CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1991

.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. 14974/89                        by H.                        against Austria               The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1991, the following members being present:                MM.   J. A. FROWEIN, President of the First Chamber                   J. C. SOYER                   H. DANELIUS              Sir   Basil HALL              MM.   C.L. ROZAKIS                   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                Mr.   M. de SALVIA, Secretary to the First 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 21 March 1989 by H.against Austria and registered on 5 April 1989 under file No. 14974/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the parties, may be summarised as follows:           The applicant, born in 1939, is an Austrian national and resident in Vienna.   Before the Commission, he is represented by Mr.   K. Bernhauser, a lawyer practising in Vienna.           In July 1980 German authorities informed the Vienna Customs Office (Zollamt) about the suspicion that, inter alia, a car imported by the applicant from the Federal Republic of Germany to Austria on 1 March 1979 had not been correctly declared.           On 9 April 1981 the Vienna Customs Office, acting as Finance Prosecution Department (Finanzstrafbehörde), heard the applicant as a suspect (Verdächtiger) on the suspicion of tax evasion under the Austrian Code of Financial Offences (Finanzstrafgesetz).   In his written statement (niederschriftliche Verantwortung), the applicant submitted inter alia that he had bought the car for his wife at the low price which he had declared at the customs.           From 18 May until 7 August 1981 the Frankfurt Customs Search Office (Zollfahndungsamt), on the basis of rogatory letters, conducted investigations on a Frankfurt car dealer, and in particular heard witnesses on 22 and 29 July 1981, as to the sale of the car in question.   The files were then sent to another Department of the Vienna Customs Office for decision on the import tax.           On 24 January 1985 the Vienna Customs Office decided upon the import tax (Eingangsabgaben) to be paid by the applicant's wife for the car concerned.   Her appeal (Berufung) was dismissed by the Regional Finance Department (Finanzlandesdirektion) of Vienna, Lower Austria and Burgenland on 12 August 1987.   The files were returned to the Finance Prosecution Department on 29 September 1987.           On 21 October 1987 the Vienna Customs Office, acting as Finance Prosecution Department, instituted criminal proceedings for financial offences (Finanzstrafverfahren) against the applicant.           On the same day the Office issued a penal order (Straf- verfügung) against the applicant for violation of S. 35 para. 2 of the Code of Financial Offences (Finanzstrafgesetz), namely incorrect declaration at the customs.   He was fined AS 40,000, in default of payment 40 days' imprisonment;   furthermore, as an accessory punishment, he was ordered to pay AS 88,000 (in default of payment 18 days' imprisonment) as compensation in lieu of confiscation (Wertersatzstrafe).   The administrative fees were fixed at AS 4,000.           On 20 November 1987 the applicant filed an objection (Einspruch) against the penal order and requested that the proceedings against him be discontinued.             On 22 June 1988 the applicant and the co-accused were summoned for a hearing on 14 July 1988.           On 19 August 1988, the Vienna Customs Office, upon the hearing of 14 July 1988, convicted the applicant of having committed an offence under S. 35 para. 2 of the Code of Financial Offences in that he had made false declarations when importing a car in March 1979, and thereby evaded import tax.   He was fined AS 40,000 (in default of payment 40 days' imprisonment);   further a compensation in lieu of confiscation was fixed at about AS 88,000 (in default of payment 18 days' imprisonment).   He was also ordered to pay the costs of the proceedings.   The Customs Office proceeded in particular from the applicant's written declaration of April 1981 and the statements of the co-accused as well as of a witness, who had been heard on the basis of a rogatory letter in the investigation proceedings in 1981.           On 5 October 1988 the Customs Office received the applicant's appeal (Berufung).           On 17 January 1989 the Regional Finance Department for Vienna, Lower Austria and Burgenland, upon the applicant's appeal, reduced the fine to AS 32,000 (in default of payment 32 days' imprisonment).   The remainder of the appeal was dismissed.   The decision was served on 2 February 1989.           On 28 June 1989 the Austrian Administrative Court (Verwaltungs- gerichtshof), upon the applicant's appeal (Beschwerde) of 9 March 1989, quashed the decision of the Regional Finance Department of 17 January 1989.   The Court of Appeal found that the Customs Office had not correctly applied the Code of Financial Offences.           On 9 August 1989 the proceedings were discontinued on the ground that prosecution had become time-barred.     COMPLAINTS           The applicant complains under Article 6 para. 1 of the Convention about the length of the criminal proceedings for financial offences.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 21 March 1989 and registered on 5 April 1989.           On 14 December 1989 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits.             On 12 April 1990 the respondent Government submitted its observations, and the observations in reply were submitted by the applicant on 3 May 1990.           On 8 January 1991 the Commission decided to refer the application to the First Chamber.   THE LAW   1.       The applicant complains about the length of proceedings against him concerning charges under the Code of Financial Offences. He relies upon Article 6 para. 1 (Art. 6-1) of the Convention which, insofar as relevant, provides:   "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 required under Article 26 (Art. 26) of the Convention, in that, subsequent to the appeal decision of the Regional Finance Department of Vienna, Lower Austria and Burgenland dated 17 January 1989, he did not lodge a complaint about the length of the proceedings with the Constitutional Court (Verfassungsgerichtshof).           The Commission recalls that the burden of proving the existence of available and sufficient domestic remedies lies upon the State invoking the rule (cf.   Eur.   Court H.R., Deweer judgment of 27 February 1980, Series A no. 35, p. 15, para. 26).           The Commission notes that with the above decision of the Regional Finance Department dated 17 January 1989 the proceedings were not terminated, but the applicant lodged a successful appeal with the Administrative Court, and the proceedings were later discontinued. The Government did not show to what extent the applicant could have, in these circumstances, lodged an effective complaint with the Constitutional Court alleging a violation of Article 6 para. 1 (Art. 6-1) of the Convention as regards the length of the proceedings.           The Commission, therefore, considers that the applicant has exhausted the domestic remedies available to him under Austrian law.   3.       Furthermore, the Government submit that the starting point for the period to be considered under Article 6 para. 1 (Art. 6-1) of the Convention is 21 October 1987 when the Vienna Customs Office instituted proceedings against the applicant under the Code of Financial Offences.   They consider that the proceedings were then terminated within a reasonable time, namely less than two years.           The Commission finds that the applicant's complaint about the length of the criminal proceedings against him under the Code of Financial Offences raises questions of fact and law - including the question of the period to be considered under Article 6 para. 1 - (Art. 6-1) which are of such complexity that their determination requires an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established.             For these reasons, the Commission, unanimously,             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.       Secretary to the First Chamber           President of the First Chamber              (M. DE SALVIA)                            (J.A. FROWEIN)