CEDH · CASELAW;REPORTS;ENG — 6 avril 1994

.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. 15886/89                             Stanislava Kremzow                                   against                                   Austria                          REPORT OF THE COMMISSION                          (adopted on 6 April 1994)   TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 7 - 20) . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 21 - 37). . . . . . . . . . . . . . . . . . . . . . . 4         A.    Complaints declared admissible            (para. 21) . . . . . . . . . . . . . . . . . . . . . . . 4         B.    Points at issue            (para. 22) . . . . . . . . . . . . . . . . . . . . . . . 4         C.    Article 6 para. 1 of the Convention            (paras. 23 - 32) . . . . . . . . . . . . . . . . . . . . 4              CONCLUSION            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5         D.    Article 13 of the Convention            (paras. 34 - 36) . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 36) . . . . . . . . . . . . . . . . . . . . . . . 6              Recapitulation            (para. 37) . . . . . . . . . . . . . . . . . . . . . . . 6   APPENDIX : DECISION ON THE ADMISSIBILITY OF THE APPLICATION . . . . 7   I.     INTRODUCTION   1.     The present Report concerns Application No. 15886/89 by Stanislava Kremzow against Austria, introduced on 22 November 1989 and registered on 11 December 1989.   2.     The applicant is an Austrian and Czech national born in 1943 and residing in Vienna.   Before the Commission she is represented by Mr. W. L. Weh, a lawyer practising in Bregenz, and Mr. H. Mühlgassner, a lawyer practising in Vienna.         The application is directed against Austria.   The Austrian Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   3.     The application was communicated to the respondent Government on 7 January 1991.   Following an exchange of memorials, the applicant's complaint under Article 6 para. 1 of the Convention relating to the length of the criminal proceedings and her complaint under Article 13 of the Convention that the Code of Fiscal Offences does not provide for any effective remedy to challenge unreasonable delays in the proceedings were declared admissible by the Commission (Second Chamber) on 5 May 1993.   The decision on admissibility is appended to this Report.   4.     With a view to securing a friendly settlement of the case within the meaning of Article 28 para. 1 (b) of the Convention, consultations took place with the parties between 14 May 1993 and 19 November 1993.   5.     Having noted that there is no basis upon which such a settlement can be effected, the Commission (Second Chamber), after deliberating, adopted this Report in pursuance of Article 31 of the Convention, the following members being present:         MM.   S. TRECHSEL, President            H. DANELIUS            G. JÖRUNDSSON            J.-C. SOYER            H.G. SCHERMERS       Mrs. G.H. THUNE       MM.   F. MARTINEZ       MM.   L. LOUCAIDES            J.-C. GEUS            M.A. NOWICKI            I. CABRAL BARRETO            J. MUCHA            D. SVÁBY         In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Austria.   6      The text of this Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   7.     On 17 February 1983 the Tax Office (Finanzamt) for the 6th, 7th and 15th District of Vienna instituted administrative criminal proceedings under the Code of Fiscal Offences (Finanzstrafgesetz) against the applicant on suspicion of tax evasion.   8.     On 22 April 1983 the applicant was interrogated as an accused.   9.     On 6 June 1984 the Administrative Court (Verwaltungsgerichtshof) rejected a complaint by the applicant challenging the delay in the criminal proceedings.   10.    In the tax assessment proceedings the Tax Office on 23 March 1984 completed the tax audit and concluded that due to unreported income taxes of more than AS 170,000 had not been paid.   On 30 April 1984 the Tax Office issued tax assessment orders (Abgabenbescheide) concerning value added tax from 1979 to 1983 and income tax from 1978 to 1982. On 4 June 1984 the applicant appealed against these assessment orders without giving reasons for her appeal.   The time-limit for filing the reasons was extended three times, the last time until 30 June 1985. Following a reminder the applicant finally filed her reasons for the appeal on 4 November 1985.   On 10 July 1986 the Regional Directorate of Finance (Finanzlandesdirektion) decided on the applicant's appeal and partly quashed the Tax Office's assessment orders.   On 28 August 1986 the Tax Office decided again in the tax assessment proceedings.   This decision became final on 5 November 1987 when the applicant withdrew her appeal.   11.    In the meantime, the criminal proceedings had not progressed. On 18 December 1987 the applicant filed a request for transfer of jurisdiction (Devolution) in respect of the criminal proceedings from the Tax Office to the higher authority, claiming that her right to a decision within a reasonable time under Article 6 para. 1 of the Convention had been violated.   This request was rejected by the Regional Directorate on 2 March 1988.   It found that the Code of Fiscal Offences did not provide for a transfer of jurisdiction.   12.    On 29 April 1988 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Regional Directorate's decision of 2 March 1988, invoking Articles 6 and 13 of the Convention.   13.    On 3 October 1988 the Constitutional Court refused to entertain the applicant's complaint.   Referring to its earlier case-law the Constitutional Court considered that the applicant's complaint did not show a sufficient prospect of success.   The Administrative Court, to which the complaint was referred, eventually discontinued the proceedings as the applicant had not complied with that Court's order to remedy defects of the complaint (Mängelbehebungsauftrag).   14.    Meanwhile, on 9 May 1988, the Tax Office informed the applicant of the amount of evaded taxes determined in the course of the assessment proceedings and instructed her to submit a written statement by 10 June 1988.   15.    On 25 May 1988 the applicant asked for an extension of the time- limit for filing her written statement because she had no access to the file which had been transmitted to the Constitutional Court.   On 26 June 1989 the file was returned to the Regional Directorate of Finance.   16.    On 11 October 1989 the applicant lodged a complaint (Beschwerde) against the notice and instruction of the Tax Office of 9 May 1988.   17.    On 26 April 1990 the applicant introduced a complaint (Säumnisbeschwerde) with the Administrative Court against the inactivity of the Directorate of Finance in dealing with her complaint of 11 October 1989.   On 21 September 1990 the Administrative Court ordered the Directorate of Finance to decide on the applicant's complaint.   On 28 September 1990 the Regional Directorate of Finance rejected the applicant's complaint of 11 October 1989.   18.    On 20 November 1990 the applicant filed a complaint with the Administrative Court against the Regional Directorate's decision of 28 September 1990.   Following a reminder by the applicant, the Administrative Court initiated proceedings on 5 February 1991, and on 2 April 1991 the Regional Directorate filed written observations in reply.   19.    On 20 March 1992 the Tax Office discontinued the criminal proceedings against the applicant.   20.    According to the applicant the Administrative Court has not yet decided on her complaint of 20 November 1990.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   21.    The Commission has declared admissible the applicant's complaint that her case was not heard within a reasonable time and her complaint that the Code of Fiscal Offences does not provide for any effective remedy to challenge unreasonable delays in the proceedings.   B.     Points at issue   22.    The points at issue to be determined are:   -      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.   -      Whether the absence of a remedy in the Code of Financial Offences to challenge unreasonable delays in the proceedings violated Article 13 (Art. 13) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   23.    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 ..."   24.    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.   25.    These proceedings started on 17 February 1983 when administrative criminal proceedings were instituted against the applicant and ended with the Tax Office's decision of 20 March 1992 to discontinue the proceedings.   The proceedings thus lasted nine years and one month. In this respect the Commission considers that the complaint lodged by the applicant on 20 November 1990 with the Administrative Court concerning a procedural issue which still has not been decided upon, is of no relevance after the discontinuation of the criminal proceedings.   26.    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).   27.    The applicant submits that delays occurred in the proceedings which were due to the inactivity of the authorities.   28.    According to the Government the length of the period in question was due to the applicant's conduct, namely her filing as many appeals as possible, which continuously delayed the proceedings in that the files were not available to the Tax Office.   In particular, in the course of the tax assessment proceedings she filed an appeal on 4 June 1984 without submitting reasons and requested three times an extension of the time-limit for doing so.   When she finally submitted the reasons on 4 November 1985 the authority decided expeditiously.   29.    The Commission notes that the criminal proceedings against the applicant concerned charges of tax evasion, whereby the amounts of tax due were fixed in tax assessments on 30 April 1984 which became final on 5 November 1987.   On the whole, the case was not particularly complex.   30.    The applicant's conduct did contribute to the overall length of the proceedings.   However, the Commission considers that she cannot be held responsible for having taken resort to remedies available to her under Austrian law, which to a large extent related to complaints about the delay in the proceedings.   31.    As regards the conduct of the Austrian authorities, the Commission finds that the proceedings were not conducted with the necessary expediency.   In particular, between 5 November 1987, when the tax assessment orders became final, and 9 May 1988, when information on the evaded amount as determined was sent to the applicant, the Tax Office did not take any steps in the proceedings.   From 26 June 1989, when the Administrative Court returned the case file to the Regional Directorate of Finance, until 28 September 1990, when the Regional Directorate rejected a complaint by the applicant, no steps in the proceedings were taken by the authorities.   Also between 26 April 1990, when the applicant lodged a complaint with the Administrative Court, and 21 September 1990, when the Administrative Court acted on her complaint, there was a period of inactivity.   32.    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.         CONCLUSION   33.    The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   D.     Article 13 (Art. 13) of the Convention   34.    Article 13 (Art. 13) of the Convention states as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by a person acting in an       official capacity."   35.    In view of its opinion concerning Article 6 (Art. 6), the Commission does not consider it necessary also to examine the case under Article 13 (Art. 13) of the Convention.         CONCLUSION   36.    The Commission expresses unanimously the view that it is not necessary to examine the case under Article 13 (Art. 13) of the Convention.         Recapitulation   37.    The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 33 above).         The Commission expresses unanimously the view that it is not necessary to examine the case under Article 13 (Art. 13) of the Convention (para. 36 above).   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                              (S. TRECHSEL)