CEDH · CASELAW;REPORTS;ENG — 18 octobre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 21154/93                           Gerhard Höfler                                 against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 18 October 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3   III. OPINION OF THE COMMISSION      (paras. 31-45) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . .5        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . . .5        C.    Article 6 para. 1 of the Convention           (paras. 33-44). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 45). . . . . . . . . . . . . . . . . . . . .6   DISSENTING OPINION OF MM. M.P. PELLONPÄÄ, B. MARXER, G.B. REFFI, B. CONFORTI, C. BÎRSAN, K. HERNDL . . . . . . . .7   APPENDIX I :    PARTIAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8   APPENDIX II:    FINAL DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 13   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is an Austrian citizen, born in 1949 and resident in Linz.   He was represented before the Commission by Mr. A. Frischenschlager, a lawyer practising in Linz.   3.    The application is directed against Austria.   The respondent Government were represented by their Agent, Ambassador F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.    The case concerns the length of administrative criminal proceedings under the Code of Fiscal Offences.   The applicant invokes Article 6 para. 1 of the Convention.   B.    The proceedings   5.    The application was introduced on 6 November 1992 and registered on 14 January 1993.   6.    On 29 June 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application as regards the applicant's complaint about the length of the proceedings to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   It declared the remainder of the application inadmissible.   7.    The Government's observations were submitted on 7 October 1994. The applicant replied on 22 November 1994.   On 20 December 1994 the Government submitted a supplement to its observations. On 26 January 1995 also the applicant supplemented his observations.   8.    On 17 May 1995 the Commission declared the remaining complaint admissible.   9.    The text of the Commission's final decision on admissibility was sent to the parties on 31 May 1995 and they were invited to submit such further information or observations on the merits as they wished.   No observations were submitted.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C.L. ROZAKIS, President                E. BUSUTTIL                A.S. GÖZÜBÜYÜK                A. WEITZEL                M.P. PELLONPÄÄ                B. MARXER                G.B. REFFI                B. CONFORTI                I. BÉKÉS                E. KONSTANTINOV                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL   12.   The text of this Report was adopted on 18 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's partial and final decisions on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   16.   On 16 June 1981 the applicant, who was then the managing director of the H. Company doing business as a car retailer, filed in the course of an inspection 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.   17.   On 22 November 1984 the Tax Office instituted administrative criminal proceedings under the Code of Tax Offences (Finanzstrafgesetz) against the applicant on suspicion of evasion of taxes and instructed the applicant to submit a written statement on the charges raised.   18.   On 23 December 1986 the applicant submitted his statement.   On 2 January 1986 the Tax Office submitted the case file in the applicant's criminal proceedings to the competent Trial Board (Spruchsenat) at the Linz Tax Office.   19.   On 24 February 1987 the Trial Board 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.   20.   In September 1987 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.   21.   On 16 September 1987 the Tax Office ordered the applicant to remedy defects of the appeal (Mängelbehebungsauftrag).   On 3 November 1987 the applicant complied with this order.   22.   On 18 December 1987 the applicant's appeal was transmitted to the Upper Austria Regional Tax Authority (Finanzlandesdirektion)   23.   On 16 March 1989 an oral hearing took place before the Appeals Board (Berufungssenat) at the Regional Tax Authority on the applicant's appeal.   On 30 March 1989 a further hearing took place.   24.   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.   25.   On 6 November 1989 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).   26.   On 7 March 1990 the Constitutional Court refused to entertain the applicant's complaint.   27.   On 3 July 1990 the applicant requested that his case be referred to the Administrative Court (Verwaltungsgerichtshof).   28.   On 25 October 1991 the Constitutional Court referred the case to the Administrative Court.   29.   On 7 January 1992 the applicant supplemented his complaint to the Administrative Court.   30.   On 22 April 1992 the Administrative Court dismissed the applicant's complaint.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   31.   The Commission has declared admissible the applicant's complaint that the criminal charges against him were not determined within a reasonable time.   B.    Point at issue   32.   The point at issue is whether there has been a violation of article 6 para. 1 (Art. 6-1) of the Convention.   C.    Article 6 para. 1 (Art. 6-1) of the Convention   33.   Article 6 para. 1 (Art. 6-1) of the Convention, as far as relevant, provides as follows:        "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."     34.   The applicant submits that the criminal proceedings against him started on 16 June 1981 when he submitted the self incriminating reports to the tax authorities.   From that time on a criminal charge had been raised which the authorities had to decide upon.   35.   The Government submit that the proceedings at issue started when the Tax Office on 22 November 1984 instituted criminal proceedings against the applicant.   The applicant's self incriminating report of 16 June 1981 could not be taken into account as it was up to the Tax Office to determine whether on the submissions in the applicant's report criminal proceedings had to be instituted. Before 22 November 1984 no criminal charge was raised against him nor was he questioned by the authorities as suspect.   36.   As regards the period to be taken into account, the Commission recalls that "charge" for the purpose of Article 6 para. 1 (Art. 6-1) may be defined as the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence.   The raising of a so defined charge may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when a person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p.33, para. 73).   37.   The Commission finds that the criteria set out in the case-law of the Court are not met by the applicant's self incriminating report. Accordingly, the relevant time began to run when the Tax Office instituted criminal proceedings on 22 November 1984 and ended with the Administrative Court's Decision of 22 April 1992.   The proceedings thus lasted for approximately 7 years and 5 months.   38.   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., Boddaert judgment of 12 October 1992, Series A no. 235-D, p. 82, para. 36).   39.   The applicant submits that the case was neither complex nor necessitated lengthy investigations.   Delays occurred in the proceedings had to be attributed to the authorities, in particular, it took more than 15 months before the Constitutional Court decided on his request to refer his case to the Administrative Court.   40.   The Government submit that delays occurred in the proceedings were attributable to the applicant.   In the proceedings at first instance he failed for two years to submit his observations on the charge raised against him.   When he finally did so the Tax Office referred his case without delay to the Trial Board which took its decision speedily.   Also the Constitutional Court and Administrative Court decided speedily on the applicant's complaints.   The applicant could even have accelerated these proceedings by requesting the transfer of his case to the Administrative Court already in his complaint to the Constitutional Court.   41.   As regards the reasonableness of the length the Commission finds that the case was not particularly complex.   42.   As regards the conduct of the applicant the Commission finds that a delay of approximately two years may be attributed to him as in the first instance proceedings he submitted his observations on the charges raised against him only on 23 December 1986 while he had been instructed by the Tax Office to do so on 22 November 1984.   Though the applicant's conduct contributed to length of proceedings it cannot explain their overall length.   43.   As regards the conduct of the authorities the Commission notes that there are two periods of inactivity which may be attributed to the authorities and courts, namely almost 14 months in the appeal proceedings (18 December 1987 to 16 March 1989) and almost 16 months in the proceedings before the Constitutional Court (3 July 1990 to 25 October 1991) which the Government failed to explain.   44.   Taking the delays attributable to the authorities into account and having regard to the overall length of approximately 7 years and 5 months, the Commission finds that the proceedings were not concluded within a reasonable time.        CONCLUSION   45.   The Commission concludes, by eight votes to six, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the First Chamber          President of the First Chamber        (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)                                                    (Or. English)              DISSENTING OPINION OF MM. M.P. PELLONPÄÄ,               B. MARXER, G.B. REFFI, B. CONFORTI,                      C. BÎRSAN, K. HERNDL.        For the following reason we have voted against the finding of a violation of Article 6 para. 1 of the Convention:        We find that the majority has not given sufficient weight to the substantive delay attributable to the applicant in the proceedings (see para. 42).   This delay has to be balanced against the delays attributable to the authorities (see para. 43).   We find that in such circumstances the overall length of the proceedings has less significance.   Balancing the delay attributable to the applicant against the delays attributable to the authorities we conclude that Article 6 para. 1 of the Convention has not been violated in the present case.