Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18305/91

by Karl PICHLER sen. and Karl PICHLER jun.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 February 1993, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G. B. REFFI

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 19 April 1991 by

Karl PICHLER sen. and Karl PICHLER jun. against Austria and registered

on 4 June 1991 under file No. 18305/91 ;

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 first applicant, born in 1928, is an Austrian national and

resident at Leonding in Austria. The second applicant, the first

applicant's son born in 1953, is also an Austrian national and resident

at Marchtrenk in Austria. Both applicants are employed at a banking

institute in Wels, which is specialised as pawnbrokers. Before the

Commission they are represented by Mr. M. Ganzert, a lawyer practising

in Wels.

On 18 March 1981 the Innsbruck Federal Police Department

(Bundespolizeidirektion) informed the Salzburg Tax Office (Zollamt)

about the suspicion that, at the above-mentioned Wels banking

institute, jewellery had been taken as security in respect of which

taxes due had not been paid (Abgabenhehlerei). An opinion of the

expert Z. as regards the value of the jewellery concerned was joined.

On 20 and 21 March 1981 the Salzburg Tax Office started

investigations under the Code of Tax Offences (Finanzstrafgesetz) in

respect of the banking institute and seized the jewellery in question.

On 21 March 1981 the second applicant was heard as suspect by the Tax

Office, and proceedings under the Code of Tax Offences were instituted

against him.

On 2 September 1981 the Tax Office instituted proceedings under

the Code of Tax Offences against the first applicant.

On 8 February 1983 the Tax Office, having regard to the limits

of its jurisdiction (Wertzuständigkeit), brought the case concerning

the applicants and seven further accused to the attention of the Wels

Public Prosecutor's Office (Staatsanwaltschaft). The first and second

applicant were suspected of having taken as security jewellery of a tax

value amounting to AS 3 million and AS 1 million, respectively,

jewellery which had been smuggled or in respect of which taxes had not

been duly paid.

On 21 February 1983 the Prosecutor's Office requested the Wels

Regional Court (Kreisgericht) to open preliminary investigations

against the applicants and others. These proceedings were opened on

23 February 1983.

On 8 June 1983 the Linz Court of Appeal (Oberlandesgericht)

decided that preliminary investigations conducted by the Linz Regional

Court (Landesgericht) against the applicants on the suspicion of having

committed fraudulent conversion were to be joined to the proceedings

before the Wels Regional Court.

On 29 September 1983 the applicants and other suspects were

summoned to appear before the Wels Regional Court on 20 October 1983.

On that day the applicants and two other suspects were questioned upon

the charges against them and also informed that preliminary

investigations had been opened against them.

On 14 December 1983 the expert T. was appointed to deliver an

opinion as to the origin and the value of the jewellery in question.

On 3 May 1984 he delivered his opinion according to which all items of

jewellery were of foreign origin.

On 11 September 1984 the Regional Court, having regard to doubts

as to the impartiality of the expert T., appointed the expert E. The

expert E. delivered his opinion on 30 October 1984.

On 9 November 1984 the Public Prosecutor's Office requested the

Regional Court to expedite the preliminary investigations.

On 22 April 1985 the expert E. was requested to supplement his

opinion as regards the question of the foreign origin of the jewellery

concerned. The supplementary opinion was submitted on 6 May 1984. On

22 May 1985 the experts Z. and T. commented upon the opinions of

expert E. The files were forwarded to the Wels Public Prosecutor's

Office on 31 January 1986.

On 8 February 1986 the Wels Public Prosecutor's Office preferred

an indictment against the applicants and five other accused. The

applicants were charged with receiving property obtained by tax evasion

(Abgabenhehlerei) within the meaning of the Code of Tax Offences in

that they had allegedly taken as security various items of jewellery

in respect of which taxes had not been duly paid, and with fraudulent

conversion to the disadvantage of the banking institute. In the

indictment, the Prosecutor's Office referred to thirty items of

jewellery. Having regard to three expert opinions, it considered that

the foreign origin of the jewellery concerned could be proven or, at

least that the jewellery concerned had no Austrian punches.

On 25 March 1986 the Linz Court of Appeal dismissed the appeal

of one of the accused against the indictment.

From 3 until 5 November 1986 the Wels Regional Court held trial.

The trial was postponed sine die in order to take further evidence.

On 26 May 1987 the Tax Office submitted a note on the state of

the tax proceedings. Only in one case a tax assessment had become

final in law.

According to a file note of 10 October 1988, the Wels District

Court inquired with the Salzburg Tax Appeal Authority (Finanzlandes-

direktion) about the state of the appeal proceedings in the various tax

assessment cases. The Court was informed that no decisions had been

taken yet, and that the Tax Appeal Authority hoped to profit from the

results obtained in the criminal proceedings. The District Court

stated that the criminal proceedings could not be furthered without

final tax assessments. The criminal files were sent to the Tax Appeal

Authority for information.

On 19 April 1989 the Wels Regional Court, upon the request of the

Wels Public Prosecutor's Office, requested the Salzburg Tax Appeal

Authority for information on the state of the tax proceedings. On

25 April 1989 the criminal files were returned. On 5 July 1989 the

Salzburg Tax Office informed the Court about the state of the tax

assessment proceedings.

In October 1989 the Wels Regional Court took evidence on matters

related to the charge of fraudulent conversion to the disadvantage of

the banking institute concerned.

On 17 November 1989 the Judges' Chamber (Ratskammer) at the Wels

Regional Court, upon request of the Public Prosecutor's Office, decided

that it was not competent to determine the charges under the Code of

Tax Offences. The Judges' Chamber, having regard to various tax

proceedings against the owners of the jewellery concerned, found no

sufficient evidence to show that the case fell within the limits of the

court's jurisdiction (gerichtliche Wertzuständigkeit), or that the

accused had acted with professional intent. Thus the proceedings fell

within the exclusive competence of the tax authorities.

The Wels Regional Court, by a decision dated 7 February 1990,

discontinued the proceedings relating to the charges of fraudulent

conversion. The Court stated that the Public Prosecutor's Office had

withdrawn the indictment in this respect. The decision was served on

13 February 1991.

On 2 February 1991 the Salzburg Tax Office informed the

applicants that the criminal proceedings against them under the Code

of Tax Offences were discontinued except, as regards the first

applicant, one charge of receiving a platinum ring with a 16 carat

diamond, and, as regards the second applicant, one charge of receiving

a pair of earrings with pearls, which had allegedly both been obtained

by tax evasion.

As regards the remaining matters, the Tax Office requested the

Wels Regional Court to reopen the court investigation proceedings.

Following the Regional Court's decision of 14 June 1991 to refuse the

request for reopening, the proceedings were eventually discontinued on

31 August 1991.

COMPLAINTS

The applicants complain under Article 6 para. 1 of the Convention

about the length of the criminal proceedings against them.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 April and registered on

4 June 1991.

On 13 February 1992 the Commission decided to communicate the

application to the respondent Government.

The Government's observations were submitted on 23 July 1992.

The applicant's observations in reply were submitted on 22 October

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 (Art. 6-1), 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 parties disagree as to the starting point of the relevant

period to be considered under Article 6 para. 1 (Art. 6-1) . The

Government consider that the period began to run in February 1986 when

the Public Prosecutor's Office preferred the indictment against the

applicants and other accused. The applicants submit that they were

affected by the investigation proceedings as from March 1981.

The Government further 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) of the

Convention.

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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PICHLER SENIOR AND PICHLER JUNIOR v. AUSTRIA

PICHLER SENIOR AND PICHLER JUNIOR v. AUSTRIA

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