were formally opened on

11 November 1976. The applicant was detained on remand from

11 November 1976 until 24 April 1977.

On 30 July 1977 the criminal proceedings against the applicant

on the suspicion of tax evasion under S. 33 paras. 1 to 3, S. 13 of the

Code of Tax Offences in the period from 1971 until 1975, and of forgery

of documents under S. 223 of the Penal Code (Strafgesetzbuch), as well

as the proceedings against three other suspect persons relating to

charges under the Code of Tax Offences, were separated from the main

proceedings. The applicant was informed accordingly on 6 September

1977. On 26 November 1977 these proceedings were provisionally

discontinued.

On 24 November 1977, in the main proceedings, the Vienna Regional

Court (Landesgericht), having held several hearings in October and

November 1977, convicted the applicant of having incited a public

servant to abuse of power in 1976, of having committed exchange control

offences on two counts and smuggling on one count between July and

September 1975, and of having evaded turnover tax in the period from

January until September 1976. It sentenced the applicant to one year's

imprisonment and imposed a fine of AS nine million; furthermore it

fixed AS 86,186,369 as compensation in lieu of confiscation or one

year's imprisonment in default of payment. On 5 October 1978 the

applicant was released on probation. On 3 July 1980 the sentence was

remitted.

Following partly successful appeal proceedings, the tax

assessment proceedings against the applicant, which had apparently

started in the early Seventies, were terminated in July 1989.

On 8 March 1990 the Vienna Public Prosecutor's Office (Staats-

anwaltschaft) preferred an indictment against the applicant charging

him with having evaded turnover, income and trade tax in the years 1969

until 1973 and capital tax in 1969, further with having attempted to

evade capital tax in 1972 until 1976, as well as turnover, income and

trade tax in 1974 and 1975. The relevant overall amount was

approximately AS thirty million. The Public Prosecutor's Office

considered that the applicant would have to be punished for completed

and attempted tax evasion under S. 33 paras. 1 and 3 a the Code of Tax

Offences, taking into account the judgment of the Vienna Regional Court

of 24 November 1977, so far as it related to smuggling and tax evasion.

In the reasons for its indictment, the Office noted in particular

that the applicant had been convicted in 1977 on the basis of facts

which were also at issue in the present criminal proceedings. Thus

only a supplementary punishment could be imposed. The Office referred

in detail to the results of the examination of the applicant's business

by tax inspectors, and the revised tax assessments in these respects,

which had become final after partly successful appeal proceedings.

Finally, the Office stated that prosecution against the applicant was

prescribed only as from November 1991. In this respect, the Office

noted in particular that the criminal proceedings against the applicant

on the suspicion of tax evasion under S. 33 para. 1 of the Code of Tax

Offences had already been instituted on 11 November 1976, and that part

of the relevant tax assessments dated 7 March 1972.

The indictment was received at the Vienna Regional Court on

23 March 1990. It was served upon the applicant on 11 April 1990. On

18 April 1990 Mr. Bernhauser presented himself as the applicant's

counsel. On 23 April 1990 the applicant appealed against the

indictment. His appeal was dismissed by the Vienna Court of Appeal on

18 October 1990.

On 24 March 1991 the Vienna Regional Court fixed the 11 June 1991

as date for the trial. On that date the trial was postponed sine die

on account of the applicant's illness.

On 31 July 1991 the applicant requested that an expert be

appointed to deliver an opinion as to his capacity to participate in

the proceedings. The Regional Court appointed Dr. S. as expert in this

respect.

On 16 March 1992 the Vienna Public Prosecutor's Office withdrew

the indictment against the applicant on the ground that prosecution had

become statute-barred.

On 31 March 1992 the Vienna Regional Court discontinued the

proceedings against the applicant.

COMPLAINTS

The applicant complains about the length of the criminal

proceedings against him. He invokes Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 November 1990 and registered

on 8 January 1991.

On 13 January 1992 the Commission decided to communicate the

application to the respondent Government.

The Government's observations were, after an extension of the

time-limit, submitted on 7 July 1992. Upon a reminder, the applicant's

observations in reply were submitted on 17 December 1992.

THE LAW

The applicants consider that the criminal proceedings against

them exceeded a reasonable time within the meaning of Article 6 para. 1

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

provides:

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

everyone is entitled to a ... hearing within a reasonable time

..."

The Government submit that, having regard to the complexity of

the case and the applicants' conduct, the length of the proceedings is

not in breach of Article 6 para. 1 (Art. 6-1).

The Commission considers, in the light of the criteria

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

of the reasonableness of the length of proceedings, 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 the facts.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)

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POSCHER v. AUSTRIA

POSCHER v. AUSTRIA

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