CEDH · CASELAW;REPORTS;ENG — 1 septembre 1993

.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                                FIRST CHAMBER                          Application No. 14184/88                                    REZEK                                      v.                                   Austria                           REPORT OF THE COMMISSION                        (adopted on 1 September 1993)   TABLE OF CONTENTS                                                                    Page   I.          INTRODUCTION            (paras. 1 - 14). . . . . . . . . . . . . . . . . . . . . 1              A.     The application                  (paras. 2 - 4) . . . . . . . . . . . . . . . . . . 1              B.     The proceedings                  (paras. 5 - 9) . . . . . . . . . . . . . . . . . . 1              C.     The present Report                  (paras. 10 - 14) . . . . . . . . . . . . . . . . . 1   II.         ESTABLISHMENT OF THE FACTS            (paras. 15 - 75) . . . . . . . . . . . . . . . . . . . . 3              A.     The particular circumstances of the case                  (paras. 15 - 72) . . . . . . . . . . . . . . . . . 3              B.     Relevant domestic law                  (paras. 73 - 75) . . . . . . . . . . . . . . . . . 6   III.        OPINION OF THE COMMISSION            (paras. 76 - 97) . . . . . . . . . . . . . . . . . . . . 8              A.     Complaint(s) declared admissible                  (para. 76) . . . . . . . . . . . . . . . . . . . . 8              B.     Point at issue                  (para. 77) . . . . . . . . . . . . . . . . . . . . 8              C.     Compliance with Article 6 para. 1 of                  the Convention                  (para. 78 - 96). . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 97) . . . . . . . . . . . . . . . . . . . . . . .10   APPENDIX I        : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .11   APPENDIX II       : DECISION ON THE ADMISSIBILITY. . . . . . . . . .12   I.     INTRODUCTION   1.     The following is an outline of the case as submitted by the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2.     The applicant, an Austrian citizen, born in 1940 is a car dealer and living in Vienna.   Before the Commission he is represented by Mr. Karl Bernhauser, a lawyer practising in Vienna.   3.     The application is directed against Austria.   The Government are represented by their agent, Ambassador Helmut Turk, Deputy Secretary General and Legal Counsel of the Federal Ministry of Foreign Affairs.   4.     The case concerns the applicant's complaints under Article 6 para. 1 of the Convention of the length of two sets of criminal proceedings instituted against him, namely proceedings for smuggling and proceedings for tax evasion.   B.     The proceedings   5.     The application was introduced on 11 July 1988 and registered on 6 September 1988.   6.     On 6 September 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.   7.     The Government's observations were received on 29 December 1990 and the applicant's observations in reply on 11 February 1991.   8.     On 16 October 1991 the Commission declared the application admissible and it was referred to the First Chamber.   9.     After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction the Commission now finds that there is no basis upon which such a settlement can be effected.   C.     The present report   10.    The present report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  N. BRATZA   11.    The text of this report was adopted on 1 September 1993 and is now transmitted to the Committee of Ministers of the Counsel of Europe in accordance with Article 31 para. 2 of the Convention.   12.    The purpose of the report, pursuant to Article 31 of the Convention, is:   i)     to establish the facts, and   ii)    to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   13.    The Commission's decision on the admissibility of the application is attached hereto as Appendix I.   14.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     The particular circumstances of the case   15.    The applicant is a car dealer against whom the tax authorities as well as the customs authorities started investigations in 1978 which developed as follows:         A.   General Investigation   16.    On 30 March 1978 the Regional Tax Authorities (Finanzlandesdirektion) informed the Vienna Customs Authorities (Zollamt) that the applicant was suspected of dealing in used foreign cars without declaring his turnovers.   The Customs Office took no immediate action.   17.    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.   18.    On 19 January 1979 an audit (abgabenrechtliche Prüfung) was carried out with respect to the applicant.   19.    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.   20.    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.   21.    Subsequently, further investigations and rogatory requests became necessary concerning a great number of customs declarations related to car imports.   22.    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.   23.    On 24 January 1984 a valuer (Schätzmeister) was heard as a further suspect.   24.    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).   25.    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.   26.    On 1 February 1985 this report, comprising two large files, was terminated.         B.   Criminal Proceedings for smuggling (N° 26c VR 3 030/85)   27.    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.   28.    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.   29.    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.   30.    On 12 April 1985 an order to find out the applicant's whereabouts was issued.   31.    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.   32.    On 17 September 1986 a warrant of arrest was issued.   33.    On 23 September 1986 the police authorities reported that the applicant's whereabouts were still unknown.   34.    On 10 October 1986 Mr. Bernhauser informed the Court that the applicant had chosen him as defence counsel.   35.    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.   36.    On 27 October 1986 the applicant filed objections against the indictment.   37.    On 27 November 1986 the Vienna Court of Appeal (Oberlandesgericht) rejected these objections.   38.    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.   39.    On 20 February 1987 the Court decided to hold the trial from 11 to 15 May 1987.   40.    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.   41.    The judgment relates to 318 different cases.   42.    On 18 May 1987 the applicant lodged an appeal (Berufung) and a plea of nullity (Nichtigkeitsbeschwerde).   43.    On 8 January 1988 the text of the judgment was communicated to the accused.   It comprised 166 pages.   44.    On 22 January 1988 the applicant submitted his grounds of appeal.   45.    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. 1b Vr 1719/84) be deducted.         C.   Proceedings for tax evasion (No. 26d Vr 1646/89)         1.   Proceedings before the Tax Authorities (Finanzamt)   46.    On 28 April 1978 tax evasion charges were laid against the applicant and he was heard by the Tax Authorities on 17 May 1978.   47.    On 29 November 1978 further charges were laid and the applicant was again heard on 9 May 1979.   The Government submitted that these hearings did not give any reason to suspect the applicant of tax evasion.   48.    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.   49.    On 28 April 1981 a search and seizure order was given against the applicant and others.   50.    On 26 February 1982 the result of the audit was discussed with the applicant.   51.    On 22 March 1982 new tax assessments were issued concerning turnover tax 1976 and 1978, income tax 1977, turnover and income tax 1979.   52.    On 30 March 1982 another assessment was issued concerning turnover tax 1975 and 1977.   53.    On 17 May 1982 the applicant lodged an appeal against the assessment orders.   54.    On 30 July 1982 the Tax Authorities refused to grant the appeal (Berufungsvorentscheidung).   55.    On 19 August 1982 the applicant requested that his appeal be decided by the Regional Tax Authorities (Finanzlandesdirektion).   56.    On 2 October 1987 the applicant was requested to comment on the audit report.   57.    On 22 October 1987 and on 18 April 1988 he was heard by the authorities on his grounds of appeal.   58.    On 7 July 1988 the Regional Tax Authorities rejected the appeal.         2.   Criminal tax proceedings   59.    In view of the Regional Tax Authorities' decision of 7 July 1988 criminal charges were laid against the applicant on 15 December 1988.   60.    On 7 February 1989 the Public Prosecution requested the Investigating Judge to hear the applicant.   61.    On 13 February 1989 the applicant was summoned to appear on 27 February 1989.   62.    On 28 February 1989 the applicant's counsel, Mr. Bernhauser, informed the Court that his client was on holiday.   63.    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.   64.    On 7 March 1989 the Public Prosecution submitted observations on this issue.   65.    On 8 March 1989 the Regional Court requested the applicant's counsel to submit observations within six weeks.   66.    On 22 May 1989 counsel was reminded to submit observations.   67.    On 14 June 1989 counsel submitted that the tax assessment orders were not final.   68.    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.   69.    On 28 August 1989 an indictment was filed.   70.    On 22 September 1989 the applicant raised objections which were rejected by the Vienna Court of Appeal on 11 December 1989.   71.    On 20 December 1989 the trial was fixed for 1 February 1990.   72.    On 1 February 1990 the applicant was convicted of tax evasion and fined AS 200,000 or ten days' imprisonment.   He accepted the judgment.   B.     Relevant domestic law   73.    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."   74.    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)."   75.    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.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   76.    The Commission has declared admissible the applicant's complaints that his two cases relating to smuggling offense and an offense of tax evasion were not heard within a reasonable time.   B.     Point at issue   77.    The only points at issue are whether the length of the two sets of criminal proceedings complained of exceed "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   78.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination ...criminal charge against him, everyone       is entitled...hearing within a reasonable time by an       ....tribunal..."   79.    The applicability of Article 6 para. 1 (Art. 6-1) to the criminal proceedings against the applicant which concern charges of continuous import tax evasion, tax evasion and other offences within the meaning of the Austrian code of financial offences is not in dispute.   80.    As regards the period to   be taken into consideration the Government submit however that the tax authorities investigations with a view to establishing correct tax assessments did neither concern a criminal charge nor a civil right within the meaning of Article 6 (Art. 6) and therefore the relevant period was not started before the tax authorities had determined the arrears of taxes due by the applicant and subsequently decided to lay criminal charges against him. Consequently in the proceedings 26c Vr3030/85 the relevant period started on 17 September 1986 when a warrant of arrest was issued against the applicant and in the proceedings 26d Vr1646/89 on 13 February 1989 when the applicant was summoned to a hearing as an accused.   The prior investigation measures such as the search and seizure of 14 May 1979 did not in the Government's submission seriously affect the applicant.   81.    The applicant's detention on remand from 16 May to 19 June 1979, so the Government point out, did not relate to the criminal tax proceedings here in question.   82.    The applicant has not contested the Respondent Government's statement about the detention on remand.   However, he submits that in relation to both proceedings in question he was substantially affected by the tax authorities' investigations which began in April 1978.   83.    The Commission first observes that the proceedings No. 26c Vr 3030/85 instituted by the customs authorities were apparently linked with the proceedings No. 26d Vr1646/89 as the tax authorities proceeded to an audit in view of the reports established by the customs authorities in March 1981.   The Commission therefore considers that the security search and seizure effected on 14 May 1979 in one of these proceedings was already of a nature as to substantially affect the applicant's situation (cf. Eur. Court H.R., Eckle judgment of 5 July 1982, Series A No. 51, p. 33, para. 73).   84.    It is true that tax assessment proceedings normally do not relate to a criminal charge until as a result of such proceedings suspicion of tax evasion is established and thereupon criminal tax proceedings are instituted (Comm. Report of 8.2.73, No. 4517/70, D.R. 2, p. 11 et seq. at p. 21, para. 71).   In the present case however, the security search and seizure and the subsequent hearing of the applicant on 21 August 1979 as a suspect of tax offences made it sufficiently clear to the applicant that not only was he suspected of smuggling but most probably he also had to face severer measures than a simple tax investigation and assessment.   85.    The period to be taken into consideration with regard to both proceedings in question started therefore at the latest on 21 August 1979 when the applicant was heard as a suspect.   86.    The proceedings No. 26c Vr3030/85 were terminated on 30 June 1988 when the Supreme Court gave a final judgment.   They thus lasted nearly 9 years.   87.    The proceedings No. 26d Vr1646/89 were terminated by first instance judgment given on 1 February 1990 which the applicant accepted.   The proceedings consequently lasted 10 years and 8 months.   88.    The reasonableness of the length of the 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 matter.   In this instance the circumstances call for an overall assessment (cf. Eur. Court H.R., Cesarini judgment of 12 October 1992, Series A No. 245-B, para. 17).   89.    As to the complexity of the two cases the Government pointed out that the investigations related to 218 questionable imports of foreign cars necessitating extensive investigations many of them abroad which had to be carried out in the Federal Republic by rogatory request.   The Government furthermore stress that the applicant did not comply with a summons to appear on 27 February 1989.   It is further submitted that the applicant's defence counsel was requested on 8 March 1989 to submit observations on behalf of the applicant within six weeks.   He did however not submit these observations before 14 June 1989 although they were limited to one sentence.   90.    The applicant submits that in all circumstances the overall periods in question are too long.   91.    The Commission considers that in view of the great number of questionable import transactions which had to be examined and the number of years with regard to which income and turnover tax assessments had to be established, both proceedings in question were complex and difficult.   92.    While the general investigation proceedings were complex and difficult it is nevertheless objectionable that they dragged on for nearly six years.   In fact, the Commission finds that there appear to be periods of inactivity or of slow progress which are not sufficiently explained.   In particular, it appears questionable that all of 1983 was needed for cross examination of the applicant and others although at least the applicant had repeatedly been questioned already in 1981 and 1982.   Furthermore, it has to be noted that the report resulting from the general investigation proceedings was not ready before 1 February 1985 while the last hearing of a suspect had taken place on 24 January 1984.   93.    The subsequent criminal proceedings for smuggling have then been carried out with adequate speed taking into account that the applicant's whereabouts were unknown to the authorities between 1 April 1985 and 10 October 1986 and taking further into account the complexity of the case which is illustrated by the volume of the indictment which comprises 249 pages.   94.    On the other hand, the length of the proceedings relating to tax evasion again appears to be objectionable, in particular as the applicant's appeal of 17 May 1982 was not decided before 7 July 1988.   95.    In these particular circumstances the Commission finds that the length of both of the proceedings complained of has exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   The proceedings for smuggling offences in view of unexplained delays during the investigations and the tax evasion proceedings both in view of these delays and in view of further delays in the course of the proceedings before the tax authorities.   96.    In these circumstances the Commission finds that the length of both of the proceedings complained of has exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   CONCLUSION   97.    The Commission concludes by six votes against three that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)                               APPENDIX I                         HISTORY OF PROCEEDINGS   Date                              Item _________________________________________________________________   11 July 1988                      Introduction of the application   6 September 1988                  Registration of the application   Examination of Admissibility   6 September 1990                  Commission's deliberations and                                  decision to invite the Government                                  to submit observations on the                                  admissibility and merits of the                                  application   29 December 1990                  Government's observations   11 February 1991                  Applicant's observations in reply   16 October 1991                   Commission's deliberations,                                  decision on admissibility and                                  reference to Chamber   Examination of the merits   24 October 1991                   Decision on admissibility                                  transmitted to the parties   22 November 1991                  Government's further observations   22 January 1992                   Applicant's further observations                                  on the merits   12 January 1993                   Commission's consideration of the                                  state of proceedings   1 September 1993                  Commission's deliberations on the                                  merits, final vote and adoption                                  of the   Report