Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15886/89

by Stanislava KREMZOW

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 5 May 1993, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

Mr. K. ROGGE, Secretary to the Second 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 22 November 1989

by Stanislava KREMZOW against Austria and registered on

11 December 1989 under file No. 15886/89;

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 submitted by the parties, may be

summarised as follows.

The applicant is an Austrian and Czech national born in 1943 and

residing in Vienna. Before the Commission she is represented by Mr.

W. L. Weh, a lawyer practising in Bregenz and Mr. H. Mühlgassner, a

lawyer practising in Vienna.

On 17 February 1983 the Tax Office (Finanzamt) for the 6th, 7th

and 15th District of Vienna instituted administrative criminal

proceedings under the Code of Fiscal Offences (Finanzstrafgesetz)

against the applicant on suspicion of tax evasion.

On 22 April 1983 the applicant was interrogated as an accused.

On 6 June 1984 the Administrative Court (Verwaltungsgerichtshof)

rejected a complaint by the applicant challenging the delay in the

criminal proceedings.

In the tax assessment proceedings the Tax Office on 23 March 1984

completed the tax audit and concluded that due to unreported income

taxes of more than AS 170,000 had not been payed. On 30 April 1984 the

Tax Office issued tax assessment orders (Abgabenbescheide) concerning

value added tax from 1979 to 1983 and income tax from 1978 to 1982.

On 4 June 1984 the applicant appealed against these assessment orders

without giving reasons for her appeal. The time-limit for filing the

reasons was extended three times, the last time until 30 June 1985.

Following a reminder the applicant finally filed her reasons for the

appeal on 4 November 1985. On 10 July 1986 the Regional Directorate

of Finance (Finanzlandesdirektion) decided on the applicant's appeal

and partly quashed the Tax Office's assessment orders. On 28 August

1986 the Tax Office decided again in the tax assessment proceedings.

This decision became final on 5 November 1987 when the applicant

withdrew her appeal.

In the meantime, the criminal proceedings had not progressed.

On 18 December 1987 the applicant filed a request for transfer

of jurisdiction (Devolution) in respect of the criminal proceedings

from the Tax Office to the higher authority, claiming that her right

to a decision within a reasonable time under Article 6 para. 1 of the

Convention had been violated. This request was rejected by the

Regional Directorate on 2 March 1988. It found that the Code of Fiscal

Offences did not provide for a transfer of jurisdiction.

On 29 April 1988 the applicant filed a complaint with the

Constitutional Court (Verfassungsgerichtshof) against the Regional

Directorate's decision of 2 March 1988, invoking Articles 6 and 13 of

the Convention.

On 3 October 1988 the Constitutional Court refused to entertain

the applicant's complaint. Referring to its earlier case-law the

Constitutional Court considered that the applicant's complaint did not

show sufficient prospect of success. The Administrative Court, to

which the complaint was referred, eventually discontinued the

proceedings as the applicant had not complied with a Court's order to

remedy defects of the complaint (Mängelbehebungsauftrag).

Meanwhile, on 9 May 1988, the Tax Office informed the applicant

of the amount of evaded taxes determined in the course of the

assessment proceedings and instructed her to submit a written statement

by 10 June 1988.

On 25 May 1988 the applicant asked for an extension of the time-

limit for filing her written statement because she had no access to the

file which had been transmitted to the Constitutional Court. On

26 June 1989 the file was returned to the Regional Directorate of

Finance.

On 11 October 1989 the applicant lodged a complaint (Beschwerde)

against the notice and instruction of the Tax Office of 9 May 1988.

On 26 April 1990 the applicant introduced a complaint

(Säumnisbeschwerde) with the Administrative Court against the

inactivity of the Directorate of Finance in dealing with her complaint

of 11 October 1989. On 21 September 1990 the Administrative Court

ordered the Directorate of Finance to decide on the applicant's

complaint. On 28 September 1990 the Regional Directorate of Finance

rejected the applicant's complaint of 11 October 1989.

On 20 November 1990 the applicant filed a complaint with the

Administrative Court against the Regional Directorate's decision of

28 September 1990. Following a reminder by the applicant, the

Administrative Court initiated proceedings on 5 February 1991, and on

2 April 1991 the Regional Directorate filed written observations in

reply.

On 20 March 1992 the Tax Office discontinued the criminal

proceedings against the applicant.

According to the applicant the Administrative Court has not yet

decided on her complaint of 20 November 1990.

COMPLAINTS

1. The applicant complains that the criminal proceedings instituted

against her had not been concluded within a reasonable time as required

by Article 6 para. 1 of the Convention.

2. The applicant further complains that the Code of Fiscal Offences

does not provide for any effective remedy to challenge unreasonable

delays in the proceedings. She claims that for this reason there has

also been a violation of Article 13 of the Convention.

The applicant initially also complained under Article 6 para. 1

of the Convention that her case was not heard by an independent

tribunal and that she was refused access to the case file. In her

observations of 13 June 1991 she withdrew these two complaints.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 November 1989 and registered

on 11 December 1989.

On 7 January 1991 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on the admissibility and merits.

The Government's observations were submitted on 15 March 1991.

On 13 June 1991 the applicant submitted her observations in reply.

On 2 April 1992 the applicant filed further submissions.

THE LAW

1. The applicant complains about the length of the administrative

criminal proceedings instituted against her under the Code of Fiscal

Offences. She relies on Article 6 para. 1 (Art. 6-1) of the Convention

which, as far as relevant, provides as follows:

"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."

The Government submit that delays in the proceedings were due to

the applicant's conduct, namely her filing as many appeals as possible,

which continuously delayed the proceedings in that the files were not

available to the Tax Office. In particular, in the course of the tax

assessment proceedings the applicant had filed an appeal on 4 June 1984

without submitting reasons and she had requested three times an

extension of the time-limit for doing so. When she had finally

submitted the reasons on 4 November 1985 the authority had decided

expeditiously.

The applicant submits that the proceedings had lasted eight and

a half years without a decision in first instance being taken, though

the case was not a complex one. Moreover, delays in the proceedings

were due to inactivity of the authorities, in particular between 26

June 1989 and 28 September 1990 and between 26 April 1990 and 21

September 1990. Between 23 March 1984 and 4 December 1987 the criminal

proceedings did not progress as the authorities had waited for the

outcome of the tax assessment proceedings. The applicant further

submits that it would have been possible for the tax authorities to

produce copies of the file in order to be able to continue the

proceedings.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against her raises questions which

require an examination of the merits. This part of the application

therefore cannot be declared manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground

for declaring it inadmissible has been established.

2. The applicant also complains that the Code of Fiscal Offences

does not provide for any effective remedy to challenge unreasonable

delays in the proceedings. She considers that for this reason there

has also been a violation of Article 13 (Art. 13) of the Convention.

Article 13 (Art. 13) of the Convention states as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by a person acting in an

official capacity."

The Government submit that the applicant did not raise her

complaint within the six-month time-limit provided for in Article 26

(Art. 26) of the Convention. On 2 March 1988 the Regional Directorate

of Finance rejected the applicant's request to transfer the matter to

a higher authority. Thereupon the applicant filed a complaint with the

Constitutional Court which on 3 October 1988 decided not to entertain

her complaint. This decision was served on the applicant on 21

November 1988. In the Government's opinion the applicant should have

raised her complaint with the Commission within six months from this

date, that is, before 21 May 1989.

The applicant considers that the lack of an effective remedy, as

prescribed in Article 13 (Art. 13) of the Convention, against undue

delays by the tax authorities constitutes a continuing situation. The

Constitutional Court's decision of 3 October 1988 only confirmed that

there was no possibility of seeking legal redress for the failure of

the tax authority to act.

The Commission notes that the Constitutional Court, by its

decision of 3 October 1988, refused to entertain the applicant's

complaint for lack of prospect of success. The Commission agrees with

the applicant that by this decision the Court only confirmed that no

effective remedy to complain of the delay in the proceedings existed.

Therefore, the Commission concludes that this complaint cannot

be rejected for non-compliance with the six month time-limit as set out

in Article 26 (Art. 26) of the Convention.

The Commission further finds that the applicant's complaint under

Article 13 (Art. 13) of the Convention cannot be separated from the

issues under Article 6 para. 1 (Art. 6-1) of the Convention which

require a further examination of the merits. It therefore has to be

declared admissible as well, no other ground for declaring it

inadmissible having been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KREMZOW v. AUSTRIA

KREMZOW v. AUSTRIA