CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 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. 19630/92                       by A.K.                       against Austria         The European Commission of Human Rights sitting in private on 14 October 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              Mr.    M. de SALVIA, Deputy Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 13 November 1991 by A.K. against Austria and registered on 12 March 1992 under file No. 19630/92;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       27 January 1993 and the observations in reply submitted by the       applicant on 23 March 1993 ;   -      the Government's further observations on 5 April 1994, the       applicant's reply dated 8 June 1994 and the Government's letter       of 18 July 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is an Austrian citizen born in 1927.   He is represented before the Commission by Mr. A. Laimer, a lawyer practising in Vienna.         The facts of the case as submitted by the parties may be summarised as follows.   The particular circumstances of the case         Between 4 June 1986 and 5 August 1986 the Corporations Tax Office (Finanzamt für Körperschaften), by a series of decisions, re-assessed the liability of a company owned by the applicant and his wife to turnover tax, corporation tax and trade tax for the years 1978, 1980, 1981 and 1982.   The company was required to pay additional sums of AS 450,000 in respect of turnover tax for 1978; AS 1,440,000 in respect of turnover tax, AS 30,870 in respect of corporation tax and AS 15,765 in respect of trade tax for 1980; AS 411,000 in respect of corporation tax and AS 131,751 in respect of trade tax for 1981, and AS 476,459 in respect of corporation tax and AS 159,981 in respect of trade tax for 1982.   The reason for the re-assessment was that the company was found to have declared purchases of trade marks with a view to reducing its tax liability even though no such trade marks were actually acquired.         After the re-assessment to tax, criminal proceedings were brought against the applicant, as de facto manager of the company, for tax evasion (Abgabenhinterziehung), contrary to Section 33 (1) of the Tax Offences Act (Finanzstrafgesetz).         On 16 August 1990 the applicant was convicted by the Vienna Regional Court (Landesgericht), in the second round of proceedings, of tax evasion.   The Court found, inter alia, as follows:   [Translation]         "According to its consistent case-law the Court is bound,       pursuant to Section 55 of the Tax Offences Act, both as to the       existence of the tax liability and as to its extent (cf. EvBl.       1979/225, SSt 48/36).   The Senate is not entitled to make new       findings of fact, and not permitted to review the accuracy of       this finding.   Pursuant to Article 115 of the Federal Tax Code       the administrative authority is under an ex officio duty to       establish the actual facts in determining taxes.   The courts are       thus bound, without limit, by the finding of a tax liability.       Only in determining the question of guilt is the Court not bound.         Accordingly it must be assumed in the present case that the       acquisition of the trade marks, which according to the defendant       was for consideration, was merely a fictitious transaction       without any financial effect.   This can however only have taken       place with the defendant's knowledge and wish. ...   For these       reasons there can be no ground ... to assume that the defendant       acted merely negligently."   [German]         "Im Sinne der ständigen Rechtsprechung (EvBl. 1979/225, SSt 48/36       u.a.) ist das Gericht an das Bestehen der Abgabenschuld ihrem       Grund und ihrer Höhe nach gemäß Art. 55 FinStrG gebunden.   Der       Senat ist nicht berechtigt, neue Feststellungen zu treffen und       ist auch nicht darüber befugt, die Stichhaltigkeit dieser       Festsetzung zu überprüfen.   Gemäß   Art. 115 BAO besteht nämlich       auch für das Verfahren zur Festsetzung einer Abgabe die       Verpflichtung der Behörde zur amtswegigen Erforschung der       materiellen Wahrheit.   Die Bindung der Gerichte an die       rechtskräftige Abgabenfestsetzung ist somit eine       uneingeschränkte.   Lediglich bei der Beurteilung der Schuldfrage       ist das Gericht in keiner Weise gebunden.         Im gegenständlichen Fall ist also davon auszugehen, daß die vom       Angeklagten behauptete entgeltliche Erwerbung der Markenrechte       lediglich ein Scheingeschäft ohne finanzielle Auswirkung gewesen       ist.   Dies kann jedoch nur mit Wissen und Wollen des Angeklagten       geschehen sein. ...   Für die Annahme, daß der Angeklagte       lediglich fahrläßig gehandelt hat ... , bleibt aus den erwähnten       Umständen heraus kein Raum."         The applicant's nullity appeal to the Supreme Court (Oberster Gerichtshof) was rejected on 9 April 1991.   The decision was received by the applicant's representative on 15 May 1991.   In rejecting the applicant's nullity appeal, the Supreme Court found, inter alia, as follows:   [Translation]         "... in the present tax offences case, the existence of a sham       purchase of trade marks by the accused is a necessary condition       for the liability to tax as established by the tax authorities,       and the tax authorities' establishment of that liability is valid       for the present court proceedings (cf. EvBl. 1979/225, SSt.       48/36).   Accordingly, there is no room for assuming that such a       purchase did in fact take place."   [German]         "... in der vorliegenden Finanzstrafsache [ist] die Fingierung       eines entgeltlichen Erwerbes von Markenrechten durch den       Angeklagten notwendige Grundlage der von der Finanzbehörde mit       Wirkung auch für das gerichtliche Verfahren (EvBl. 1979/225,SSt.       48/36 ua) festgestellten Abgabenschuld, weshalb für die       gegenteilige Annahme, daß ein derartiger Erwerbsvorgang real       stattgefunden hätte, kein Raum bleibt".   Relevant domestic law and practice         The Tax Offences Act (Finanzstrafgesetz) provides, so far as relevant, as follows:         Section 33 (1)   [Translation]         "The offence of tax evasion is committed by any person who, in       dereliction of a tax-law duty to report, to disclose or to inform       truthfully, intentionally brings about a reduction of tax."   [German]         "Der Abgabenhinterziehung macht sich schuldig, wer vorsätzlich       unter Verletzung einer abgabenrechtlichen Anzeige-, Offenlegungs-       oder Wahrheitspflicht eine Abgabenverkürzung bewirkt."         Section 55   [Translation]         "In criminal proceedings for tax evasion ... the trial hearing       may only be conducted if a final tax assessment has been made for       the period to which the offence related."   [German]         "Im Strafverfahren wegen Hinterziehung ... darf ... die       Hauptverhandlung erst durchgeführt werden, wenn das Ergebnis der       rechtskräftigen endgültigen Abgabenfestsetzung für den Zeitraum       vorliegt, den die strafbare Tat betrifft."         On 21 November 1991 the Supreme Court (13 Os 127/90) modified the case-law referred to in its judgment in the present case.   It recalled that the factual element of the offence of tax evasion was specific behaviour on the part of the defendant, rather than the fact that a final tax assessment had been made.   In cases where the actions of a defendant were strongly indicative of his subjective state of mind, to accept the findings of fact as established by the tax assessment was to leave the judge with relatively little to decide.   The Supreme Court referred to Article 6 para. 2 of the Convention, and to a Commission decision (No. 5523/72, Dec. 4 and 5.10.74 [Coll. 46, p. 99]) in which the Commission stated that judges should not "start with the assumption that the accused committed the act with which he is charged."   The Supreme Court recalled that the presumption of innocence is included in Section 6 (2) of the Tax Offences Act.   It considered the possibility of the criminal courts coming to a different conclusion from the tax authorities, and although it regarded this as not desirable, it gave more weight to the principle that the criminal courts should be able to establish truth themselves.   It referred in particular to the different presumptions and burdens of proof applying before the administrative authorities and the criminal courts.   Finally it made reference to the fact that neither the tax authorities nor the subsequent appeal authorities (the Appeal Division of the Regional Finance Directorate (Berufungssenate der Finanzlandesdirektion)) were independent organs, before concluding that it should change its existing case-law, so that in future courts should not be bound either by the amount or the reasoning in tax assessments when determining charges of tax evasion.   COMPLAINTS         The applicant alleges violation of Article 6 para. 1 of the Convention in that he was convicted by criminal courts which were unable to establish essential facts themselves.   In his observations in reply to the Government's observations, submitted on 23 March 1993, the applicant also added reference to the presumption of innocence contained in Article 6 para. 2 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 13 November 1991 and registered on 12 March 1992.         On 19 October 1992 the Commission decided to bring the application to the attention of the respondent Government and to invite them to submit written observations on its admissibility and merits.         The Government submitted their observations on 27 January 1993 and the applicant submitted his observations in reply on 23 March 1993.         On 10 March 1994 the Commission decided to put further questions to the parties.   The Government submitted their observations thereon on 5 April 1994, and the applicant submitted his observations in reply on 8 June 1994.   The Government submitted further comments on 18 July 1994.   THE LAW         The applicant initially alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention in that he was convicted by criminal courts which were unable to establish essential facts themselves.   He subsequently added reference to Article 6 para. 2 (Art. 6-2).         Article 6 (Art. 6) provides, so far as relevant, as follows:         "1.   In the determination of ... any criminal charge against him,       everyone is entitled to a fair ... hearing ... by an independent       and impartial tribunal established by law.         2.    Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The Government submit that the applicant has failed to comply with the requirements of Article 26 (Art. 26) of the Convention in that he could have made an administrative complaint to the Administrative Court (Verwaltungsgerichtshof), and that a court would thereby have been able to review the factual aspects of the tax assessment.   The applicant submits that such an appeal could not have been successful. He also underlines that he is complaining not about the tax assessments but about the criminal proceedings before the Vienna Regional Court and the Supreme Court, and that in any event his company and not he was the subject of the tax assessments.         The Commission recalls that the European Court of Human Rights has held that the review provided by the Administrative Court can, in certain circumstances, comply with the requirements of Article 6 (Art. 6) of the Convention (cf. Zumtobel judgment of 21 September 1993, Series A no. 268-A).   Whilst the issues in the present case are different in that the present case concerns criminal proceedings before the ordinary courts, and the question of the administrative authorities is relevant only insofar as the criminal courts were bound by the findings of those authorities (to which extent the case resembles the case of Obermeier (Eur. Court H.R., judgment of 28 June 1990, Series A no. 179)), the Commission finds that the possibility of a review of factual issues by the Administrative Court is a matter which is so closely related to the merits of the case that it should not be considered as a separate issue.         The Government point out that the binding nature of tax assessments on criminal courts derived not from statute, but from the case-law of the Supreme Court.   They state that the Supreme Court took the view that the courts were bound both as to the existence and the amount of the tax liability.   They note that the tax liability was regarded as a fact in the criminal proceedings, and that that fact could be considered by the Administrative Court as an authority of final instance in the tax proceedings.   They also point out that only the criminal courts make findings as to guilt.   With regard to the Supreme Court's decision of 21 November 1991, they state that the question of whether the Administrative Court complies with Article 6 (Art. 6) was apparently disregarded by the Supreme Court.         The applicant points out that the Supreme Court's interpretation in its decision of 21 November 1991 conforms with his view of Article 6 (Art. 6) of the Convention, but does not affect his case at all.   He also emphasises that what he was contesting in the domestic proceedings was the basis of the tax assessments, not the assessments as such.   He adds that presumption of innocence was violated.         After a preliminary examination of the parties' observations the Commission has reached the conclusion that the case raises serious issues as to the interpretation and application of Article 6 (Art. 6) of the Convention and that these issues can only be determined after a full examination of their merits.   It follows that the application cannot be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring the application inadmissible has been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Deputy Secretary to the Commission        President of the Commission         (M. de SALVIA)                           (C.A. NØRGAARD)