Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 20197/92
by Ernst KÖRNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 17 January 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
B. MARXER
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 10 June 1992 by
Ernst Körner against Austria and registered on 22 June 1992 under file
No. 20197/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 March 1994 and the observations in reply submitted by the
applicant on 9 May 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of this case, as they have been submitted by the
parties, may be summarised as follows:
The applicant is an Austrian citizen residing in Krems. He is
a fiscal officer by profession. Before the Commission he is
represented by Mr. C. Rogler, a lawyer practising in Steyr.
On 16 August 1988 the Tax Office (Finanzamt) of Linz issued tax
assessments for income, turnover, alcohol and trade tax for the period
of 1983 to 1986 against the applicant who was, at the time, allegedly
running a cafeteria.
On 19 October 1988 the Criminal Department of the Tax Office of
Linz informed the applicant that criminal proceedings under the Code
of Tax Offences (Finanzstrafgesetz) had been instituted against him on
the suspicion of having committed tax evasion in connection with his
failure to submit tax declarations for the years 1983 to 1986. It
further informed the applicant that, in due course, he would be given
an opportunity to comment upon this suspicion.
On 22 February 1989 the applicant commented on the charges
against him. He submitted inter alia that he had only been the
chairman of the association which owned and was running a cafeteria.
He requested the discontinuation of the proceedings.
On 21 July 1989 the applicant again filed observations and urged
the Tax Office to make a decision by 16 August 1989.
On 26 July 1989 the Tax Office informed the applicant that it
awaited, for reasons of expediency, the final decision of the
Administrative Court in the tax assessment proceedings before deciding
upon the continuation of the criminal proceedings.
On 9 August 1989 the applicant again urged the Tax Office to
discontinue the criminal proceedings.
On 28 March 1990 in the tax assessment proceedings, the Upper
Austrian Regional Directorate of Finance (Finanzlandesdirektion)
confirmed the applicant's turnover, income, alcohol and trade tax
assessments.
On 6 November 1990 the Austrian Administrative Court
(Verwaltungsgerichtshof) quashed the decision of the Regional
Directorate of Finance concerning the aforementioned tax assessments
for errors of law.
On 20 December 1990 the applicant, referring to the
Administrative Court's judgment, again urged the Tax Office to
discontinue the criminal proceedings. He also lodged a request for
administrative review (Dienstaufsichtsbeschwerde) with the Ministry of
Finance (Bundesministerium für Finanzen). He was informed by the
Ministry that the Administrative Court's judgment had not clarified all
the questions, which were relevant in the criminal proceedings. Their
discontinuation was, therefore, not justified.
On 17 May 1991 the applicant lodged a complaint about the
administration's failure to make a decision (Säumnisbeschwerde) with
the Administrative Court.
On 10 December 1991 the Administrative Court declared the
applicant's complaint inadmissible. The Administrative Court found no
failure on the part of the tax authorities. The Court referred to
S. 55 of the Code of Tax Offences, which provides that, in
administrative criminal proceedings relating to charges of tax evasion,
the oral hearing must not be conducted before the relevant tax
assessment has become final. It considered that the authorities need
not decide on requests to discontinue criminal proceedings, as long as
a tax assessment was not final.
On 14 February 1992 the Upper Austria Regional Directorate of
Finance fixed the applicant's income taxes due for 1983 and 1984 at
11.866,- ATS. The decisions concerning the turnover, alcohol and trade
tax assessments against the applicant were annulled.
On 6 October 1992, the Administrative Court, upon the applicant's
appeal in the tax assessment proceedings, again quashed his income tax
assessment for errors of law. Subsequently, the tax authorities did
not issue a new decision as regards the applicant's taxes due for 1983
and 1984.
On 11 December 1992 the Trial Board (Spruchsenat) of the Tax
Office of Linz discontinued the criminal proceedings against the
applicant.
The applicant also submits that, in the course of the criminal
proceedings, he applied for three different posts of head of tax office
in Upper Austria. However, his applications remained unconsidered due
to the suspicion and criminal proceedings and subsequent disciplinary
proceedings against him.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
of the length of the criminal proceedings against him.
2. The applicant further complains under Article 14 of the
Convention that he was discriminated in promotion procedures because
of the criminal proceedings pending against him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 June 1992 and registered on
22 June 1992.
On 12 January 1994 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 16 March 1994 the Government submitted their observations.
The observations in reply by the applicant were submitted on
9 May 1994.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the criminal proceedings against him.
Article 6 para. 1 (Art. 6-1), so far as relevant, reads as
follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within reasonable time ..."
The Government, referring to the case-law of the Convention
organs, submit that the criminal proceedings at issue were complex
because they were inseparably linked to the tax assessment proceedings.
They point out that the Administrative Court, in its judgment of
10 December 1991, held that S. 55 of the Austrian Code of Tax Offences
enabled the authorities to wait for the final tax assessment before
taking a decision in the criminal proceedings. Moreover, the
Government submit that the applicant by lodging several complaints with
the Administrative Court also contributed to the length of the
proceedings.
The applicant contests the Government's view as regards the
complexity of the case. He submits in particular that the authorities
in the criminal proceedings remained inactive for most of the time.
His complaints lodged with the Administrative Court twice had the
result that the decisions in the tax assessment proceedings were
quashed for errors of law. Thus, they were necessary and should not
be held against him.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the authorities), and having regard to all the
information in its possession, that a thorough examination of this
complaint is required, both as to the law and as to the facts.
2. The applicant further complains under Article 14 (Art. 14) of the
Convention that he was discriminated in promotion procedures because
of the criminal proceedings pending against him.
The Commission recalls that Article 14 (Art. 14) only prohibits
discrimination in the enjoyment of the rights and freedoms guaranteed
by the Convention (No. 11278/84, Dec 1.7.85, D.R. 43 p. 216). However,
the applicant's complaint relates to questions of his access to
particular posts in the civil service, a matter which is not covered
by the Convention (Eur. Court H. R., Glasenapp judgment of 28 August
1986, Series A no. 104, p. 26, para. 49; Kosiek judgment of 28 August
1986, Series A no. 105, p. 20, para. 35).
It follows that this part of the application is incompatible
ratione materiae within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE about the length of the criminal proceedings
against him, without prejudging the merits;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)