Communicated on 11 April 2014
FIRST SECTION
Application no. 64346/09
Alois WALLNÖFER
against Austria
lodged on 26 November 2009
STATEMENT OF FACTS
The applicant, Mr Alois Wallnöfer, is an Austrian national, who was born in 1933 and lives in Innsbruck. He is represented before the Court by Mr H. Fink, a lawyer practising in Innsbruck.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the manager of Alpenland Holland B.V., a company registered in the Netherlands, which was owned by his former wife R.W. On 12 October 1986 the company bought a number of artworks of a deceased paintress for 1,7 Mio. Austrian Schilling ((ATS) (equivalent to 124,000 euros (EUR)). On 12 February 1987 the artworks were sold to the Molex company in Liechtenstein for essentially the same sum. The Molex company sold them on to the Modern Art Ltd. company, also based in Liechtenstein. Those two companies in turn paid several commissions between two and five Mio. ATS in 1990 and 1991 to the Alpenland Bauträger GmbH company in Innsbruck, Austria, which at the time was in liquidation and was also owned by R.W.
1. Investigations by the Tax Authority against the applicant for tax fraud
On 11 May 1994 the Innsbruck Tax Authority first informed the Innsbruck Public Prosecutor of the suspicion of tax fraud by the applicant. Its investigations had shown that Molex as well as Modern Art Ltd. were letterbox companies. It suspected that they were operated by the applicant, who however did not pay taxes for them. It further suspected that the money transfers to the Alpenland Bauträger GmbH company were also effected to circumvent tax laws.
On 16 May 1994 the Innsbruck Regional Court issued an order for the applicant’s home to be searched. The search was conducted on 30 May 1994, which is also the date when the applicant first was notified of the investigations against him.
On 26 February 1997 the Innsbruck Tax Authority submitted its final report to the Innsbruck Public Prosecutor, claiming that the applicant and his former wife evaded taxes amounting to 6,87 Mio. ATS (equivalent to EUR 500,000).
2. Court Proceedings against the Applicant
On 8 June 1998 the Innsbruck Public Prosecutor issued an indictment against the applicant concerning the suspicion of tax fraud in the years 1989, 1990 and 1992.
The Innsbruck Regional Court held oral hearings on 19 November 1998, 14 January 1999 and 5 October 2000. On the latter date it acquitted the applicant of the charges. On 22 November 2001 the Supreme Court quashed the judgment upon a plea of nullity by the Innsbruck Tax Authority and referred the case back to the first instance for a re-trial.
After having held oral hearings on 5 June 2002, 9 September 2002 and 14 October 2002, the Innsbruck Regional Court convicted the applicant of tax fraud and sentenced him to a fine of EUR 120,000, EUR 40,000 of which were suspended on probation. The judgment was served on 16 November 2002. The applicant lodged a plea of nullity.
On 11 September 2003 the Supreme Court again quashed the judgment and referred the case back to the first instance, because the judgment lacked information on the assessment base for the calculation of the taxes.
In March 2003 the Innsbruck Regional Court commissioned an expert to evaluate the calculation base for the alleged tax fraud.
On 18 and 19 November 2004 and on 23 December 2004 further oral hearings were held. The Innsbruck Regional Court remarked in a note for the file dated 14 February 2005 that the length of the proceedings was already considerable, admitting that this was attributable to the court.
In March 2004 the expert opinion was delivered. During the oral hearing of 18 May 2006 the Innsbruck Regional Court requested the expert to complement his report, as it had turned out to be incomplete and did not answer the most relevant questions. A revised expert opinion was delivered in March 2007.
During the oral hearing on 29 May 2009, in which the applicant was heard, the Innsbruck Public Prosecutor withdrew the indictment because the statutory time-limit for the prosecution of the offence had expired. Consequently, the Innsbruck Regional Court acquitted the applicant from the charges (judgment delivered orally on 29 May 2009, allegedly served on the applicant’s counsel on 25 February 2010). The written judgment contained, inter alia, the following wording:
"Die oben angeführten Verkaufstransaktionen dienten nur dem Zweck der Abgabenhinterziehung in Österreich. In den Niederlanden wurden keine Abgaben im Zusammenhang mit den Bildverkäufen entrichtet. Bei den erzielten Gewinnen handelt es sich um Einkünfte aus einem Gewerbebetrieb gemäß § 23 EStG, die bei wirtschaftlicher Betrachtungsweise gemäß § 21 BAO dem Angeklagten zuzurechnen sind Es ergeben sich unter Berücksichtigung der getätigten Aufwendungen Steuerlasten und daher Abgabenhinterziehungen in der Höhe von ATS 975,122.09 (EUR 70,864.89) für Umsatzsteuer, ATS 4,104,950.75 (EUR 298,318.40) für Einkommenssteuer und ATS 1,495,319.40 (EUR 108,669.09) für Gewerbesteuer. Dem Angeklagten kam es gerade darauf an diese Verkaufstransaktionen zur Verschleierung seiner Abgabenpflicht in Österreich durchzuführen und dadurch Abgaben zu hinterziehen."
Translation by the Court:
“The above mentioned sales transactions solely aimed at committing tax fraud in Austria. No levies were paid in the Netherlands in connection with the sale of the paintings. The profits made constitute income deriving from a business according to Section 23 of the Income Tax Act (Einkommenssteuergesetz), which from an economic point of view are attributable to the applicant according to Section 21 of the Federal Tax Rules (Bundesabgabenordnung). Taking into account the expenses incurred, tax loads and therefore tax evasion amounting to ATS 975,122.09 (EUR 70,864.89) turnover tax, ATS 4,104,950.75 (EUR 298,318.40) income tax and ATS 1,495,319.40 (EUR 108,669.09) business tax arose. The accused was determined to effect these transactions in order to mask his tax liability in Austria and hereby commit tax fraud.”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings, and under Article 6 § 2 of the Convention that the wording of the Innsbruck Regional Court’s judgment of 29 May 2009 violated the presumption of innocence.
QUESTIONS TO THE PARTIES
1. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
2. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case, notably by the judgment of the Innsbruck Regional Court of 29 May 2009?
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