KREMZOW proti Rakousku



AS TO THE ADMISSIBILITY OF

Application No. 23506/94

by Friedrich KREMZOW

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 2 February 1994

by Friedrich KREMZOW against Austria and registered on 16 February 1994

under file No. 23506/94;

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 facts of the case, as they have been submitted by the

applicant, may be summarized as follows.

The applicant, born in 1938, is an Austrian national. At present

he is serving a life sentence for murder in the prison of Vienna-

Mittersteig. Before the Commission he is represented by

Mr. H. Mühlgassner, a lawyer practising in Vienna.

In relation to the criminal proceedings at issue the applicant

has also introduced a previous application (No. 19165/91), in which he

complained under Article 6 para. 1 about the length of the proceedings

and under Article 6 para. 3 (a) that he had not been informed in detail

of the nature and cause of the accusations against him.

On 29 June 1984 the Tax Office (Finanzamt) for the 6th, 7th and

15th District of Vienna instituted administrative criminal proceedings

under the Code of Tax Offences (Finanzstrafgesetz) against the

applicant on suspicion of evasion of taxes in the years 1977 to 1982

as co-offender of his wife.

On 18 May 1992 the applicant's case file was transmitted to the

Trial Board, together with a detailed statement of the charges against

the applicant.

On 25 June 1992 the Trial Board discontinued the criminal

proceedings against the applicant. The Trial Board found that, as

regards the taxes for the years 1979 and 1980, the proceedings had

meanwhile become time-barred. As regards the taxes for the year 1981,

it could not be established that the applicant had deliberately

committed tax evasion. The sums negligently evaded by the applicant

would not require the continuation of the criminal proceedings.

Furthermore, as the applicant was serving a prison sentence for life,

there was no necessity for issuing a formal warning (Verwarnung)

against him.

On 14 June 1993 the Constitutional Court (Verfassungsgerichtshof)

refused to entertain the applicant's complaint against the Trial

Board's decision of 25 June 1992. The Constitutional Court found that

his complaint had no prospect of success and that the matter at issue

was not excluded from the competence of the Administrative Court

(Verwaltungsgerichtshof).

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that contrary to this provision no oral hearing had taken place before

the Trial Board and that the Trial Board's decision had not been

pronounced publicly. He further complains that the Trial Board could

not be considered an independent and impartial tribunal within the

meaning of Article 6 para. 1 of the Convention.

2. He further complains under Article 6 para. 2 of the Convention

that the reasoning of the Trial Board's decision to discontinue

proceedings violated the presumption of innocence. He submits that the

decision of the Trial Board contained the statement that the applicant

was guilty of a tax offence.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that contrary to this provision no oral hearing had taken

place before the Trial Board and that the Trial Board's decision had

not been pronounced publicly. He further complains that the Trial

Board could not be considered a tribunal within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention.

The question whether a trial is in conformity with the

requirement of fairness of Article 6 para. 1 (Art. 6-1) of the

Convention must be considered on the basis of the examination of the

proceedings as a whole. However, an examination of the proceedings as

a whole is not possible where they have been discontinued (see No.

10300/83, Dec. 12.12.84, D.R. 40 p. 180).

In the present case the Trial Board by decision of 25 June 1992

to discontinue the criminal proceedings against the applicant. On 14

June 1993 the Constitutional Court refused to entertain the applicant's

complaint against the Trial Board's decision.

Accordingly there is no appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention in this respect.

This part of the application, therefore, is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that the Trial Board's decision to

discontinue proceedings violated the presumption of innocence. He

submits that the decision of the Trial Board contained the statement

that the applicant was guilty of a tax offence. He also submits that

Section 25 para. 1 of the Code of Tax Offences is incompatible with

Article 6 para. 2 (Art. 6-2) of the Convention.

However, the Commission is not required to decide whether or not

the facts, alleged by the applicant disclose any appearance of a

violation of Article 6 para. 2 (Art. 6-2) of the Convention as, under

Article 26 (Art. 26) of the Convention, it may only deal with a matter

after all domestic remedies have been exhausted according to the

generally recognized rules of international law.

The Commission notes that on 14 June 1993 the Constitutional

Court refused to entertain the applicant's complaint against the Trial

Board's decision of 25 June 1992 noting that the matter was not

excluded from the competence of the Administrative Court. The

applicant failed to show that he subsequently seized the Administrative

Court.

It follows that the applicant has not complied with the

conditions of Article 26 (Art. 26) of the Convention in this respect,

and this part of the application must accordingly be rejected under

Article 27 para. 3 (Art. 27-3) 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) (A. WEITZEL)