Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16469/90

by G.K. and R.G.

against Austria

The European Commission of Human Rights sitting in private

on 2 July 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

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 3 July 1989

by G.K. and R.G. against Austria and registered on 23 April 1990 under

file No. 16469/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are German citiziens. Mr. K. was born in 1935

and is living in W. Mr. G. was born in 1931 and is living in K..

They are represented by Mr. E. Novacek, a Chamber of Commerce

official.

The facts submitted are as follows.

On 5 February 1987 the applicant K. was convicted and fined

1,000,000 AS or alternatively sentenced to eight months' imprisonment

by the Linz Regional Court (Landesgericht) for tax evasion committed

in 1976 and 1977. Further K. and the applicant G. were

convicted of tax evasion committed in 1978. G. was fined

200,000 AS or alternatively sentenced to six weeks' imprisonment.

A former collaborator, one S., was convicted as being an accomplice

(Beteiligter). He was fined 150,000 AS or alternatively sentenced to

one month's imprisonment. According to the findings of the court the

applicants had evaded taxes by establishing incorrect inventories and

other false declarations. As to the amount of evaded taxes the court

stated it was bound by the tax assessment orders (Abgabenbescheide).

The applicants state in this respect that they had appealed

against the assessment orders but then had accepted a friendly

settlement in the course of the appeal proceedings.

The Linz Regional Court considered that in view of the

enormous differences between the figures in the faked inventories and

the correct ones which were later made available to the tax

authorities by S. the conclusion could only be that the manipulations

in question had been carried out by the defendants deliberately in

order to evade taxes.

The applicants lodged an appeal (Berufung) and a plea of

nullity (Nichtigkeitsbeschwerde). The remedies were rejected by the

Supreme Court (Oberster Gerichtshof) on 30 November 1988. The Court

only reduced Mr. K.'s fine to 800,000 AS.

Insofar as the applicants had complained that the trial court

considered itself bound by the final tax assessment orders, the Supreme

Court stated that the orders proved that the company managed by the

applicants owed taxes of a certain amount. The question of whether or

not they were guilty of deliberate tax evasion had been decided by the

trial court whose appreciation of the available evidence was not

objectionable. The finding that the two defendants had as responsible

representatives of a business firm violated their duty to make correct

and true tax declarations and thereby deliberately committed tax

evasion was supported by the statements made by S., the results of the

tax investigation proceedings, a comparison between the original and

faked inventories, productivity statistics for 1977, a computerised

report on the value of available stock on 1 January 1979 and an

internal secret note of the firm dated 10 May 1979.

COMPLAINTS

The applicants submit that they were wrongly incriminated by

S., a former employee who had to be dismissed because he had embezzled

money of their firm. They allege that S. received a lenient sentence

because he gave evidence against them. Allegedly S. alone was

responsible for the tax evasion as at the relevant time he was in fact

directing the firm. They argue that the Supreme Court's position on

the binding effect of the final tax assessment orders is contrary to

the jurisprudence of the Constitutional Court and the Administrative

Court. They submit that the tax authorities proceeded by way of

estimation and the burden of proof was thereby shifted on them.

They further submit that the trial court's judgment is, inter

alia, based on facts which have not been discussed at the trial.

They allege violations of Article 6 paras. 1 and 2 of the

Convention and of Article 1 of Protocol No. 1 to the Convention.

THE LAW

With regard to the judicial decisions of which the

applicants complain, the Commission recalls that, in accordance with

Article 19 (Art. 19) of the Convention, its only task is to ensure the

observance of the obligations undertaken by the Parties in the

Convention. In particular, it is not competent to deal with an

application alleging that errors of law or fact have been committed by

domestic courts, except where it considers that such errors might have

involved a possible violation of any of the rights and freedoms set

out in the Convention. The Commission refers, on this point, to its

established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3

pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77;

No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).

It is true that the applicants also complain that the trial

court considered as binding tax assessments made by the tax

authorities; that it based their conviction inter alia on statements

made by a co-accused; and that it referred to facts which had not been

discussed with the parties at the trial. In this connection they

allege violations of Article 6 para. 1 (Art. 6-1) of the Convention

(right to a fair hearing), Article 6 para. 2 (Art. 6-2) of the

Convention (presumption of innocence) and Article 1 of Protocol No. 1

(P1-1) to the Convention (protection of possessions).

However, as regards the binding effect of the tax assessments,

the Supreme Court pointed out that it remained for the criminal court

to establish the applicants' guilt, i.e. to determine whether they had

intentionally faked inventories and made other false statements for

the purpose of evading taxes. The Commission further notes that the

applicants lodged an appeal to have the lawfulness of the tax

assessments determined by a court but, in the course of the appeal

proceedings, agreed to a friendly settlement. In these particular

circumstances it cannot be found that the binding effect of the tax

assessment deprived the applicants of a fair hearing, in the criminal

case, on the preliminary question as to the existence and the extent

of their obligation to pay taxes.

Moreover, the trial court's findings of the applicants' guilt

were not only based on the statements made by the co-accused S. but

also on various other evidence obtained in the tax investigation

proceedings such as the faked and the true inventories, productivity

statistics, stock value reports and other documentary evidence,

also referred to by the Supreme Court.

There is consequently nothing to show that the proceedings

were conducted in an unfair manner or that the Austrian courts

arbitrarily disregarded vital evidence or based their decisions on

arbitrary considerations violating the applicants' right to a fair

hearing within the meaning of Article 6 (Art. 6) of the Convention.

The Commission finally notes that Article 1 of Protocol No. 1

(P1-1) to the Convention does not impair the right of a State to secure the

payment of penalties.

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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G.K. ; R.G. v. AUSTRIA

G.K. ; R.G. v. AUSTRIA

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