EUROPEAN COMMISSION OF HUMAN RIGHTS
APPLICATION No. 12593/86
R. and R.
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 20 May 1992)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1 - 20) . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2 - 4) . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5 - 15). . . . . . . . . . . . . . . .1
C. The present Report
(paras. 16 - 20) . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 21 - 61). . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 21 - 54) . . . . . . . . . . . . . . .3
1. The seizure of the jewellery pledged to
the applicants
(paras. 21 - 26) . . . . . . . . . . . . . . .3
2. The institution of criminal proceedings
against the applicants' client
(paras. 27 - 31) . . . . . . . . . . . . . . .3
3. Requests for restitution of the jewellery
(paras. 32 - 38) . . . . . . . . . . . . . . .4
4. Lifting of the criminal seizure
(paras. 39 - 44) . . . . . . . . . . . . . . .5
5. The customs and object liability proceedings
(paras. 45 - 54) . . . . . . . . . . . . . . .6
B. Relevant domestic law
(paras. 55 - 61° . . . . . . . . . . . . . . .7
1. Forfeiture in criminal proceedings
under the Code of Financial Offences
(paras. 55 - 58) . . . . . . . . . . . . . . .7
2. Object liability in respect of customs duties
(paras. 59 - 61) . . . . . . . . . . . . . . .9
III. OPINION OF THE COMMISSION
(paras. 62 - 92°. . . . . . . . . . . . . . . . . 11
A. Complaint declared admissible
(para. 62) . . . . . . . . . . . . . . . . . 11
B. Points at issue
(para. 63) . . . . . . . . . . . . . . . . . 11
C. Applicability of Article 6 para. 1 of the
Convention
(paras. 64 - 75) . . . . . . . . . . . . . . 11
D. Compliance with Article 6 para. 1 of the
Convention
(paras. 76 - 91) . . . . . . . . . . . . . . 13
E. Conclusion
(para. 92° . . . . . . . . . . . . . . . . . 15
APPENDIX I : HISTORY OF PROCEEDINGS BEFORE THE COMMISSION. 16
APPENDIX II : DECISION AS TO THE ADMISSIBILITY. . . . . . . 18
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicants are two banks established as co-operatives
(Genossenschaften) in the area of Salzburg. They are represented by
Mr. Herwig Liebscher, a lawyer practising in Salzburg.
3. The application is directed against Austria whose Government are
represented by their Agent, Ambassador Helmut Türk, Deputy Secretary
General and Legal Counsel of the Federal Ministry of Foreign Affairs.
4. The application relates to two sets of proceedings concerning a
client of the applicants, i.e. criminal proceedings in which jewellery
pledged to the applicants was seized with a view to its forfeiture, and
customs proceedings in which the seizure was maintained with a view to
satisfying the State's customs claims against the applicants' client.
The applicants claim that these proceedings involved a determination
of their civil rights and complain that the length of the proceedings
exceeded a reasonable time contrary to Article 6 para. 1 of the
Convention.
B. The proceedings
5. The application was introduced on 29 September 1986 and
registered on 19 November 1986.
6. On 6 March 1989 the Commission decided to bring the application
to the notice of the respondent Government and to invite them to submit
before 19 May 1989 observations in writing on the admissibility and
merits of the application.
7. At the Government's request, the time-limit was extended to
9 June 1989. The Government submitted observations on 19 June 1989 and
the applicants replied thereto on 10 August 1989.
8. On 23 April 1990 the applicants submitted information on the
further development of the domestic proceedings.
9. On 7 May 1990 the Commission decided to invite the parties to
submit further observations orally at a hearing on the admissibility
and merits of the case.
10. On 27 August 1990 the applicants submitted supplementary written
observations in preparation of the hearing.
11. The hearing took place on 10 October 1990. The parties were
represented as follows: the Government by their Agent, Mr. Helmut Türk,
who was assisted by Mr. Wolf Okresek of the Federal Chancellery and
Mrs. Irene Gartner of the Federal Ministry of Justice; the applicants
by Mr. Christoph Liebscher, a lawyer practising in Salzburg who was
subdelegated by their counsel, Mr. Herwig Liebscher.
12. On the same day the Commission declared the application
admissible.
13. The text of the decision on admissibility was approved by the
Commission on 8 November 1990. The parties were invited to submit
supplementary observations on the merits before 7 January 1991.
14. The applicants submitted such observations on 19 December 1990,
the Government on 7 January 1991.
15. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
16. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. J. A. FROWEIN, Acting President
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C. L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
A. V. ALMEIDA RIBEIRO
M. P. PELLONPÄÄ
17. The text of this Report was adopted on 20 May 1992 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
18. The purpose of the Report, pursuant to Article 31 of the
Convention is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the
Convention.
19. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
20. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. The seizure of the jewellery pledged to the applicants
21. One of the applicants' clients had taken out loans against
securities in the form of pledged jewellery (valued at approximately
12 million AS) which was deposited in the applicants' safes. Financial
difficulties subsequently prevented the client from repaying the loans
and in 1982 he agreed to the sale of the pledged jewellery by the
applicants in order to fulfil his obligations. The applicants then
commissioned a jeweller in Salzburg to organise a sales exhibition.
22. The sales exhibition was visited by officers of the Customs
Office (Zollamt) of Salzburg who on 10 April 1982 seized
(Beschlagnahme) the jewellery pledged to the second applicant, which
was displayed at the exhibition. On 14 April 1982 the Customs Office
seized the remaining jewellery which still was in the first applicant's
safe. The seizures were made for the purpose of securing evidence
(Beweissicherung) in connection with investigations conducted against
the applicants' client on the suspicion of his having committed
financial offences.
23. The applicants and their client successfully challenged the
seizures before the Constitutional Court (Verfassungsgerichtshof).
24. As regards the seizure of 14 April 1982, the court found by a
decision of 26 November 1982 that Section 89 of the Code of Financial
Offences (Finanzstrafgesetz) had been violated in that the seizure had
been effected without a prior administrative decision, although an
immediate danger (Gefahr in Verzug), justifying a seizure without such
a decision, had not existed. As a consequence the constitutional right
to the inviolability of property had been violated.
25. As regards the seizure of 10 April 1982, the Constitutional
Court, by a decision of 12 June 1984, quashed certain provisions of
Section 25 of the Code of Financial Offences on which it had been
based, finding that these provisions violated the constitutional
principle of equality before the law and lacked the clarity required
by Article 18 of the Federal Constitution (Bundes-Verfassungsgesetz),
in particular as regards the delimitation of the scope of application
of Sections 25 and 89 of the Code.
26. Notwithstanding these decisions, the seized objects were not
returned to the applicants.
2. The institution of criminal proceedings against the applicants'
client
27. On 14 October 1982 the Customs Office in Salzburg reported to the
public prosecutor's office in Salzburg a suspicion of financial
offences (smuggling, evasion of import duties) by the applicants'
client. In this context the Customs Office found that the applicants
were not responsible for careless conduct within the meaning of
Section 17 para. 3 of the Code of Financial Offences.
28. The public prosecutor's office requested the opening of criminal
proceedings before the Regional Criminal Court (Landesgericht für
Strafsachen) of Vienna, where other criminal proceedings against the
applicants' client were already pending.
29. By decisions of 5 and 25 November 1982 the investigating judge
of this court "confirmed" the seizure of the jewellery on the ground
that there was "a grave suspicion of a financial offence".
30. Upon appeal by the applicants' client this decision was in part
confirmed by the Review Chamber (Ratskammer) of the Regional Court on
5 January 1983. It held that the investigating judge's above decisions
constituted new seizures under Sections 98 and 143 of the Code of
Criminal Procedure (Strafprozessordnung); therefore it was irrelevant
that the first seizures by the Customs Office had been found to be
unconstitutional. The Review Chamber ordered the exclusion of certain
pieces of jewellery, but simultaneously issued a preliminary injunction
(einstweilige Verfügung) in respect of these objects in order to secure
the payment of the fines which were expected to be imposed on the
applicants' client. It further held it lawful that the jewellery
continued to be detained for the Regional Court of Vienna by the
Customs Office in Salzburg.
31. The criminal proceedings against the applicants' client
concerning the financial offences at issue were subsequently
transferred to the Regional Court of Salzburg. On 13 May 1983 the
investigating judge of that court ordered the seizure of further
objects which had previously been confiscated by the Customs Office of
Innsbruck. The Review Chamber of the Regional Court of Salzburg
confirmed this decision on 6 and 13 July 1983.
3. Requests for restitution of the jewellery
32. The applicants made repeated requests to the Customs Office and
the courts in order to obtain the restitution of the jewellery.
33. The first requests, made by each of the applicants on
27 April 1982, and their further requests of 14 December 1982 to
recognise that the seized objects had been validly pledged to them,
were dealt with on 11 March 1983. The Customs Office rejected them as
inadmissible, considering that, after the new seizures ordered by the
Regional Court of Vienna, it was no longer competent to deal with the
matter.
34. These decisions were confirmed by the Salzburg Regional
Directorate of Finance (Finanzlandesdirektion, Regional Directorate)
on 6 and 10 May 1983 and by the Administrative Court (Verwaltungs-
gerichtshof) on 18 April 1985. The Administrative Court held, inter
alia, that the delays in the Customs Office's procedure (it had
reported the case to the public prosecutor more than six months after
the initial seizure and had dealt with the applicants' request for
restitution almost a year after it had been made) did not make its
decision unlawful. The investigating judge's decision to order a new
seizure had been given within the statutory time-limit under Section 54
para. 2 of the Code of Financial Offences. It was irrelevant that it
had been partially quashed by the Review Chamber because the Chamber
had at the same time issued a preliminary injunction.
35. On 1 February 1983 the second applicant, being an interested
party (Verfallsbeteiligter) in the criminal proceedings against its
client, requested the Regional Criminal Court of Vienna to restitute
the seized jewellery. On 9 June 1983 the first applicant also made a
request for the restitution of the seized jewellery.
36. On 20 December 1983 the investigating judge of the Salzburg
Regional Court rejected both requests, finding it necessary to await
the final judgment in the case against the applicants' client. He
observed that the final judgment might order the forfeiture of the
seized objects, notwithstanding the fact that they were pledged to the
applicants, if their responsibility for careless conduct (Section 17
para. 3 of the Code of Financial Offences) was established. As to a
possible priority of the applicants' pledge, the investigating judge
referred them to an action (Pfandvorrechtsklage) under the Enforcement
Proceedings Act (Exekutionsordnung).
37. The Review Chamber of the Salzburg Regional Court confirmed this
decision on 18 January 1984.
38. On 5 December 1985 the applicants again requested the restitution
of the seized objects, but the investigating judge, without taking a
formal decision, informed them on 23 April 1986 that these objects were
still needed as evidence.
4. Lifting of the criminal seizure
39. After an indictment had been preferred against the applicants'
client on 27 February 1987 and after they had been informed by the
client's defence counsel that the indictment did not include offences
relating to the seized jewellery, the applicants on 2 April 1987 again
requested the restitution of this jewellery. As no decision had been
taken the applicants repeated their requests on 12 May 1987.
40. Already on 27 February 1987 the public prosecutor had also
requested the Regional Court to return the seized jewellery to the
applicants. However, the Customs Office, consulted under Section 46
para. 3 of the Customs and Excise Act (Zollgesetz), objected on the
ground that the jewellery was needed as security for unsatisfied
customs claims (import duties) in the amount of some 3,5 million AS.
41. On 3 July 1987 the Regional Court lifted the seizure in respect
of the jewellery not covered by the indictment, but at the same time
conferred the power to dispose of this jewellery to the Customs Office.
On 15 July 1987 the Review Chamber of the Regional Court furthermore
lifted the preliminary injunction of 5 January 1983 ordering that the
jewellery affected by this measure should also remain with the Customs
Office for further action.
42. Only two pieces of jewellery pledged to the second applicant
continued to be seized by the court as they were covered by the
indictment against the applicants' client. The indictment of
27 February 1987 was quashed by the Linz Court of Appeal (Oberlandes-
gericht) on 20 May 1987 following objections by the applicants' client.
43. A dispute arose as to whether in view of the value of the
jewellery the criminal proceeding should be referred to the Customs
Office. On 13 July 1988 the Linz Court of Appeal held that the case
still came within the jurisdiction of the courts.
44. On 17 January 1990 a new indictment was preferred against the
applicants' client. The proceedings were eventually discontinued on
8 February 1991 in view of the client's health conditions which made
him unfit to stand trial. On 14 March 1991 the Regional Court of
Salzburg decided to lift the seizure also as regards the remaining two
pieces of jewellery. This decision was taken at the request of the
public prosecutor who saw no reasons for not recognising the
applicant's right of pledge. However, the jewellery was not returned
to the second applicant but, like the other pieces, handed over to the
Customs Office for further action.
5. The customs and object liability proceedings
45. In the customs proceedings, the applicants' client was ordered
by two separate decisions of 16 September 1983, to pay import duties
of AS 585,887 and AS 2,946,081 respectively.
46. On 13 August 1987, in connection with the above decisions in the
criminal case, the Customs Office seized the relevant jewellery and
claimed its object liability (Sachhaftung) for the customs duties under
Section 178 of the Customs and Excise Act. Both applicants were
affected by this measure and filed appeals.
47. On 25 January 1988 the first applicant obtained redress in that
after the Regional Directorate's decision of 18 November 1987 the
objects pledged to it were returned and the object liability lifted by
a decision of the Regional Directorate on 1 March 1990.
48. No decision was taken by the Regional Directorate on the second
applicant's appeal within the statutory time-limit of six months, and
therefore it filed an action for default (Säumnisbeschwerde) with the
Administrative Court on 3 April 1989. After that court had set a time-
limit for the Regional Directorate's decision, the latter rejected the
second applicant's appeal on 25 October 1989.
49. In its decision the Regional Directorate fixed the amount of
object liability (AS 2,621,699). It noted that the decision
prescribing the import duties had become final and that the conditions
for claiming the object liability of the jewellery were therefore met.
This liability was not limited to customs duties in the strict sense,
but also concerned import turnover tax. While object liability arose
ex lege irrespective of the rights of third persons, the Customs
Office's power to claim object liability was nevertheless
discretionary. It had to exercise its discretion having regard to the
criteria laid down in Section 20 of the Federal Code of Taxation
(Bundesabgabenordnung), i.e. in accordance with equity and expediency
having regard to all relevant circumstances. "Equity" meant the
justified interests of the party, and "expediency" the public interest
in the securing of duty. In the present case the discretion had been
correctly exercised, in particular the principle of equity had not been
violated because it appeared from the outset that the second applicant
must have anticipated difficulties in the realisation of its right of
pledge, the value of the pledged objects exceeding by far the amount
of the loans.
50. On 7 December 1989 the second applicant lodged a constitutional
complaint against this decision in which it invoked inter alia
Article 6 of the Convention, Article 1 of Protocol No. 1 and the
principle of equality. On 25 September 1990 the Constitutional Court
refused to deal with the complaint and referred the matter to the
Administrative Court. The latter court rejected the second applicant's
complaint on 14 February 1991.
51. In the meantime, on 11 December 1987, the Customs Office had
ordered the applicants' client to pay import duties also in respect of
some further pieces of jewellery pledged to the second applicant. His
appeal against this decision was rejected by the Regional Directorate
on 26 June 1990.
52. On 28 March 1990 the Customs Office issued a new seizure order
concerning this jewellery claiming object liability in respect of the
second applicant. The latter's appeal against this decision was
rejected by the Regional Directorate on 14 December 1990. The second
applicant complained to the Administrative Court which rejected the
complaint on 24 May 1991.
53. Subsequent negotiations between the second applicant and the
Regional Directorate to come to a settlement of the matter failed. The
Regional Directorate was not prepared to consent to the sale of the
jewellery pending the proceedings before the Administrative Court and
without the second applicant paying the import duties owed by its
client (more than AS 3,000,000). The second applicant, on the other
hand, was not willing to pay these duties.
54. The jewellery is still in the hands of the Customs Office. Since
a new estimation showed that its value was much less than earlier
assumed and that therefore the customs duties prescribed might be
excessive, the second applicant requested a reopening of the customs
proceedings. This request was rejected by two decisions of
25 September 1991. The second applicant's appeals against these
decisions are still pending.
B. Relevant domestic law
1. Forfeiture in criminal proceedings under the Code of Financial
Offences
55. In Austrian criminal law forfeiture is provided for as an
ancillary sanction for certain offences. Relevant provisions are
contained both in the Penal Code (Sections 20 and 26) and in the Code
of Financial Offences (Finanzstrafgesetz).
56. Section 17 para. 1 of the latter Code stipulates that forfeiture
may be pronounced only in the cases where this sanction is specifically
provided for. One of these cases is the offence of indirect tax
evasion (Abgabenhehlerei) under Section 37 of the Code, which was the
basis of the charges against the applicants' client in the present
case.
57. Section 17 paras. 2-6 read as follows:
(German)
"(2) Dem Verfall unterliegen
a) die Sachen, hinsichtlich derer das Finanzvergehen begangen
wurde, samt Umschließungen;
...
(3) Die im Abs. 2 genannten Gegenstände sind für verfallen zu
erklären, wenn sie zur Zeit der Entscheidung im Eigentum oder
Miteigentum des Täters oder eines anderen an der Tat Beteiligten
stehen. Weisen andere Personen ihr Eigentum an den Gegenständen
nach, so ist auf Verfall nur dann zu erkennen, wenn diesen
Personen vorzuwerfen ist, daß sie
a) zumindest in auffallender Sorglosigkeit dazu beigetragen
haben, daß mit diesen Gegenständen das Finanzvergehen begangen
wurde, oder
b) beim Erwerb der Gegenstände die deren Verfall begründenden
Umstände kannten oder aus auffallender Sorglosigkeit nicht
kannten.
Hiebei genügt es, wenn der Vorwurf zwar nicht den Eigentümer des
Gegenstands, aber eine Person trifft, die für den Eigentümer über
den Gegenstand verfügen kann.
...
(5) Wird auf Verfall erkannt, so sind nachgewiesene Pfandrechte
oder Zurückbehaltungsrechte dritter Personen an den für verfallen
erklärten Gegenständen anzuerkennen, wenn diese Personen kein
Vorwurf im Sinne des Abs. 3 trifft.
(6) Das Eigentum an den für verfallen erklärten Gegenständen geht
mit Rechtskraft der Entscheidung auf den Bund über; Rechte
dritter Personen erlöschen, sofern sie nicht gemäß Abs. 5
anerkannt wurden."
(Translation)
"(2) The following are liable to forfeiture
a) Items in respect of which a tax offence has been committed,
together with whatever they are contained in;
...
(3) Items prescribed in paragraph 2 shall be declared forfeited
if, at the time of such decision, they are the property of, or
part-owned by, the offender or any other person involved in the
offence. If any other person established ownership of the items,
forfeiture may only be ordered if
a) at least by conspicuous negligence, he helped bring about the
commission of the offence or
b) when he acquired the items, he was aware of the circumstances
warranting their forfeiture or by conspicuous negligence was
unaware of them.
Negligence for the purposes of paragraphs 3 (a) and (b) means
negligence of the owner or of any person who has the owner's
authority to act in respect of the items.
...
(5) If forfeiture is ordered, claims of third parties arising
from pledge of or liens on the forfeited items shall be
recognised if such parties have not been negligent within the
meaning of paragraph 3.
(6) When the forfeiture order becomes final, ownership of the
forfeited items shall pass to the Federation; any rights of third
parties not recognised under paragraph 5 shall be extinguished."
58. The legal position of third parties accessorily affected by a
measure of forfeiture is regulated in Sections 76 and 122 of the Code
of Financial Offences. In so far as relevant, these provisions read
as follows:
(German)
§ 76
"Nebenbeteiligte sind
a) vom Beschuldigten verschiedene Personen, denen das
Eigentumsrecht oder ein Pfand- oder Zurückbehaltungsrecht an der
verfallsbedrohten Sache zusteht (Verfallsbeteiligte). Verfalls-
beteiligt ist auch, wer ein solches Recht behauptet."
§ 122
"(1) Die Finanzstrafbehörde erster Instanz hat Verfallsbe-
teiligte sowie Haftungsbeteiligte, deren Haftung in Anspruch
genommen werden soll, dem Verfahren zuzuziehen, wenn ihr
Aufenthalt bekannt ist ... ."
(Translation)
Section 76
"Private parties are
a) persons other than the accused who have the right of property,
a right of pledge or a right of retention concerning the object
threatened with forfeiture (parties accessorily affected by
forfeiture). Persons who claim such a right shall also be
regarded as parties accessorily affected."
Section 122
"(1) The administrative tax offences authority of first instance
shall join to the proceedings any parties of known address who
would be accessorily affected by a forfeiture or who are
accessorily liable ... ."
2. Object liability in respect of customs duties
59. Section 178 para. 1 of the Customs and Excise Act (Zollgesetz)
reads as follows:
(German)
"Waren, für die die Zollschuld unbedingt oder bedingt entstanden
ist, haften ohne Rücksicht auf die Rechte anderer Personen für
den auf sie entfallenden Zoll und können aus diesem Grund nach
Maßgabe des § 20 der Bundesabgabenordnung vom Zollamt
beschlagnahmt werden. Die Haftung beginnt mit dem Entstehen und
endet mit dem Erlöschen der Zollschuld."
(Translation)
"Items in respect of which customs duty is or may be payable
shall be liable for such duty regardless of the rights of third
parties and may accordingly be seized by the customs authorities
in pursuance of Section 20 of the Federal Code of Taxation
Procedure. The liability shall begin when the duty falls payable
and shall end when the duty is extinguished."
60. The reference in this provision to Section 20 of the Federal Code
of Taxation Procedure was inserted in 1978 following the quashing of
the earlier version by the Constitutional Court. It was thus made
clear that notwithstanding the fact that object liability arises
directly under the law the customs authorities have a discretionary
power to claim or not to claim object liability in respect of
particular items.
61. Section 20 of the Federal Code of Taxation Procedure reads as
follows:
(German)
"Entscheidungen, die Abgabenbehörden nach ihrem Ermessen zu
treffen haben (Ermessensentscheidungen), müssen sich in den
Grenzen halten, die das Gesetz dem Ermessen zieht. Innerhalb
dieser Grenzen sind Ermessensentscheidungen nach Billigkeit und
Zweckmäßigkeit unter Berücksichtigung aller in Betracht kommenden
Umstände zu treffen."
(Translation)
"Decisions which the tax authorities have to take according to
their discretion (discretionary decisions) must remain within the
limits of discretion circumscribed by the law. Within these
limits, the discretionary decisions have to be made on the basis
of fairness and expediency taking into account all circumstances
which might be relevant."
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
62. The Commission has declared admissible the applicants' complaint
that in connection with both the criminal proceedings against their
client and the subsequent customs proceedings their civil rights have
not been determined within a reasonable time.
B. Points at issue
63. The Commission must accordingly examine:
- whether Article 6 para. 1 (Art. 6-1) of the Convention applied
to the proceedings at issue;
- whether the length of the proceedings complained of exceeded the
"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of
the Convention.
C. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
64. Article 6 para. 1 (Art. 6-1) of the Convention includes the
following provision:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
65. The applicants complain on the one hand of criminal proceedings
conducted against their client in which the objects pledged to them
were seized with a view to their possible forfeiture, and on the other
hand of customs proceedings involving their client in which the seizure
was maintained with a view to their object liability for the client's
customs duties.
66. The Commission notes that, although the two above proceedings
were of a different nature and conducted by different authorities, they
were linked to each other: the criminal charges against the client were
brought against him on the basis of the suspicion that he had evaded
the customs duties in question; despite the judicial seizure of the
objects in connection with the criminal proceedings the actual custody
of these objects was left to the customs authorities throughout the
relevant time; the criminal court when lifting the criminal seizure of
these objects did not order their restitution to the applicants, but
left them in the custody of the customs authorities; the latter then
issued new seizure orders for the purpose of asserting their claim to
object liability.
67. The Commission must examine whether each of the proceedings
concerned involved a determination of the applicant's civil rights.
68. It is not contested that the applicants' right of pledge is a
"civil right" within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention. This civil right is to a certain extent independent of the
property right of the owner of the pledged objects. In the present
case the right of pledge has not been extinguished since the
applicants' underlying financial claims against their client have not
been satisfied to the present day.
69. As regards the criminal proceedings the Commission notes the
applicants' procedural position under the domestic law. They were
recognised as private parties to the criminal proceedings in view of
the possible forfeiture of the objects pledged to them. Private
parties to criminal proceedings can in principle invoke Article 6
para. 1 (Art. 6-1) where they raise a claim of a "civil" nature which
is disputed in these proceedings (cf. mutatis mutandis, Eur. Court
H.R., Moreira de Azevedo judgment of 23 October 1990, Series A no. 189,
pp. 16-17, paras. 63-68). This is not contradicted by the Court's
finding in the AGOSI case that Article 6 para. 1 (Art. 6-1) does not
apply to forfeiture proceedings after evasion of customs duties. In
that case the only question which arose under Article 6 (Art. 6)
concerned the determination of "criminal charges" (cf. judgment of
24 October 1986, Series A no. 108, p. 22, paras. 63-67).
70. The Government submit that in the present case the criminal
proceedings did not involve a direct determination of the applicants'
civil rights because the validity of their right of pledge was not
disputed by the prosecution authorities.
71. The Commission observes, however, that despite this recognition
the competent criminal court expressly reserved the decision on the
forfeiture of the seized objects and the related decision on the
recognition of the applicants' right of pledge under Section 17 para. 5
of the Code of Financial Offences to the final decision. Even though
eventually no such decision was taken, the pledged objects remained
seized for this purpose. Apart from this, in the criminal proceedings
the dispute of the applicants with the prosecution authorities was not
limited to the question of the recognition of the validity of their
right of pledge. It also concerned the further questions whether the
seized objects should be restituted to them at an earlier date, and
whether it was justified to leave the custody of these objects to the
customs authorities both during the criminal proceedings and after the
lifting of the judicial seizure orders. The decisions taken by the
criminal courts on these questions circumscribed the applicants' actual
possibility of making use of their right of pledge and thus determined
their civil rights.
72. Article 6 para. 1 (Art. 6-1) of the Convention was therefore
applicable to the criminal proceedings concerned.
73. As regards the customs proceedings, the Commission recalls that
tax proceedings are normally outside the scope of Article 6 (Art. 6)
of the Convention (cf. e.g. No. 8903/80, X. v. Austria, Dec. 8.7.80,
D.R. 21 p. 246; No. 9908/82, X. v. France, Dec. 4.5.83, D.R. 32
p. 266). However, this does not exclude that in particular
circumstances Article 6 (Art. 6) might be applicable. Thus the
Commission has declared admissible applications concerning tax
proceedings allegedly involving a punitive element which could be
qualified as amounting to a criminal charge within the meaning of
Article 6 (Art. 6) (cf. e.g. No. 11464/85, Von Sydow v. Sweden,
Dec. 12.5.87, D.R. 53 p. 85).
74. The present case does not concern tax obligations of the
applicants. The obligation to pay customs duties was incumbent on
their client, subject to the proviso that the objects in respect of
which the duties were to be levied provided a security to the State's
claim. As these objects had been pledged to the applicants, the object
liability in question conflicted with the applicants' civil right of
pledge.
75. In this context the Commission notes that, while the object
liability in favour of the State's claims arose directly under
Section 178 of the Customs and Excise Act, its operation was
nevertheless not automatic. Since Section 178 refers to Section 20 of
the Federal Code of Taxation Procedure, the customs authorities had a
discretionary power to claim or not to claim object liability, and
according to the principles developed in the case-law were required in
this context to take into account civil rights claims of third parties
such as the applicants who for this purpose also were recognised as
parties to the proceedings. This shows that like the earlier criminal
proceedings the customs proceedings involved a determination of the
question whether and to what extent the applicants could actually make
use of their civil right of pledge. Accordingly Article 6 para. 1
(Art. 6-1) was applicable to these proceedings.
D. Compliance with Article 6 para. 1 (6-1) of the Convention
76. As to the period to be taken into account in the present case,
the Commission notes that the objects pledged to the applicants were
first seized in April 1982 in an administrative procedure for securing
evidence for the criminal proceedings. They were subsequently the
subject of a judicial seizure in those proceedings, effected in view
of a possible forfeiture. When this judicial seizure was lifted, the
objects were not restituted to the applicants, but left in the custody
of the customs authorities which then issued further seizure orders in
view of object liability. The restitution of the objects pledged to
the first applicant was ordered on 25 January 1988, but the claim of
object liability was not revoked until 1 March 1990. The objects
pledged to the second applicant remain seized. Their object liability
was confirmed by final administrative decisions of 25 October 1989 and
14 December 1990 respectively. Complaints' procedures before the
Administrative Court concerning these decisions were concluded on
14 February and 24 May 1991. The subsequent proceedings for the
reopening of the customs case, which are still pending, are not
relevant for the purposes of Article 6 para. 1 (Art. 6-1).
77. Throughout the relevant periods, the applicants contested the
justification of the measures taken in so far as they affected their
right of pledge. This question remained pending before the various
authorities in different forms, from the moment when the applicants
challenged the first administrative seizure orders. The period to be
considered therefore began to run, in the case of both applicants, on
27 April 1982, the date when both applicants first requested the
restitution of the jewellery.
78. As regards the end of the period, the position of the two
applicants is different. The case of the first applicant was
determined on 1 March 1990 when the authorities revoked the claim to
object liability. The case of the second applicant was concluded on
24 May 1991.
79. The proceedings in the first applicant's case therefore lasted
about seven years and ten months, those in the second applicant's case
nine years and one month.
80. The Commission recalls that the reasonableness of proceedings
must be assessed in the light of the particular circumstances of the
case and with the help of the following criteria: the complexity of the
case, the conduct of the parties and the conduct of the authorities
dealing with the case (see Eur. Court H.R., Vernillo judgment of
20 February 1991, Series A no. 198, para. 30).
81. According to the Government, the length of the period in question
is due to the complexity of the case.
82. The Commission notes that the case was a complex one, but this
is not in itself sufficient to explain the length of the proceedings.
83. The Commission further finds that, although the applicants took
various remedies, they did not in any way contribute to the length of
the proceedings. Delays were rather caused by the authorities' conduct
of those proceedings and the behaviour of the applicants' client.
84. In this respect the Commission observes that the criminal
information against the applicants' client was laid by the Customs
Office in October 1982 while an indictment was submitted by the public
prosecutor's office only in February 1987. It is true that during this
period of about four years and four months extensive and difficult
investigations were conducted. The result of these investigations,
however, was that in respect of most of the objects pledged to the
applicants no charges of tax evasion could be brought against their
client. The judicial seizure orders concerning those objects were
therefore lifted in July 1987 and maintained only in respect of two
pieces of jewellery.
85. No satisfactory explanation has been provided as to why despite
the applicants' repeated requests the seizure orders were not lifted
at least partially during the investigation in conformity with the
latter's development concerning the individual items at issue, and why
it took five months between the submission of the indictment and the
lifting of the seizure orders in respect of the objects not covered by
the indictment.
86. The Commission furthermore notes that the Customs Office had
already recognised in October 1982 that the applicants were not
responsible for negligent behaviour within the meaning of Section 17
para. 3 of the Code of Financial Offences, a view shared by the
prosecution in the indictment of February 1987. As the Government
rightly observe, the non-recognition of the applicants' right of pledge
under Section 17 para. 5 of the Code of Financial Offences must have
appeared to be excluded. In these circumstances it is difficult to
understand why the judicial seizure of the pledged objects could not
be lifted earlier.
87. As to the customs proceedings, the Commission notes that they
were conducted simultaneously with the criminal proceedings. Like the
latter they primarily concerned the applicants' client whose behaviour
contributed to the delays. The applicants themselves were not affected
by these proceedings until July 1987. At this time the criminal court
lifted the judicial seizure of the majority of the objects pledged to
the applicants, and ordered, at the request of the customs office, that
this office should keep the objects concerned in its custody pending
further action. A similar measure was taken in March 1991 as regards
the remaining two pieces of jewellery pledged to the second applicant.
88. The Commission cannot examine the customs proceedings as such
before the time when the applicants became parties thereto. However,
the fact that the proceedings had then been pending for a long time is
a relevant consideration for assessing the reasonableness of the length
of the subsequent proceedings. Since the authorities knew the
applicants' important interest in the matter because of their right of
pledge which conflicted with the object liability, they were in the
Commission's opinion under an obligation of special expediency.
Moreover, it has not been shown that object liability could not have
been claimed, in connection with those proceedings, at an earlier date
notwithstanding the existence of simultaneous judicial seizure orders.
If the matter had been addressed in time, the legal questions which
arose in this context could have been solved earlier.
89. The Commission also notes that in the case of the first applicant
the customs authority ordered the restitution of all objects seized in
January 1988, i.e. within a reasonable time after the seizure order of
August 1987. However, the final decision to revoke the order of object
liability was taken by the Regional Directorate more than two years
later, in March 1990. The Government have not provided a sufficient
explanation for this delay which appears excessive.
90. In the parallel case of the second applicant an action for
default was lodged in April 1989 which led to the setting of a time-
limit by the Administrative Court which thus recognised the existence
of an unjustified delay contrary to the domestic law. It is true that
the Regional Directorate then reacted within a reasonable time to the
Administrative Court's order, handing down its decision in
October 1989, and that the subsequent proceedings before the
Constitutional Court and the Administrative Court were each time
terminated without excessive delays.
91. Nevertheless, the Commission finds that in the case of both
applicants there has been a number of unjustified delays both in the
criminal and the customs proceedings for which the State is
responsible. Accordingly the applicants' civil rights have not been
determined within a reasonable time.
E. Conclusion
92. The Commission concludes unanimously that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
APPENDIX I
HISTORY OF PROCEEDINGS BEFORE THE COMMISSION
Date Item
_________________________________________________________________
29.9.1986 Introduction of the application
19.11.1986 Registration of the application
A. Examination of Admissibility
6.3.1989 Commission's decision to invite the
Government to submit observations on
the admissibility and merits of the
application
29.5.1989 Extension of time-limit at
Government's request
19.6.1989 Government's observations
10.8.1989 Applicants' observations in reply
7.5.1990 Commission's decision to hold an oral
hearing
27.8.1990 Applicants' supplementary observations
10.10.1990 Oral hearing on admissibility and
merits, Commission's decision to
declare the application admissible
B. Examination of the merits
8.11.1990 Commission adopts the text of the
decision and invites the parties to
submit further observations
19.12.1990 Applicants' supplementary observations
7.1.1991 Government's supplementary
observations
12.1.1991 Consideration of the state of
proceedings
22.1.1991 ) Further supplementary observations
1.2.1991 ) by the Government
8.2.1991 Further supplementary observations
by the applicants
5.4.1991 Supplementary information by the
Government
13.4.1991 Commission's consideration of the
state of proceedings
7.8.1991 Supplementary information by the
applicants
11.1.1992 Commission's consideration of the
state of proceedings
12.5.1992 Commission's deliberations on the
merits and final votes
20.5.1992 Adoption of the Report
Full & Egal Universal Law Academy