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 17 May 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
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 regard to the Commission's decision of 29 June 1994 to
declare the application partly inadmissible and to communicate the
remainder to the respondent Government for observations on its
admissibility and merits;
Having regard to the observations submitted by the respondent
Government on 7 October 1994 and the observations in reply submitted
by the applicant on 22 November 1994 as well as the supplementary
observations of the Government submitted on 20 December 1994 and the
applicant's supplementary observations in reply of 26 January 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, 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 a car retailer, filed in the course
of an inspection 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 22 November 1984 the Tax Office instituted administrative
criminal proceedings under the Code of Tax Offences (Finanzstrafgesetz)
against the applicant on suspicion of evasion of taxes and instructed
the applicant to submit a written statement on the charges raised.
On 23 December 1986 the applicant submitted his statement. On
2 January 1986 the Tax Office submitted the case file in the
applicant's criminal proceedings to the competent Trial Board
(Spruchsenat) at the Linz Tax Office.
On 24 February 1987 the Trial Board 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.
In September 1987 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 September 1987 the Tax Office ordered the applicant to
remedy defects of the appeal (Mängelbehebungsauftrag). On
3 November 1987 the applicant complied with this order.
On 18 December 1987 the applicant's appeal was transmitted to the
Upper Austria Regional Tax Authority (Finanzlandesdirektion)
On 16 March 1989 an oral hearing took place before the Appeals
Board (Berufungssenat) at the Regional Tax Authority on the applicant's
appeal. On 30 March 1989 a further hearing took place.
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.
On 6 November 1989 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof).
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.
On 22 April 1992 the Administrative Court dismissed the
applicant's complaint.
COMPLAINTS
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.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 November 1992 and registered
on 14 January 1993.
On 29 June 1994 the Commission decided to communicate the
applicant's complaint under Article 6 para. 1 of the Convention as
regards the length of the proceedings to the respondent Government,
pursuant to Rule 48 para. 2 (b) of the Rules of Procedure and declared
inadmissible the remainder of the application.
The Government's written observations were submitted on
7 October 1994. The applicant replied on 22 November 1994.
On 20 December 1994 the Government submitted a supplement to its
observations. On 26 January 1995 also the applicant supplemented his
observations.
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 which, as far as
relevant, provides as follows:
"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."
2. The Government submit that the applicant failed to exhaust
domestic remedies as, in the appeal proceedings, he did not lodge a
complaint with the Administrative Court, pursuant to Article 132 of the
Federal Constitution, against the Appeal Board's inactivity in deciding
on his appeal.
The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of remedies which relate to the
breaches of the Convention alleged and at the same time can provide
effective and sufficient redress (No. 11660/85, Dec. 19.1.89, D.R. 59
p. 85).
The Commission recalls further that a complaint with the
Administrative Court under Section 132 of the Federal Constitution is
a remedy which in certain cases must be instituted in order to exhaust
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention (No. 11782/85, Dec.16.7.87, unpublished). However, where
an applicant complains that he has not been tried within a reasonable
time on a criminal charge, Article 26 (Art. 26) of the Convention does
not require as a general rule that he should himself have taken steps
to accelerate the proceedings (No. 8261/78, Dec. 8.7.81, D.R. 25 p.
157).
Accordingly the present complaint cannot be declared inadmissible
for non-exhaustion of domestic remedies.
3. As regards the merits of the complaint the Government submit that
the proceedings at issue started when the Tax Office on
22 November 1984 instituted criminal proceedings against the applicant.
The applicant's self incriminating report of 16 June 1981 could not be
taken into account as it was up to the Tax Office to determine whether
on the submissions in the applicant's report criminal proceedings had
to be instituted. Before 22 November 1984 no criminal charge was
raised against him nor was he questioned by the authorities as suspect.
The Government submit further that delays occurred in the
proceedings were attributable to the applicant. In the proceedings at
first instance he failed for two years to submit his observations on
the charge raised against him. When he finally did so the Tax Office
referred his case without delay to the Trial Board which took its
decision speedily. Also the Constitutional Court and Administrative
Court decided speedily on the applicant's complaints. The applicant
could even have accelerated these proceedings by requesting the
transfer of his case to the Administrative Court already in his
complaint to the Constitutional Court.
The applicant submits that the criminal proceedings against him
started on 16 June 1981 when he submitted the self incriminating
reports to the tax authorities. From that time on a criminal charge
had been raised which the authorities had to decide upon.
He submits further that the case was neither complex nor
necessitated lengthy investigations. Delays occurred in the
proceedings had to be attributed to the authorities, in particular, it
took more than 15 months before the Constitutional Court decided on his
request to refer his case to the Administrative Court.
The Commission finds that this complaint raises questions of law
and fact which require an examination of the merits. The remainder of
the application therefore cannot be declared 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.
For these reasons, the Commission, by a majority,
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without
prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy