Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15306/89

by Hedwig KIRALY

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 December 1991, the following members being present:

MM.S. TRECHSEL, President of the Second Chamber

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

H. G. SCHERMERS

Mrs.G. H. THUNE

Mr.F. MARTINEZ

Mrs. J. LIDDY

MM.M.P. PELLONPÄÄ

Mr. K. ROGGE, Secretary to the Second 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 21 June 1989 by

Hedwig KIRALY against Austria and registered on 27 July 1989 under file

No. 15306/89;

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 1918, is an Austrian national and resident

at Hinterbrühl, Austria. Before the Commission she is represented by

Mr. A. Wanke, a lawyer practising in Vienna.

In January 1984, upon information by a special department for

inspection of big companies (Großbetriebsprüfungsabteilung) at the

Vienna I Tax Office (Finanzamt), the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) instituted criminal proceedings against the

applicant's husband and their son, who are managing two limited export

companies, on the suspicion of tax evasion (S. 33 of the Code of

Financial Offences - Finanzstrafgesetz). In the course of the

investigations their house was searched, and various objects were

seized.

On 14 February 1984 the Investigating Judge at the Vienna

Regional Court (Landesgericht) ordered that the contents of bank safes

at the C. and at the L. banking institutes be seized. The Judge stated

that in the course of the searches at the premises of the applicant's

husband and son keys of the bank safes concerned were found. There was

a strong suspicion that elements of evidence were hidden in the safes

concerned. In this respect, he referred to S. 143 of the Austrian Code

of Criminal Procedure (Strafprozeßordnung).

On 21 February 1984 the C. banking institute informed the

Regional Court that the keys found in the course of the investigations

against the applicant's husband and son did not fit any of their safes.

On 15 May 1984 counsel of the applicant's husband requested the

Mödling Tax Office to release the safes at the C. banking institute,

to which the applicant had the keys and where she kept jewellery for

her personal use.

On 2 October 1984 the Investigating Judge at the Vienna Regional

Court ordered an expert opinion as regards the value of the objects

seized in the safes at the C. banking institute. The applicant's

husband and son appealed against this decision on the ground that most

of the objects in the bank safes concerned were the applicant's

property.

On 15, 19 and 23 October 1984 an expert examined the contents of

the bank safes in question.

On 29 October 1984 the applicant's husband and son requested the

Regional Court to lift the seizure of the contents in the two safes at

the C. banking institute on the ground that the assessment of its value

was terminated and, in any way, most of it was jewellery belonging to

the applicant.

On 5 November 1984 the expert delivered his opinion according to

which the objects concerned had a value of AS 5,577,195. The value of

the jewellery which was listed in detail was assessed at AS 4,722,500.

On 16 November 1984 the the Judges' Chamber (Ratskammer) at the

Vienna Regional Court dismissed the appeal against the decision of

2 October 1984 (order of expert evidence). The Court found in

particular that also those valuable objects had to be taken into

account which allegedly solely belonged to the applicant on the ground

that the applicant's husband had indicated to the C. banking institute

that they had no matrimonial contract on separation of goods. It had

thus to proceed on the assumption of community of marital property.

On 4 December 1984 the applicant filed a request with the Vienna

Regional Court, for restitution of the objects seized on 14 February

1984, claiming that she was the owner of the jewellery concerned which

were gifts from her husband. The applicant as well as her husband and

son renewed such requests on 7 February 1985.

On 14 February 1985 the Investigating Judge at the Vienna

Regional Court dismissed the request of the applicant's husband and son

of 29 October 1984 as well as the applicant's request of 4 December

1984. The Investigating Judge considered that the applicant's

allegation flagrantly contradicted the results of the criminal

investigations at that stage. He noted that in 1975 the applicant's

husband, in a form for an insurance contract concerning the contents

of the bank safe in question, had indicated that its value was AS two

million and that he was the owner of the insured property.

Furthermore, at the relevant time, the applicant and her husband had

only declared AS 450,000 for purposes of capital tax. He also referred

to a letter of the applicant's husband to a banking institute dated

24 November 1980 according to which there was no separation of goods

between the spouses to the effect that, for the debts of his firm, he

was also liable to the extent of other private immovable and movable

property. Thus, at that stage of the proceedings, there was still a

reasonable suspicion that the objects were owned or at least jointly

owned by her husband.

On 22 February 1985 the applicant, and on 26 February 1985 her

husband and son appealed against the decision of 14 February 1985.

On 9 April 1985 the Mödling Tax Office requested the Vienna

Public Prosecutor's Office to institute proceedings against the

applicant on the suspicion of having committed tax evasion in that she

had not declared gift and property tax for jewellery allegedly owned

by her.

On 20 June 1985 the Investigating Judge at the Vienna Regional

Court dismissed several requests of the applicant's husband and son

concerning a bank account and savings booklets, the applicant's

jewellery as well as other seized objects. He found in particular that

only on the basis of the Tax Office's report after final tax

assessments a decision on the relevance of seized objects as evidence

could be taken.

The appeal of the applicant's husband and son against the

decision of 20 June 1985 was sent to the Vienna Public Prosecutor's

Office and then to the special department at the Vienna I Tax Office

for comments, which were received on 14 August 1985. The Vienna Tax

Office made further submissions concerning the investigations against

the applicant's husband and son in December 1985. The files were sent

to the Public Prosecutor's Office for consultation and further

observations.

On 19 March 1986 the Public Prosecutor's Office returned the

files and forwarded at the same time the additional charges against the

applicant of 9 April 1985 to the Investigating Jugde at the Vienna

Regional Court who was requested to hear the applicant, and to extend

the investigations against her husband to these items.

On 26 March 1986 the files were sent to the Judges' Chamber at

the Vienna Regional Court for determination of the appeals of February

1986. On 16 May 1986 the files were returned to the Investigating

Judge in order to comply with the instruction to hear the applicant.

On 22 May 1986 the applicant was summoned for 17 June 1986. On

11 June 1986 she informed the Court that she would be absent at that

date. On 20 June 1986 she was summoned for 31 July 1986.

On 30 July 1986 the applicant again requested the restitution of

the seized jewellery.

At her examination on 31 July 1986 the applicant declared not to

make any statements in respect of the criminal proceedings against her

as well as the property rights concerning the seized objects.

Thereupon, the Regional Court decided to join the additional charges

against her with the criminal proceedings against her husband and son,

and to extend the investigations against her husband in this respect.

Furthermore, the Mödling Tax Office was instructed to conduct the

further investigations against the applicant and to file a report

subsequent to final tax assessments.

On 12 September 1986 the Judges Chamber at the Vienna Regional

Court dismissed the applicant's appeal (Beschwerde) against the

decision of 14 February 1985 (concerning earlier requests to lift the

seizure). The decision was served on 14 October 1986, and the

applicant requested to inform the Court within two weeks whether she

intended to pursue her request of 30 July 1986. She did not react.

On 21 April 1987 the applicant filed her next request for

restitution of the seized jewellery, which was sent to the special

department at the Vienna I Tax Office for observations. Reminders were

sent on 10 June and 2 July 1987. The observations were received on

17 July 1987. The Vienna I Tax Office stated in particular that the

seizure of the jewellery concerned was no longer necessary for the

purposes of tax inspection, however, a right to keep them as security

under S. 5 of the Judicial Execution Act (Gerichtliches Einbringungs-

gesetz) should be considered in view of the considerable supplementary

tax claims against the applicant's husband and son (almost

AS 18 million).

On 1 October 1987 the Investigating Judge at the Vienna Regional

Court dismissed the applicant's request of 21 April 1987. Referring to

the above observations of the Vienna Tax Office of 17 July 1987, he

found that the objects were no longer needed as evidence in the tax

proceedings; however, they were kept as security for any fines and

court fees under S. 5 of the Judicial Execution Act.

The applicant's renewed request for restitution of 7 October 1987

was sent to the Vienna Tax Office on 9 May 1988, and to the Public

Prosecutor's Office on 22 June 1988. On 7 September 1988 the

applicant's counsel confirmed that the request for restitution be

upheld.

On 14 September 1988 her request was dismissed under S. 5 of the

Judicial Execution Act. The decision was served upon the applicant on

8 February 1989. On 10 May 1989 the Judges Chamber at the Vienna

Regional Court dismissed the applicant's appeal in this respect.

It appears that in the meantime the Austrian authorities, in

presence of the applicant, placed the jewellery concerned into two

other safes at the same banking institute.

The proceedings against the applicant are still pending.

The tax inspection of the companies managed by the applicant's

husband and son was completed at first instance, appeal proceedings

against the tax assessments in this respect are pending before the

Regional Tax Office (Finanzlandesdirektion) of Lower Austria and

Burgenland. On 11 June 1991 the Tax Office informed the Vienna

Regional Court that the appeals had not yet been decided upon.

COMPLAINTS

1.The applicant complains under Article 6 para. 1 to the Convention

about the length of the criminal proceedings against her.

2.The applicant complains under Article 1 of Protocol No. 1 to the

Convention that the continued seizure of her jewellery violates her

right to peaceful enjoyment of her possessions. She also invokes

Article 6 para. 2 of the Convention.

She alleges that she is the sole owner of the jewellery in

question, which her husband gave to her as a present. She refers, in

this respect, inter alia to the presumption under S. 1247 of the

Austrian Civil Code (Bürgerliches Gesetzbuch) according to which jewels

which the husband gives to his wife for dressing (N.B.: as opposed to

investment jewellery) are in general given as presents. She also states

that she does not have a community of marital property with her

husband. Furthermore, she submits that the seized jewellery is no

longer needed as evidence, and that, as security, its value far exceeds

possible fines and court fees in the proceedings against her.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 June 1989 and registered on

27 July 1989.

On 4 December 1989 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written submissions on its admissibility and merits as

regards the length of the criminal proceedings against the applicant.

On 23 February 1990 the observations were submitted by the

respondent Government. On 30 April 1990 the applicant sent her

observations in reply. The applicant made further submissions on

9 September 1991.

On 7 October 1991 the Commission decided to refer the application

to the Second Chamber.

THE LAW

1.The applicant complains about the length of criminal proceedings

against her on a charge under the Code of Financial Offences. She

relies upon Article 6 para. 1 (Art. 6-1) of the Convention which,

insofar as relevant, provides:

"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 criminal proceedings against the

applicant for tax evasion were instituted on 31 July 1986 in order to

prevent prescription in case that her ownership of the jewellery should

be established in the course of the investigations against her husband

and son. As to the reasonableness of the length of the proceedings,

they submit that the investigations for tax evasion against the

applicant's husband and son concern very complex facts, in particular

as regards the tax inspection of the firms concerned. The length of

the proceedings as from 7 October 1987 could not be regarded as

unreasonable.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against her raises questions of fact

and law which require an examination of the merits. The present

complaint is therefore not manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground

for declaring it inadmissible has been established.

2.The applicant also complains under Article 6 para. 2 (Art. 6-2)

of the Convention and Article 1 of Protocol No. 1 (P1-1) about the

continued seizure of jewellery which she claims as her property.

The Commission, even assuming the applicant's ownership of the

jewellery concerned and compliance with the conditions under Article

26 (Art. 26) of the Convention, finds no appearance of a violation of

her rights under the Convention, in particular Article 1 of Protocol

No. 1 (P1-1). It notes that in the course of the investigations against

the applicant's husband and son, the Austrian authorities seized the

jewellery in question as evidence, and kept it later as security under

S. 5 of the Judicial Execution Act in view of the considerable amount

of supplementary taxes to be imposed on the applicant's husband and

son. The findings of the Vienna Regional Court that, having regard to

the result of the criminal investigations, there was a reasonable

suspicion of ownership or at least joint ownership of the applicant's

husband do not appear arbitrary. The continued seizure is also not

manifestly disproportionate in the circumstances of the present case.

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,

DECLARES THE APPLICATION ADMISSIBLE as regards the length of the

criminal proceedings against the applicant, without prejudging

the merits of the case,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KIRALY v. AUSTRIA

KIRALY v. AUSTRIA

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