CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 21154/93                       by Gerhard HÖFLER                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 1994, 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                  E. KONSTANTINOV              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 6 November 1992 by Gerhard Höfler against Austria and registered on 14 January 1993 under file No. 21154/93;         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 is an Austrian national born in 1949 and residing in Linz.   Before the Commission he is represented by Mr. A. Frischenschlager, a lawyer practising in Linz.         On 16 June 1981 the applicant, who was then the managing director of the H. Company doing business as car retailer, filed in the course of an examination of the company by tax inspectors (Betriebsprüfung) a report (Selbstanzeige) with the Linz Tax Office (Finanzamt), in which he incriminated himself.   He stated that in 1979 and 1980 he had bought tractors from the P. company, and that in the sales contracts and invoices higher prices than due had been entered.   The exceeding amounts had been refunded upon payment of the invoice.   He, therefore, had claimed input tax (Vorsteuerabzüge) on value added tax without justification.         On 24 February 1987 the Trial Board (Spruchsenat) at the Linz Tax Office convicted the applicant of tax evasion and sentenced him to a fine of 400.000 AS or 90 days' imprisonment in default.   It found that the applicant in 1976, 1977 and 1978 had failed to enter numerous car sales into the bookkeeping which lead to tax evasion in the amount of AS 202.933.   Moreover, between January 1979 and April 1981 the applicant had claimed without justification input tax of altogether 675.256 AS by making incorrect declarations of input tax.         At an unspecified date the applicant lodged an appeal, which only concerned his conviction for claiming input tax without justification. He submitted that his report of 16 June 1981 should have led to the discontinuation of the criminal proceedings regarding this charge.         On 16 March 1989 an oral hearing took place before the Appeals Board (Berufungssenat) at the Regional Directorate of Finance for Upper Austria (Finanzlandesdirektion) on the applicant's appeal.   In the course of the hearing the applicant's lawyer requested that two witnesses be heard, namely the former company's tax consultant and one of his employees.   They were to give evidence that the applicant's business partner had the obligation to pay as value added tax the same amount as the applicant had claimed as input tax.         On 30 March 1989 a further hearing took place.   The witnesses requested appeared before the Appeals Board but refused to give evidence as the questions concerned the bookkeeping of the H. Company. They submitted that the applicant was no longer its managing director and they had not been discharged of their obligation of professional secrecy by the company's receiver.   The applicant's lawyer then requested the Appeals Board to obtain from the receiver of the H. Company the above discharge.   He further requested that the contracts and accounting vouchers be examined by a bookkeeping expert in order to find out which rate of value added tax would have been applicable if correct invoices had been used.   The Appeals Board dismissed these requests.         On 11 September 1989 the Appeals Board partially granted the applicant's appeal and reduced his sentence to a fine of 200.000 AS and 60 days' imprisonment in default.   The Appeals Board found that on 7 June 1981 a tax inspector of the Linz Tax Office had started, at the premises of the H. Company, an examination of the Company regarding value added tax.   At that time bankruptcy proceedings had already been opened against the company.   In the course of the concluding discussion concerning the examination (Abschlußbesprechung) the applicant had presented his self-incriminating report.   This report, however, could not lead to the discontinuation of the proceedings, as at that time, his offence, at least partially, had already been discovered.    The Appeals Board found however that mitigating circumstances should be taken into account to a larger extent and reduced the fine.         On 6 November 1989 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).   He submitted that the relevant provisions of the Code of Fiscal Offences violated the constitutional principle of separation of powers.   The criminal proceedings against him should have been conducted by ordinary criminal courts and not by tax authorities dealing with tax offences.         On 7 March 1990 the Constitutional Court refused to entertain the applicant's complaint.         On 3 July 1990 the applicant requested that his case be referred to the Administrative Court (Verwaltungsgerichtshof).         On 25 October 1991 the Constitutional Court referred the case to the Administrative Court.         On 7 January 1992 the applicant supplemented his complaint to the Administrative Court.   He now complained that the Appeals Board had refused to take evidence requested by him.   He further submitted that the Appeals Board had failed to comply with its duty to establish ex officio the true facts and had relied instead on the amounts calculated in the applicant's own report of 16 June 1981.   If the evidence requested would have been taken, it might have resulted in lower amounts than those mentioned in the applicant's report.         On 22 April 1992 the Administrative Court dismissed the applicant's complaint.   The Administrative Court found that the Appeals Board should have given reasons for refusing to take the evidence requested by the applicant.   However, this procedural mistake had no effect on the correctness of the decision as the refusal of the applicant's requests was justified.   The hearing of the witnesses had not been necessary because in order to establish that the applicant had evaded taxes by claiming input tax without justification, it did not matter whether the amounts evaded corresponded to higher value added tax due by a third person.   Moreover, the requested expert opinion was not necessary because the question which rate of value added tax was applicable if the applicant had issued correct receipts was of no relevance to the input tax the applicant had actually claimed. Furthermore, neither at the oral hearing before the Appeals Board nor in his complaint to the Administrative Court the applicant had alleged that his tax consultant had made mistakes in drafting the report of 16 June 1981 to the Tax Office.   COMPLAINTS   1.     The applicant complains that the criminal proceedings instituted against him were not concluded within a reasonable time as required by Article 6 para. 1 of the Convention.   2.     He also complains under Article 6 para. 3 (d) of the Convention that the Appeals Board refused to hear two witnesses, to obtain a declaration from the receiver of the applicant's company to discharge these witnesses from their obligation of professional secrecy and to order the taking of the opinion of a bookkeeping expert.   THE LAW   1.     The applicant complains that the criminal proceedings instituted against him were not concluded within a reasonable time as required by Article 6 para. 1 (Art. 6-1) of the Convention.         The Commission considers it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government.   2.     The applicant also complains under Article 6 para. 3 (d) (Art. 6-3-d) of the Convention as regards the taking of evidence by the Appeals Board.         The Commission recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific aspects of the general concept of fair trial set forth in paragraph 1 of this Article (Art. 6-1).   In the circumstances of the present case, it will consider the applicant's complaint under the two provisions taken together (see Eur. Court H.R., Isgrò judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 31).   In order to determine whether the aim of Article 6 (Art. 6) - a fair trial - has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case (Eur. Court H.R., Imbroscia judgment of 24 November 1993, Series A no. 275, para. 38,).         The applicant submits that the Appeals Board refused to hear two witnesses, to obtain a declaration from the receiver of the H. Company discharging these witnesses from their obligation of professional secrecy and to order the taking of the opinion of a bookkeeping expert.         The Commission recalls further that Article 6 para. 3 (d) (Art. 6-3-d) of the Convention does not give an absolute right to examination of every witness proposed by the defence (Eur. Court H.R., Engel and others judgment of 6 June 1976, Series A no. 22, p. 38, para. 91).   In particular a court is justified in refusing to summon witnesses when it considers that their statements could not be of relevance to the case (see No. 4124/69, Dec. 13.7.70, Collection 35 p. 132; No. 10486/83, Dec. 9.10.86, D.R. 49, p. 86 at 102).         The Commission notes that the Appeals Board, in dismissing the applicant's requests for evidence, did not indicate reasons for its decision.   The Administrative Court in its decision of 22 April 1992 found that the Appeals Board should have done so but that this procedural mistake had no effect on the outcome of the proceedings, as the Appeals Board had acted correctly in refusing the applicant's requests.   The Commission notes further that the Administrative Court in its decision indicated the reasons why the evidence requested by the applicant was irrelevant for the case.   The Administrative Court found that the witnesses' statements were irrelevant because for the offence of evading taxes by claiming input tax without justification it did not matter whether the amounts evaded corresponded to higher value added tax due by a third person.   It also found that the requested expert opinion was not necessary, because the question which rate of value added tax was applicable if the applicant would have had issued correct receipts was of no relevance to the input tax which the applicant had actually claimed.         The Commission finds that the Administrative Court sufficiently explained that the evidence requested by the applicant was irrelevant to the proceedings.   There is no indication that the proceedings were otherwise conducted in an unfair manner.         Under these circumstances the Commission, looking at the proceedings as a whole, finds that there is no appearance of a violation of the applicant's right to a fair hearing within the meaning of Article 6 (Art. 6) of the Convention.         It follows that this part of 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 unanimously         DECIDES TO ADJOURN its examination of the complaint as regards       the length of the proceedings;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                          (A. WEITZEL)