CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 décembre 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 20682/92                       by K.H.                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 1 December 1993, 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                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 3 August 1993 by K.H. against Germany and registered on 23 September 1992 under file No. 20682/92;         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 submitted by the applicant, may be summarised as follows.         The applicant, born in 1945, is a German national and resident at Wallaf, Germany. When lodging his application, he was serving a sentence of imprisonment in a prison in Frankfurt/Main. Before the Commission he is represented by Mr. A. Rosenberg, a lawyer practising in Frankfurt/Main.   A.     Particular circumstances of the case         On 26 August 1991 the Wiesbaden Regional Court (Landgericht) convicted the applicant of tax evasion on two counts and sentenced him to two years' and eight months' imprisonment.         The Regional Court found that between 1985 and September 1988, the applicant, as the owner and manager of several firms working on the renovation of old property, had evaded turnover tax amounting to almost DM 350,000, and had failed to pay to the competent tax office the income tax on the salaries of numerous employees which amounted altogether to about DM 150,000.         The Regional Court, when fixing the applicant's sentence, took the applicant's behaviour subsequent to the offence in question into account. It stated in particular:   <Translation>         "An aggravating factor to be taken into consideration is that, since the criminal offences in question, the accused, in his position as a construction supervisor as from May 1991, continues not to comply with his obligations under tax law: if the applicant's present occupation is subject to income tax - and the fact that he receives binding instructions suggests that it is - he would have had ... to produce his tax card upon taking up his duties in order to enable his employer to transfer the monthly amounts of income tax to the Tax Office ... If he is to be considered as an independent professional, as the accused himself suggests, he would have had to file, by 10 July 1991 at the latest, a preliminary return regarding his turnover tax for the months of May and June, assuming in his favour that he had only to submit a quarterly return. Thus the accused again infringed his fiscal obligations. The Chamber considered that both the accused's behaviour when committing the offences in question and his later conduct showed his attitude not to abide by the law calling for a severe punishment."   <German>         "Strafschärfend ist weiter zu berücksichtigen, daß der Angeklagte auch nach der Tat nunmehr trotz einer Tätigkeit als Bauleiter seit Mai 1991 seinen steuerrechtlichen Verpflichtungen nicht nachkommt: Soweit seine jetzige Tätigkeit der Einkommensteuer zu unterwerfen ist, wofür die Weisungsgebundenheit der Tätigkeit des Angeklagten spricht, hätte er seinem Arbeitgeber ... bei Eintritt in das Dienstverhältnis die Lohnsteuerkarte vorlegen müssen, damit der Arbeitgeber die zutreffende Lohnsteuer monatlich an das Finanzamt abführen kann ... Unterstellt, die Tätigkeit des Angeklagten könnte als diejenige eines freien Unternehmers gewertet werden, wie der Angeklagte meint, so hätte er spätestens bis zum 10.7.91 die Umsatzsteuer aus seiner Tätigkeit für die Monate Mai/Juni voranmelden müssen, wenn zu seinen Gunsten von einem Voranmeldungszeitraum von einem Kalendervierteljahr ausgegangen wird. ... Der Angeklagte hat damit erneut gegen steuerrechtliche Pflichten verstoßen. Sowohl aus dem Verhalten des Angeklagten bei der Tat als auch aus diesem Verhalten nach der Tat zieht die Kammer den Schluß auf die Rechtsuneinsichtigkeit des Angeklagten, die zur Einwirkung auf ihn erheblicher Bestrafung bedarf."         On 12 May 1992 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal on points of law (Revision).         On 26 June 1992 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success. The Constitutional Court found that the criminal court judgments could not be objected to from a constitutional point of view. The Constitutional Court, referring to its previous case-law, considered in particular that the judgments complained of did not amount to a violation of the presumption of innocence. The Regional Court, in finding that, subsequent to the tax offences in question, the applicant had continued to breach his fiscal obligations, and concluding that he was dishonest, had only regarded the applicant's subsequent behaviour as one circumstance in the fixing of the punishment. The question whether thereby the applicant had again committed a criminal offence had been left open. The Constitutional Court observed that a trial judge was entitled to bear in mind acts of the accused beyond the facts charged if necessary for sentencing.   B.     Relevant domestic law         The applicant's conviction of having evaded turnover tax and failed to pay to the competent tax office the income tax on the salaries of his employees was based on the German Tax Act (Abgabenordnung).         The Income Tax Act (Einkommenssteuergesetz) regulates the calculation and payment of income tax, including the payment of income tax on the salaries of employees. According to S. 39 of the Income Tax Act, employees have to present to their employer a tax form with indications as to their fiscal particularities (Lohnsteuerkarte) when taking up their duties. On the basis of this form the employer regularly calculates the monthly income tax on the salary of the employee concerned (S. 39 a). S. 39 b provides that, should the employee fail to present his tax form to his employer, the latter will calculate the income tax due with reference to the highest rate of taxation.         The Turnover Tax Act (Umsatzsteuergesetz) concerns the calculation and payment of turnover tax. In respect of the procedure of calculation, S. 18 of the Turnover Tax Act provides that the contractor has to file, by the 10th of the following month, a monthly preliminary return regarding his turnover tax, or, in case of a minor rate of turnover tax, only a quarterly return. In case of failure to file the preliminary return or incorrect calculation, the tax office is entitled to assess the turnover tax due.   COMPLAINTS         The applicant complains under Article 6 para. 2 of the Convention that the Wiesbaden Regional Court, in its judgment of 26 August 1991, considered his subsequent behaviour in fixing the punishment and thereby failed to comply with the presumption of innocence.   THE LAW         The applicant complains about the Wiesbaden Regional Court's judgment of 26 August 1991, as confirmed by the Federal Court of Justice on 12 May 1992 and the Federal Constitutional Court on 26 June 1992. He submits that the presumption of innocence, as guaranteed in Article 6 para. 2 (Art. 6-2) of the Convention, was violated.         Article 6 para. 2 (Art. 6-2) provides as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Commission considers that the applicant's conviction by the Wiesbaden Regional Court and the sentence of imprisonment imposed upon him, as confirmed upon appeal, do not in themselves offend the presumption of innocence. However, the judgments concerned could raise an issue under Article 6 para. 2 (Art. 6-2) if supporting reasoning which cannot be dissociated from the operative provisions amounts in substance to a determination of the accused's guilt in respect of matters other than the facts charged without his having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence (cf., mutatis mutandis, Eur. Court H.R., Sekanina judgment of 25 August 1993, Series A no. 266-A, para. 26).         In the present case, the Wiesbaden Regional Court, in sentencing the applicant following his conviction for tax evasion, took his conduct subsequent to the facts charged into account. The Wiesbaden Regional Court, in its judgment stated that the applicant's dishonesty, as shown by his behaviour when committing the offences he was found guilty of as well as his later conduct, called for a severe punishment. As regards the applicant's conduct subsequent to the offences in question, reference was made to his continued non-compliance with his fiscal obligations, namely, depending on the fiscal nature of his then occupation, either his duty to submit his tax card to his new employer, or to file a preliminary return. The Federal Constitutional Court, in its decision upon the applicant's constitutional complaint, stated that the Regional Court had thereby only assessed one circumstance in fixing the applicant's punishment, and had left the question open whether he had committed a further criminal offence.         The Commission considers that the Wiesbaden Regional Court, in fixing the applicant's sentence in the light of all circumstances relevant at the time of its judgment, also had regard to his conduct subsequent to the facts charged in order to assess his personality. The Regional Court indicated in general terms that the applicant had continued not to comply with his fiscal obligations. These obligations related to the presentation of a tax form with his employer or, in the alternative, the filing of preliminary returns on turnover tax. Failure to comply with these duties did not, as such, amount to a criminal offence. The Commission finds that, reading the Regional Court's statements as a whole and in their proper context, they do not contain any finding of any criminal offence.         In these circumstances, there is no appearance of a violation of the presumption of innocence guaranteed to the applicant under Article 6 para. 2 (Art. 6-2) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber            President of the First Chamber          (M.F. BUQUICCHIO)                          (A. WEITZEL)