CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 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. 11439/85                       by Kurt STEINLECHNER (deceased)                       against Austria             The European Commission of Human Rights sitting in private on 5 October 1987 the following members being present:                 MM. C.A. NØRGAARD, President                   M.A. TRIANTAFYLLIDES                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ              Mrs.   J. LIDDY                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 10 July 1984 by Kurt Steinlechner (deceased) against Austria and registered on 18 March 1985 under file N° 11439/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   &_THE FACTS&S           The applicant, an Austrian citizen born in 1932, who resided in Salzburg, died on 23 February 1985.   He was represented by Mr.   R. Zitta, a lawyer practising in Salzburg, who is now representing the applicant's widow, Mrs.   Ariane Steinlechner, and his children, Günther and Ingrid Steinlechner, who have indicated that they wish to pursue the application.           The applicant was the accountant of a company which imported and sold timber.   When the company was transformed into a limited liability company the applicant became head clerk.           In 1973 the Austrian customs authorities discovered irregularities in the declaration of the value of imported rosewood for inlaying.   Further investigations showed that customs duties and other taxes had been evaded.   The amount of evaded taxes was assessed after hearing the applicant.   On 31 July and 25 September 1973 the financial authorities in Salzburg and Vienna issued tax decisions against the company which paid the taxes to the treasury.           On 31 May 1974 criminal proceedings for tax evasion were brought against the applicant and another person.   On 19 November 1974 a hearing took place which was postponed to 26 January 1977 in order to take evidence.   It was further postponed to 27 and 28 April 1977 because the judge had had an accident.           By judgment of 28 April 1977 the Regional Court (Landesgericht) of Salzburg convicted the applicant of breaches of the Code of Financial Offences, fined him and sentenced him to one year's imprisonment.   The Court fixed the penalty on the basis of the amount of the company's financial obligations as established in the tax decisions.   The judgment was served on the applicant on 11 April 1978.           The applicant and the prosecutor filed pleas of nullity. The applicant also lodged an appeal against the sentence.           On 23 October 1979 the Supreme Court (Oberster Gerichtshof) partly admitted the plea of nullity and therefore did not decide on the applicant's appeal.   It confirmed the view that the existence of fiscal debts resulting from a final tax decision had to be considered as a fact the correctness of which could not be re-examined by the penal judge.   However, it quashed the judgment of the Regional Court with regard to the legal qualification of certain charges and the penalties pronounced and referred these aspects of the case back to the Regional Court of Salzburg.           On 8 April 1980 the applicant and his co-accused introduced an application against Austria (No. 8975/80) complaining that these criminal proceedings violated Article 6 paras. 1 and 2 of the Convention insofar as, according to the judgments of the Regional Court of Salzburg and the Supreme Court, the final decisions of the tax authorities had a binding effect for the penal judge.           On 2 March 1983 the Commission declared the application inadmissible.   It found that the applicants could not at that stage of the proceedings claim to be victims in the sense of Article 25 of the Convention.   It pointed out that the Supreme Court had quashed the judgment of the Regional Court with regard to the legal qualification of certain offences and the penalties, and noted that the case was still pending before the Salzburg Regional Court.           On 13 June 1980 the Regional Court fixed 16 September 1980 as date of the new trial.   However, that hearing was postponed to 21 October 1980 at the request of the applicant's co-defendant.   At the hearing the Regional Court decided to take expert evidence.   A first expert opinion was delivered to the Court on 23 July 1981.   A second opinion was ordered on 31 July 1981 and was delivered to the Court on 27 May 1982 and amended on 1 April 1983.           On 12 August 1983 the Regional Court ordered a hearing to be held on 20 September 1983 which was postponed to 20 December 1983 because the applicant's co-defendant was prevented from attending.   As the Court had summoned only one expert the hearing was eventually adjourned to 10 January 1984.   In the meantime the applicant fell ill. He waived his right to appear at the hearing.   Thus, the hearing took place on 10 January 1984 in his absence.           On the same date the Regional Court pronounced its judgment. It partially acquitted the applicant and in respect of the remaining charges sentenced him to a conditional imprisonment of six months, a fine of two million AS and a further fine (Wertersatzstrafe) of sixty-two million AS.   This judgment was not served until 13 July 1984.           On 10 July 1984 the applicant introduced the present application complaining of violations of Article 6 para. 1 and Article 13 of the Convention.           Against the judgment of 10 January 1984 the applicant filed a plea of nullity concerning his conviction and an appeal against the sentence.           The plea of nullity was rejected by the Supreme Court on 20 November 1984.           The appeal was referred to the Linz Court of Appeal which ordered a hearing to be held on 18 March 1985.   However, this hearing was cancelled after the applicant's death on 23 February 1985.           On 19 July 1985 the Salzburg Regional Court declared the case terminated.     &_COMPLAINTS&S   1.       The applicant complained under Article 6 para. 1 of the Convention that the criminal charges against him were not determined within a "reasonable time".   Several delays were neither caused by the conduct of the parties nor by special circumstances or the complexity of the case.           The applicant also complained under Article 13 of the Convention that Austrian law did not provide for an effective remedy against an unreasonable length of proceedings.           By letter of 7 May 1985 the applicant's widow and his children, represented by the applicant's lawyer, informed the Commission that they were the applicant's heirs and that they wished to pursue the case before the Commission.   They claimed that they were victims in the sense of Article 25 of the Convention, in that they had suffered material damages, i.e. their obligation to pay the lawyer's fees, and immaterial damages, i.e. mental suffering due to the impending punishment of the applicant.   2.       On 8 May 1985 the applicant's heirs introduced further complaints.   They stated that they wished to re-introduce the complaints raised in the applicant's earlier application No. 8957/80 which had been declared inadmissible because at the relevant time the applicant had not been finally convicted and therefore could not claim to be a victim.           The applicant's heirs submit that they are indirect victims in the sense of Article 25 of the Convention because the applicant was afflicted with a criminal conviction.   As the case was declared terminated there are no further remedies.           The applicant's heirs complain under Article 6 paras. 1 and 2 of the Convention that the Salzburg Regional Court and the Supreme Court considered themselves bound by final administrative decisions with regard to the facts of the criminal case.     &STHE LAW&S   1.       The case concerns criminal proceedings taken against the applicant under the Code of Financial Offences which had been pending since 1974.   Before the proceedings were concluded by a final decision the applicant died.           The Commission notes that during his life-time the applicant raised complaints under Article 6 para. 1 and Article 13 (Art. 6-1, 13) of the Convention concerning the length of the above criminal proceedings which his heirs now wish to pursue together with additional complaints which they introduced after his death.   The latter concern the binding effect of administrative decisions on the penal judge, which they consider to be contrary to Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.   2.       The Commission recalls the case-law of the Convention organs according to which the fact that an applicant dies does not in itself dispose of his complaint.   It falls to the Convention organ before which the case is pending to decide whether the application should be further examined.   In the examination of this question, special consideration should be given to the intentions expressed by the applicant's legal successors as well as to the nature of the complaint (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35 para. 37; Kofler v.   Italy, Comm.   Report 9.10.82, D.R. 30 p. 5; No. 10474/83, Veit v.   Federal Republic of Germany, Dec. 9.6.86, p.28).           The applicant's heirs wish to pursue the applicant's complaints concerning the allegedly unreasonable length of the criminal proceedings.   However, the right to the speedy conduct of criminal proceedings is in principle a personal right of the accused which, after his death, cannot be invoked by members of his family unless they have themselves been seriously affected by the excessive length of these proceedings (cf.   Kofler v.   Italy, loc. cit.).   The Commission considers that the members of the present applicant's family were not so seriously affected by the length of the criminal proceedings that they could claim immaterial damages on that account. Insofar as they claim that they have suffered material damage the Commission accepts that this could constitute a ground to continue the examination of the case (cf.   No. 10474/83, Veit v.   Federal Republic of Germany, loc. cit.).   However, the Commission finds that the applicant's heirs have failed to substantiate that they indeed suffered a material damage.   In particular, they have not been able to show that the penalties pronounced against the applicant and more specifically the fines imposed on him by the Court of first instance could now be enforced against them or the applicant's estate.   In view of the lack of a final sentence this seems to be excluded under Austrian law.   Insofar as the applicant's heirs may be required to bear lawyer's costs incurred by the applicant, they have failed to show that these costs involved any sums attributable specifically to the length of the criminal proceedings and thus related to the substance of the applicant's complaint.   It follows that the applicant's heirs cannot claim to be seriously affected by the proceedings complained of.           In accordance with its usual practice, the Commission has nevertheless considered whether any question of general interest affecting the observance of the obligations undertaken by the High Contracting Parties requires a further examination of the application.           It notes that the delay in the criminal proceedings complained of was apparently caused by a series of circumstances affecting the conduct of these proceedings.   However, the length of the proceedings was not a result of the Austrian rules of procedure.   The Commission therefore finds no general interest which necessitates the further consideration of the complaint under Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission, considering that Article 6 (Art. 6) is lex specialis in relation to Article 13 (Art. 13) , finds no separate issue under Article 13 (Art. 13) of the Convention.           In conclusion the Commission finds no basis for a continued examination of the complaint concerning the length of the criminal proceedings.   3.       The applicant's heirs also complain under Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention that in the relevant proceedings the criminal courts considered themselves bound by administrative decisions.           The Commission notes that similar complaints were raised by the applicant in his earlier application No. 8957/80 which the Commission declared inadmissible on 2 March 1983 on the ground that the applicant could not claim to be a "victim" before the final conclusion of the criminal proceedings.           The Commission has considered this part of the application under Article 27 para 1 (b) (Art. 27-1-b) of the Convention which provides:           "The Commission shall not deal with any petition         submitted under Article 25 (Art. 25) which           (a) ...         (b) is substantially the same as a matter which             has already been examined by the Commission             ... and if it contains no relevant new             information"           The Commission considers that the application of this provision is not excluded by the fact that the applicant died and that the above complaints have now been submitted by the applicant's heirs. It notes their statement that they wish to re-introduce the complaints raised in the applicant's earlier application No. 8957/80 and finds that, in its examination of these complaints under Article 27 para. 1 (b) (Art. 27-1-b), it must have regard to the situation at the time of the introduction of the present application by the applicant.   It follows that there is identity of parties in both cases.   Moreover, the subject-matter of application No. 8957/80 is the same criminal proceedings against the applicant of which his heirs now complain as his legal successors.   This being so, the complaint now pursued by the applicant's legal successors could be examined by the Commission only if the successors had submitted relevant new information.           In this respect the Commission notes the information that the applicant died on 23 February 1985 and that the proceedings were declared to be terminated by the Salzburg Regional Court's decision of 19 July 1985.   The proceedings were thus not concluded by a final judgment and the situation complained of presents no relevant new element if compared to that examined by the Commission in the applicant's previous application No. 8957/80.           The Commission concludes that the above complaints, as pursued by the applicant's heirs, are substantially the same as the applicant's complaints in his previous application No. 8957/80 and that they contain no relevant new information.   It follows that this part of the application must be rejected under Article 27 para 1 (b) (Art. 27-1-b) of the Convention.             For these reasons, the Commission             &_DECLARES THE APPLICATION INADMISSIBLE.&S     Secretary to the Commission                President of the Commission            (H.C. KRÜGER)                                (C.A. NØRGAARD)