European Court of Human Rights

FIRST SECTION

DECISION

Application no. 5998/05
by Werner BAHAR
against Austria

The European Court of Human Rights (First Section), sitting on 8 July 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 7 February 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Werner Bahar, is an Austrian national who was born in 1947 and lives in Freilassing. He was represented before the Court by Dr. P. Rosenthal, a lawyer practising in Salzburg. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Tauttmansdorff, 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.

In 1990 the Salzburg Tax Authority (Finanzamt Salzburg-Stadt) launched inquiries against the applicant and some three co-accused on the suspicion of tax evasion.

On 1 October 1992 the Tax Authority heard the applicant and on 12 October 1992 it reported to the Prosecutor at the Salzburg Regional Court.

On 9 November 1993 the investigating judge at the Salzburg Regional Court instituted preliminary investigations.

In January 1998 the Salzburg Public Prosecutor drew up a bill of indictment, which was amended at a later stage after the applicant had raised objections.

On 19 February 2002 the Regional Court convicted the applicant under the Code of Tax Offences and sentenced him to a fine of 79.614,69 EUR.

On 12 February 2004 the Supreme Court dismissed the applicant’s plea of nullity on points of law and referred the case to the Linz Court of Appeal. On 19 August 2004 the Court of Appeal dismissed the appeal. This decision was served on the applicant’s counsel on 4 November 2004.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of criminal proceedings against him.

He further complained under Article 6 that the Austrian courts incorrectly assessed evidence before them and failed to examine four persons as witnesses.

THE LAW

On 29 May 2008 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay ex gratia the sum of EUR 15,500 to Werner Bahar with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 30 April 2008 the Court received the following declaration signed by the applicant:

“I note that the Government of Austria are prepared to pay ex gratia the sum of EUR 15,500 to Werner Bahar with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Austria in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Registrar President