CASE OF WALLNÖFER v. AUSTRIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
4. The applicant was born in 1933 and lives in Innsbruck. 5. The applicant was the manager of Alpenland Holland B.V., a company registered in the Netherlands dealing with artwork. 6. On 11 May 1994 the Innsbruck Tax Authority first informed the Innsbruck Public Prosecutor of the suspicion of tax fraud by the applicant in connection with the sale of several pieces of artwork by Alpenland Holland B.V. 7. On 16 May 1994 the Innsbruck Regional Court issued an order for the applicant’s home to be searched. The search was conducted on 30 May 1994, which is also the date when the applicant was first notified of the investigations against him. 8. On 26 February 1997 the Innsbruck Tax Authority submitted its final report to the Innsbruck Public Prosecutor. 9. On 8 June 1998 the Innsbruck Public Prosecutor issued an indictment against the applicant concerning the suspicion of tax fraud during the years 1989, 1990 and 1992, alleging that the applicant had evaded taxes amounting to 6.87 million. Austrian Schilling (equivalent to approximately 500,000 euros (EUR)). 10. The Innsbruck Regional Court held oral hearings on 19 November 1998, 14 January 1999 and 5 October 2000. On the latter date it acquitted the applicant of the charges. On 22 November 2001 the Supreme Court quashed the judgment upon a plea of nullity by the Innsbruck Tax Authority and referred the case back to the first instance for a re-trial. 11. After having held oral hearings on 5 June 2002, 9 September 2002 and 14 October 2002, the Innsbruck Regional Court convicted the applicant of tax fraud and sentenced him to a fine of EUR 120,000, EUR 40,000 of which was suspended on probation. The judgment was served on 16 November 2002. The applicant lodged a plea of nullity. 12. On 11 September 2003 the Supreme Court again quashed the judgment and referred the case back to the first instance. 13. In March 2003 the Innsbruck Regional Court commissioned an expert to determine the assessment base for the calculation of the taxes. 14. On 18 and 19 November 2004 and on 23 December 2004 further oral hearings were held. The Innsbruck Regional Court remarked in a note to the file dated 14 February 2005, quoting the case Hennig v. Austria (no. 41444/98, 2 October 2003), that the length of the proceedings was already considerable, and admitted that this was attributable to the court system. 15. In March 2004 the expert opinion was delivered. During the oral hearing of 18 May 2006 the Innsbruck Regional Court requested the expert to supplement his report, as it had turned out to be incomplete and did not answer the most relevant questions. A revised expert opinion was received in March 2007. 16. During the oral hearing on 29 May 2009, at which the applicant was heard, the Innsbruck Public Prosecutor withdrew the indictment because the statutory time-limit for the prosecution of the offence had expired. Consequently, the Innsbruck Regional Court acquitted the applicant of the charges (judgment delivered orally on 29 May 2009, served on the applicant’s counsel on 25 February 2010). The written judgment contained, inter alia, the following wording: “The above-mentioned sales transactions solely aimed at the commission of tax fraud in Austria. No levies were paid in the Netherlands in connection with the sale of the paintings. The profits made constitute income deriving from a business according to Section 23 of the Income Tax Act [Einkommenssteuergesetz], which from an economic point of view are attributable to the applicant according to Section 21 of the Federal Tax Rules [Bundesabgabenordnung]. Taking into account the expenses incurred, tax loads and therefore tax evasion amounting to ATS 975,122.09 (EUR 70,864.89) turnover tax, ATS 4,104,950.75 (EUR 298,318.40) income tax and ATS 1,495,319.40 (EUR 108,669.09) business tax arose. The accused was determined to effect these transactions in order to mask his tax liability in Austria and thereby commit tax fraud. ... From a legal point of view, it follows from the facts that the accused was to be acquitted even though the elements of the offence were fulfilled, as the Public Prosecutor withdrew the indictment ...” 17. Following the Court’s notification of the present application to the Government, the latter informed the Court that, on 18 September 2014, the Procurator General’s Office had lodged a plea of nullity for the preservation of the law regarding the judgment of the Innsbruck Regional Court of 29 May 2009. 18. On 6 November 2014 the Supreme Court held that the judgment in question had violated the applicant’s rights under Article 6 § 2 of the Convention, namely the right to be presumed innocent until proved guilty, on the grounds that the Innsbruck Regional Court had stated in its reasoning that it considered the applicant to be guilty, even though it acquitted him.