THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62512/00 by H.M. against Germany

The European Court of Human Rights (Third Section), sitting on 9 June 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr L. Caflisch , Mr C. Bîrsan , Mrs A. Gyulumyan , M r s R. Jaeger , Mr E. Myjer , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 13 September 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms H.M., is a German national who was born in 1938 and lived in Stuttgart before moving abroad. Her present place of residence is unknown to the Court. She was represented before the Court by Mr G. Dannemann , a lawyer practising in London and Berlin . The respondent Government were represented by Mr K. Stoltenberg, Ministerialdirigent , and, subsequently, Mrs A. Wittling -Vogel, Ministerialrätin .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

Following a tax audit the Tax Frauds Office ( Steuerfahndung ) came to the conclusion that the applicant, a self-employed dentist, had transferred 2,808,407 Deutschmarks (DEM) to Luxembourg without having declared this income in her tax returns. The tax authorities subsequently instituted p roceedings with a view to changing the applicant ' s income tax assessment.

On 15 March 1996 criminal proceedings were instituted against the applicant on suspicion of tax evasion.

By the end of 1996 the applicant moved abroad.

On 19 December 1996 the Stuttgart District Court issued a national warrant of arrest against the applicant. On 27 January 1997 the Stuttgart District Court quashed the national arrest warrant and issued an international arrest warrant . To date, it has not been possible to execute this warrant.

2. Proceedings concerning the provisional attachment of the applicant ' s goods

a. Preliminary proceedings

On 4 October 1996 the Stuttgart Tax Office ordered the provisional attachment of the applicant ' s goods ( dinglicher Arrest ) in order to secure expected claims for supplementary tax payments for the years 1987 t o 1994 of 1,190,485 DEM .

On 21 October 1996 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to set aside the order of the provisional attachment of her goods.

The provisional attachment of the applicant ' s goods was subsequently executed by the registration of mortgages on the applicant ' s real property. The applicant, on dates unknown to the Court, lodged several constitutional complaints with the Federal Constitutional Court , claiming that these enforcement measures prior to a court ' s decision on her liability to pay the taxes claimed violated the presumption of innocence.

On 21 March 1997 the applicant changed her action to set aside the order of the provisional attachment of her goods into an action for a declaration that this order had been unlawful ( Fortsetzungsfeststellungsklage ). The applicant argued that she had a legitimate interest to obtain this declaration as she wanted to rely on it in official liability proceedings ( Amtshaftung sverfahren ) before the civil courts pursuant to Section 839 of the Civil Code.

On 8 October 1997 the Baden-Wurttemberg Tax Court held a preliminary hearing ( Erörterungstermin ) in the applicant ' s case.

b. Decision on jurisdiction

On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing, decided that the financial courts had jurisdiction over the subject-matter.

On 7 December 1999 the Federal Tax Court dismissed the applicant ' s appeal against this decision as inadmissible.

c. Decision on admissibility

On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant ' s action was admissible. In particular, the fact that the applicant could constantly be reached via her counsel, but did not disclose her actual place of residence because of the arrest warrant against her, did not render her actions inadmissible.

On 24 March 2000 the Federal Constitutional Court refused to admit the applicant ' s constitutional complaint concerning violations of the presumption of innocence by several enforcement measures. It appears that the Federal Constitutional Court , on dates unknown to the Court, refused to entertain further constitutional complaints lodged by the applicant concerning the same subject-matter.

On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office ' s appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant ' s counter-appeal on points of law as inadmissible.

d. Decision on the merits

On 20 February 2001 the Baden-Wurttemberg Tax Court dismissed the applicant ' s action concerning the lawfulness of the provisional attachment of her goods as ill-founded and refused to grant the applicant leave to appeal on points of law. In its judgment, the Tax Court stated that it was sufficiently likely, on the balance of probabilities, that the applicant intentionally evaded taxes. Consequently, the amount of taxes due could be estimated also for the years 1987 to 1989.

The applicant appealed against the Baden-Wurttemberg Tax Court ' s decision not to grant leave to appeal on points of law.

On 13 September 2001 (decision served on 10 November 2001 ) the Federal Tax Court dismissed the applicant ' s appeal as inadmissible, because no appeal on points of law lay against the judgment of the Baden-Wurttemberg Tax Court.

On 1 December 2001 the applicant lodged a constitutional complaint against the decision of the Federal Tax Court of 13 September 2001 , claiming , inter alia , that the proceedings lasted unreasonably long and that the decision violated the presumption of innocence.

On 6 June 2003 t he Federal Constitutional Court , without giving reasons for its decision, refused to admit the applicant ' s constitutional complaint.

3. Proceedings concerning the lawfulness of the tax assessment notices

a. Preliminary proceedings

On 3 December 1996 the Stuttgart Tax Office changed the applicant ' s notices of assessment for the years 1987 to 1993, increasing the applicant ' s liability to pay income tax. It also issued a tax assessment notice for the year 1994. The applicant lodged an objection ( Einspruch ) against these notices with the Tax Office.

On 23 October 1997 the Stuttgart Tax Office issued a tax assessment notice for the applicant for the year 1995. The applicant lodged an objection ( Einspruch ) also against this notice with the Tax Office.

On 28 February 1998 the applicant brought an action with the Baden-Wurttemberg Tax Court against the Stuttgart Tax Office to declare void the tax assessment notices for the years 1987 to 1995.

On 20 May 1998 the Baden-Wurttemberg Tax Court held a preliminary hearing ( Erörterungstermin ) in the applicant ' s case concerning the lawfulness of the changed tax assessment notices.

b. Decision on jurisdiction

On 26 January 1999 the Baden-Wurttemberg Tax Court, following a hearing (in which the actions concerning the lawfulness of the changed tax assessment notices and the provisional attachment of the applicant ' s goods were treated together), decided that the financial courts also had jurisdiction over this subject-matter.

On 7 December 1999 the Federal Tax Court dismissed the applicant ' s appeal as inadmissible.

c. Decision on admissibility

On 2 March 2000 the Baden-Wurttemberg Tax Court decided that the applicant ' s action, for the same reasons as the joined action concerning the provisional attachment of her goods, was admissible.

On 19 October 2000 the Federal Tax Court dismissed the Stuttgart Tax Office ' s appeal on points of law against the decision of the Baden-Wurttemberg Tax Court of 2 March 2000 as ill-founded and the applicant ' s counter appeal on points of law as inadmissible.

d. Decision on the merits

On 22 May 2003 the Baden-Wurttemberg Tax Court dismissed the applicant ' s action to declare the tax assessment notices for the years 1987 to 1995 to be void as ill-founded.

The applicant subsequently appealed against the decision of the Baden-Wurttemberg Tax Court not to grant her leave to appeal on points of law. The case is currently still pending before the Federal Tax Court.

4. Proceedings concerning the applicant ' s request for a stay of execution

On 24 January 2000 the Baden-Wurttemberg Tax Court rejected the applicant ' s motion for a stay of execution in respect of the payment of supplementary income tax for the years 1987 to 1995.

In its reasoning, the Bad en-Wurttemberg Tax Court stated that there was no reasonable doubt that the applicant intentionally understated her income in all the years in dispute. It considered it to be “impossible that the criminal court later could merely assume a grossly negligent tax evasion ( ... ), as the manipulations of her receipts and expenditure by the applicant, by their very nature, could only have been carried out intentionally.” Consequently, the tax authorities were entitled to estimate her income in the relevant years.

On 12 February 2000 the applicant lodged a complaint with the Federal Constitutional Court . She claimed inter alia that the decision of the Baden-Wurttemberg Tax Court of 24 January 2000 , by stating that she was guilty of tax evasion, violated the presumption of innocence.

On 24 March 2000 the Federal Constitutional Court refused to admit the applicant ' s constitutional complaint.

5. Criminal proceedings

On 22 December 1999 the Stuttgart Public Prosecutor ' s Office decided to discontinue the criminal proceedings against the applicant during the time the arrest warrant against her could not be executed.

On 17 October 2001 the Stuttgart Court of Appeal decided that the applicant ' s rights under Article 6 § 3 of the Convention had not been violated by this decis ion , no indictment having been issued against her as yet.

On 5 December 2001 the Federal Court of Justice dismissed the applicant ' s appeal against this decision as inadmissible.

On 5 January 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court . She claimed that the decision of the Public Prosecutor ' s Office to discontinue the criminal proceedings against her, without the arrest warrant being quashed, violated her rights under the German Basic Law.

On 20 February 2002 the Federal Constitutional Court refused to admit the applicant ' s constitutional complaint, as the latter, not giving sufficient reasons for a possible human rights violation, was inadmissible.

6. Further proceedings concerning tax assessment and enforcement

The applicant instituted numerous further proceedings in the German tax courts, applying to set aside further notices of tax assessment for the years 1996 to 1999 issued by the Stuttgart Tax Office and to stay the execution of various enforcement measures.

Between 21 January 1999 and 3 November 2000 the applicant lodged eleven constitutional complaints concerning these proceedings. The Federal Constitutional Court did not admit any of these complaints, without giving reasons for its decisions.

On 3 November 2000 the applicant therefore challenged three judges of the Federal Constitutional Court on grounds of bias. She was subsequently info rmed by a letter of that court that a challenge of the judges was only possible before the beginning of the hearing of a case.

Furthermore, on 21 October 2002 , in one of these sets of proceedings, the Stuttgart Tax Office attached the applicant ' s claims against three banks in Germany .

On 26 December 2002 the applicant applied to the Federal Constitutional Court for an inter im order, claiming that these attachments, not leaving to her a minimum living wage any longer, violated her rights to life and physical integrity.

On 9 January 2003 the Federal Constitutional Court refused to admit the applicant ' s constitutional complaint.

In its decision of 6 June 2003 the Federal Constitutional Court refused to admit another constitutional complaint concerning the applicant ' s tax litigation and cautioned her that she might be fine d for having misused the right of petition ( Mißbrauchsgebühr ) if she lodged further similar complaints.

B. Rele vant domestic law

1. Law relating to the change of tax assessments and tax evasion

Under the Taxation Code ( Abgabenordnung ), the period of limitation during which the tax authorities are entitled to change a tax assessment depends inter alia on the question whether the taxpayer intentionally or negligently evaded taxes.

Under the heading “statute of limitation for tax assessment” ( Festsetzungsverjährung ), Section 169 of the Taxation Code, as far as relevant, provides as follows:

“Time limit for tax assessment.

(1) The assessment of taxes as well as its revocation or change shall be excluded on expiry of the time limit for tax assessment. ( ... )

(2) The time limit for tax assessment shall be

The time limit for tax assessment shall be ten years insofar as a tax has been evaded and five years as far as a tax has been understated with gross negligence. ( ... )”

Tax evasion, when committed intentionally, is a criminal offence which is punishable with up to five years ' imprisonmen t or a fine pursuant to Section 370 of the Taxation Code.

Understating taxes with gross negligence ( leichtfertige Steuerverkürzung ) is punishable as a regulatory offence ( Ordnungswidrigkeit ) pursuant to Section 378 of the Taxation Code.

Section 393 of the Taxation Code, on the relationship between criminal proceedings and tax assessment proceedings, provides that the rights and duties of the person liable to pay taxes and of the tax authorities are determined by the provisions applicable in the respective proceedings.

2. Law governing official liability proceedings and their interrelation with proceedings before the tax courts

In proceedings before the tax courts, an action to set aside a decision of the tax authorities ( Anfechtungsklage ) can be changed into an action for a declaration that the relevant decision was unlawful ( Fortsetzungsfeststellungsklage ) as soon as the decision has been executed. The latter action is admissible if the plaintiff can prove to have a legitimate interest in this declaration. It is accepted that the plaintiff has such a legitimate interest if he states that he wants to rely on the declaration by the tax courts that the authority ' s decision was unlawful in subsequent official liability proceedings.

The conditions of liability of an official ( Amtshaftung ) are laid down in Section 839 of the Civil Code. Pursuant to this Section, a person can claim compensation for breaches of duty committed by an offi cial. It is the civil courts which have jurisdiction in these liability proceedings.

3. Law governing the conduct of criminal proceedings in the defendant ' s absence

Pursuant to Section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia -trial. A limited number of exceptions to this rule are notably laid down in Sections 231 et seq. A hearing may , in particular, be held in the defendant ' s absence in cases in which he has been summoned correctly and only a fine of up to 180 daily rates ( Tagessätze ) is to be expected (Section 232 of the Code of Criminal Procedure) .

According to Section 205 of the Code of Criminal Procedure, applied by analogy, the competent public prosecutor is entitled to temporarily discontinue the preliminary criminal proceedings , if the absence of the defendant prevent s the holding of a main hearing for a considerable period of time.

COMPL AINTS

1. The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings concerning the prov isional attachment of her goods and the lawfulness of the changed tax assessment notices for the years 1987 to 1995 before the tax courts.

2. She further complained under Article 6 § 2 of the Convention that , both in the proceedings concerning the provisional attachment of her goods and in the proceedings concerning her request for a stay of execution , the Baden-Wurttemberg Tax Court, by assuming that she had committed tax evasion, had violated the presumption of innocence. She also complained under Article 6 § 2 of the Convention that the tax claims against her had been enforced prior to a determination by the courts of her liability to pay them, obliging her to prove that she had not commit ted tax evasion.

3. As regards the criminal proceedings against her, the applicant, i nvoking Article 6 § 1 and § 3 (a) of the Convention, also complained about the length of these proceedings, that she had not been informed about the nature and cause of the accusations against her and that the accusations against her were wrong.

4. As regards further proceedings concerning tax assessment and enforcement measures against her, the applicant complained under Articles 6 § 1 and 13 of the Convention about the unfairness of the proceedings before the Federal Constitutional Court . She argued that she had not had an effective remedy in the proceedings before the said court, because its biased judges had not given any reasons for their decision.

5. The applicant also complained under Articles 2 and 3 of the Convention that the enforcement measures, not leaving her a minimum living wage, violated her right to life and the prohibition of torture.

THE LAW

A. Length of the proceedings in the tax courts

The applicant complained that the length of the proceedings concerning the provisional attachment of her goods and the lawfulness of the changed tax assessment notices for the years 1987 to 1995 before the tax courts was in breach of the reasonable time requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1. The parties ' submissions

The Government maintained that the complaint about the length of the two sets of proceedings in question was incompatible ratione materiae with the Convention. Article 6 § 1 was not applicable to the present proceedings before the Tax Courts. Despite their financial implications for the taxpayer, tax proceedings, including proceedings aimed at securing and enforcing the payment of tax debts, did not concern the applicant ' s civil rights and obligations within the meaning of that article. The proceedings concerning the lawfulness of the provisional attachment of the applicant ' s goods could also not be considered to concern the determination of a civil right for the mere reason that the applicant wanted to use the findings of the tax courts in subsequent official liability proceedings for damages before the civil courts. The proceedings before the civil courts were independent of, and not closely interrelated to the pro ceedings before the tax courts.

Likewise, in the Government ' s view, the applicant ' s proceedings before the tax courts did not involve the determination of a criminal charge against her. As set out in Section 393 of the Taxation Code (see ' Relevant domestic law ' above), pro ceedings before the tax courts we re independent of criminal proceedings concerning tax evasion . T hey concerned the assessment and payment of outstanding tax debts and did not entail any sanctions or finding of guilt . The claim for tax debts could also not be qualified as being of a criminal nature for the sole reason that the State, pursuant to Section 169 of the Taxation Code (see ' Relevant domestic law ' above), was entitled to demand outstanding debts from dishonest taxpayers for a longer period of time than from other taxpayers. This difference in treatment was justified because of the breach o f duties a tax evasion involved .

The applicant contested the Government ' s view as to the incompatibility ratione materiae of her complaint with the Convention. In respect of the proceedings concerning the provisional attachment of her goods s he argued that her complaint did concern the determination of her civil rights and obligations, as no official liability action would lie if she had not previously exhausted all public law remedies available against the act subsequently complained of in the liability action. Consequently, the proceedings concerning the provisional attachment of her goods were prejudicial to the outcome of her official liability proceedings. In this respect, she relied on the Court ' s judgment of 23 October 1997 in the case of National & Provincial Building Society and Others v. the United Kingdom ( Reports of Judgments and Decisions 1997-VII, p. 2359, § 98). Moreover, the proceedings concerned the attachment of the applicant ' s private property with a view of depriving her of her title to this property by way of forced sale, and therefore involved her civil rights.

The applicant also submitted that both sets of proceedings before the tax courts concerned a criminal charge against her . I n accordance with Section 169 of the Taxation Code, t he se courts had addressed the question whether or not she had committed tax evasion , that is, a criminal offence, within the meaning of Section 370 of the Taxation Code. It was only due to their finding that she was guilty of tax evasion that the tax authorities were entitled to reassess the taxes payable by her for the last ten years (1987-1996) , and not only for the last four years, and could secure and enforce the payment of taxes also for this earlier period. The taxes payable for these additional six years amounted to several hundred thousand Deutschmarks, and therefore had to be regarded as a criminal sanction. It was irrelevant that the tax courts had no jurisdiction to criminally convict her of tax evasion .

2. The Court ' s assessment

As regards the applicability of Article 6 § 1 under its “civil” head, t he Court recalls that tax matters form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant. It has therefore consistently held that, generally, tax disputes fall outside the scope of “civil rights and obligations”, despite the pecuniary effects which they neces sarily produce for the taxpayer (see Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001-VII ; Mieg de Boofzheim v. France , no. 52938/99, ECHR 2002-X ; Remy and Others v. Germany ( dec .), no. 70826/01, 16 September 2004 ) .

A ccording to the Court ' s case-law, the concept of “civil rights and obligations” is , however, “autonomous” within the meaning of Article 6 § 1, and has to be interpreted with regard to the special circumstances of the case (see Ferrazzini , cited above, § 24 ; Martinie v. France ( dec .), no. 58675/00, § 27, ECHR 2004-II) .

T he Court notes that in the present case, unlike in the case of National & Provincial Building Society and Others ( cited above , p. 23 59, §§ 97-98) on which the applicant relied, there is no link between the proceedings concerning the lawfulness of the changed tax assessment notices and any further civil proceedings. This dispute therefore falls clearly outside the scope of “civil rights and obligations” within the meaning of Article 6 § 1.

As regards the proceedings concerning the provisional attachment of the applicant ' s goods, the Court observes that there were certain links between the applicant ' s action in the tax courts for a declaration that the provisional attachment of her goods had been unlawful and her planned subsequent official liability proceedings in the civil courts . On the one hand, the action for the said declaration remained admissible because of the applicant ' s legitimate interest in this declaration, which she established by claiming that she wanted to rely on this declaration in subsequent official liability proceedings. On the other hand, the finding by the tax courts that the provisional attachment of her goods had been unlawful was one element to prove the applicant ' s damages claim in the civil courts. However, these link s between the two sets of proceedings cannot be considered as connect ing them so closely that the proceedings must be regarded as a concerted private law action, with the proceedings in the tax courts sha ring the private law character of the proceedings in the civil courts. This is the case, in particular, because the applicant, following the dismissal of her action in the tax courts, in fact never brought official liability proceedings in the civil courts.

It follows that Article 6 § 1 is not applicable under its “civil” head to both sets of proceedings in question .

It remains to be determined whether the said proceedings before the tax courts instead involved the determination of a “criminal charge” within the meaning of Article 6 § 1. The Court reiterates that the concept of “criminal charge” within the meaning of Article 6 is an autonomous one. The prominent place held in a democratic society by the right to a fair trial prompts the Court to prefer a “substantive”, rather than a “formal”, conception of the “ criminal charge” contemplated by that article. The Court is compelled to look behind the appearances and investigate the realities of the procedure in question (see notably Deweer v. Belgium , judgment of 27 February 1980, Series A no. 35, p. 23, § 44).

In determining whether an offence qualifies as “criminal”, the Court has regard to three criteria . Firstly, as a starting point, it is necessary to know whether the provisions defining the offence charged belong, according to the legal system of the respondent State, to the sphere of criminal law. Secondly, the nature of the offence , considered also in relation to the nature of the corresponding penalty, has to be taken into account . Thirdly, regard must be had to the degree of severity of the penalty which the person concerned risked incurring (see, inter alia , Engel and Others v. the Netherlands , judgment of 8 June 1976, Series A no. 22, pp. 34-35, § 82; Bendenoun v. France , judgment of 24 February 1994, Series A no. 284, p. 20, § 47; A.P., M.P. and T.P. v. Switzerland , judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1488 , § 39; Janosevic v. Sweden , no. 34619/97, § 65, ECHR 2002-VII ) .

As regards the legal classification of the provisions allowing for the retroactive assessment of taxes under domestic law, the Court notes that this assessment is provided for in tax law, notably the Taxation Code. It is the task of the tax authorities and the tax courts to decide on an individual ' s tax assessment. It is true that according to Section 169 of the Taxation Code, the time limit for a tax assessment is prolonged if there is a tax evasion, that is, a criminal offence within the meaning of Section 370 of the Taxation Code, and that the latter provision belongs to the sphere of criminal law. However, the Court finds that this is not sufficient to remove the provisions on tax reassessment as such from the special branch of tax law and to qualify the m as belonging to criminal law .

As to the nature of the conduct imputed to the applicant, the Court observes that the tax authorities and tax courts found that the applicant had failed to declare all her income in her tax returns . They therefore changed her notices of assessment in accordance with the applicable tax law provisions, which covered all citizens in their capacity as taxpayers, and not a given group with a particular status. Having found that the applicant had intentionally evaded taxes, the tax authorities reassessed her taxes not only for the past four, but for the past ten years , basing their calculation of the amount of taxes the applicant was liable to pay on an estimate of her true income.

Having regard to this, the Court fin ds it decisive that the tax which has to be paid under these circumstances is only the amount of tax which would have been fixed had the person concerned given correct information on his or her true income in the tax returns for the respective years. The additional taxes are, therefore, no more than a pecuniary compensation for the losses caused by the taxpayer due to incorrect information in the tax return. This distinguishes them from such tax surcharges, which , for their punitive nature, have been found to involve a “criminal charge” within the meaning of Article 6 for example in the Bendenoun and Janosevic cases (cited above ; as opposed to Morel v. France ( dec .), no. 54559/00, ECHR 2003-IX ) .

The Court finds that the compensatory nature of such an increase in the taxpayer ' s liability to pay income tax is not called into question by the fact that the time limit for a reassessment is prolonged in cases in which the taxpayer negligently or intentionally understated taxes. It is the function of the provision on the applicable time limit to fix a proper balance between the necessity of legal certainty and the taxpayer ' s trust in the finality of his tax assessment, on the one hand, and the pub lic interest that the taxpayer ' s du ty to pay taxes is assessed and enforced in ac cordance with his true income, on the other hand. It i s justified to strike the balance between these two interests differently by prolonging the time limit for a tax reassessment, thereby according more weight to the public interest in the collection of taxes due, in cases in which it is attributable to the taxpayer that his taxes have not been assess ed correctly at the relevant time . In this case, the taxpayer ' s legitimate expectation in the finality of his tax assessment warrants less protection. Consequently, the purpose of this prolongation of the time limit in case of tax evasion, even though it may entail a larger amount of additional taxes payable, is basically to strike a fair balance between t he individual ' s and the public interest also in these cases with respect to the taxpayer ' s liability to pay income tax. It cannot be equalled to that of a deterrent and punitive penalty and does not suffice to show that the applicant, for the purposes of Article 6, was charged with a criminal offence (see, mutatis mutandis , King v. the United Kingdom , no. 13881/02, 17 February 2004 ) .

Turning to the assessment of the degree of severity of the penalty which the applicant risked incurring, the Court notes that the additional taxes payable following a reassessment of the taxes due in cases in which the tax authorit ies found that a taxpayer had intentionally evaded taxes have no upper limit and may come to very large amounts. Indeed, in the present case the additional taxes payable by the applicant because of the prolongation of the time limit for her tax reassessment were substantial, amounting to several hundred thousand Deutschmarks. However, it has to be borne in mind also in this respect that the person concerned merely has to pay the amount of taxes avoided in past years due to wilful default or neglect , without any surcharges being payable.

Having weighed the various aspects of the case, the Court perceives a clear predominance of those which do not have a criminal connotation. Consequently, the proceedings in question did as a whole not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention.

It follows that Article 6 is neither applicable under its “civil” no r under its “criminal” head to the proceedings in question . This part of the application must therefore be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 35 §§ 3 and 4 of the Convention .

B. Presumption of innocence

The applicant complained that , both in the proceedings concerning the provisional attachment of her goods and in the proceedings concerning her request for a stay of execution , the Baden-Wurttemberg Tax Court, by assuming that she had committed tax evasion, had violated the presumption of innocence . She further maintained that the tax claims against her had been enforced prior to a determination by the courts of her liability to pay them, obliging her to prove that she had not committed tax evasion. She invoked Article 6 § 2 of the Convention, which reads:

“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

1. The parties ' submissions

The Government maintained that the application was incompatible ratione materiae with the Convention also in this respect. Article 6 § 2 was only applicable to criminal proceedings and therefore did not extend to the present proceedings before the tax c ourts. These proceedings did not entail any finding of criminal liability of tax evasion committed by the applicant. Moreover, the proceedings about the provisional attachment of her goods and her request for a stay of execution both concerned only interim measures. In these proceedings , the tax courts did not have to render a final decision on , inter alia , the question whether the applicant satisfied the objective and subjective criteria of tax evasion, but only had to decide whether this was likely , on the balance of probabilities. In any event, the presumption of innocence had not been violated for these reasons .

The applicant argued that the presumption of innocence did not only have to be o bserved in criminal proceedings. Article 6 § 2 was also applicable to statements made in o ther proceedings. T he fact that it was not the task of the tax courts to decide on her guilt under criminal law did not mean that they ha d not violate d the presumption of innocence when they had in fact stated that she had committed a criminal offence. T he Baden-Wurttemberg Tax Court, in the reasoning of its decisions of 24 January 2000 and of 20 February 2001 , had expressly found her guilty of tax evasion. T he tax authorities ' and tax courts ' powers to order a person to submit information capable of incriminating that person and their wide-ranging powers to estimate facts if the person concerned failed to submit that information was incompatible with the presumption of innocence. This was in particular true for the German tax authorities, who were competent to conduct material parts of the investigation and prosecution of tax-related offences. Therefore, if the tax authorities had to determine, for the purposes of Section 169 § 2 of the Taxation Code, whether a person had committed tax evasion, the presumption of innocence required that this fact was established by the criminal courts.

2. The Court ' s assessment

The Court refers to its above finding that Article 6 is neither applicable under its “civil” nor under its “criminal” head to the proceedings concerning the provisional attachment of the applicant ' s goods. For the reasons set out above, the same applies to the proceedings concerning the applicant ' s request for a stay of execution. Contrary to the applicant, t he Court finds that there is no further issue which bring s the impugned statements made in these proceedings within the ambit of Article 6 § 2. Consequently, t his part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

C. Length of the criminal proceedings

The applicant further claim ed that the length of the criminal proceedings against her had been excessive . She relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The Court notes that the criminal proceedings against the applicant started at the latest on 19 December 1996 , when an arrest warrant was issued against her. On 22 December 1999 the Public Prosecutor ' s Office temporarily discontinued the criminal proceedings during the time the arrest warrant could not be executed, and no indictment has been issued yet. The proceedings have, therefore, to date been pending for more than eight years and four months.

The Court recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court ' s case-law, in particular the complexity of the case, the applicant ' s conduct and th at of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II; Gast and Popp v. Germany , no. 29357/95, § 70, ECHR 2000-II).

The Court finds that the applicant ' s case, which involved the assessment of tax debts concerning eight years, was a complex one .

As regards the applicant ' s conduct and that of the competent authorities, the Court observes that it is entirely imputable to the applicant that the criminal proceedings could not be pursu e d. S he had fled and gone into hiding abroad by the end of 1996 in order to prevent being arrested and convicted. German law does not allow a criminal trial of the nature in question to be conducted in the applicant ' s absence. The competent public prosecutor, acting in accordance with Section 205 of the Code of Criminal Procedure, applied b y analogy, could therefore reasonably discontinue the proceedings during the time the arrest warrant could not be executed . Consequently, the length of the proceedings cannot be considered as unreasonable withi n the meaning of Article 6 § 1.

This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

D . Remainder of the applicant ' s complaints

The Court has examined the remainder of the applicant ' s complaints as submitted by her . However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly i ll-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President