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)
Full & Egal Universal Law Academy