ROZSA v. AUSTRIA
Inadmissible
Christos Rozakis
The applicant, Mr Stefan Rozsa, is a German national who was born in 1945 and lives in St. Augustin. He was represented before the Court by Mr F. Kloevekorn, a lawyer practising in Bonn. The respondent Government were represented by their agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 20 February 1996 the applicant crossed the border between Hungary and Austria. A considerable amount of cigarettes which he had failed to declare to the customs authorities were found in his car. The cigarettes were seized and criminal proceedings were opened against him. According to the Government, the applicant, when he was apprehended, was cautioned in writing that he could request a hearing of his case by a trial board (Spruchsenat). In case of simplified proceedings the request would have to be made in the objection against the provisional penal order (Strafverfügung), in other cases it could be made at any time before the start of the oral hearing. On 13 March 1996 a provisional penal order was issued, finding the applicant guilty of attempted smuggling and attempted breach of the State's tobacco monopoly and imposing a fine on him. The order contained information stating that the applicant could file an objection against it and that he could request the further proceedings including the hearing to be held by a trial board. The applicant lodged an objection (Einspruch). He did not request that his case be heard by a trial board. On 4 December 1997 the Vienna Customs Office (Hauptzollamt), as tax offences authority of first instance, held a hearing. On 26 February 1998 the Vienna Customs Office issued a penal order (Straferkenntnis), finding the applicant guilty of attempted smuggling and of attempted breach of the State's tobacco monopoly. It imposed a fine of 28,000 Austrian schillings (ATS) on him with twenty-eight days' imprisonment in default. Further, it ordered the forfeiture of the cigarettes. The penal order informed the applicant of his right to appeal within a month from its service. Further, it stated that the appeal would be examined by the Finance Directorate for Vienna, Lower Austria and Burgenland (Finanzlandesdirektion) as tax offences authority of second instance. If the appellant so requested, the hearing of the appeal would be held and the decision be taken by the Regional Finance Directorate's appeals board (Berufungssenat). On 25 April 1998 the applicant appealed. However, he did not request that the appeal be heard by the appeals board. On 18 September 2000 the Regional Finance Directorate, as tax offences authority of second instance, dismissed the applicant's appeal. On 19 October 2000 the applicant, represented by counsel, requested the Constitutional Court (Verfassungsgerichtshof) to grant him legal aid for the purpose of filing a complaint against the Regional Finance Directorate's decision. As grounds for the complaint he submitted that none of the authorities which had dealt with his case qualified as a tribunal within the meaning of Article 6 of the Convention, as both, the Customs Office and the Regional Finance Directorate, were purely administrative authorities. Moreover, the criminal proceedings against him had lasted unreasonably long. On 23 October 2000 the Constitutional Court requested the applicant to supplement his legal aid request which the applicant did on 20 November 2000. On 18 December 2000 the President of the Constitutional Court dismissed the applicant's request for legal aid on the ground that the complaint lacked prospects of success. He noted that there was no indication that the decision at issue was based on an unlawful provision or that the application of the law in the present case raised an issue of constitutional law. This decision was served on the applicant's counsel on 28 December 2000. The letter accompanying it informed the applicant that he remained free to lodge a complaint with the Constitutional Court within six weeks. If he wished to do so he had to be represented by counsel of his own choosing. The applicant did not lodge a complaint with the Constitutional Court. Under Article 130 of the Federal Constitution (Bundes-verfassungsgesetz) the Administrative Court decides, inter alia, on applications (Beschwerden) in which it is alleged that the administrative authorities have breached their duty to decide. 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.” 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 excluded. Section 27 of the Administrative Court Act (Verwaltungsgerichtshof-gesetz) relating to the application against the administration's failure to decide read 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. ...” According to the Constitutional Court's judgment of 30 September 1989 (published in the official collection of that court's decisions, VfSlg 12167/89), the Administrative Court may 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, also 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). The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz). The relevant provisions, as in force at the material time, contained the following rules. Pursuant to section 58 § 1 (a) of the Tax Offences Act, the Customs Office, as a tax offences authority of first instance, is competent to conduct the proceedings concerning inter alia smuggling or breach of monopoly regulations. According to section 58 § 2 a trial board shall hold the hearing and give the decision where the relevant value exceeds a certain amount. As to other offences, it is up to the defendant to request a decision by the trial board. In case of so-called simplified proceedings such a request shall be made in the objection against the provisional penal order. Pursuant to section 62 § 1 an appeal will be decided upon by the Finance Directorate as tax offences authority of second instance. According to section 62 § 2 an appeals board shall hold the hearing and give the decision on the appeal, if it is directed against the decision of a trial board or if the appellant so requests. Section 66 regulates the organisation of the trial boards and the appeals boards. Its paragraph 1 provides that their members are not bound by any instructions. According to its paragraph 2, the trial boards consist of three members: a judge as chairperson, one member of the senior service of the tax authorities and one lay member. The appeals boards consist of four members: a judge as chairperson, one member of the senior service of the tax authorities and two lay members. Pursuant to section 67 members of the above boards are appointed by the Federal President upon nomination by the Federal Government. Their term of office is six years. Section 68 provides that each Regional Finance Directorate has to fix, for one year in advance, the number of trial boards and appeals boards, their chairpersons and members and the sequence in which members have to step in if a member is unable to sit. Each Regional Finance Directorate also has to allocate the business of the trial boards and the appeals boards for one year in advance. Meanwhile, on 1 January 2003, a reform encompassing the appeal procedures in all tax matters has entered into force BGBl. (Federal Official Gazette) no. 97/2000. A new body, the Independent Finance Panel (Unabhängiger Finanzsenat) has been created to hear appeals. As to proceedings relating to tax offences, the provisions on trial boards have not changed, whereas the appeals board is now part of the Independent Finance Panel and its composition has changed: it consists of one of the Presidents of the Independent Finance Panel, one full-time member of the latter and two lay members. The term of office of the President and the other full-time members of the Independent Finance Panel is indefinite.