AS TO THE ADMISSIBILITY OF
Application No. 15306/89
by Hedwig KIRALY
against Austria
The European Commission of Human Rights (Second Chamber) sitting
in private on 9 December 1991, the following members being present:
MM.S. TRECHSEL, President of the Second Chamber
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
H. G. SCHERMERS
Mrs.G. H. THUNE
Mr.F. MARTINEZ
Mrs. J. LIDDY
MM.M.P. PELLONPÄÄ
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 21 June 1989 by
Hedwig KIRALY against Austria and registered on 27 July 1989 under file
No. 15306/89;
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 they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1918, is an Austrian national and resident
at Hinterbrühl, Austria. Before the Commission she is represented by
Mr. A. Wanke, a lawyer practising in Vienna.
In January 1984, upon information by a special department for
inspection of big companies (Großbetriebsprüfungsabteilung) at the
Vienna I Tax Office (Finanzamt), the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) instituted criminal proceedings against the
applicant's husband and their son, who are managing two limited export
companies, on the suspicion of tax evasion (S. 33 of the Code of
Financial Offences - Finanzstrafgesetz). In the course of the
investigations their house was searched, and various objects were
seized.
On 14 February 1984 the Investigating Judge at the Vienna
Regional Court (Landesgericht) ordered that the contents of bank safes
at the C. and at the L. banking institutes be seized. The Judge stated
that in the course of the searches at the premises of the applicant's
husband and son keys of the bank safes concerned were found. There was
a strong suspicion that elements of evidence were hidden in the safes
concerned. In this respect, he referred to S. 143 of the Austrian Code
of Criminal Procedure (Strafprozeßordnung).
On 21 February 1984 the C. banking institute informed the
Regional Court that the keys found in the course of the investigations
against the applicant's husband and son did not fit any of their safes.
On 15 May 1984 counsel of the applicant's husband requested the
Mödling Tax Office to release the safes at the C. banking institute,
to which the applicant had the keys and where she kept jewellery for
her personal use.
On 2 October 1984 the Investigating Judge at the Vienna Regional
Court ordered an expert opinion as regards the value of the objects
seized in the safes at the C. banking institute. The applicant's
husband and son appealed against this decision on the ground that most
of the objects in the bank safes concerned were the applicant's
property.
On 15, 19 and 23 October 1984 an expert examined the contents of
the bank safes in question.
On 29 October 1984 the applicant's husband and son requested the
Regional Court to lift the seizure of the contents in the two safes at
the C. banking institute on the ground that the assessment of its value
was terminated and, in any way, most of it was jewellery belonging to
the applicant.
On 5 November 1984 the expert delivered his opinion according to
which the objects concerned had a value of AS 5,577,195. The value of
the jewellery which was listed in detail was assessed at AS 4,722,500.
On 16 November 1984 the the Judges' Chamber (Ratskammer) at the
Vienna Regional Court dismissed the appeal against the decision of
2 October 1984 (order of expert evidence). The Court found in
particular that also those valuable objects had to be taken into
account which allegedly solely belonged to the applicant on the ground
that the applicant's husband had indicated to the C. banking institute
that they had no matrimonial contract on separation of goods. It had
thus to proceed on the assumption of community of marital property.
On 4 December 1984 the applicant filed a request with the Vienna
Regional Court, for restitution of the objects seized on 14 February
1984, claiming that she was the owner of the jewellery concerned which
were gifts from her husband. The applicant as well as her husband and
son renewed such requests on 7 February 1985.
On 14 February 1985 the Investigating Judge at the Vienna
Regional Court dismissed the request of the applicant's husband and son
of 29 October 1984 as well as the applicant's request of 4 December
1984. The Investigating Judge considered that the applicant's
allegation flagrantly contradicted the results of the criminal
investigations at that stage. He noted that in 1975 the applicant's
husband, in a form for an insurance contract concerning the contents
of the bank safe in question, had indicated that its value was AS two
million and that he was the owner of the insured property.
Furthermore, at the relevant time, the applicant and her husband had
only declared AS 450,000 for purposes of capital tax. He also referred
to a letter of the applicant's husband to a banking institute dated
24 November 1980 according to which there was no separation of goods
between the spouses to the effect that, for the debts of his firm, he
was also liable to the extent of other private immovable and movable
property. Thus, at that stage of the proceedings, there was still a
reasonable suspicion that the objects were owned or at least jointly
owned by her husband.
On 22 February 1985 the applicant, and on 26 February 1985 her
husband and son appealed against the decision of 14 February 1985.
On 9 April 1985 the Mödling Tax Office requested the Vienna
Public Prosecutor's Office to institute proceedings against the
applicant on the suspicion of having committed tax evasion in that she
had not declared gift and property tax for jewellery allegedly owned
by her.
On 20 June 1985 the Investigating Judge at the Vienna Regional
Court dismissed several requests of the applicant's husband and son
concerning a bank account and savings booklets, the applicant's
jewellery as well as other seized objects. He found in particular that
only on the basis of the Tax Office's report after final tax
assessments a decision on the relevance of seized objects as evidence
could be taken.
The appeal of the applicant's husband and son against the
decision of 20 June 1985 was sent to the Vienna Public Prosecutor's
Office and then to the special department at the Vienna I Tax Office
for comments, which were received on 14 August 1985. The Vienna Tax
Office made further submissions concerning the investigations against
the applicant's husband and son in December 1985. The files were sent
to the Public Prosecutor's Office for consultation and further
observations.
On 19 March 1986 the Public Prosecutor's Office returned the
files and forwarded at the same time the additional charges against the
applicant of 9 April 1985 to the Investigating Jugde at the Vienna
Regional Court who was requested to hear the applicant, and to extend
the investigations against her husband to these items.
On 26 March 1986 the files were sent to the Judges' Chamber at
the Vienna Regional Court for determination of the appeals of February
1986. On 16 May 1986 the files were returned to the Investigating
Judge in order to comply with the instruction to hear the applicant.
On 22 May 1986 the applicant was summoned for 17 June 1986. On
11 June 1986 she informed the Court that she would be absent at that
date. On 20 June 1986 she was summoned for 31 July 1986.
On 30 July 1986 the applicant again requested the restitution of
the seized jewellery.
At her examination on 31 July 1986 the applicant declared not to
make any statements in respect of the criminal proceedings against her
as well as the property rights concerning the seized objects.
Thereupon, the Regional Court decided to join the additional charges
against her with the criminal proceedings against her husband and son,
and to extend the investigations against her husband in this respect.
Furthermore, the Mödling Tax Office was instructed to conduct the
further investigations against the applicant and to file a report
subsequent to final tax assessments.
On 12 September 1986 the Judges Chamber at the Vienna Regional
Court dismissed the applicant's appeal (Beschwerde) against the
decision of 14 February 1985 (concerning earlier requests to lift the
seizure). The decision was served on 14 October 1986, and the
applicant requested to inform the Court within two weeks whether she
intended to pursue her request of 30 July 1986. She did not react.
On 21 April 1987 the applicant filed her next request for
restitution of the seized jewellery, which was sent to the special
department at the Vienna I Tax Office for observations. Reminders were
sent on 10 June and 2 July 1987. The observations were received on
17 July 1987. The Vienna I Tax Office stated in particular that the
seizure of the jewellery concerned was no longer necessary for the
purposes of tax inspection, however, a right to keep them as security
under S. 5 of the Judicial Execution Act (Gerichtliches Einbringungs-
gesetz) should be considered in view of the considerable supplementary
tax claims against the applicant's husband and son (almost
AS 18 million).
On 1 October 1987 the Investigating Judge at the Vienna Regional
Court dismissed the applicant's request of 21 April 1987. Referring to
the above observations of the Vienna Tax Office of 17 July 1987, he
found that the objects were no longer needed as evidence in the tax
proceedings; however, they were kept as security for any fines and
court fees under S. 5 of the Judicial Execution Act.
The applicant's renewed request for restitution of 7 October 1987
was sent to the Vienna Tax Office on 9 May 1988, and to the Public
Prosecutor's Office on 22 June 1988. On 7 September 1988 the
applicant's counsel confirmed that the request for restitution be
upheld.
On 14 September 1988 her request was dismissed under S. 5 of the
Judicial Execution Act. The decision was served upon the applicant on
8 February 1989. On 10 May 1989 the Judges Chamber at the Vienna
Regional Court dismissed the applicant's appeal in this respect.
It appears that in the meantime the Austrian authorities, in
presence of the applicant, placed the jewellery concerned into two
other safes at the same banking institute.
The proceedings against the applicant are still pending.
The tax inspection of the companies managed by the applicant's
husband and son was completed at first instance, appeal proceedings
against the tax assessments in this respect are pending before the
Regional Tax Office (Finanzlandesdirektion) of Lower Austria and
Burgenland. On 11 June 1991 the Tax Office informed the Vienna
Regional Court that the appeals had not yet been decided upon.
COMPLAINTS
1.The applicant complains under Article 6 para. 1 to the Convention
about the length of the criminal proceedings against her.
2.The applicant complains under Article 1 of Protocol No. 1 to the
Convention that the continued seizure of her jewellery violates her
right to peaceful enjoyment of her possessions. She also invokes
Article 6 para. 2 of the Convention.
She alleges that she is the sole owner of the jewellery in
question, which her husband gave to her as a present. She refers, in
this respect, inter alia to the presumption under S. 1247 of the
Austrian Civil Code (Bürgerliches Gesetzbuch) according to which jewels
which the husband gives to his wife for dressing (N.B.: as opposed to
investment jewellery) are in general given as presents. She also states
that she does not have a community of marital property with her
husband. Furthermore, she submits that the seized jewellery is no
longer needed as evidence, and that, as security, its value far exceeds
possible fines and court fees in the proceedings against her.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 June 1989 and registered on
27 July 1989.
On 4 December 1989 the Commission decided to bring the
application to the notice of the respondent Government and invite them
to submit written submissions on its admissibility and merits as
regards the length of the criminal proceedings against the applicant.
On 23 February 1990 the observations were submitted by the
respondent Government. On 30 April 1990 the applicant sent her
observations in reply. The applicant made further submissions on
9 September 1991.
On 7 October 1991 the Commission decided to refer the application
to the Second Chamber.
THE LAW
1.The applicant complains about the length of criminal proceedings
against her on a charge under the Code of Financial Offences. She
relies upon Article 6 para. 1 (Art. 6-1) of the Convention which,
insofar as relevant, provides:
"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 the criminal proceedings against the
applicant for tax evasion were instituted on 31 July 1986 in order to
prevent prescription in case that her ownership of the jewellery should
be established in the course of the investigations against her husband
and son. As to the reasonableness of the length of the proceedings,
they submit that the investigations for tax evasion against the
applicant's husband and son concern very complex facts, in particular
as regards the tax inspection of the firms concerned. The length of
the proceedings as from 7 October 1987 could not be regarded as
unreasonable.
The Commission finds that the applicant's complaint about the
length of the criminal proceedings against her raises questions of fact
and law which require an examination of the merits. The present
complaint is therefore not 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 under Article 6 para. 2 (Art. 6-2)
of the Convention and Article 1 of Protocol No. 1 (P1-1) about the
continued seizure of jewellery which she claims as her property.
The Commission, even assuming the applicant's ownership of the
jewellery concerned and compliance with the conditions under Article
26 (Art. 26) of the Convention, finds no appearance of a violation of
her rights under the Convention, in particular Article 1 of Protocol
No. 1 (P1-1). It notes that in the course of the investigations against
the applicant's husband and son, the Austrian authorities seized the
jewellery in question as evidence, and kept it later as security under
S. 5 of the Judicial Execution Act in view of the considerable amount
of supplementary taxes to be imposed on the applicant's husband and
son. The findings of the Vienna Regional Court that, having regard to
the result of the criminal investigations, there was a reasonable
suspicion of ownership or at least joint ownership of the applicant's
husband do not appear arbitrary. The continued seizure is also not
manifestly disproportionate in the circumstances of the present case.
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,
DECLARES THE APPLICATION ADMISSIBLE as regards the length of the
criminal proceedings against the applicant, without prejudging
the merits of the case,
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy