AS TO THE ADMISSIBILITY OF
Application No. 18305/91
by Karl PICHLER sen. and Karl PICHLER jun.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. J. A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G. B. REFFI
Mrs. M. F. BUQUICCHIO, Secretary to the First 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 19 April 1991 by
Karl PICHLER sen. and Karl PICHLER jun. against Austria and registered
on 4 June 1991 under file No. 18305/91 ;
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 first applicant, born in 1928, is an Austrian national and
resident at Leonding in Austria. The second applicant, the first
applicant's son born in 1953, is also an Austrian national and resident
at Marchtrenk in Austria. Both applicants are employed at a banking
institute in Wels, which is specialised as pawnbrokers. Before the
Commission they are represented by Mr. M. Ganzert, a lawyer practising
in Wels.
On 18 March 1981 the Innsbruck Federal Police Department
(Bundespolizeidirektion) informed the Salzburg Tax Office (Zollamt)
about the suspicion that, at the above-mentioned Wels banking
institute, jewellery had been taken as security in respect of which
taxes due had not been paid (Abgabenhehlerei). An opinion of the
expert Z. as regards the value of the jewellery concerned was joined.
On 20 and 21 March 1981 the Salzburg Tax Office started
investigations under the Code of Tax Offences (Finanzstrafgesetz) in
respect of the banking institute and seized the jewellery in question.
On 21 March 1981 the second applicant was heard as suspect by the Tax
Office, and proceedings under the Code of Tax Offences were instituted
against him.
On 2 September 1981 the Tax Office instituted proceedings under
the Code of Tax Offences against the first applicant.
On 8 February 1983 the Tax Office, having regard to the limits
of its jurisdiction (Wertzuständigkeit), brought the case concerning
the applicants and seven further accused to the attention of the Wels
Public Prosecutor's Office (Staatsanwaltschaft). The first and second
applicant were suspected of having taken as security jewellery of a tax
value amounting to AS 3 million and AS 1 million, respectively,
jewellery which had been smuggled or in respect of which taxes had not
been duly paid.
On 21 February 1983 the Prosecutor's Office requested the Wels
Regional Court (Kreisgericht) to open preliminary investigations
against the applicants and others. These proceedings were opened on
23 February 1983.
On 8 June 1983 the Linz Court of Appeal (Oberlandesgericht)
decided that preliminary investigations conducted by the Linz Regional
Court (Landesgericht) against the applicants on the suspicion of having
committed fraudulent conversion were to be joined to the proceedings
before the Wels Regional Court.
On 29 September 1983 the applicants and other suspects were
summoned to appear before the Wels Regional Court on 20 October 1983.
On that day the applicants and two other suspects were questioned upon
the charges against them and also informed that preliminary
investigations had been opened against them.
On 14 December 1983 the expert T. was appointed to deliver an
opinion as to the origin and the value of the jewellery in question.
On 3 May 1984 he delivered his opinion according to which all items of
jewellery were of foreign origin.
On 11 September 1984 the Regional Court, having regard to doubts
as to the impartiality of the expert T., appointed the expert E. The
expert E. delivered his opinion on 30 October 1984.
On 9 November 1984 the Public Prosecutor's Office requested the
Regional Court to expedite the preliminary investigations.
On 22 April 1985 the expert E. was requested to supplement his
opinion as regards the question of the foreign origin of the jewellery
concerned. The supplementary opinion was submitted on 6 May 1984. On
22 May 1985 the experts Z. and T. commented upon the opinions of
expert E. The files were forwarded to the Wels Public Prosecutor's
Office on 31 January 1986.
On 8 February 1986 the Wels Public Prosecutor's Office preferred
an indictment against the applicants and five other accused. The
applicants were charged with receiving property obtained by tax evasion
(Abgabenhehlerei) within the meaning of the Code of Tax Offences in
that they had allegedly taken as security various items of jewellery
in respect of which taxes had not been duly paid, and with fraudulent
conversion to the disadvantage of the banking institute. In the
indictment, the Prosecutor's Office referred to thirty items of
jewellery. Having regard to three expert opinions, it considered that
the foreign origin of the jewellery concerned could be proven or, at
least that the jewellery concerned had no Austrian punches.
On 25 March 1986 the Linz Court of Appeal dismissed the appeal
of one of the accused against the indictment.
From 3 until 5 November 1986 the Wels Regional Court held trial.
The trial was postponed sine die in order to take further evidence.
On 26 May 1987 the Tax Office submitted a note on the state of
the tax proceedings. Only in one case a tax assessment had become
final in law.
According to a file note of 10 October 1988, the Wels District
Court inquired with the Salzburg Tax Appeal Authority (Finanzlandes-
direktion) about the state of the appeal proceedings in the various tax
assessment cases. The Court was informed that no decisions had been
taken yet, and that the Tax Appeal Authority hoped to profit from the
results obtained in the criminal proceedings. The District Court
stated that the criminal proceedings could not be furthered without
final tax assessments. The criminal files were sent to the Tax Appeal
Authority for information.
On 19 April 1989 the Wels Regional Court, upon the request of the
Wels Public Prosecutor's Office, requested the Salzburg Tax Appeal
Authority for information on the state of the tax proceedings. On
25 April 1989 the criminal files were returned. On 5 July 1989 the
Salzburg Tax Office informed the Court about the state of the tax
assessment proceedings.
In October 1989 the Wels Regional Court took evidence on matters
related to the charge of fraudulent conversion to the disadvantage of
the banking institute concerned.
On 17 November 1989 the Judges' Chamber (Ratskammer) at the Wels
Regional Court, upon request of the Public Prosecutor's Office, decided
that it was not competent to determine the charges under the Code of
Tax Offences. The Judges' Chamber, having regard to various tax
proceedings against the owners of the jewellery concerned, found no
sufficient evidence to show that the case fell within the limits of the
court's jurisdiction (gerichtliche Wertzuständigkeit), or that the
accused had acted with professional intent. Thus the proceedings fell
within the exclusive competence of the tax authorities.
The Wels Regional Court, by a decision dated 7 February 1990,
discontinued the proceedings relating to the charges of fraudulent
conversion. The Court stated that the Public Prosecutor's Office had
withdrawn the indictment in this respect. The decision was served on
13 February 1991.
On 2 February 1991 the Salzburg Tax Office informed the
applicants that the criminal proceedings against them under the Code
of Tax Offences were discontinued except, as regards the first
applicant, one charge of receiving a platinum ring with a 16 carat
diamond, and, as regards the second applicant, one charge of receiving
a pair of earrings with pearls, which had allegedly both been obtained
by tax evasion.
As regards the remaining matters, the Tax Office requested the
Wels Regional Court to reopen the court investigation proceedings.
Following the Regional Court's decision of 14 June 1991 to refuse the
request for reopening, the proceedings were eventually discontinued on
31 August 1991.
COMPLAINTS
The applicants complain under Article 6 para. 1 of the Convention
about the length of the criminal proceedings against them.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 April and registered on
4 June 1991.
On 13 February 1992 the Commission decided to communicate the
application to the respondent Government.
The Government's observations were submitted on 23 July 1992.
The applicant's observations in reply were submitted on 22 October
1992.
THE LAW
The applicants consider that the criminal proceedings against
them exceeded a reasonable time within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. Article 6 para. 1 (Art. 6-1), so far as
relevant, provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
..."
The parties disagree as to the starting point of the relevant
period to be considered under Article 6 para. 1 (Art. 6-1) . The
Government consider that the period began to run in February 1986 when
the Public Prosecutor's Office preferred the indictment against the
applicants and other accused. The applicants submit that they were
affected by the investigation proceedings as from March 1981.
The Government further submit that, having regard to the
complexity of the case and the applicants' conduct, the length of the
proceedings is not in breach of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of the reasonableness of the length of proceedings, and having regard
to all the information in its possession, that a thorough examination
of this complaint is required, both as to the law and the facts.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy