Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14974/89

by H.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 10 September 1991, the following members being

present:

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

J. C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

Mr. M. de SALVIA, 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 21 March 1989

by H.against Austria and registered on 5 April 1989 under

file No. 14974/89;

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 1939, is an Austrian national and

resident in Vienna. Before the Commission, he is represented by

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

In July 1980 German authorities informed the Vienna Customs

Office (Zollamt) about the suspicion that, inter alia, a car imported

by the applicant from the Federal Republic of Germany to Austria on

1 March 1979 had not been correctly declared.

On 9 April 1981 the Vienna Customs Office, acting as Finance

Prosecution Department (Finanzstrafbehörde), heard the applicant as

a suspect (Verdächtiger) on the suspicion of tax evasion under the

Austrian Code of Financial Offences (Finanzstrafgesetz). In his

written statement (niederschriftliche Verantwortung), the applicant

submitted inter alia that he had bought the car for his wife at the

low price which he had declared at the customs.

From 18 May until 7 August 1981 the Frankfurt Customs Search

Office (Zollfahndungsamt), on the basis of rogatory letters, conducted

investigations on a Frankfurt car dealer, and in particular heard

witnesses on 22 and 29 July 1981, as to the sale of the car in

question. The files were then sent to another Department of the

Vienna Customs Office for decision on the import tax.

On 24 January 1985 the Vienna Customs Office decided upon the

import tax (Eingangsabgaben) to be paid by the applicant's wife for

the car concerned. Her appeal (Berufung) was dismissed by the

Regional Finance Department (Finanzlandesdirektion) of Vienna, Lower

Austria and Burgenland on 12 August 1987. The files were returned to

the Finance Prosecution Department on 29 September 1987.

On 21 October 1987 the Vienna Customs Office, acting as

Finance Prosecution Department, instituted criminal proceedings for

financial offences (Finanzstrafverfahren) against the applicant.

On the same day the Office issued a penal order (Straf-

verfügung) against the applicant for violation of S. 35 para. 2

of the Code of Financial Offences (Finanzstrafgesetz), namely

incorrect declaration at the customs. He was fined AS 40,000, in

default of payment 40 days' imprisonment; furthermore, as an

accessory punishment, he was ordered to pay AS 88,000 (in default of

payment 18 days' imprisonment) as compensation in lieu of confiscation

(Wertersatzstrafe). The administrative fees were fixed at AS 4,000.

On 20 November 1987 the applicant filed an objection

(Einspruch) against the penal order and requested that the proceedings

against him be discontinued.

On 22 June 1988 the applicant and the co-accused were summoned

for a hearing on 14 July 1988.

On 19 August 1988, the Vienna Customs Office, upon the hearing

of 14 July 1988, convicted the applicant of having committed an

offence under S. 35 para. 2 of the Code of Financial Offences in that

he had made false declarations when importing a car in March 1979, and

thereby evaded import tax. He was fined AS 40,000 (in default of

payment 40 days' imprisonment); further a compensation in lieu of

confiscation was fixed at about AS 88,000 (in default of payment

18 days' imprisonment). He was also ordered to pay the costs of the

proceedings. The Customs Office proceeded in particular from the

applicant's written declaration of April 1981 and the statements of

the co-accused as well as of a witness, who had been heard on the basis

of a rogatory letter in the investigation proceedings in 1981.

On 5 October 1988 the Customs Office received the applicant's

appeal (Berufung).

On 17 January 1989 the Regional Finance Department for Vienna,

Lower Austria and Burgenland, upon the applicant's appeal, reduced the

fine to AS 32,000 (in default of payment 32 days' imprisonment). The

remainder of the appeal was dismissed. The decision was served on

2 February 1989.

On 28 June 1989 the Austrian Administrative Court (Verwaltungs-

gerichtshof), upon the applicant's appeal (Beschwerde) of

9 March 1989, quashed the decision of the Regional Finance Department

of 17 January 1989. The Court of Appeal found that the Customs Office

had not correctly applied the Code of Financial Offences.

On 9 August 1989 the proceedings were discontinued on the

ground that prosecution had become time-barred.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the criminal proceedings for financial

offences.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1989 and registered

on 5 April 1989.

On 14 December 1989 the Commission decided to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits.

On 12 April 1990 the respondent Government submitted its

observations, and the observations in reply were submitted by the

applicant on 3 May 1990.

On 8 January 1991 the Commission decided to refer the

application to the First Chamber.

THE LAW

1. The applicant complains about the length of proceedings

against him concerning charges under the Code of Financial Offences.

He 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."

2. The Government submit that the applicant failed to exhaust

domestic remedies, as required under Article 26 (Art. 26) of the

Convention, in that, subsequent to the appeal decision of the Regional

Finance Department of Vienna, Lower Austria and Burgenland dated 17

January 1989, he did not lodge a complaint about the length of the

proceedings with the Constitutional Court (Verfassungsgerichtshof).

The Commission recalls that the burden of proving the

existence of available and sufficient domestic remedies lies upon the

State invoking the rule (cf. Eur. Court H.R., Deweer judgment of 27

February 1980, Series A no. 35, p. 15, para. 26).

The Commission notes that with the above decision of the

Regional Finance Department dated 17 January 1989 the proceedings were

not terminated, but the applicant lodged a successful appeal with the

Administrative Court, and the proceedings were later discontinued.

The Government did not show to what extent the applicant could have,

in these circumstances, lodged an effective complaint with the

Constitutional Court alleging a violation of Article 6 para. 1

(Art. 6-1) of the Convention as regards the length of the proceedings.

The Commission, therefore, considers that the applicant has

exhausted the domestic remedies available to him under Austrian law.

3. Furthermore, the Government submit that the starting point for

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

Convention is 21 October 1987 when the Vienna Customs Office

instituted proceedings against the applicant under the Code of

Financial Offences. They consider that the proceedings were then

terminated within a reasonable time, namely less than two years.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against him under the Code of

Financial Offences raises questions of fact and law - including the

question of the period to be considered under Article 6 para. 1 -

(Art. 6-1) which are of such complexity that their determination

requires an examination of the merits. The application is therefore

not manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention and no other ground for declaring it

inadmissible has been established.

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. DE SALVIA) (J.A. FROWEIN)

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H. v. AUSTRIA

H. v. AUSTRIA

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