CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 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 }                          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)