CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 11919/86 by S. M. against Austria             The European Commission of Human Rights sitting in private on 8 May 1987, the following members being present:                         MM. C.A. NØRGAARD, President                         G. SPERDUTI                         F. ERMACORA                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 14 December 1984 by S. M. against Austria and registered on 7 January 1986 under file No. 11919/86;           Having regard to:   -        the report of May 1986 provided for in Rule 40 of the Rules of         Procedure of the Commission;   -        the observations submitted by the respondent Government on         19 January 1987 and the reply thereto submitted by the         applicant on 29 January 1987;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows:           The applicant, an Austrian citizen born in 1938, is a florist resident in Vienna.   Before the Commission she is represented by Mr.   P. Scheichelbauer, a lawyer practising in Vienna.           As from 1 January 1965 the applicant ran, together with her two sisters, a flower business in Vienna in the form of a general partnership (Offene Handelsgesellschaft).   The applicant's share in the profits and losses as well as in the assets of the company amounted to 50%, the shares of her two sisters to 25% each.   I.           On 10 April 1969 the then husband of the applicant, Mr.   E.P., notified the Tax Department (Finanzamt) by means of a "self-accusation" (Selbstanzeige) that he wanted to correct tax declarations for himself and his wife.   In particular, the turnovers and profits for the years 1966 and 1967, as well as the turnover for the year 1968, had been considerably higher than the ones hitherto assessed and declared, respectively.   This statement, which at first was only signed by E.P., was eventually also signed by the applicant herself on 21 April 1969 and supplemented to the effect that "the self-accusation overleaf also relates to the period of time from 1 January 1965 to 3 March 1966 (date of marriage)".           On 10 December 1976 the Vienna Regional Court (Landesgericht) in criminal cases convicted the applicant and two other persons of offences of tax evasion under S.33(1) of the Code of Financial Offences (Finanzstrafgesetz).   She was sentenced to a fine of 250,000 AS and four months' imprisonment suspended for three years. The Court found in particular that the applicant had in the years 1965 to 1967, inter alia by not entering the turnover, falsifying balance sheets and filing incorrect or incomplete tax declarations, violated the duty under tax law to disclosure (Offenbarungspflicht) and therefore together with the other persons reduced the amount of taxes by a total of approximately 600,000 AS.           In its judgment the Court stated, inter alia:           "From the very day when this company was established, the         tax evasions described in the judgment were committed.   This         was done by not entering part of the turnovers attained, by         drawing up incomplete and thus incorrect cash reports which,         in turn, led to incorrect balance sheets and, finally, by         filing tax returns, which because they were incorrect and         incomplete then became the basis of tax assessments which         did not correspond to the actual circumstances.         Investigations on the part of the tax authorities in         connection with the responsibility of the accused         demonstrate that all the three accused were involved in all         business activity that arose and that all three were         acquainted with the company's business practices.   This also         shows that all three accused had knowledge of the fact that         the records, which are the basis of proper accounting, were         incomplete and that therefore any further bookkeeping and         fiscal transactions based on these records had to be incorrect.           The accused were in the opinion of the Court also         aware, due to their personal abilities, of the consequences         with regard to bookkeeping and fiscal matters.   This         knowledge, together with the fact that the accused         maintained this practice, leads to the conclusion that their         conduct can be regarded as amounting to a system ...           It is ... not of importance whether the accused were aware         of the full extent of the success of the system practised by         them.   Rather, the fact suffices - and this has been         established by the Court - that the accused approvingly         (billigend) put up with committing tax evasions for         themselves and the Brothers and Sisters M.OHG (the         applicant's flower company) respectively, in the way         described above."           The applicant thereupon filed a plea of nullity which was upheld by the Supreme Court (Oberster Gerichtshof) on 19 June 1979. The latter quashed the previous decision and acquitted (freigesprochen) the applicant of the offences on the ground of their prescription.           The Court found in particular that, according to the respective legal provisions, prescription would have occurred if five years had elapsed between the end of the year following the first measure of prosecution and the date of judgment.   On 10 April 1969 the applicant had filed a self-accusation, whereupon the auditing commenced on 12 May 1969.   This date interrupted the period of prescription.   The period then started again to run at the end of 1969.   Accordingly, the period of prescription had expired at the end of 1974, i.e. long before the date of the first instance's decision for which reason the offences with which the accused had been charged were no longer punishable.   II.           In 1980 the applicant requested in a supplement to her tax declaration for that year that 89,600 AS should be deducted as company expenses in view of the fact that she had expended this amount for counsel in the criminal proceedings leading to the decision of the Supreme Court of 19 June 1979.   The conditions therefore had been met inasmuch as she had been acquitted.           When the Tax Department (Finanzamt) refused to qualify these expenses as company expenses the applicant unsuccessfully filed an appeal with the Regional Finance Direction (Finanzlandesdirektion). Thereupon, on 6 June 1984 the Administrative Court dismissed the applicant's further complaint.   In its decision which was served on the applicant on 17 June 1984 the Court found in particular:           "Only costs for counsel of an accused who has been acquitted         can be seen as having been caused by the company and         therefore qualify as company expenses if the person is         acquitted from the offence of which he has been accused.         Thereby the offences must be able to be explained on the         basis of strict criteria as having resulted directly from         his company activity and having direct effects thereupon.           Moreover, the accused must have been criminally acquitted of         the offences because, according to the statements in the         Court decision, the accused could not be charged with the         respective criminal offence and, therefore, the respective         suspicion had unjustifiably (zu Unrecht) been raised against         him.   The Court sees no reason to depart from this legal         opinion.           In the present case neither the documents nor any         submissions of the applicant in the proceedings permit the         conclusion that the latter has in fact not committed the         financial offences according to S.33(1)(a) of the Code of         Financial Offences of which she has been accused, and that         for this reason she was acquitted by the Supreme Court.         Rather, the acquittal occurred after the decision of the         convicting first instance decision had been quashed         exclusively in view of the prescription.           It cannot therefore successfully be contested if the         authorities reached on the basis of these facts the         conclusion that the disputed costs for counsel amounted to         living expenses rather than to company expenses inasmuch as         in the criminal proceedings conducted only the prescription         which had occurred had been determined and not the         applicant's innocence."   III.           In 1981 the applicant again unsuccessfully requested the Tax Department to consider 40,000 AS expended for counsel in the previous criminal proceedings as company expenses.   Upon an unsuccessful appeal her further complaint was rejected by the Administrative Court on 5 June 1985 on the same grounds as on 6 June 1984.   In its decision the court noted that the legal issue was the same as that with which it had previously been confronted, the only difference being that the present case referred to the year 1981.   The Court found in particular that the applicant had not contested the statements made in the decision of 6 June 1984 according to which there was nothing which would indicate that the applicant had in fact not committed the offences.   The Court stated in this respect:           "It has not been disputed - as also in the proceedings         <leading to the decision of 6 June 1984> - either in the         documents or in any of the submissions of the applicant         during the proceedings that the latter had in fact not         committed the offences according to S. 33 (1)(a) of the Code         of Finance Criminal Law with which she had been charged."   IV.           S.29 of the Austrian Code of Financial Offences concerns "self-accusation" (Selbstanzeige).   In the version applicable at the time when the judgment was passed, S.29 reads as follows:           "(1)     Those who have committed a financial offence shall         be exempt from punishment if they notify the public         authority in charge of enforcing the applicable tax or         monopoly regulations or the competent authority for         financial offences of their misconduct (self-accusation).   A         self-accusation is impossible when caught in the act.           (2)      If such misconduct was accompanied by a tax evasion         or another shortfall in receipts, exemption from punishment         shall be granted only insofar as the authority is notified         without undue delay of the circumstances material to the         determination of the evasion or shortfall and the resulting         amounts owed by the informant or for which he may be held         liable are paid in conformity with the tax or monopoly         regulations.   If facilitated terms of payment are granted,         the period of grace must not exceed one year; when taxes         have to be calculated by the taxpayer himself (S.201 and 202         of the Federal Tax Code <Bundesabgabenordnung>)this period         commences with the self-accusation; in all other cases with         the date on which the informant is notified of the amount         due.           (3)      Exemption from punishment shall not be granted           a)       if, at the date of filing the self-accusation,         prosecution (S.14, para. 3) had already been levied against         the informant, against other persons involved in the offence         or against receivers;           b)       if, at the date of filing the self-accusation, the         offence had already been discovered in whole or in part and         this fact was known to the informant, or           c)       if, in the case of a deliberate financial offence,         on the occasion of a search, inspection, clearance, or         auditing of accounts or records by a fiscal authority the         self-accusation is not filed as early as at the beginning of         the official act.           (4)      Regardless of the exemption from punishment,         monopoly goods (spirits, salt, products covered by the         tobacco monopoly) as well as the objects mentioned in S.39         para. 2 shall be ordered forfeited.   This shall also apply         to such receptacles and means of transportation as described         in S.17 para. 2 sub-para. b, unless the special devices can         be removed; the costs shall be borne by the informant.         Compensation for lost value shall not be imposed.           (5)      The self-accusation only applies to those for whom         it is filed."     COMPLAINTS           The applicant complains under Article 6 para. 2 of the Convention that, even though she had been acquitted of the offences with which she had been charged, the Administrative Court found in its decisions of 6 June 1984 and 5 June 1985 that acquittal on account of prescription did not amount to the applicant's innocence.   The applicant states that in the respective criminal proceedings she had claimed that she was not guilty.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 14 December 1984 and registered on 7 January 1986.           On 13 October 1986 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit observations on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure.           The respondent Government's observations were submitted on 19 January 1987 and the reply thereto by the applicant on 29 January 1987.     SUBMISSIONS OF THE PARTIES     A.       The respondent Government     I.      Requirements under Article 26 of the Convention             The Government submit that the conditions of Article 26 of the Convention have not been complied with.           According to the Commission's case-law, Article 26 of the Convention implies that in States in which the Convention attains the status of constitutional law and in which there is a constitutional court a complaint must have been raised before that court - if and to the extent that State actions are subject to judicial review by a constitutional court - before all domestic remedies have been exhausted (see e.g.   No. 6965/75, Dec. 5.3.76, D.R. 5 p. 130).   However, the applicant failed to file a complaint with the Austrian Constitutional Court against the ruling of the Regional Finance Direction in accordance with Article 144 of the Federal Constitution. There is no established practice of the Constitutional Court concerning this particular question of law which would have discharged the applicant from her obligation to appeal to that Court.   On the contrary, the decisions handed down by the Court so far with regard to Article 6 para. 2 of the Convention show that a complaint filed with the Constitutional Court in the present case would by no means have to be regarded as hopeless, when taking into account the legal principle of the presumption of innocence.           Under Article 144(1) of the Federal Constitution an appeal may be filed with the Constitutional Court on the ground of a violation of constitutionally guaranteed rights after all administrative remedies have been exhausted.   Insofar as the applicant considers the refusal to recognise the costs for counsel as company expenses a violation of Article 6 para. 2 of the Convention, she would have had to apply to the Constitutional Court to exhaust all domestic remedies.   This possibility was explicitly referred to in the directions given to her concerning time and manner of appealing against the decision quoted above.           If it is objected that the issue of the violation of the legal principle of the presumption of innocence was contained in the complaint filed with the Administrative Court and that in accordance with Article 140 of the Federal Constitution the Administrative Court is entitled to apply to the Constitutional Court for checking the constitutionality of a law, it must be pointed out that both possibilities, namely the direct as well as the indirect appeal to the Constitutional Court certainly require within the meaning of Article 26 of the Convention that the applicant makes use of the possibility to appeal directly to the Constitutional Court.           Due to the combination of the circumstances of the present case, this would have been required if only because the constitutionality of an interpretation by the Administrative Court was the decisive question in this case.   According to its practice, the Constitutional Court is by no means bound by such an interpretation, but also quashes decisions which are based on an unconstitutional interpretation of a law by the Administrative Court.     II.     Complaint under Article 6 para. 2 of the Convention     1.       The Government recall at the outset with reference to the Commission's case-law that the guarantees in Article 6 para. 2 apply only to those "charged with a criminal offence".   However, the present case is neither a criminal case nor a financial offence under criminal law.   Furthermore, the Commission has repeatedly stated that tax proceedings do not concern claims and obligations under civil law.   2.       The provision relevant to the question of the admissibility of deducting company expenses is S.4(4) of the Income Tax Act, according to which "Company expenses are expenses caused by the company".   These expenses reduce the profits in consistent compliance with the separation of company and external affairs.   Therefore, company expenses are solely caused by the management of company affairs and not by the possibly unobjectionable conduct of the taxpayer in terms of criminal law.   In this respect therefore Article 6 para. 2 of the Convention cannot be applied.   Thus, also in respect of the question whether the applicant's costs for counsel in the criminal proceedings could be qualified as company expenses, the only relevant issue could be whether or not these expenses were attributable to the management of company affairs or to her private life.   3.       In principle due to S.4 of the Income Tax Act the costs for counsel in criminal proceedings could be regarded as costs of living and thus as private expenses.   It is from this point of vantage that the somewhat strict interpretation of the concept of company expenses discussed here must be understood.   According to this interpretation these costs, which are much more on the private side, can be regarded as company expenses only to the extent that it is demonstrated beyond doubt that the party concerned acted in strict compliance with the law.   The relatively narrow limitation to a "true acquittal" (echter Freispruch) results both from the need for enforceability and the need to provide an absolute security that in cases of unlawful action the costs of criminal proceedings do not reduce the profits.           The argument of enforceability requires an explanation.   In particular, the result of a less narrow limitation would be that in cases of an "acquittal in law" (unechter Freispruch) the tax authority at first would have to determine whether an offence has been committed.   It goes without saying that it would be difficult for an authority without criminal jurisdiction to determine such a question. On the other hand, objections in terms of equality before the law would have to be raised against an even broader interpretation, namely that the costs of criminal proceedings could be qualified as company expenses in the case of both a "true acquittal" and an "acquittal in law".   Such an interpretation would make it possible to deduct these costs as company expenses both in the case of lawful and unlawful action.   Then, however, a deduction of the costs of criminal proceedings as company expenses could not be denied even in case of a conviction.           As a result, depending on the nature of the acquittal, the costs for counsel arising in the course of the criminal proceedings can be regarded either as company expenses within the meaning of the Income Tax Act or merely as private costs of living.   4.       The judgment of the Supreme Court of 19 June 1979 contains no findings as to whether the accused could not be charged with the respective offense or whether she was wrongfully suspected of having committed the offence, since she was acquitted exclusively on the ground of prescription.   The judgment contains neither positive nor negative statements concerning her guilt.   5.       Therefore, the decision of the Administrative Court of 6 June 1984 cannot be regarded as implying that in view of the decision of the Supreme Court the party concerned had committed the offence.   The Supreme Court was not obliged to determine the issue of the applicant's guilt and the acquittal was based exclusively on the ground of prescription.   It was also not the concern of the tax proceedings to comment on the existence of a suspicion of a criminal act.   Thus, the presumption of innocence has not been violated insofar as the Administrative Court regarded the judgment of the Supreme Court as a decision which did not comment on the existence of the suspicion of a criminal act and, as a result, comes to concrete conclusions, namely by qualifying the amount expended by the applicant for counsel in the criminal proceedings as private costs of living.   6.       Article 6 para. 2 of the Convention does not entitle the accused to demand reimbursement of the amount spent on counsel when the criminal proceedings are dismissed or the accused is acquitted. According to this provision, it is not even prohibited to order the acquitted person to pay part of the costs of the proceedings.   Only an excessive and seemingly arbitrary imposition on the acquitted person of the costs of the proceedings may be regarded as a violation of the presumption of innocence.   The merely indirect burdening of the applicant with the costs of the proceedings owing to the refusal to qualify them as company expenses can by no means be considered as being excessive or arbitrary.   7.       In its decision of 6 June 1984, the Administrative Court did not determine the issue of guilt but only stated that it cannot be inferred from the acquittal that the applicant's innocence had been ascertained.   Following its consistent practice, the Administrative Court thus only wanted to express that the suspicion had not been raised unjustifiably.           Differentiations of this kind in laws or in court decisions which do not contain the presumption of guilt but merely state that the guilt cannot be proven or that the suspicion cannot be refuted, thus leaving the question of guilt as such unanswered, do not contravene Article 6 para. 2 of the Convention, at least not in connection with court orders as to costs, claims for compensation, and in particular in connection with the permission or refusal to afford deductions (see I. and C. v.   Switzerland, Comm.   Report 4.12.85, para. 61).   8.       The aim of S.29 of the Code of Financial Offence concerning "self-accusation" (quoted above in THE FACTS) is to encourage taxpayers to disclose tax evasions by ensuring that they will be exempt from punishment if they refund the taxes due, thus recovering the losses.   Hence, the public interest in the collection of taxes takes priority over the interest in the punishment of the offender. Both self-accusation and prescription are grounds for quashing a judgment.   Prescription absolutely disregards the question of guilt and is based solely on the expiry of a certain period of time. Conversely, the benefit of the self-accusation presupposes, according to its definition ("those who have committed a financial offence ..."), a financial offence.           In the present case the suspicion raised against the applicant does not seem totally unjustified if it is considered that in her plea of nullity she challenged the decision of the court of first instance in the first place because of its refusal to exempt her from punishment in spite of her self-accusation, while explicitly leaving uncontested the facts ascertained in this decision.     III.      Conclusion             The respondent Government therefore request the Commission to declare the application inadmissible either under Article 26 of the Convention for non-exhaustion of domestic remedies, or, subsidiarily, as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.   B.       The applicant     I.      Requirements under Article 26 of the Convention             The applicant submits that Article 26 embraces only admissible remedies.   In the present case domestic remedies were exhausted by the further complaint lodged with the Administrative Court.   A complaint to the Constitutional Court is not possible if it is alleged that ordinary law - in the present case the Code of Criminal Procedure - has been violated.   A complaint to the Constitutional Court alleging a violation of Article 6 of the Convention would have had no prospect of success, particularly since that Court takes the view that Article 6 is not directly applicable in the domestic legal order.   In this respect attention is drawn to the fact that the Constitutional Court punishes wanton complaints.           In the further complaint to the Administrative Court a violation of Article 6 was alleged.   According to the prevailing case-law of the Constitutional Court, the Administrative Court is under no obligation to refer an application alleging a violation of a right under the Convention to the Constitutional Court.     II.     Complaint under Article 6 para. 2 of the Convention     1.       The applicant first points out that the applicability to tax matters of the Convention has already been accepted in certain cases. In this respect he refers to an article by Berka, Die Europäische Menschenrechtskonvention und die österreichische Grundrechtstradition in the Austrian Law Journal 1979 at p. 369.   2.       Article 6 para. 2 of the Convention states that everyone must be presumed innocent until proved guilty according to the law.   It is irrelevant in this context that the applicant herself admitted the tax evasion, since the present issue concerns the refusal of the authorities to consider defence costs as company costs.   However, Article 6 para. 2 expressly provides that guilt must be proved according to the law.   In non-legal tax proceedings, in which the true facts must be established through official channels, a confession is no substitute for legal proof of guilt.   A confession may be true or false; it may also be withdrawn.   Guilt is proved according to the law only where the person who has confessed is convicted by a decision having the force of law taken in accordance with the relevant legal provisions, provided that such provisions do not infringe rights under the Convention.           The Government overlook the fact that an acquittal on the grounds of prescription does not alter the fact that the applicant was not proved guilty according to the law.   Since everyone is innocent until he has been convicted in proceedings conducted according to the law, it is immaterial whether he is innocent because no charge has been laid, because criminal proceedings have been discontinued, possibly because the charge has been withdrawn, or whether the accused is acquitted because in doubt his innocence has been established, because he is not responsible for his actions, on account of prescription, or for other grounds.           No legal proceedings have established the applicant's guilt. The judgment of the Vienna District Criminal Court which convicted the applicant was quashed by the Supreme Court and is therefore devoid of effect.   It follows that the applicant must clearly be regarded as innocent within the meaning of Article 6 para. 2 of the Convention. The Government's arguments concerning the self-accusation are irrelevant in that respect, since under the Convention a person is not regarded as guilty if he has made a confession but - and with good reason - only if he has been convicted in proceedings conducted according to the law.   After all, people may confess because they are afraid or because they have been put under pressure to do so.   3.       Thus the question of the applicant's guilt in no way remains open, as the Government claim.   In the absence of a conviction she has always been innocent.   It does also not depend on whether the Administrative Court made no finding of innocence and thereby intended to express the view that the suspicion raised against the applicant was groundless.   The only question under Article 6 para. 2 can be whether the applicant was found guilty in proceedings conducted according to the law.   Ultimately the onus is not on the applicant to show her innocence but on the public prosecutor to establish her guilt.   There is an irreconcilable contradiction in the fact that the Administrative Court states, on the one hand, that the defence costs in criminal proceedings are to be regarded as incurred by the business, and therefore as business expenses, if the accused is acquitted of the offence with which she is charged while, on the other hand, the Court states that the evidence failed to demonstrate that the applicant had not committed the offence in question and that she was acquitted by the Supreme Court "only" because the proceedings were statute-barred.   THE LAW           The applicant complains that, even though she had been acquitted of the offences with which she had been charged, the Administrative Court found in its decisions of 6 June 1984 and 5 June 1985 that this acquittal on account of prescription did not amount to the applicant's innocence.   It is submitted that the onus was not on the applicant to show her innocence but on the public prosecutor to establish her guilt.   However, there have been no legal proceedings which established the applicant's guilt.   The applicant relies on Article 6 para. 2 (Art. 6-2) of the Convention which states:           "Everyone charged with a criminal offence shall be         presumed innocent until proved guilty according to law."           The Government submit that according to the Commission's case-law tax proceedings do not concern the determination of a person's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1). Moreover, the present case involves neither a criminal offence nor a financial offence under criminal law, whereas Article 6 para. 2 (Art. 6-2) applies only to those "charged with a criminal offence".           The Commission has considered in the light of the case-law established by the Convention organs whether the charges brought against the applicant in the proceedings before the Vienna Regional Court were "criminal" within the meaning of Article 6 para. 2 (Art. 6-2) (cf. Eur. Court H.R., Engel judgment of 8 June 1976, Series A no. 22, p. 34 f. para. 82; Öztürk judgment of 21 February 1984, Series A no. 73, para. 48 p. 17).   The Commission finds that the provisions defining the offences concerned belong under Austrian law to criminal law since the respective Code of Financial Offences itself refers in its German title to criminal offences (Finanzstrafgesetz). Moreover, in the Commission's opinion, the nature of the offence, namely the violation of the duty of disclosure, is criminal in character.   Finally, the Commission considers that the degree of severity of the sentence which the applicant incurred, namely a fine of 250,000 AS and four months' imprisonment suspended for three years, was of such a severity as to satisfy the criteria for a penal sanction within the meaning of Article 6 (Art. 6) of the Convention as interpreted by the Court in its judgments on the Engel and Öztürk cases.           The Commission is therefore satisfied that in proceedings before the Vienna Regional Court the applicant was "charged with a criminal offence" within the meaning of Article 6 (Art. 6).           The Government also submit that the conditions of Article 26 (Art. 26) of the Convention have not been complied with.   In particular, the applicant failed to file a complaint with the Austrian Constitutional Court against the ruling of the Regional Finance Direction in accordance with Article 144 of the Federal Constitution.   There is no established practice of the Court concerning this particular question of law which would have discharged the applicant from her obligation to appeal to it.   On the contrary, the decisions handed down by the Constitutional Court so far with regard to Article 6 para. 2 (Art. 6-2) of the Convention show that a complaint filed with it in the present case would by no means have to be regarded as hopeless, when taking into account the legal principle of the presumption of innocence.           The Commission observes that the applicant's complaint is in fact directed against a formulation employed by the Administrative Court in its decision of 6 June 1984 and again of 5 June 1985, and that there was no further remedy at the applicant's disposal to challenge this decision before the Austrian Constitutional Court.           The Commission concludes that the application cannot, therefore, be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.           The Government further submit that Article 6 para. 2 (Art. 6-2) of the Convention does not entitle the accused to demand reimbursement of the amount spent on counsel when the accused is acquitted.   Moreover, the judgment of the Supreme Court of 19 June 1979 contains no findings as to whether the accused could not be charged with the respective offence or whether she was wrongfully suspected of having committed the offence, since she was acquitted exclusively on the ground of prescription.   Equally in its decision of 6 June 1984, the Administrative Court only stated that it could not be inferred from the acquittal that the applicant's innocence had been ascertained.   The Court thus only wanted to express that the suspicion had not been raised unjustifiably.   In the present case the suspicion raised against the applicant does not seem totally unjustified if it is considered that in her plea of nullity, directed against the decision of the Regional Court, she explicitly left uncontested the facts ascertained in that decision.           The Commission observes that in the respective decision of 5 June 1985 the Administrative Court upheld its previous decision of 6 June 1984 according to which the applicant could not in her tax declaration claim the respective expenses for counsel as being company expenses.           However, neither Article 6 para. 2 (Art. 6-2) nor any other provision of the Convention guarantees a right to claim expenses for counsel as being tax deductible in a case where the accused is eventually acquitted or the proceedings are discontinued.           On the other hand, the Commission and Court have admitted that the application of Article 6 para. 2 (Art. 6-2) is not limited to cases where a prosecution ends in the conviction or acquittal of the accused and that the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (Eur. Court H.R., Minelli judgment of 25 March 1983, Series A no. 62, p. 18 para. 37).           It is true that in the present case the applicant complains of a statement of the Administrative Court according to which her acquittal of the criminal offences of tax evasion was only based on the prescription of these offences and had not established her innocence.   She complains in particular that this official statement by a court, according to which she is presumed guilty because she failed to prove her innocence constitutes a violation of her right to be presumed innocent as set out in Article 6 para. 2 (Art. 6-2) of the Convention.           The Commission, having just found that in the previous proceedings before the Vienna Regional Court the applicant had been "charged with a criminal offence" within the meaning of Article 6 (Art. 6) of the Convention, observes that the applicant's complaint concerns the subsequent tax proceedings relating to the deduction of costs for counsel on company expenses.   The Commission notes in particular that the present case has certain similarities with the Minelli case where the Court concerned had first decided not to hear that applicant as the limitation period had expired and thereafter decided on the side effects of that case, namely by directing the applicant to bear part of the court costs (see Eur.   Court H.R., judgment of 25 March 1983, Series A No. 62 para. 12).   However, the present case differs from the Minelli case in that the deduction of costs for counsel was decided upon in different subsequent proceedings.   It is therefore in no way evident that at the relevant time the applicant was still "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.           However, the Commission does not find it necessary to resolve the question whether Article 6 para. 2 (Art. 6-2) is also applicable to these proceedings, since the application must in any event be declared inadmissible for the following reasons.           The Commission finds that the incriminated statement must not be read in isolation, but in the context of the legal question which the Administrative Court was called upon to decide.   In fact, the latter was faced with the problem of the interpretation of S.4(4) of the Income Tax Act according to which expenses for defence counsel can be deducted from the taxable income if the criminal proceedings in question have lead to an "acquittal".           The Administrative Court came to the conclusion that only an acquittal on the merits of the case can be accepted as the prerequisite for deducting defence expenses from income.   In the applicant's case the acquittal was based on prescription and did not, therefore, meet that particular requirement.   This had been the only point at issue.           The Commission accepts that the finding of the Administrative Court could have been formulated in less equivocal terms. Nevertheless, in the circumstances of the present case, it finds that the terms employed do not amount to a violation of the applicant's rights under Article 6 para. 2 (Art. 6-2) of the Convention.   It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission                (H.C. KRÜGER)                             (C.A. NØRGAARD)