WEINZINGER v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicant, Mr Johann Weinzinger, is an Austrian national who was born in 1950 and lives in Katsdorf. He is represented before the Court by Mr B. Scharmuller, a lawyer practising in Linz. 2. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant worked for the V. company as head of the customs duties department from 1999 to 2001. 5. In 1999 and 2000 the Linz Main Customs Office (Hauptzollamt) carried out inspections at three subsidiary companies owned by the V. Company because it suspected irregularities in connection with the payment of customs duties. 6. By letters dated 30 June 2000 and 5 February 2001, the Main Customs Office notified the applicant that criminal proceedings for financial offences had been instituted against him on suspicion of negligent evasion of customs and import duties. As the applicant was responsible for the customs declarations of the V. company and its subsidiaries, the proceedings were directed against him. The applicant was asked to submit written statements within two weeks. 7. The applicant gave information in an oral statement and had his lawyer submit two written statements, that included the applications to discontinue the proceedings, on 31 July 2000 and 19 February 2001. The Main Customs Office did not respond to these statements. 8. By a letter dated 15 April 2008 the applicant was summoned to a hearing before the Linz and Wels Main Customs Office as the criminal authority of first instance in financial matters (Zollamt Linz Wels als Finanztrafbehörde I. Instanz). The subject matter concerned the alleged financial criminal offences notified to the applicant on 30 June 2000 and 5 February 2001. 9. The hearing was held on 15 May 2008 before the panel dealing with the case (Spruchsenat beim Zollamt Linz Wels als Organ des Zollamtes Linz als Finanzstrafbehörde I. Instanz). Certain of the customs duties the applicant was charged with having negligently evaded were found to be time-barred. As regards the remainder of the charges, the panel decided to discontinue the proceedings having found that the applicant had neither acted negligently nor against the law. The decision was served on the applicant’s counsel on 17 June 2008. 10. Under Article 130 of the Federal Constitution (Bundes-verfassungsgesetz), the Administrative Court rules on, inter alia, applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide. 11. Article 132 of the Federal Constitution, in its relevant part, reads as follows: “An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty. An action for breach of the duty to decide is inadmissible in administrative criminal proceedings, except private prosecutions and prosecutions in respect of tax offences.” 12. Section 73 of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz) deals with the administrative authorities’ duty to decide. Its relevant part reads as follows: “(1) Subject to any contrary provision in the administrative regulations, the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at the latest six months after the application or appeal has been lodged. (2) If the decision is not served on the party within this time-limit, jurisdiction will be transferred to the competent superior authority upon the party’s written request ...” In proceedings under the Tax Offences Act an application for transfer of jurisdiction to the superior authority is not possible. 13. Section 27 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), relating to applications against the administration’s failure to decide reads as follows: “An application under Article 132 of the Federal Constitution for breach of the duty to decide (application against the administration’s failure to decide) can be lodged only when the highest authority to which an application can be made in administrative proceedings, either by way of an appeal or an application for transfer of jurisdiction, ... has been applied to by a party and has not made a decision on the matter within six months ...” 14. According to a judgment of the Constitutional Court of 30 September 1989 (published in the official collection of that court’s decisions, VfSlg 12167/89), the Administrative Court may also receive applications against the administration’s failure to decide under Article 132 of the Federal Constitution, taken in conjunction with section 27 of the Administrative Court Act, where an authority of first instance has failed to give a decision within the statutory six-month time-limit, provided that no other remedy (such as a request for a transfer of jurisdiction) lies against the failure to decide (see Basic v. Austria, no. 29800/96, § 27, ECHR 2001-I). 15. The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated by the Tax Offences Act (Finanzstrafgesetz). 16. Section 57 of the Tax Offences Act, as in force at the relevant time, stated that proceedings regarding tax offences had to be conducted by the authorities proprio motu and that evidence on behalf of the defendant had to be taken into consideration as much as evidence against the defendant. It further stated that defendants not represented by counsel had to be properly advised and supported by the tax authority conducting the proceedings. 17. On 1 January 2008 an amended section 57 of the Tax Offences Act entered into force that added a new paragraph 6 stating that proceedings regarding tax offences had to be conducted speedily and without any unnecessary delays and had to be terminated within a reasonable time. It further introduced a remedy against delays of the first-instance authority in deciding: the defendant could lodge an application with the chairman/chairwoman of the competent appeal panel of the Independent Finance Panel (Unabhängiger Finanzsenat) for the setting of a reasonable time-limit for the first instance tax authority to proceed.