CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 octobre 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. 14184/88                       by Karl REZEK                       against Austria             The European Commission of Human Rights sitting in private on 16 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 11 July 1988 by Karl Rezek against Austria and registered on 6 September 1988 under file No. 14184/88;           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 6 September 1990 to bring         the application to the notice of the respondent Government         and invite them to submit written observations on its         admissibility and merits;        -   the observations submitted by the respondent Government on         29 December 1990 and the observations in reply submitted         by the applicant on 11 February 1991;           Having deliberated;           Decides as follows: THE FACTS           The applicant is an Austrian citizen, born in 1940 and living in Vienna.   He is represented by Mr.   Karl Bernhauser, a lawyer in Vienna.           The facts agreed between the parties may be summarised as follows.           I.   General Investigation           On 30 March 1978 the Regional Tax Authorities (Finanzlandesdirektion) informed the Vienna Customs Authorities (Zollamt) that the applicant was suspected of dealing with used foreign cars without declaring his turnovers.   The Customs Office took no immediate action.           On 29 November 1978 the Customs Authorities were informed of thefts of foreign cars and on 13 December 1978 sent a rogatory request for investigations to the German authorities.           On 19 January 1979 an audit (abgabenrechtliche Prüfung) was carried out with respect to the applicant.           On 14 May 1979 a search and seizure (Hausdurchsuchung) was carried out on the premises of the applicant, who was suspected of having stolen cars abroad.   In connection with this charge the applicant was detained on remand from 16 May to 19 June 1979.           On 21 August 1979 the applicant was heard for the first time as a suspect of tax offences (Finanzvergehen).   In order to check the correctness of his statements, a rogatory request was sent to the German authorities.   On 12 May 1980 the documents seized were sent to the Customs Authorities for examination.   They were returned on 3 November 1980 and on 13 and 18 November 1980 the applicant was heard as a suspect.           Subsequently, further investigations and rogatory requests became necessary concerning a great number of customs declarations related to car imports.           On 24 and 28 September 1981, in October 1981 and between 9 July and 4 August 1982, as well as repeatedly in the course of 1983, the applicant was again interrogated.   A number of Austrians who had bought cars were likewise interrogated as suspects.           On 24 January 1984 a valuer (Schätzmeister) was heard as a further suspect.           The results of the criminal investigations were continuously communicated to the tax authorities for auditing purposes in order to assess the taxes due (abgabenrechtliche Würdigung).           On 1 August 1984 the latest notices of assessment (Abgabenbescheide) were communicated to the criminal investigation branch of the Customs Authorities which then prepared a final report for the Public Prosecution.           On 1 February 1985 this report, comprising two large files, was terminated.         II.   Criminal Proceedings for smuggling (N° 26c VR 3 030/85)           On 19 February 1985 the Customs Authorities' report reached the Public Prosecution.   According to this report the applicant was suspected of continuous import tax evasion (gewerbsmässige Hinterziehung). Fourteen other persons were suspected of aiding and abetting.           On 8 March 1985 the Public Prosecution requested the competent investigating judge to hear all suspects and obtain their criminal records.   Originally 15 persons were considered as being involved.           The applicant was summoned to appear on 1 April 1985 but failed to present himself.   Police investigations made thereupon revealed that on 3 April 1985 he had left his last known place of residence without leaving a forwarding address.           On 12 April 1985 an order to find out the applicant's whereabouts was issued.           On 9 September 1986 an indictment (Anklageschrift) of 249 pages was filed against the applicant and three co-accused.   At the same time a request was made to issue a warrant of arrest against the applicant.           On 17 September 1986 a warrant of arrest was issued.           On 23 September 1986 the police authorities reported that the applicant's whereabouts were still unknown.           On 10 October 1986 Mr.   Bernhauser informed the Court that the applicant had chosen him as defence counsel.           On 14 October 1986 the applicant personally called at the Regional Court to indicate his address.   He was handed a copy of the indictment.   The warrant of arrest was revoked subject to the applicant respecting certain conditions.           On 27 October 1986 the applicant filed objections against the indictment.           On 27 November 1986 the Vienna Court of Appeal (Oberlandesgericht) rejected these objections.           Following a proposal made by the Public Prosecution on 12 December 1986, the proceedings relating to eleven other persons were discontinued on 22 December 1986.           On 20 February 1987 the Court decided to hold the trial from 11 to 15 May 1987.           After hearings on 11 and 12 May 1987 the applicant was convicted of continuous import tax evasion and other offences (Abgabenhinterziehung und Abgabenhehlerei).   He was fined AS 1,800,000 or three months' imprisonment in case of non-payment of the fine.           The judgment relates to 318 different cases.         On 18 May 1987 the applicant lodged an appeal (Berufung) and a plea of nullity (Nichtigkeitsbeschwerde).           On 8 January 1988 the text of the judgment was communicated to the accused.   It comprised 166 pages.           On 22 January 1988 the applicant submitted his grounds of appeal.           On 30 June 1988 the Supreme Court (Oberster Gerichtshof) rejected the applicant's remedies and ordered that his detention on remand in other proceedings (No. 1bVr 1719/84) be deducted.           III.   Proceedings for tax evasion (No. 26d Vr 1646/89)           1.   Proceedings before the Tax Authorities (Finanzamt)           On 28 April 1978 tax evasion charges were laid against the applicant and he was heard by the Tax Authorities on 17 May 1978.           On 29 November 1978 further charges were laid and the applicant was again heard on 9 May 1979.   These hearings did not give any reason to suspect the applicant of tax evasion.           On 24 April 1981 the Tax Authorities instituted administrative criminal tax proceedings against the applicant and proceeded to an audit (Betriebsprüfung) in view of the reports established by the Customs Authorities in March 1981 in the parallel import tax evasion proceedings.           On 28 April 1981 a search and seizure order was given against the applicant and others.           On 26 February 1982 the result of the audit was discussed with the applicant.           On 22 March 1982 new tax assessments were issued concerning turnover tax 1976 and 1978, income tax 1977, turnover and income tax 1979.           On 30 March 1982 another assessment was issued concerning turnover tax 1975 and 1977.           On 17 May 1982 the applicant lodged an appeal against the assessment orders.           On 30 July 1982 the Tax Authorities refused to grant the appeal (Berufungsvorentscheidung).           On 19 August 1982 the applicant requested that his appeal be decided by the Regional Tax Authorities (Finanzlandesdirektion).           On 2 October 1987 the applicant was requested to comment on the audit report.           On 22 October 1987 and on 18 April 1988 he was heard by the authorities on his grounds of appeal.           On 7 July 1988 the Regional Tax Authorities rejected the appeal.           2.   Criminal tax proceedings           In view of the Regional Tax Authorities' decision of 7 July 1988 criminal charges were laid against the applicant on 15 December 1988.           On 7 February 1989 the Public Prosecution requested the Investigating Judge to hear the applicant.           On 13 February 1989 the applicant was summoned to appear on 27 February 1989.           On 28 February 1989 the applicant's counsel, Mr.   Bernhauser, informed the Court that his client was on holiday.           On 6 March 1989 the applicant submitted that his tax adviser had died and that consequently the decision of the Regional Tax Authorities, which had been sent to his tax adviser's successor, had not been communicated to him in an effective manner and was therefore void.           On 7 March 1989 the Public Prosecution submitted observations on this issue.           On 8 March 1989 the Regional Court requested the applicant's counsel to submit observations within six weeks.           On 22 May 1989 counsel was reminded to submit observations.           On 14 June 1989 counsel submitted that the tax assessment orders were not final.           On 24 August 1989, following a request made in the meantime by the Public Prosecution, the Tax Authorities submitted evidence showing that the Regional Tax Authorities' decision of 7 July 1988 had been duly served on the applicant's tax adviser.           On 28 August 1989 an indictment was filed.           On 22 September 1989 the applicant raised objections which were rejected by the Vienna Court of Appeal on 11 December 1989.           On 20 December 1989 the trial was fixed for 1 February 1990.           On 1 February 1990 the applicant was convicted of tax evasion and fined AS 200,000 or ten days' imprisonment.   He accepted the judgment.           IV.   The relevant legislation           The relevant provisions of the Criminal Tax Act (Finanzstrafgesetz - FinStrG) read:   Sec. 33 "(1) Everyone who deliberately evades taxes by violating his fiscal obligation of making true and correct tax declarations is punishable."   Sec. 35 "(1) Everyone who deliberately conceals goods for which import or export taxes are due is punishable."           According to Sec. 38 of the Criminal Tax Act the statutory fine may be quadrupled in case of continuous smuggling.   Sec. 53 "(1) The Court is competent to deal with a tax offence           a) if aggravated punishment in accordance with            Sec. 38 is in question,           b) if the tax evasion has been committed            deliberately and exceeds AS 500,000 (according to            the latest revised version: AS 1 million)."           According to Sec. 55, a court trial may not be conducted on a charge of tax evasion before the tax for the period in question has been assessed by final decision.     COMPLAINTS           The applicant complains of the length of the above proceedings and alleges a violation of Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 11 July 198 and registered on 6 September 1988.           On 6 September 1990 the Commission decided to communicate the application to the respondent Government for observations on its admissibility and merits.   After extension of the time-limit the respondent Government's observations were submitted on 28 December 1990.   The applicant's reply was submitted on 11 February 1991.     THE LAW           The applicant complains about the length of two criminal proceedings against him, the first concerning smuggling offences, the second concerning tax evasion offences.           He submits that with regard to the smuggling offences a search and seizure was carried out against him on 14 May 1979.   He considers that he was charged at this moment and that the proceedings, which ended with the Supreme Court's decision of 30 June 1988, consequently lasted more than nine years.           As to the criminal tax proceedings, the applicant submits that he should be considered to have been charged in 1979 as he had already then been heard in connection with the charges which eventually led to his conviction by the Regional Court on 1 February 1990, i.e. nine years later.   He considers that the duration of both proceedings was unreasonable.           The Government argue that charges in the proceedings concerning the smuggling offence were not laid before the Public Prosecution received the report of the Customs Authorities in   February 1985, and in the criminal tax proceedings in December 1988 when the Tax Authorities requested the Public Prosecution to institute proceedings against the applicant.           They consider that the first set of proceedings only lasted some three years and the second set a little more than a year which is not unreasonable.           The Commission has taken into account the parties' submissions on the starting point of the proceedings in question and on the reasonableness of the duration of these proceedings.   It finds that both questions raise serious points of fact and law which cannot be resolved at this stage of the proceedings, but necessitate a thorough examination of the merits of the case.           The Commission further observes that there are no other grounds for considering the application inadmissible.           For these reasons, the Commission by a majority             DECLARES THE APPLICATION ADMISSIBLE,         and without prejudging the merits of the case.          Secretary to the Commission           President of the Commission                  (H.C. KRÜGER)                         (C.A. NØRGAARD)