Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11439/85

by Kurt STEINLECHNER (deceased)

against Austria

The European Commission of Human Rights sitting in private

on 5 October 1987 the following members being present:

MM. C.A. NØRGAARD, President

M.A. TRIANTAFYLLIDES

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

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 10 July 1984

by Kurt Steinlechner (deceased) against Austria and registered

on 18 March 1985 under file N° 11439/85;

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&S

The applicant, an Austrian citizen born in 1932, who resided

in Salzburg, died on 23 February 1985. He was represented by

Mr. R. Zitta, a lawyer practising in Salzburg, who is now representing

the applicant's widow, Mrs. Ariane Steinlechner, and his children,

Günther and Ingrid Steinlechner, who have indicated that they wish to

pursue the application.

The applicant was the accountant of a company which imported

and sold timber. When the company was transformed into a limited

liability company the applicant became head clerk.

In 1973 the Austrian customs authorities discovered

irregularities in the declaration of the value of imported rosewood

for inlaying. Further investigations showed that customs duties and

other taxes had been evaded. The amount of evaded taxes was assessed

after hearing the applicant. On 31 July and 25 September 1973 the

financial authorities in Salzburg and Vienna issued tax decisions

against the company which paid the taxes to the treasury.

On 31 May 1974 criminal proceedings for tax evasion were

brought against the applicant and another person. On 19 November 1974

a hearing took place which was postponed to 26 January 1977 in order

to take evidence. It was further postponed to 27 and 28 April 1977

because the judge had had an accident.

By judgment of 28 April 1977 the Regional Court (Landesgericht)

of Salzburg convicted the applicant of breaches of the Code of

Financial Offences, fined him and sentenced him to one year's

imprisonment. The Court fixed the penalty on the basis of the amount

of the company's financial obligations as established in the tax

decisions. The judgment was served on the applicant on 11 April 1978.

The applicant and the prosecutor filed pleas of nullity.

The applicant also lodged an appeal against the sentence.

On 23 October 1979 the Supreme Court (Oberster Gerichtshof)

partly admitted the plea of nullity and therefore did not decide on

the applicant's appeal. It confirmed the view that the existence of

fiscal debts resulting from a final tax decision had to be considered

as a fact the correctness of which could not be re-examined by the

penal judge. However, it quashed the judgment of the Regional Court

with regard to the legal qualification of certain charges and the

penalties pronounced and referred these aspects of the case back

to the Regional Court of Salzburg.

On 8 April 1980 the applicant and his co-accused introduced an

application against Austria (No. 8975/80) complaining that these

criminal proceedings violated Article 6 paras. 1 and 2 of the

Convention insofar as, according to the judgments of the Regional

Court of Salzburg and the Supreme Court, the final decisions of the

tax authorities had a binding effect for the penal judge.

On 2 March 1983 the Commission declared the application

inadmissible. It found that the applicants could not at that stage

of the proceedings claim to be victims in the sense of Article 25 of

the Convention. It pointed out that the Supreme Court had quashed the

judgment of the Regional Court with regard to the legal qualification

of certain offences and the penalties, and noted that the case was

still pending before the Salzburg Regional Court.

On 13 June 1980 the Regional Court fixed 16 September 1980 as

date of the new trial. However, that hearing was postponed to

21 October 1980 at the request of the applicant's co-defendant. At

the hearing the Regional Court decided to take expert evidence. A

first expert opinion was delivered to the Court on 23 July 1981. A

second opinion was ordered on 31 July 1981 and was delivered to the

Court on 27 May 1982 and amended on 1 April 1983.

On 12 August 1983 the Regional Court ordered a hearing to be

held on 20 September 1983 which was postponed to 20 December 1983

because the applicant's co-defendant was prevented from attending. As

the Court had summoned only one expert the hearing was eventually

adjourned to 10 January 1984. In the meantime the applicant fell ill.

He waived his right to appear at the hearing. Thus, the hearing took

place on 10 January 1984 in his absence.

On the same date the Regional Court pronounced its judgment.

It partially acquitted the applicant and in respect of the remaining

charges sentenced him to a conditional imprisonment of six months, a

fine of two million AS and a further fine (Wertersatzstrafe) of

sixty-two million AS. This judgment was not served until 13 July 1984.

On 10 July 1984 the applicant introduced the present

application complaining of violations of Article 6 para. 1 and

Article 13 of the Convention.

Against the judgment of 10 January 1984 the applicant filed a

plea of nullity concerning his conviction and an appeal against the

sentence.

The plea of nullity was rejected by the Supreme Court on

20 November 1984.

The appeal was referred to the Linz Court of Appeal which

ordered a hearing to be held on 18 March 1985. However, this hearing

was cancelled after the applicant's death on 23 February 1985.

On 19 July 1985 the Salzburg Regional Court declared the case

terminated.

&_COMPLAINTS&S

1. The applicant complained under Article 6 para. 1 of the

Convention that the criminal charges against him were not determined

within a "reasonable time". Several delays were neither caused by the

conduct of the parties nor by special circumstances or the complexity

of the case.

The applicant also complained under Article 13 of the

Convention that Austrian law did not provide for an effective remedy

against an unreasonable length of proceedings.

By letter of 7 May 1985 the applicant's widow and his

children, represented by the applicant's lawyer, informed the

Commission that they were the applicant's heirs and that they wished

to pursue the case before the Commission. They claimed that they were

victims in the sense of Article 25 of the Convention, in that they had

suffered material damages, i.e. their obligation to pay the lawyer's

fees, and immaterial damages, i.e. mental suffering due to the

impending punishment of the applicant.

2. On 8 May 1985 the applicant's heirs introduced further

complaints. They stated that they wished to re-introduce the

complaints raised in the applicant's earlier application No. 8957/80

which had been declared inadmissible because at the relevant time the

applicant had not been finally convicted and therefore could not claim

to be a victim.

The applicant's heirs submit that they are indirect victims in

the sense of Article 25 of the Convention because the applicant was

afflicted with a criminal conviction. As the case was declared

terminated there are no further remedies.

The applicant's heirs complain under Article 6 paras. 1 and 2

of the Convention that the Salzburg Regional Court and the Supreme

Court considered themselves bound by final administrative decisions

with regard to the facts of the criminal case.

&STHE LAW&S

1. The case concerns criminal proceedings taken against the

applicant under the Code of Financial Offences which had been pending

since 1974. Before the proceedings were concluded by a final decision

the applicant died.

The Commission notes that during his life-time the applicant

raised complaints under Article 6 para. 1 and Article 13 (Art. 6-1, 13) of the

Convention concerning the length of the above criminal proceedings

which his heirs now wish to pursue together with additional complaints

which they introduced after his death. The latter concern the binding

effect of administrative decisions on the penal judge, which they consider to

be contrary to Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.

2. The Commission recalls the case-law of the Convention organs

according to which the fact that an applicant dies does not in itself

dispose of his complaint. It falls to the Convention organ before

which the case is pending to decide whether the application should be

further examined. In the examination of this question, special

consideration should be given to the intentions expressed by the

applicant's legal successors as well as to the nature of the complaint

(cf. Eur. Court H.R., Deweer judgment of 27 February 1980, Series A

no. 35 para. 37; Kofler v. Italy, Comm. Report 9.10.82, D.R. 30 p. 5;

No. 10474/83, Veit v. Federal Republic of Germany, Dec. 9.6.86, p.28).

The applicant's heirs wish to pursue the applicant's

complaints concerning the allegedly unreasonable length of the

criminal proceedings. However, the right to the speedy conduct of

criminal proceedings is in principle a personal right of the accused

which, after his death, cannot be invoked by members of his family

unless they have themselves been seriously affected by the excessive

length of these proceedings (cf. Kofler v. Italy, loc. cit.). The

Commission considers that the members of the present applicant's

family were not so seriously affected by the length of the criminal

proceedings that they could claim immaterial damages on that account.

Insofar as they claim that they have suffered material damage the

Commission accepts that this could constitute a ground to continue the

examination of the case (cf. No. 10474/83, Veit v. Federal Republic of

Germany, loc. cit.). However, the Commission finds that the

applicant's heirs have failed to substantiate that they indeed

suffered a material damage. In particular, they have not been able to

show that the penalties pronounced against the applicant and more

specifically the fines imposed on him by the Court of first instance

could now be enforced against them or the applicant's estate. In view

of the lack of a final sentence this seems to be excluded under

Austrian law. Insofar as the applicant's heirs may be required to

bear lawyer's costs incurred by the applicant, they have failed to

show that these costs involved any sums attributable specifically to

the length of the criminal proceedings and thus related to the

substance of the applicant's complaint. It follows that the

applicant's heirs cannot claim to be seriously affected by the

proceedings complained of.

In accordance with its usual practice, the Commission has

nevertheless considered whether any question of general interest

affecting the observance of the obligations undertaken by the High

Contracting Parties requires a further examination of the application.

It notes that the delay in the criminal proceedings complained

of was apparently caused by a series of circumstances affecting the

conduct of these proceedings. However, the length of the proceedings

was not a result of the Austrian rules of procedure. The Commission

therefore finds no general interest which necessitates the further

consideration of the complaint under Article 6 para. 1 (Art. 6-1) of the

Convention.

The Commission, considering that Article 6 (Art. 6) is lex specialis in

relation to Article 13 (Art. 13) , finds no separate issue under Article 13

(Art. 13) of the Convention.

In conclusion the Commission finds no basis for a continued

examination of the complaint concerning the length of the criminal

proceedings.

3. The applicant's heirs also complain under Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention that in the relevant proceedings the criminal

courts considered themselves bound by administrative decisions.

The Commission notes that similar complaints were raised by

the applicant in his earlier application No. 8957/80 which the

Commission declared inadmissible on 2 March 1983 on the ground that

the applicant could not claim to be a "victim" before the final

conclusion of the criminal proceedings.

The Commission has considered this part of the application under

Article 27 para 1 (b) (Art. 27-1-b) of the Convention which provides:

"The Commission shall not deal with any petition

submitted under Article 25 (Art. 25) which

(a) ...

(b) is substantially the same as a matter which

has already been examined by the Commission

... and if it contains no relevant new

information"

The Commission considers that the application of this

provision is not excluded by the fact that the applicant died and that

the above complaints have now been submitted by the applicant's heirs.

It notes their statement that they wish to re-introduce the complaints

raised in the applicant's earlier application No. 8957/80 and finds

that, in its examination of these complaints under Article 27 para. 1 (b)

(Art. 27-1-b), it must have regard to the situation at the time of

the introduction of the present application by the applicant. It follows that

there is identity of parties in both cases. Moreover, the subject-matter of

application No. 8957/80 is the same criminal proceedings against the applicant

of which his heirs now complain as his legal successors. This being so, the

complaint now pursued by the applicant's legal successors could be examined by

the Commission only if the successors had submitted relevant new information.

In this respect the Commission notes the information that the

applicant died on 23 February 1985 and that the proceedings were

declared to be terminated by the Salzburg Regional Court's decision

of 19 July 1985. The proceedings were thus not concluded by a final

judgment and the situation complained of presents no relevant new

element if compared to that examined by the Commission in the

applicant's previous application No. 8957/80.

The Commission concludes that the above complaints, as pursued

by the applicant's heirs, are substantially the same as the

applicant's complaints in his previous application No. 8957/80 and

that they contain no relevant new information. It follows that this

part of the application must be rejected under Article 27 para 1 (b)

(Art. 27-1-b) of the Convention.

For these reasons, the Commission

&_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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STEINLECHNER v. AUSTRIA

STEINLECHNER v. AUSTRIA

LEXI