CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.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. 23194/94                       by Gerhard STADLER                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              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 23 December 1993 by Gerhard STADLER against Austria and registered on 6 January 1994 under file No. 23194/94;        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 applicant is an Austrian citizen, born in 1940, and general manager of the S.G. company, a company incorporated under Austrian law doing business as haulage contractor.   Before the Commission he is represented by Mr. L.J. Kempf, a lawyer practising in Peuerbach (Austria).        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        In April and July 1988 an inspection of the S.G company by tax inspectors (Betriebsprüfung) was carried out in the course of which irregularities in the company's book-keeping were discovered.        On 10 June 1991 the Wels Public Prosecutor's Office (Staatsanwaltschaft) preferred a bill of indictment against the applicant charging him under the Code of Tax Offences (Finanzstrafgesetz) with evasion of turnover tax, commercial tax and property tax.        On 21 January 1992 the trial against the applicant took place before the Wels Regional Court (Landesgericht).   A representative of the Grieskirchen Tax Office (Finanzamt), which had joined the criminal proceedings as a private party (Privatbeteiligter), participated at the trial.        The Regional Court heard several witnesses, inter alia, the applicant's tax consultant, employees of the S.G. company and representatives of firms which had business relations with the S.G. company.   The Regional Court adjourned the trial to hear further witnesses.        On 19 August 1992 the Public Prosecutor's Office submitted a report from the Grieskirchen Tax Office, dated 31 July 1992, to the Regional Court.   According to this report the applicant had in the course of a further inspection by tax officers carried out in July 1992 submitted a self-incriminating report in which he had admitted tax evasion by entering sham investments into the book-keeping and making unjustified claims for input tax (Vorsteuerabzug).   The Regional Court filed this report without serving it on the applicant.        On 17 November 1992 the trial continued before the Regional Court.   The applicant requested the court to take further evidence, namely to hear again his tax consultant and representatives of the Graz and Grieskirchen Tax Offices and to have the tax files of the R. company, a sister company of the S.G. company, produced in order to prove that the R. company, at the time of the alleged offences, had considerable value added tax reimbursement claims.        The Regional Court dismissed the applicant's request to hear further witnesses, as it found this evidence irrelevant for the charges of tax evasion.   Even if it were true that the R. company had value added tax reimbursement claims, the applicant had failed to make tax declarations concerning the facts he was charged with, so that an off- set against the reimbursement claims, if at all possible, could not have been effectuated.        According to the record of the hearing, several documents were read out by the Regional Court, including the report from the Grieskirchen Tax Office of 31 July 1992.   The applicant did not react thereto.        On 17 November 1992 the Wels Regional Court convicted the applicant of tax evasion and sentenced him to a fine of 2 million AS and 5 months' imprisonment in default.   Half of the fine was suspended for a probationary period of three years.        The Regional Court found that in September 1986 the applicant had bought several trucks from the D. company and, although the trucks had not actually been delivered, had entered their value in the company's book-keeping as assets and had claimed input tax.   On the applicant's request the contract had been cancelled in February 1987 and a credit note (Gutschrift) had been issued by the D. company, which, however, had not been entered into the book-keeping of the S.G. company.   A similar transaction had been made with the T. company, another truck retailer, in December 1987, with refunding by credit note in January 1988.   Furthermore, in 1981 and 1982, the applicant had requested estimates of costs (Kostenvoranschläge) regarding repair works of trucks of the S.G. company.   Though these repair works had eventually never been carried out, the applicant had treated the estimates of costs in the book-keeping of the S.G. company as invoices and had claimed input tax.        The Regional Court noted the applicant's defence that he had returned the credit notes to the D. company and the T. company in order to negotiate the amount of the credit notes and that these documents had apparently got lost there so that he could not have entered them into his book-keeping.   The booking of the estimates of costs as invoices had been merely a mistake.        The Regional Court did not accept the applicant's defence.   It found that there were no indications that the applicant had returned the credit notes.   Also the argument of further negotiations regarding the credit notes was in itself implausible as it was against the rules of ordinary book-keeping - with which the applicant as an experienced business man was familiar - that after the cancelling of a contract a credit note be issued which did not correspond to the previous contract.   It also noted the fact that the same kind of transaction occurred twice and that in both cases the ordering of the trucks had taken place shortly before the end of the year and the cancelling of the contracts shortly after the beginning of the new year.   As regards the booking of estimates of costs as invoices, the Regional Court found that this did not happen by mistake because the respective amounts were treated as debts until 1988 although an error would have been discovered much earlier.   Moreover, the applicant had been asked by his book-keeper about the open account and had decided to leave it in the book-keeping.        On 11 March 1993 the applicant lodged a plea of nullity and an appeal against the sentence.   He complained, inter alia, about the Regional Court's refusal to take the evidence he had requested and submitted that the Regional Court had failed to decide on his request to have tax files of the R. company produced.   He further attacked the assessment of evidence made by the Regional Court as, in his view, parts of some witnesses' statements could also be understood as exonerating him.        On 24 March 1993 the Grieskirchen Tax Office, as a private party, submitted observations on the applicant's plea of nullity, covering some two and a half pages.   These observations were not served on the applicant.        On 18 May 1993 the Procurator General's Office (General- prokuratur) submitted its observations on the applicant's plea of nullity and appeal against the sentence, which subsequently were served on the applicant.        On 22 June 1993 an oral hearing on the plea of nullity and appeal took place before the Supreme Court (Oberster Gerichtshof).   In this hearing the applicant, his defence counsel and a representative of the Procurator General's Office participated.   In the course of the hearing the Supreme Court read out the Grieskirchen Tax Office's submissions of 24 March 1993.        On the same day the Supreme Court dismissed the applicant's plea of nullity and partly granted his appeal reducing the fine to 1.4 million AS and the imprisonment in default to 4 months.        The Supreme Court found that the Regional Court had acted correctly when it dismissed the applicant's requests for a further hearing of his tax consultant and of representatives of the Graz and Grieskirchen Tax Offices as their statements would have been irrelevant to the proceedings.   The Supreme Court noted that the Regional Court should have also explicitly refused the further request, namely to produce the tax file of the R. company.   However, this procedural mistake did not infringe the applicant's defence rights since his request for production of the tax files concerned the same issue with regard to which the Regional Court had correctly refused the taking of further evidence.        The Supreme Court further found that the Regional Court had correctly established the facts and assessed the evidence.   It added that in assessing the evidence a court was not bound to rely only on logically cogent deduction but, in applying the principle of free assessment of evidence, it could also rely on deductions based on probability and common knowledge.        Relevant domestic law:        According to S. 45 para. 2 of the Code of Criminal Procedure (Strafprozeßordnung), the Investigating Judge shall permit the defence counsel to inspect the court files, except the records of deliberations, and to make copies thereof; alternatively the Investigating Judge may also deliver copies.   Under the same conditions the defence counsel can inspect the file during the trial.        According to S. 258 of the Code of Criminal Procedure all evidence must normally be taken at the trial, in particular witnesses and experts must make their statements orally before the court. Documents may only be used as evidence if they have been read out in court.   According to S. 252 para. 2 documents must be read out in court if the parties do not waive this right.        The tax authorities have, by law, the position of a private party (Privatbeteiligter) in criminal proceedings before the ordinary courts (S. 200 of the Code of Tax Offences).        S. 365 et seq. of the Code of Criminal Procedure regulate the position of the private party.   The private party is the alleged victim of a criminal offence and can join the criminal proceedings to have its civil law compensation claim against the offender determined by the criminal court.   He has the right to inspect the files and to participate at the trial, but he can lodge an appeal against a judgment of the Criminal Court only under specific circumstances.   Under S. 200 para. 2 of the Code of Tax Offences the tax offence authorities can, however, lodge an appeal in the same way as the Public Prosecutor.   COMPLAINTS   1.    The applicant complains under Article 6 paras. 1 and 3 of the Convention that the criminal proceedings conducted against him were unfair.   a.    He submits that the Regional Court refused to take the evidence he had requested.   b.    He further submits that at the court hearing on 17 November 1992 the Presiding Judge did not actually read out the report of the Grieskirchen Tax Office of 31 July 1992, which had not been served on him, but merely mentioned it and referred to its number in the file. Thus, the applicant did not become aware of its contents until the Public Prosecutor in its concluding remarks referred to it.   He therefore was deprived of the possibility to comment on this report at the hearing and could not object to it being read out.   c.    He also submits that in the proceedings on his plea of nullity and appeal the written observations of the private party had not been transmitted to him but were, unexpectedly, read out by the Supreme Court at the hearing on 22 June 1993.   Since the applicant and his defence counsel were only informed at the hearing about the contents of the private party's submissions they had no adequate possibility to react thereto.   He submits that usually no written observations are submitted by private parties who make their statements orally in the hearing of the plea of nullity.   The applicant alleges a violation of the principle of equality of arms and that he was not given sufficient time to prepare his defence in this respect.   2.    The applicant also complains about a violation of the principle of presumption of innocence as guaranteed by Article 6 para. 2 of the Convention.   He submits that there was not sufficient evidence to find that with regard to the mistakes occurred in the book-keeping he had had the intention to evade taxes.   He also submits that the opinion expressed by the Supreme Court, namely that a court was not bound to rely only on logically cogent deduction but could also rely on deductions based on probability and common knowledge, infringed the principle of presumption of innocence.   THE LAW   1.    The applicant complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that the criminal proceedings conducted against him were unfair.        Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, insofar as relevant, read as follows:        "(1) In the determination of ... any criminal charge      against him, everyone is entitled to a fair and public      hearing within a reasonable time by an independent and      impartial tribunal established by law. (...)        (3) Everyone charged with a criminal offence has the      following minimum rights: (...)        (b) to have adequate time and facilities for the      preparation of his defence; (...)        (d) to examine witnesses or have examined witnesses against      him and to obtain the attendance and examination of      witnesses on his behalf under the same conditions as      witnesses against him. (...)"        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. 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., Imbrioscia judgment of 24 November 1993, Series A no. 275, pp. 13-14, para. 38).   a.    Insofar as the applicant submits that the Regional Court refused to take the evidence he had requested, the Commission recalls 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).        In the present case the applicant on 17 November 1992 requested the Regional Court to take further evidence in order to prove that the R. company, at the time of the alleged offences, had considerable value added tax reimbursement claims.   The Regional Court rejected the request to hear the applicant's tax consultant and representatives of the Graz and Grieskirchen Tax Offices, as it found their evidence irrelevant for the charges of tax evasion:   Even if it were true that the R. company had value added tax reimbursement claims, the applicant had failed to make tax declarations concerning the facts he was charged with, so that an off-set against the reimbursement claims, if at all possible, could not have been effectuated.   The Regional Court did not deal with the applicant's further request for the production of tax files of the R. company.   On 22 June 1993 the Supreme Court found that the Regional Court had acted correctly when it dismissed the applicant's requests for the hearing of witnesses, but noted that the Regional Court should have also refused explicitly the further request, namely to produce the tax file of the R. company.   However, this procedural mistake did not infringe the applicant's defence rights since his request for production of the tax files concerned the same issue with regard to which the Regional Court had correctly refused the taking of further evidence.        The Commission finds that the Regional Court and the Supreme Court sufficiently explained why the evidence requested by the applicant was irrelevant to the proceedings.        Accordingly there is no appearance of a violation of the applicant's right to a fair hearing under Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of the Convention in this respect.   b.    The applicant further submits that at the court hearing on 17 November 1992 the Presiding Judge did not actually read out the report of the Grieskirchen Tax Office of 31 July 1992, which had not been served on him, but merely mentioned it and referred to its number in the file.   Thus, he had not been aware of its contents until the Public Prosecutor in its concluding remarks referred to it.   He therefore was deprived of the possibility to comment on this report at the hearing and could not object to it being read out.        The Commission observes, however, that according to the record of the court hearing of 17 November 1992 the report in question was read out by the Presiding Judge.   The applicant, at no stage of the proceedings, submitted that the record of the court hearing was incorrect in this respect.   Even assuming that the relevant report had been treated as read out, the Commission notes that such practise was only permissible with the consent of the applicant.   However, the applicant does not submit that the Presiding Judge had acted in this respect contrary to the relevant provisions of the Code of Criminal Procedure.   Moreover, the Commission notes that the document at issue had been added to the file on 19 August 1992 and that the next court hearing took place on 17 November 1992.   There is nothing to show that the applicant's defence counsel could not have inspected the file before the hearing to learn about this document.        The Commission therefore finds no appearance of a violation of the applicant's right to a fair hearing under Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) of the Convention in this respect.   c.    The applicant also submits that in the proceedings on his plea of nullity and appeal the written observations of the private party had not been transmitted to him but were, unexpectedly, read out by the Supreme Court at the hearing on 22 June 1993.   Since the applicant and his defence counsel were only informed at the hearing about the contents of the private party's submissions they had no adequate possibility to react thereto.   He alleges a violation of the principle of equality of arms and that he was not given sufficient time to prepare his defence in this respect.        The Commission recalls that the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial.   The right to an adversarial trial means, in a criminal case, that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.   Various ways are conceivable in which national law may secure that this requirement is met.   However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real   opportunity to comment thereon (Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, pp. 27-28, paras. 66-67).   In particular it is inherently unfair for the prosecution to make submissions to a court of which the defence is unaware and on which the defence has no opportunity to comment (M.B. v. Austria, Comm. Report 8.9.94, para. 56).        The Commission finds that the Grieskirchen Tax Office, as a private party to the criminal proceedings against the applicant, may be perceived by the applicant as his adversary.   The Commission therefore has to examine whether in the relation between the applicant and the Tax Office the principle of equality of arms has been observed.        In the present case the applicant lodged a plea of nullity and an appeal against the sentence on 11 March 1993.   On 24 March 1993 the Grieskirchen Tax Office, as a private party, submitted observations on the applicant's plea of nullity, covering some two and a half pages. These observations were not served on the applicant.   On 18 May 1993 the Procurator General's Office submitted its observations on the applicant's plea of nullity and appeal against the sentence, which were served on the applicant.   On 22 June 1993 an oral hearing on the plea of nullity and appeal took place before the Supreme Court, in which the applicant, his defence counsel and a representative of the Procurator General's Office participated, but no representative of the Tax Office. In the course of the hearing the Supreme Court read out the Grieskirchen Tax Office's submissions of 24 March 1993.        The applicant, according to his own submissions, expected that the Tax Office would make oral submissions at the Supreme Court's hearing.   He was informed at the hearing about the fact that the Tax Office had submitted observations and these observations were read out by the court.   The applicant, who was assisted by counsel, did not show that he could not duly comment on the Tax Office's observations. Moreover, once confronted with these observations, he did not request that the hearing be adjourned on the ground that he needed more time to prepare a reply thereto.        In these circumstances the Commission cannot find that the fact that the Tax Office's written observations were read out by the court infringed the principle of equality of arms as protected by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission therefore finds no appearance of a violation of the applicant's right to a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention in this respect.        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.   2.    The applicant also complains about a violation of the principle of presumption of innocence as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.   He submits that there was not sufficient evidence to find that with regard to the mistakes occurred in the book-keeping he had had the intention to evade taxes.   He also submits that the opinion expressed by the Supreme Court, namely that a court was not bound to rely only on logically cogent deduction but could also rely on deductions based on probability and common knowledge, infringed the principle of presumption of innocence.        Article 6 para. 2 (Art. 6-2) of the Convention reads as follows:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Commission recalls that the presumption of innocence will be violated if, without the accused's having previously been proven guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty (Eur. Court H.R., Barberá, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p.38, para. 91).        The Commission notes that the applicant does not argue that during the proceedings, and in particular the trial, the Regional Court had taken decisions or attitudes reflecting such an opinion.   Having regard to the applicant's submissions, the Commission rather finds that the essence of his complaint is that the Austrian courts, in convicting him, had committed errors of fact in that they assessed the evidence incorrectly.   However, the Commission cannot determine this issue, as it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;   No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).        It follows that also 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,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)