MEISCHBERGER v. AUSTRIA
Inadmissible
Christos Rozakis
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 coaccused 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 coaccused 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.