CEDH · CASELAW;REPORTS;ENG — 2 septembre 1992

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          APPLICATION No. 15306/89                                Hedwig KIRALY                                   against                                   AUSTRIA                          REPORT OF THE COMMISSION                        (adopted on 2 September 1992)                              TABLE OF CONTENTS                                                                    Page   I.INTRODUCTION       (paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 6 - 11) . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 12 - 21). . . . . . . . . . . . . . . . . . . . . . . 3         A.    Complaint declared admissible            (para. 12° . . . . . . . . . . . . . . . . . . . . . . . 3         B.    Point at issue            (para. 13) . . . . . . . . . . . . . . . . . . . . . . . 3         C.    Compliance with Article 6 para. 1 of the Convention            (paras. 14 - 20) . . . . . . . . . . . . . . . . . . . . 3         D.    Conclusion            (para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4   APPENDIX : Decision on the admissibility of the application . . . . 5                              I.   INTRODUCTION   1.     The present Report concerns Application No. 15306/89 by Hedwig KIRALY against Austria, introduced on 21 June 1989 and registered on 27 July 1989.         The applicant, born in 1918, is an Austrian national and resident at Hinterbrühl, Austria.   Before the Commission she was represented by Mr. A. Wanke, a lawyer practising in Vienna.         The Austrian Government are represented by their Agent, Ambassador H. Türk, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   2.     The application was communicated to the Government on 4 December 1989.   On 7 October 1991 the application was referred to the Second Chamber.   Following an exchange of memorials, the complaint relating to the length of criminal proceedings (Article 6 para. 1 of the Convention) was declared admissible on 9 December 1991.   The decision on admissibility is appended to this Report.         The Government have made further submissions on 10 February and 8 May 1992; the applicant submitted further observations on 11 May 1992.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (Second Chamber), after deliberating, adopted this Report in accordance with Article 31 para. 1 of the Convention, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.                       II.   ESTABLISHMENT OF THE FACTS   6.     In January 1984 criminal proceedings were instituted against the applicant's husband and her son, who are managing two limited export companies, on the suspicion of tax evasion (S. 33 of the Code of Financial Offences - Finanzstrafgesetz).   In the course of these investigations, inter alia, jewellery contained in bank safes was seized.   The applicant's husband and son appealed against this seizure, claiming that the applicant owned the jewellery concerned.   The appeals as well as later requests for restitution remained unsuccessful.   7.     On 9 April 1985, in the course of the criminal proceedings against the applicant's husband and her son, the Mödling Tax Office (Finanzamt) requested the Vienna Public Prosecutor's Office (Staatsanwaltschaft) to institute proceedings against the applicant on the suspicion of having committed tax evasion in that she had failed to make gift and property tax declarations concerning the jewellery allegedly owned by her.   8.     On 19 March 1986 the Public Prosecutor's Office, having consulted the files concerning the proceedings against the applicant's husband and her son, returned these files to the Investigating Judge (Untersuchungsrichter) at the Vienna Regional Court (Landesgericht). The Prosecutor's Office forwarded at the same time the new charges against the applicant of 9 April 1985, and requested the Investigating Judge to hear the applicant, and to extend the investigations against her husband to these items.   9.     On 22 May 1986 the applicant was summoned for 17 June 1986.   On 11 June 1986 she informed the Court that she would be absent at that date.   On 20 June 1986 she was summoned for 31 July 1986.   10.    At her examination on 31 July 1986 the applicant refused to make any statements in respect of the criminal proceedings against her as well as the property rights concerning the seized objects.   Thereupon, the Investigating Judge at the Regional Court decided to join the charges against her with the criminal proceedings against her husband and son, and to extend the investigations against her husband in this respect.   Furthermore, the Mödling Tax Office was instructed to conduct the investigations against the applicant and to file a report subsequent to the final tax assessments.   11.    The proceedings against the applicant are still pending.                       III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   12.    The Commission has declared admissible the applicant's complaint that her case was not heard within a reasonable time.   B.     Point at issue   13.    The only point at issue is whether the length of the criminal proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Compliance with Article 6 para. 1 (Art. 6-1) of the Convention   14.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   15.    The applicability of Article 6 para. 1 (Art. 6-1) to the criminal proceedings against the applicant concerning charges of tax evasion within the meaning of the Austrian Code of Financial Offences is not in dispute.   16.    The period to be taken into consideration started at the latest on 31 July 1986 when the applicant was heard as a suspect.   The proceedings have not yet been terminated after more than six years.   17.    The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to its complexity, the conduct of the parties and the conduct of the authorities dealing with the case.   In this instance the circumstances call for an overall assessment (see Eur. Court H.R., Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   18.    According to the Government, the length of the period in question was due to the link between the applicant's case and the very complex criminal proceedings against her husband and her son.   The criminal proceedings against her were instituted in order to prevent prescription in case her ownership of the jewellery should be established in the course of the investigations against her husband and her son.   19.    The Commission notes that the criminal proceedings against the applicant were opened in July 1986, and joined with the proceedings against her husband and her son, which involve a tax inspection of two companies managed by them. In July 1986 the Investigating Judge at the Vienna Regional Court ordered the Mödling Tax Office to file a report, following the final tax assessments.   The criminal proceedings have not been furthered pending these tax proceedings.    The charge against the applicant, namely evasion of gift and property tax on jewellery, raises the question of ownership of the jewellery concerned, which was seized in the course of the proceedings against her husband and her son. However, the Government have not explained that the charge against the applicant can only be determined after termination of all tax investigations and proceedings against the applicant's husband and her son.   20.    In these circumstances, the Commission finds that the length of the proceedings complained of has exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Conclusion   21.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention   Secretary to the Second Chamber    President of the Second Chamber           (K. ROGGE)                           (S. TRECHSEL)