CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1990

.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. 16469/90                       by G.K. and R.G.                       against Austria             The European Commission of Human Rights sitting in private on 2 July 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 3 July 1989 by G.K. and R.G. against Austria and registered on 23 April 1990 under file No. 16469/90;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants are German citiziens.   Mr.   K. was born in 1935 and is living in W.   Mr. G. was born in 1931 and is living in K.. They are represented by Mr. E. Novacek, a Chamber of Commerce official.           The facts submitted are as follows.           On 5 February 1987 the applicant K. was convicted and fined 1,000,000 AS or alternatively sentenced to eight months' imprisonment by the Linz Regional Court (Landesgericht) for tax evasion committed in 1976 and 1977.   Further K. and the applicant G. were convicted of tax evasion committed in 1978.   G. was fined 200,000 AS or alternatively sentenced to six weeks' imprisonment. A former collaborator, one S., was convicted as being an accomplice (Beteiligter).   He was fined 150,000 AS or alternatively sentenced to one month's imprisonment.   According to the findings of the court the applicants had evaded taxes by establishing incorrect inventories and other false declarations.   As to the amount of evaded taxes the court stated it was bound by the tax assessment orders (Abgabenbescheide).           The applicants state in this respect that they had appealed against the assessment orders but then had accepted a friendly settlement in the course of the appeal proceedings.           The Linz Regional Court considered that in view of the enormous differences between the figures in the faked inventories and the correct ones which were later made available to the tax authorities by S. the conclusion could only be that the manipulations in question had been carried out by the defendants deliberately in order to evade taxes.           The applicants lodged an appeal (Berufung) and a plea of nullity (Nichtigkeitsbeschwerde).   The remedies were rejected by the Supreme Court (Oberster Gerichtshof) on 30 November 1988.   The Court only reduced Mr. K.'s fine to 800,000 AS.           Insofar as the applicants had complained that the trial court considered itself bound by the final tax assessment orders, the Supreme Court stated that the orders proved that the company managed by the applicants owed taxes of a certain amount.   The question of whether or not they were guilty of deliberate tax evasion had been decided by the trial court whose appreciation of the available evidence was not objectionable.   The finding that the two defendants had as responsible representatives of a business firm violated their duty to make correct and true tax declarations and thereby deliberately committed tax evasion was supported by the statements made by S., the results of the tax investigation proceedings, a comparison between the original and faked inventories, productivity statistics for 1977, a computerised report on the value of available stock on 1 January 1979 and an internal secret note of the firm dated 10 May 1979.   COMPLAINTS           The applicants submit that they were wrongly incriminated by S., a former employee who had to be dismissed because he had embezzled money of their firm.   They allege that S. received a lenient sentence because he gave evidence against them.   Allegedly S. alone was responsible for the tax evasion as at the relevant time he was in fact directing the firm.   They argue that the Supreme Court's position on the binding effect of the final tax assessment orders is contrary to the jurisprudence of the Constitutional Court and the Administrative Court.   They submit that the tax authorities proceeded by way of estimation and the burden of proof was thereby shifted on them.           They further submit that the trial court's judgment is, inter alia, based on facts which have not been discussed at the trial.           They allege violations of Article 6 paras. 1 and 2 of the Convention and of Article 1 of Protocol No. 1 to the Convention.   THE LAW           With regard to the judicial decisions of which the applicants complain, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, 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.   The Commission refers, on this point, to its established case-law (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 is true that the applicants also complain that the trial court considered as binding tax assessments made by the tax authorities; that it based their conviction inter alia on statements made by a co-accused; and that it referred to facts which had not been discussed with the parties at the trial.   In this connection they allege violations of Article 6 para. 1 (Art. 6-1) of the Convention (right to a fair hearing), Article 6 para. 2 (Art. 6-2) of the Convention (presumption of innocence) and Article 1 of Protocol No. 1 (P1-1) to the Convention (protection of possessions).           However, as regards the binding effect of the tax assessments, the Supreme Court pointed out that it remained for the criminal court to establish the applicants' guilt, i.e. to determine whether they had intentionally faked inventories and made other false statements for the purpose of evading taxes.   The Commission further notes that the applicants lodged an appeal to have the lawfulness of the tax assessments determined by a court but, in the course of the appeal proceedings, agreed to a friendly settlement.   In these particular circumstances it cannot be found that the binding effect of the tax assessment deprived the applicants of a fair hearing, in the criminal case, on the preliminary question as to the existence and the extent of their obligation to pay taxes.           Moreover, the trial court's findings of the applicants' guilt were not only based on the statements made by the co-accused S. but also on various other evidence obtained in the tax investigation proceedings such as the faked and the true inventories, productivity statistics, stock value reports and other documentary evidence, also referred to by the Supreme Court.           There is consequently nothing to show that the proceedings were conducted in an unfair manner or that the Austrian courts arbitrarily disregarded vital evidence or based their decisions on arbitrary considerations violating the applicants' right to a fair hearing within the meaning of Article 6 (Art. 6) of the Convention.           The Commission finally notes that Article 1 of Protocol No. 1 (P1-1) to the Convention does not impair the right of a State to secure the payment of penalties.           It follows that 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           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)