THIRD SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application nos. 35673/97, 35674/97, 36082/97 and 37579/97
by Walter SCHWEIGHOFER, Hans-Dieter RAUCH,
Peter HEINEMANN and Josef MACH
against Austria
The European Court of Human Rights (Third Section), sitting on 29 August 2000 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
andMrsS. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 12 February 1997 by Walter Schweighofer and registered on 18 April 1997,
Having regard to the above application introduced with the European Commission of Human Rights on 11 February 1997 by Hans-Dieter Rauch and registered on 18 April 1997,
Having regard to the above application introduced with the European Commission of Human Rights on 9 April 1997 by Peter Heinemann and registered on 14 May 1997,
Having regard to the above application introduced with the European Commission of Human Rights on 12 May 1997 by Josef Mach and registered on 1 September 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the partial decision of 24 August 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are Austrian nationals. The first applicant was born in 1955, the second and the third applicants were born in 1943 and the fourth applicant was born in 1947. The first, second and fourth applicants are living in Vienna (Austria). The third applicant is living in Untertullnerbach (Austria).
The first and fourth applicants are represented before the Court by Mr Werner Weidinger, a lawyer practising in Vienna. The second and third applicants are represented by Mr. Michael Tröthandel, a lawyer also practising in Vienna.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 December 1985 the second applicant was arrested at Vienna airport on the suspicion of smuggling gold coins. 3200 gold coins and two gold bars were found hidden under his clothes. He was questioned as a suspect. On 15 December 1985 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) opened preliminary investigations (Voruntersuchung) against the second applicant and released him. In 1986 he was repeatedly questioned either by the investigating judge or, upon the judge’s request, by the Vienna Customs Office (Zollamt) on suspicion of having organised large scale smuggling in which gold coins were exported to a Swiss company, M., and smuggled back to Austria where they were, via a number of firms owned by the applicant and other suspects, sold to banks, mostly the K. bank, and re-exported to Switzerland. Thereby the participants evaded large amounts of turnover tax and gained refunds for turnover tax which is due upon the import of goods but not upon their export.
On 27 July 1986 the fourth applicant was detained on remand on suspicion of participating in the smuggling of gold coins and tax evasion. Subsequently, he was questioned by the Customs Office upon the investigating judge’s request. The proceedings against him were separated from the proceedings against the other suspects.
On 30 October 1986 the third applicant, who was the deputy director of the K. bank, was detained on remand. On 31 October 1986 preliminary investigations were opened against him and the investigating judge at the Vienna Regional Criminal Court questioned him as a suspect for tax evasion and smuggling, as well as for offences under the Foreign Exchange Act (Devisengesetz). The proceedings against him were severed from the proceedings severed against the other suspects.
On 28 July 1987 the Vienna Public Prosecutor’s Office (Staatsanwaltschaft) preferred an indictment against the third applicant. He was charged under section 33 § 2 (a) of the Tax Offences Act (Finanzstrafgesetz) with having aided and abetted tax evasion, in that he bought smuggled gold coins from the firms belonging to the other suspects and exported them to the M. company in Switzerland, whilst carrying out the necessary banking transactions to falsify a flow of money from the M. company to the K. bank.
On 2 November 1987 the third applicant was released from detention on remand. Subsequently, the proceedings against him were joined again to the proceedings against the other suspects. On 30 November 1987 the fourth applicant was released from detention on remand.
On 30 June 1988 the Vienna Regional Criminal Court convicted the fourth applicant, inter alia, of tax evasion under section 33 § 2 (a) of the Tax Offences Act and of forging documents. It sentenced him to one year and ten months’ imprisonment and to a fine of twice the amount of the taxes evaded, namely Austrian schillings (ATS) 500 million, or one year’s imprisonment in default. The judgment became final in April 1989, following unsuccessful appeal proceedings. Subsequently, the proceedings against the fourth applicant, as far as they related to facts which had not been the subject of the above judgment, were joined to the proceedings against the other suspects.
On 21 December 1988 the Vienna Regional Criminal Court questioned the first applicant as a suspect and opened preliminary investigations on suspicion of tax evasion against him. Subsequently, he was questioned by the Vienna Customs Office upon the Regional Court’s request.
On 16 October 1991 the Vienna Public Prosecutor’s Office filed the indictment, comprising some 250 pages. During the ten months required for its preparation, the Public Prosecutor responsible for the case had been relieved from all other business. The indictment was preferred against thirteen co-accused including the four applicants, who were charged under section 33 § 2 (a) of the Tax Offences Act with evasion of turnover tax due in advance. They were also charged with smuggling under section 35 § 1 of the Tax Offences Act and with a breach of foreign exchange regulations under section 24 of the Foreign Exchange Act. The first and the fourth applicant were further charged with forging documents under section 223 § 2 of the Criminal Code (Strafgesetzbuch). In these and the subsequent proceedings all four applicant’s were represented by counsel.
On 1 June 1994 the trial before the Vienna Regional Criminal Court started. It lasted a total of twenty-nine days during June, September, October, November and December 1994 in the presence of the applicants and their counsel. The court heard dozens of witnesses and took extensive documentary evidence. It refused a number of requests for the taking of evidence filed by the second and third applicants.
On 22 December 1994 the Vienna Regional Criminal Court gave its judgment comprising some 500 pages. It convicted all four applicants of having partly committed and partly aided and abetted tax evasion under section 33 § 2 (a) of the Tax Offences Act, smuggling under section 35 § 1 of the Tax Offences Act and a breach of foreign exchange regulations under section 24 of the Foreign Exchange Act. In addition it convicted the first and the fourth applicants of forging documents under section 223 § 2 of the Criminal Code.
The Regional Court found that the applicants had, together with their co-accused, between 1980 and 1986 run a sophisticated network involving large scale exports of gold coins and other precious metals to Switzerland, mostly to the M. company but also to several banks, declaring these exports and claiming refunds for turnover tax, which is not due upon export, and then bringing the coins back to Austria without declaring them, thus avoiding the turnover tax due upon import. Consequently, they breached foreign exchange regulations by exporting Austrian schillings to Switzerland without the permission of the Austrian National Bank, or by manipulating bank accounts falsifying a flow of money from Switzerland.
According to the judgment, during the peak period of the network’s activity from 1985 to July 1986, the number of gold coins purportedly circulated amounted to eighteen times the volume of marketable gold coins produced by the Central Mint Office from 1980 to 1986. The amount of taxes evaded were some ATS 205 million in the case of the first applicant, some ATS 916 million in the case of the second applicant, some ATS 632 million in the case of the third applicant and some ATS 545 million in the case of the fourth applicant. The relevant amounts under the Foreign Exchange Act were some ATS 570 million in the case of the first applicant, some ATS 2200 million in the case of the second applicant, some ATS 1,500 million in the case of the third applicant and some ATS 2,000 million in the case of the fourth applicant.
The court sentenced the applicants under both the Tax Offences Act and the Foreign Exchange Act to terms of imprisonment, fines (with terms of imprisonment in default) and fines in lieu of confiscation.
Subsequently, the applicants each filed a plea of nullity and an appeal (Nichtigkeitsbeschwerde und Berufung). In their pleas of nullity the applicants raised a number of complex issues of law, concerning inter alia the relationship between section 33 § 2 (a) of the Tax Offences Act to a related provision and the question whether the offence under section 24 of the Foreign Exchange Act had not already been invalidated at the time of the first instance judgment by the liberalisation of the foreign exchange market in 1991.
On 14 November 1996 the Supreme Court (Oberster Gerichtshof) dismissed the applicants’ pleas of nullity and their appeals in a 139-page judgment.
The judgment was served on the second and third applicants on 17 January and on the first and fourth applicants on 21 January 1997.
THE LAW
The applicants’ complaint relates to the length of the proceedings. These proceedings started as regards the first applicant on 21 December 1988 (when preliminary investigations were opened against him), as regards the second applicant on 12 December 1985 (when he was arrested and questioned as a suspect), as regards the third applicant on 30 October 1986 (when he was detained on remand) and as regards the fourth applicant on 27 July 1986 (when he was detained on remand). They were terminated as regards the second and third applicants on 17 January 1997 and as regards the first and fourth applicants on 21 January 1997 when the Supreme Court’s judgment was served.
The proceedings therefore lasted eight years and one month as regards the first applicant, eleven years, one month and five days as regards the second applicant, ten years, two months and eighteen days as regards the third applicant and ten years, five months and twenty-five days as regards the fourth applicant.
According to the applicants, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation, arguing in particular that the case was extremely complex.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy