Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14184/88

by Karl REZEK

against Austria

The European Commission of Human Rights sitting in private

on 16 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 July 1988

by Karl Rezek against Austria and registered on 6 September 1988

under file No. 14184/88;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 6 September 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

29 December 1990 and the observations in reply submitted

by the applicant on 11 February 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1940 and living

in Vienna. He is represented by Mr. Karl Bernhauser, a lawyer in

Vienna.

The facts agreed between the parties may be summarised as

follows.

I. General Investigation

On 30 March 1978 the Regional Tax Authorities

(Finanzlandesdirektion) informed the Vienna Customs Authorities

(Zollamt) that the applicant was suspected of dealing with used

foreign cars without declaring his turnovers. The Customs Office took

no immediate action.

On 29 November 1978 the Customs Authorities were informed of

thefts of foreign cars and on 13 December 1978 sent a rogatory request

for investigations to the German authorities.

On 19 January 1979 an audit (abgabenrechtliche Prüfung) was

carried out with respect to the applicant.

On 14 May 1979 a search and seizure (Hausdurchsuchung) was

carried out on the premises of the applicant, who was suspected of

having stolen cars abroad. In connection with this charge the

applicant was detained on remand from 16 May to 19 June 1979.

On 21 August 1979 the applicant was heard for the first time

as a suspect of tax offences (Finanzvergehen). In order to check the

correctness of his statements, a rogatory request was sent to the German

authorities. On 12 May 1980 the documents seized were sent to the

Customs Authorities for examination. They were returned on 3 November 1980

and on 13 and 18 November 1980 the applicant was heard as a suspect.

Subsequently, further investigations and rogatory requests

became necessary concerning a great number of customs declarations

related to car imports.

On 24 and 28 September 1981, in October 1981 and between 9

July and 4 August 1982, as well as repeatedly in the course of 1983,

the applicant was again interrogated. A number of Austrians who had

bought cars were likewise interrogated as suspects.

On 24 January 1984 a valuer (Schätzmeister) was heard as a

further suspect.

The results of the criminal investigations were continuously

communicated to the tax authorities for auditing purposes in order to

assess the taxes due (abgabenrechtliche Würdigung).

On 1 August 1984 the latest notices of assessment

(Abgabenbescheide) were communicated to the criminal investigation

branch of the Customs Authorities which then prepared a final report

for the Public Prosecution.

On 1 February 1985 this report, comprising two large files,

was terminated.

II. Criminal Proceedings for smuggling (N° 26c VR 3 030/85)

On 19 February 1985 the Customs Authorities' report reached

the Public Prosecution. According to this report the applicant was

suspected of continuous import tax evasion (gewerbsmässige Hinterziehung).

Fourteen other persons were suspected of aiding and abetting.

On 8 March 1985 the Public Prosecution requested the competent

investigating judge to hear all suspects and obtain their criminal

records. Originally 15 persons were considered as being involved.

The applicant was summoned to appear on 1 April 1985 but

failed to present himself. Police investigations made thereupon

revealed that on 3 April 1985 he had left his last known place of

residence without leaving a forwarding address.

On 12 April 1985 an order to find out the applicant's

whereabouts was issued.

On 9 September 1986 an indictment (Anklageschrift) of

249 pages was filed against the applicant and three co-accused. At

the same time a request was made to issue a warrant of arrest against

the applicant.

On 17 September 1986 a warrant of arrest was issued.

On 23 September 1986 the police authorities reported that the

applicant's whereabouts were still unknown.

On 10 October 1986 Mr. Bernhauser informed the Court that the

applicant had chosen him as defence counsel.

On 14 October 1986 the applicant personally called at the

Regional Court to indicate his address. He was handed a copy of

the indictment. The warrant of arrest was revoked subject to the

applicant respecting certain conditions.

On 27 October 1986 the applicant filed objections against the

indictment.

On 27 November 1986 the Vienna Court of Appeal

(Oberlandesgericht) rejected these objections.

Following a proposal made by the Public Prosecution on

12 December 1986, the proceedings relating to eleven other persons

were discontinued on 22 December 1986.

On 20 February 1987 the Court decided to hold the trial from

11 to 15 May 1987.

After hearings on 11 and 12 May 1987 the applicant was

convicted of continuous import tax evasion and other offences

(Abgabenhinterziehung und Abgabenhehlerei). He was fined AS 1,800,000

or three months' imprisonment in case of non-payment of the fine.

The judgment relates to 318 different cases.

On 18 May 1987 the applicant lodged an appeal (Berufung) and a

plea of nullity (Nichtigkeitsbeschwerde).

On 8 January 1988 the text of the judgment was communicated to

the accused. It comprised 166 pages.

On 22 January 1988 the applicant submitted his grounds of

appeal.

On 30 June 1988 the Supreme Court (Oberster Gerichtshof)

rejected the applicant's remedies and ordered that his detention on

remand in other proceedings (No. 1bVr 1719/84) be deducted.

III. Proceedings for tax evasion (No. 26d Vr 1646/89)

1. Proceedings before the Tax Authorities (Finanzamt)

On 28 April 1978 tax evasion charges were laid against the

applicant and he was heard by the Tax Authorities on 17 May 1978.

On 29 November 1978 further charges were laid and the

applicant was again heard on 9 May 1979. These hearings did not give

any reason to suspect the applicant of tax evasion.

On 24 April 1981 the Tax Authorities instituted administrative

criminal tax proceedings against the applicant and proceeded to an

audit (Betriebsprüfung) in view of the reports established by the

Customs Authorities in March 1981 in the parallel import tax evasion

proceedings.

On 28 April 1981 a search and seizure order was given against

the applicant and others.

On 26 February 1982 the result of the audit was discussed with

the applicant.

On 22 March 1982 new tax assessments were issued concerning

turnover tax 1976 and 1978, income tax 1977, turnover and income tax

1979. On 30 March 1982 another assessment was issued concerning

turnover tax 1975 and 1977.

On 17 May 1982 the applicant lodged an appeal against the

assessment orders.

On 30 July 1982 the Tax Authorities refused to grant the appeal

(Berufungsvorentscheidung).

On 19 August 1982 the applicant requested that his appeal be

decided by the Regional Tax Authorities (Finanzlandesdirektion).

On 2 October 1987 the applicant was requested to comment

on the audit report.

On 22 October 1987 and on 18 April 1988 he was heard by the

authorities on his grounds of appeal.

On 7 July 1988 the Regional Tax Authorities rejected the

appeal.

2. Criminal tax proceedings

In view of the Regional Tax Authorities' decision of

7 July 1988 criminal charges were laid against the applicant

on 15 December 1988.

On 7 February 1989 the Public Prosecution requested the

Investigating Judge to hear the applicant.

On 13 February 1989 the applicant was summoned to appear on

27 February 1989.

On 28 February 1989 the applicant's counsel, Mr. Bernhauser,

informed the Court that his client was on holiday.

On 6 March 1989 the applicant submitted that his tax adviser

had died and that consequently the decision of the Regional Tax

Authorities, which had been sent to his tax adviser's successor, had

not been communicated to him in an effective manner and was therefore

void.

On 7 March 1989 the Public Prosecution submitted observations

on this issue.

On 8 March 1989 the Regional Court requested the applicant's

counsel to submit observations within six weeks.

On 22 May 1989 counsel was reminded to submit observations.

On 14 June 1989 counsel submitted that the tax assessment orders

were not final.

On 24 August 1989, following a request made in the meantime by

the Public Prosecution, the Tax Authorities submitted evidence showing

that the Regional Tax Authorities' decision of 7 July 1988 had been

duly served on the applicant's tax adviser.

On 28 August 1989 an indictment was filed.

On 22 September 1989 the applicant raised objections which

were rejected by the Vienna Court of Appeal on 11 December 1989.

On 20 December 1989 the trial was fixed for 1 February 1990.

On 1 February 1990 the applicant was convicted of tax evasion

and fined AS 200,000 or ten days' imprisonment. He accepted the

judgment.

IV. The relevant legislation

The relevant provisions of the Criminal Tax Act

(Finanzstrafgesetz - FinStrG) read:

Sec. 33

"(1) Everyone who deliberately evades taxes by violating

his fiscal obligation of making true and correct tax

declarations is punishable."

Sec. 35

"(1) Everyone who deliberately conceals goods for which

import or export taxes are due is punishable."

According to Sec. 38 of the Criminal Tax Act the statutory

fine may be quadrupled in case of continuous smuggling.

Sec. 53

"(1) The Court is competent to deal with a tax offence

a) if aggravated punishment in accordance with

Sec. 38 is in question,

b) if the tax evasion has been committed

deliberately and exceeds AS 500,000 (according to

the latest revised version: AS 1 million)."

According to Sec. 55, a court trial may not be conducted on

a charge of tax evasion before the tax for the period in question has

been assessed by final decision.

COMPLAINTS

The applicant complains of the length of the above proceedings

and alleges a violation of Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 July 198 and registered

on 6 September 1988.

On 6 September 1990 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits. After extension of the time-limit the

respondent Government's observations were submitted on 28 December

1990. The applicant's reply was submitted on 11 February 1991.

THE LAW

The applicant complains about the length of two criminal

proceedings against him, the first concerning smuggling offences, the

second concerning tax evasion offences.

He submits that with regard to the smuggling offences a search

and seizure was carried out against him on 14 May 1979. He considers

that he was charged at this moment and that the proceedings, which

ended with the Supreme Court's decision of 30 June 1988, consequently

lasted more than nine years.

As to the criminal tax proceedings, the applicant submits that

he should be considered to have been charged in 1979 as he had already

then been heard in connection with the charges which eventually led to

his conviction by the Regional Court on 1 February 1990, i.e. nine

years later. He considers that the duration of both proceedings was

unreasonable.

The Government argue that charges in the proceedings

concerning the smuggling offence were not laid before the Public

Prosecution received the report of the Customs Authorities in

February 1985, and in the criminal tax proceedings in December 1988

when the Tax Authorities requested the Public Prosecution to institute

proceedings against the applicant.

They consider that the first set of proceedings only lasted

some three years and the second set a little more than a year which is

not unreasonable.

The Commission has taken into account the parties' submissions

on the starting point of the proceedings in question and on the

reasonableness of the duration of these proceedings. It finds that

both questions raise serious points of fact and law which cannot be

resolved at this stage of the proceedings, but necessitate a thorough

examination of the merits of the case.

The Commission further observes that there are no other

grounds for considering the application inadmissible.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION ADMISSIBLE,

and without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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REZEK v. AUSTRIA

REZEK v. AUSTRIA

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