Communicated on 30 November 2015
FOURTH SECTION
Application no. 907/13
Paul AUERBACH
against Austria
lodged on 21 December 2012
STATEMENT OF FACTS
The applicant, Mr Paul Auerbach, is a Dutch national, who was born in 1962 and lives in London.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 1997 to 1998, the applicant was the CEO of the Wiener Central Wechsel- und Creditbank (CWAG), a subsidiary company of the Hungarian National Bank. During this period, the Hungarian National Bank ordered the applicant’s company, the Tudor AG, based in Liechtenstein, to privatise the CWAG.
1. The criminal proceedings
On 19 December 2000 the Vienna Tax Authority for the 1st District received an anonymous complaint against the applicant wherein he was accused of tax evasion during his time as a CEO at CWAG.
On 21 September 2001 the Vienna Tax Authority for the 1st District laid criminal information against the applicant on suspicion of tax evasion in connection to a remuneration received from the Hungarian National Bank.
On 9 October 2001 the Vienna Regional Criminal Court – on the request of the Public Prosecutor’s Office – opened preliminary investigation proceedings against the applicant and ordered the Vienna Tax Authority for the 1st District to investigate and submit a final report concerning the amount of taxes evaded. It further issued an order for the applicant’s house to be searched.
On 23 November 2001 the applicant’s house was searched and the applicant was informed about the investigations against him.
On 22 April 2003 the Vienna Tax Authority for the 1st District informed the Vienna Regional Criminal Court that they had completed the investigations and had sent their findings to the Vienna Tax Authority for the 3rd and 11th District (“the Tax Authority”) where the facts would be assessed and a decision on submitting the final report be taken.
On 5 March 2004 the applicant filed a request for the discontinuation of proceedings. He claimed that the court was not competent to decide on the case because he had lacked the intent to commit the offence, which was a condition for the court’s competence according to Section 53 § 1 of the Tax Offences Act (Finanzstrafgesetz). The applicant further complained that the Tax Authority had still not submitted the final report, but claimed that this would not prevent the court from discontinuing the proceedings as the facts were sufficiently established.
On 14 April 2004 the Vienna Regional Criminal Court rejected the applicant’s request. It held that the facts, insofar as established, would not lead to the conclusion that the court was not competent in the present case and that it could not conclusively assess the case without having obtained the final report from the Tax Authority.
On 7 April 2009 the applicant filed another request for the discontinuation of the criminal proceedings against him.
On 27 July 2009 the Vienna Regional Criminal Court dismissed the applicant’s request and on 27 November 2009 the Vienna Court of Appeal dismissed the applicant’s appeal. They held that the conditions for discontinuing the proceedings were not met as the facts established so far would not lead to the conclusion that further investigations were inadequate. However, the Vienna Court of Appeal acknowledged that the Tax Authority had still not submitted its final report, even though it had concluded the investigations in 2003 and had issued new tax assessment orders in 2004 already. But as pending tax assessment proceedings do not prevent a tax authority from submitting a final report, it held that the Tax Authority’s delay was unjustified and amounted to a violation of Article 6 § 1 of the Convention. It therefore ordered the Public Prosecutor to assess the final report, which the Tax Authority should issue as soon as possible, and to conclude the investigative phase without further delay.
On 23 June 2010 the Tax Authority submitted the final report.
On 2 August 2010 the Public Prosecutor issued a bill of indictment against the applicant on the suspicion of tax evasion.
On 15 April 2011 the Vienna Court of Appeal dismissed the applicant’s objection to the bill of indictment and declared it legally effective.
On 15 June 2011 the Vienna Regional Criminal Court held an oral hearing and convicted the applicant pursuant to Section 33 § 1 of the Tax Offences Act of tax evasion and imposed on him a fine of EUR 150,000.
On 8 March 2012 the Supreme Court quashed the judgment and referred the case back to the Vienna Regional Criminal Court.
On 31 August 2012 the Vienna Regional Criminal Court held a hearing and acquitted the applicant of all charges.
2. Other sets of proceedings
On 8 June 2004 the Tax Authority issued a decision, in which it assessed the applicant’s income tax for the years 1997 and 1998 anew.
The applicant appealed.
On 20 November 2007 the Independent Finance Panel (Unabhängiger Finanzsenat) dismissed his appeal.
On 15 December 2010 the Administrative Court dismissed the applicant’s appeal.
On 21 December 2010 the applicant initiated official liability proceedings against the Republic of Austria, claiming compensation for the length of the criminal proceedings and for other breaches that had allegedly taken place in the course of the criminal proceedings.
On 30 June 2011 the Vienna Regional Civil Court, upon the applicant’s request, suspended the official liability proceedings pending the outcome of the criminal proceedings.
Following the termination of the criminal proceedings, the official liability proceedings were apparently continued. It is not known, however, whether they are still pending or if not, what their outcome was.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings and under Article 13 of the Convention about the lack of an effective remedy against the length of these proceedings.
QUESTIONS
1. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
2. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
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