AS TO THE ADMISSIBILITY OF
Application No. 21154/93
by Gerhard HÖFLER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the 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 6 November 1992
by Gerhard Höfler against Austria and registered on 14 January 1993
under file No. 21154/93;
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 applicant, may be
summarised as follows.
The applicant is an Austrian national born in 1949 and residing
in Linz. Before the Commission he is represented by Mr. A.
Frischenschlager, a lawyer practising in Linz.
On 16 June 1981 the applicant, who was then the managing director
of the H. Company doing business as car retailer, filed in the course
of an examination of the company by tax inspectors (Betriebsprüfung)
a report (Selbstanzeige) with the Linz Tax Office (Finanzamt), in which
he incriminated himself. He stated that in 1979 and 1980 he had bought
tractors from the P. company, and that in the sales contracts and
invoices higher prices than due had been entered. The exceeding
amounts had been refunded upon payment of the invoice. He, therefore,
had claimed input tax (Vorsteuerabzüge) on value added tax without
justification.
On 24 February 1987 the Trial Board (Spruchsenat) at the Linz Tax
Office convicted the applicant of tax evasion and sentenced him to a
fine of 400.000 AS or 90 days' imprisonment in default. It found that
the applicant in 1976, 1977 and 1978 had failed to enter numerous car
sales into the bookkeeping which lead to tax evasion in the amount of
AS 202.933. Moreover, between January 1979 and April 1981 the
applicant had claimed without justification input tax of altogether
675.256 AS by making incorrect declarations of input tax.
At an unspecified date the applicant lodged an appeal, which only
concerned his conviction for claiming input tax without justification.
He submitted that his report of 16 June 1981 should have led to the
discontinuation of the criminal proceedings regarding this charge.
On 16 March 1989 an oral hearing took place before the Appeals
Board (Berufungssenat) at the Regional Directorate of Finance for Upper
Austria (Finanzlandesdirektion) on the applicant's appeal. In the
course of the hearing the applicant's lawyer requested that two
witnesses be heard, namely the former company's tax consultant and one
of his employees. They were to give evidence that the applicant's
business partner had the obligation to pay as value added tax the same
amount as the applicant had claimed as input tax.
On 30 March 1989 a further hearing took place. The witnesses
requested appeared before the Appeals Board but refused to give
evidence as the questions concerned the bookkeeping of the H. Company.
They submitted that the applicant was no longer its managing director
and they had not been discharged of their obligation of professional
secrecy by the company's receiver. The applicant's lawyer then
requested the Appeals Board to obtain from the receiver of the H.
Company the above discharge. He further requested that the contracts
and accounting vouchers be examined by a bookkeeping expert in order
to find out which rate of value added tax would have been applicable
if correct invoices had been used. The Appeals Board dismissed these
requests.
On 11 September 1989 the Appeals Board partially granted the
applicant's appeal and reduced his sentence to a fine of 200.000 AS and
60 days' imprisonment in default. The Appeals Board found that on
7 June 1981 a tax inspector of the Linz Tax Office had started, at the
premises of the H. Company, an examination of the Company regarding
value added tax. At that time bankruptcy proceedings had already been
opened against the company. In the course of the concluding discussion
concerning the examination (Abschlußbesprechung) the applicant had
presented his self-incriminating report. This report, however, could
not lead to the discontinuation of the proceedings, as at that time,
his offence, at least partially, had already been discovered. The
Appeals Board found however that mitigating circumstances should be
taken into account to a larger extent and reduced the fine.
On 6 November 1989 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). He submitted that the
relevant provisions of the Code of Fiscal Offences violated the
constitutional principle of separation of powers. The criminal
proceedings against him should have been conducted by ordinary criminal
courts and not by tax authorities dealing with tax offences.
On 7 March 1990 the Constitutional Court refused to entertain the
applicant's complaint.
On 3 July 1990 the applicant requested that his case be referred
to the Administrative Court (Verwaltungsgerichtshof).
On 25 October 1991 the Constitutional Court referred the case to
the Administrative Court.
On 7 January 1992 the applicant supplemented his complaint to the
Administrative Court. He now complained that the Appeals Board had
refused to take evidence requested by him. He further submitted that
the Appeals Board had failed to comply with its duty to establish ex
officio the true facts and had relied instead on the amounts calculated
in the applicant's own report of 16 June 1981. If the evidence
requested would have been taken, it might have resulted in lower
amounts than those mentioned in the applicant's report.
On 22 April 1992 the Administrative Court dismissed the
applicant's complaint. The Administrative Court found that the Appeals
Board should have given reasons for refusing to take the evidence
requested by the applicant. However, this procedural mistake had no
effect on the correctness of the decision as the refusal of the
applicant's requests was justified. The hearing of the witnesses had
not been necessary because in order to establish that the applicant had
evaded taxes by claiming input tax without justification, it did not
matter whether the amounts evaded corresponded to higher value added
tax due by a third person. Moreover, the requested expert opinion was
not necessary because the question which rate of value added tax was
applicable if the applicant had issued correct receipts was of no
relevance to the input tax the applicant had actually claimed.
Furthermore, neither at the oral hearing before the Appeals Board nor
in his complaint to the Administrative Court the applicant had alleged
that his tax consultant had made mistakes in drafting the report of
16 June 1981 to the Tax Office.
COMPLAINTS
1. The applicant complains that the criminal proceedings instituted
against him were not concluded within a reasonable time as required by
Article 6 para. 1 of the Convention.
2. He also complains under Article 6 para. 3 (d) of the Convention
that the Appeals Board refused to hear two witnesses, to obtain a
declaration from the receiver of the applicant's company to discharge
these witnesses from their obligation of professional secrecy and to
order the taking of the opinion of a bookkeeping expert.
THE LAW
1. The applicant complains that the criminal proceedings instituted
against him were not concluded within a reasonable time as required by
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission considers it cannot, on the basis of the file,
determine the admissibility of this complaint and that it is therefore
necessary, in accordance with Rule 48 para. 2 (b) of the Rules of
Procedure, to give notice of this complaint to the respondent
Government.
2. The applicant also complains under Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention as regards the taking of evidence by the
Appeals Board.
The Commission recalls that the guarantees contained in paragraph
3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the
general concept of fair trial set forth in paragraph 1 of this Article
(Art. 6-1). In the circumstances of the present case, it will consider
the applicant's complaint under the two provisions taken together
(see Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A
no. 194-A, p. 12, para. 31). In order to determine whether the aim of
Article 6 (Art. 6) - a fair trial - has been achieved, regard must be
had to the entirety of the domestic proceedings conducted in the case
(Eur. Court H.R., Imbroscia judgment of 24 November 1993, Series A
no. 275, para. 38,).
The applicant submits that the Appeals Board refused to hear two
witnesses, to obtain a declaration from the receiver of the H. Company
discharging these witnesses from their obligation of professional
secrecy and to order the taking of the opinion of a bookkeeping expert.
The Commission recalls further that Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention does not give an absolute right to
examination of every witness proposed by the defence (Eur. Court H.R.,
Engel and others judgment of 6 June 1976, Series A no. 22, p. 38,
para. 91). In particular a court is justified in refusing to summon
witnesses when it considers that their statements could not be of
relevance to the case (see No. 4124/69, Dec. 13.7.70, Collection 35 p.
132; No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86 at 102).
The Commission notes that the Appeals Board, in dismissing the
applicant's requests for evidence, did not indicate reasons for its
decision. The Administrative Court in its decision of 22 April 1992
found that the Appeals Board should have done so but that this
procedural mistake had no effect on the outcome of the proceedings, as
the Appeals Board had acted correctly in refusing the applicant's
requests. The Commission notes further that the Administrative Court
in its decision indicated the reasons why the evidence requested by the
applicant was irrelevant for the case. The Administrative Court found
that the witnesses' statements were irrelevant because for the offence
of evading taxes by claiming input tax without justification it did not
matter whether the amounts evaded corresponded to higher value added
tax due by a third person. It also found that the requested expert
opinion was not necessary, because the question which rate of value
added tax was applicable if the applicant would have had issued correct
receipts was of no relevance to the input tax which the applicant had
actually claimed.
The Commission finds that the Administrative Court sufficiently
explained that the evidence requested by the applicant was irrelevant
to the proceedings. There is no indication that the proceedings were
otherwise conducted in an unfair manner.
Under these circumstances the Commission, looking at the
proceedings as a whole, finds that there is no appearance of a
violation of the applicant's right to a fair hearing within the meaning
of Article 6 (Art. 6) of the Convention.
It follows that this part of 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 unanimously
DECIDES TO ADJOURN its examination of the complaint as regards
the length of the proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy