OBRIST v. AUSTRIA
Inadmissible
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
1. The applicant, Mr Christian Obrist, is an Austrian national, who was born in 1954 and lives in Zell am See. 2. The Austrian Government (“the Government”) were 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. On 3 March 2003 the applicant, a practising lawyer, was served with a decision dated 25 February 2003 by the Zell am See Tax Authority (Finanzamt Zell am See als Finanzstrafbehörde I. Instanz) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax, through his submission of incorrect declarations of earnings in both the years 1999 and 2001. 5. The panel at the Salzburg Stadt Tax Authority (Spruchsenat beim Finanzamt Salzburg-Stadt) held five hearings, namely on 20 April 2004 and 9 February, 6 April, 14 September and 18 October 2005, of which only the first two were attended by the applicant. The applicant was aware that his former employee, witness X, would be required to testify in the proceedings; however three hearings were postponed when witness X failed to appear. When X finally appeared at the hearing of 18 October 2005 it transpired that the applicant had relied on X’s duty of confidentiality on account of his previous employment contract with the applicant, and X could not then testify. 6. The applicant did not receive a transcript of the hearing. The applicant had not lodged a request to receive the transcript until the hearing was under way. 7. On 18 October 2005 the Tax Authority panel found the applicant guilty of having evaded tax in the amount of almost 51,000 euros (EUR) and ordered him to pay a fine of EUR 20,000, which would be replaced, in the event of default, by a prison term of four weeks. The applicant was, however, acquitted of having evaded turnover tax in 1999. In fixing the amount of the fine, the panel considered the following to be mitigating factors: the applicant’s lack of any prior convictions, his partial payment of the money owed, his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed. It did not find any aggravating factors. The written decision of 18 October 2005 was served on the applicant on 18 May 2006. 8. On 19 June 2006 the applicant appealed to the Independent Finance Panel (Unabhängiger Finanzsenat), which delivered its decision orally after a hearing on 6 December 2007. The Independent Finance Panel reduced the amount of the fine to EUR 12,500, with sixteen days’ imprisonment in the event of default. Among the reasons given by the Independent Finance Panel for the reduction of the fine was the applicant’s low income, and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the Tax Authority panel. On the other hand, it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor. The written decision was served on the applicant on 14 August 2008. 9. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 25 September 2008 against the decision of the Independent Finance Panel. In a decision dated 8 October 2008 the Constitutional Court declined to consider the case for its lack of prospects of success and sent it to the Administrative Court (Verwaltungsgerichtshof). The decision of the Constitutional Court was served on the applicant on 14 October 2008. 10. The applicant filed additional observations in support of his complaint to the Administrative Court as requested. On 8 July 2009 the Administrative Court dismissed the applicant’s complaint as ill-founded. It held that the Independent Finance Panel had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant’s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts’ jurisprudence. It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started, as was provided for by law. 11. The decision was served on the applicant’s counsel on 27 August 2009. 12. The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz). 13. In accordance with section 135 of the above-mentioned Act, in force at the relevant time, oral hearings are to be recorded by the court reporter. Its subsection 3 provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted, at the latest, just after the opening of the oral hearing. 14. Section 33 § 5 of the Tax Offences Act provides, as a maximum penalty for the offence of tax evasion, for the imposition of a monetary fine of double the amount of tax evaded. It also provides for the imposition of a sentence of imprisonment for up to two years.