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FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51941/99
by Walter MEISCHBERGER
against Austria
The European Court of Human Rights (First Section), sitting on 15 September 2003 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr P. Lorenzen
Mr G. Bonello,
Mrs F. Tulkens,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application lodged on 10 May 1999,
Having regard to the partial decision of 3 October 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Walter Meischberger, is an Austrian national, who was born in 1959 and lives in Vienna. He is represented before the Court by Mr J. Hintermayr, a lawyer practising in Linz.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 October 1994 the Innsbruck Public Prosecutor’s Office opened preliminary proceedings against N.M. on suspicion of tax evasion.
On 28 October 1994 the Innsbruck Regional Court (Landesgericht) extended these proceedings to four other suspects including the applicant. He was suspected of having, in June 1994, as the representative of football player P.S., incited N.M. who was then the president of the Tirol Football Club to declare P.S.’s salary at a relatively low level and to pay him 3 million Austrian schillings (ATS) without declaring them, thus, avoiding salary tax to be paid. The applicant was represented by counsel in these and the subsequent proceedings.
Also on 28 October 1994, the Public Prosecutor requested the Regional Finance Directorate (Finanzlandesdirektion) to investigate the case.
On 6 February 1995 the Regional Finance Directorate, after having questioned the applicant as a suspect, submitted the minutes. Subsequently, after having carried out tax assessment proceedings concerning the Tirol Football Club, it submitted an interim report on its investigations.
On 28 November 1995, the Regional Finance Directorate submitted its final investigation report.
On 12 February 1996 the investigating judge summoned the applicant as a suspect to appear on 27 February 1996 for questioning. Upon the applicant’s request the hearing was postponed to 1 March. The applicant did not appear and the questioning took place a week later, on 8 March 1996.
Meanwhile, the investigating judge had requested the Vienna Regional Criminal Court to question two witnesses by way of judicial assistance.
On 3 June 1996 the Vienna Regional Court returned the file to the Innsbruck Regional Court, which submitted it to the Public Prosecutor on the following day.
On 12 June 1996 the Public Prosecutor requested the Regional Tax Office to submit further information, which it did on 3 July.
On 23 July 1996 the preliminary investigations against N.M. were extended to include a further charge. N.M. unsuccessfully appealed against this decision.
On 6 December 1996 the indictment against the applicant and four co‑accused was preferred. The applicant was charged with aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act (Finanzstrafgesetz).
On 28 January 1997 the Innsbruck Court of Appeal (Oberlandesgericht) dismissed the applicant’s objection (Einspruch) against the indictment.
On 10 February 1997 the presiding judge fixed 6 May as date for the trial.
On 12 February 1997 the applicant and one of his co-accused requested that the proceedings be transferred to the Vienna Regional Criminal Court. Thereupon, the trial scheduled for 6 May 1997 was cancelled.
On 16 April 1997 the Supreme Court (Oberster Gerichtshof) dismissed the request for transfer.
On 5 August 1997 the Innsbruck Regional Court held the trial against the applicant and his co-accused. The applicant pleaded not guilty. The Public Prosecutor submitted an expert opinion concerning questions of tax law and a number of witnesses were heard. Further, the applicant submitted an expert opinion on questions of tax law. At the close of the hearing the court convicted the applicant of aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act and imposed a fine of ATS 500,000 on him, part of which was suspended on probation.
On 10 October 1997 the applicant filed a request for rectification of the trial minutes.
On 20 October 1997 the Innsbruck Regional Court partly granted the applicant’s request and made a number of additions to the minutes.
On 29 October 1997 the written version of the Innsbruck Regional Court’s judgment of 5 August was served on the applicant.
On 30 October 1997 the applicant filed a second request for rectification of the minutes, which remained unsuccessful.
On 26 November 1997 the applicant filed a plea of nullity and an appeal.
On 23 February 1998 the applicant, represented by a second counsel, supplemented his plea of nullity.
On 16 December 1998 the Supreme Court held a hearing and dismissed the applicant’s and his co-accused’s pleas of nullity and their appeals.
The Supreme Court noted at the outset that one of the applicant’s co‑accused had complained that section 33 § 2 (b) of the Tax Offences Act referred to provisions of the Income Tax Act 1972 and was, thus, no longer applicable at the time of the offences, as meanwhile the Income Tax Act 1988 had entered into force. It observed that if this assertion was correct it would affect the convictions of all five co-accused. However, the Supreme Court found that section 33 § 2 (b) of the Tax Offences Act contained a so-called dynamic reference, i.e. at any given time it referred to the Income Tax in the version in force at that time. Moreover, it had to be read in conjunction with section 111 of the Income Tax Act 1988 according to which the provisions of that Act replaced the corresponding provisions of the Income Tax Act 1972 referred to in any other law. Thus, the legal basis for all co-accused’s conviction was sufficiently clear.
The Supreme Court’s decision was served on the applicant on 1 February 1999.
THE LAW
The applicant’s remaining complaint relates to the length of the criminal proceedings against him. He relies on Article 6 § 1 of the Convention which, so far as material, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
a. The Government contended that the applicant failed to exhaust domestic remedies, as he had not filed either an application under section 91 of the Courts Act (Gerichtsorganisationsgesetz) or a hierachical complaint (Aufsichtsbeschwerde) under section 37 of the Pubic Prosecutor’s Act (Staatsanwaltschaftsgesetz). They referred to the case of Holzinger v. Austria (no. 23459/94, §§ 24-25, ECHR 2001-I) in which the Court found that a request under Section 91 of the Courts Act constitutes an effective remedy and argued that the same considerations applied to a hierarchical complaint.
The applicant contested the Government’s view. He submitted in particular that there was a period of inactivity before the Supreme Court. However, an application under section 91 of the Courts Act did not apply as regards delays caused by the Supreme Court as there is no “superior court” to which it could be addressed.
As to the use of the remedy provided for by section 91 of the Courts Act, the Court observes that there were no periods of inactivity caused by the courts with the possible exception of the proceedings before the Supreme Court. However, as the applicant rightly pointed out, section 91 does not apply where delays caused by the Supreme Court are at issue.
As to the question whether a hierarchical complaint under section 37 of the Public Prosecutor’s Act provides an effective remedy against delays attributable to the Public Prosecutor, the Court reiterates that hierarchical appeals in the Austrian legal system have so far not been considered as effective remedies. They do not give the individual a right to the exercise by the State of its supervisory powers, and any proceedings which do subsequently take place do not involve the participation of the individual who made the hierarchical appeal in the first place (see Lagler v. Austria, no. 16942/90, Commission decision of 13 April 1994, unreported, with further references). In any case, the Government have not pointed to any period of inactivity caused by the Public Prosecutor, which could and should have given rise to a hierarchical complaint.
In sum, the Court finds that the Government’s plea of non-exhaustion has to be dismissed.
b. As to the merits, the Government submitted that the proceedings were complex from a substantive and a procedural point of view. Moreover, the applicant contributed to the length of the proceedings by making use of a multitude of remedies. In particular, his unsuccessful request to transfer the proceedings to the Vienna Regional Criminal Court caused delay as the date for the trial, which had already been fixed, had to be cancelled pending the Supreme Court’s decision. Thus, the overall duration of the proceedings has to be considered as being reasonable.
The applicant contested that the proceedings were complex and asserted that considerable delays were caused by the authorities.
The Court notes that the proceedings against the applicant started on 28 October 1994 and were terminated on 1 February 1999. Thus, they lasted four years and three months before two levels of jurisdiction.
The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see among many others, Kudla v. Poland [GC], no. 30210/96, § 124, ECHR 2000-XI).
The proceedings at issue in the present case where of some complexity. They concerned altogether five co-accused, necessitated extensive investigations by the competent tax authorities and the hearing of witnesses by way of legal assistance. The charges raised complex questions of tax law, which required the taking of legal expert opinions at the trial. The Supreme Court in turn had to deal with complex issues when assessing whether the legal basis for the applciant’s conviction had been sufficiently clear.
As regards the conduct of the authorities, the Court finds that there were no periods of apparent inactivity, except the relatively lengthy period of more than nine and a half months which elapsed between 23 February 1998 when the applicant supplemented his plea of nullity and 16 December 1998 when the Supreme Court decided on the pleas of nullity and the appeals of the applicant and his co-accused. However, having regard to the complexity of the proceedings, this delay does not appear decisive in itself.
As to the conduct of the applicant, the Court reiterates that no reproach can be levelled against an accused for making full use of the remedies available under domestic law. Nonetheless, such conduct constitutes an objective fact, not capable of being attributed to the respondent State, which is to be taken into account when determining whether or not the proceedings exceeded a “reasonable time” (see Ledonne v. Italy (no.1), no. 35742/97, § 25, 12 May 1999, unreported, with a reference to Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 36, § 82). The Court finds that, in the present case, certain delays cannot be attributed to the Austrian authorities: the fact that the trial had to be postponed by three months from 6 May to 5 August 1997 on account of the applicant’s unsuccessful request to transfer the case to the Vienna Regional Criminal Court; and the fact that the applicant after having filed his plea of nullity on 26 November 1997, supplemented it three months later on 23 February 1998.
Having regard to all these circumstances, the Court finds that the overall duration of the proceedings of four years and three months can still be regarded as “reasonable” within the meaning of Article 6 § 1 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
Deputy Registrar President