AS TO THE ADMISSIBILITY OF
by Livius POPOVICI
The European Court of Human Rights (First Section), sitting on 20 September 2011 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 7 November 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Livius Popovici, is an Austrian national who was born in 1927 and lives in Vienna. He was represented by Mr Reif-Breitwieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
By a decision of the Tax Authority (Finanzamt) of 9 December 2002 the applicant was ordered to pay a “first surcharge” for the late payment of his income tax (erster Säumniszuschlag) for the years 1996, 1997 and 1998. The Tax Authority held that the applicant had failed to pay the taxes by their due date of 11 November 2002.
By letters dated 17 and 18 December 2002 the applicant appealed against the decisions regarding the surcharges for income tax for 1996 and 1998 respectively. The surcharges amounted to 2% of the outstanding taxes, totalling 137.91 euros (EUR).
By a decision of 3 June 2003 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeals as ill-founded and upheld the decision of 9 December 2002.
The applicant, who was in receipt of legal aid, complained to the Administrative Court (Verwaltungsgerichtshof) on 29 September 2003, arguing that the law applicable at the time the tax surcharges were due, did not provide for “first surcharges”, but only for “surcharges”.
On 18 November 2004 the IFP submitted comments on the applicant’s complaint.
On 6 December 2004 the applicant submitted comments in reply.
By a decision of 4 June 2008 the Administrative Court rejected the applicant’s complaint. It held that while the law in force at the time only provided for (one) surcharge, and “first”, “second” and “third” surcharges were only introduced by a later amendment to the law, the applicant had not suffered any disadvantage, as the substantive content of the law before and after the amendment was the same. The amount of the surcharge itself was the same under the law in force at the time as the amount of a “first” surcharge under the law after the amendment. It was only their denotation that had changed. The decision was served on the applicant’s counsel on 2 July 2008.
On 4 March 2010 the applicant informed the Court that by a decision of the Tax Authority of 30 March 2009, the decision obliging him to pay surcharges had been annulled.
B. Relevant domestic law
Section 217 of the Federal Tax Act (Bundesabgabenordnung) deals with the imposition of surcharges for the late payment of taxes. The provision in force at the material time provided that the surcharge was to be fixed at 2% of the amount of tax not paid in time.
The applicant complained under Article 6 of the Convention that the length of the proceedings had been excessive.
Moreover, he complained that there had been no oral hearing before the Administrative Court and that the proceedings had been unfair.
The applicant complained about the length of the proceedings, which lasted from 17 and 18 December 2002, respectively, until 2 July 2008. They thus took five years and six and a half months at two levels of jurisdiction. He also alleged that the proceedings had been unfair and that he had had no oral hearing before the Administrative Court.
Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal ...”
The Government argued that according to the Court’s case-law, Article 6 of the Convention was not applicable to tax proceedings under its civil head. As to the question whether Article 6 of the Convention was applicable under its criminal head, the Government noted that in some special cases the Court had found it to be applicable. In these cases, notably in Jussila v Finland [GC], no. 73053/01, § 38, ECHR 2006 XIII, and Janosevic v Sweden, no. 34619/97, § 71, ECHR 2002 VII, the Court had held that Article 6 applied under its criminal head to tax surcharge proceedings, where the surcharges had been imposed in the course of a later tax assessment following tax evasion.
Therefore the Government argued that Article 6 of the Convention was not applicable in the present case, as the Austrian system of tax surcharges was not defined as criminal in domestic law, and neither the nature of the offence nor the severity of the sanction caused the system of tax surcharges to come under the criminal law sphere, especially as the tax surcharge was levied regardless of the level of fault of the dilatory party, and the surcharge did not contain a “retaliatory” element, but rather served the aim of compensating for the interest lost as a result of late payments of taxes. The Government explained that at the time the system of tax surcharges was introduced, the legislature had had the choice between an interest-in-arrears scheme and a surcharge scheme, and had opted for the latter in order to avoid costly and complicated calculations of interest-in-arrears.
In the alternative, the Government argued that the case should be declared inadmissible as an abuse of the right of individual application under Article 35 § 3 (a) of the Convention.
The applicant did not submit any arguments in reply on the question of the subject of the present proceedings, or about the applicability of Article 6 of the Convention.
The Court notes that the present application raises the question whether Article 6 of the Convention is applicable to the system of tax surcharges which was then in force in Austria, namely, the question arises whether the application is incompatible with Article 6 of the Convention ratione materiae. However, it is not necessary to examine this issue, as the application is inadmissible for the following reasons.
The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 (a) of the Convention, which provides, as far as relevant:
The Court held in the case of Bock v. Germany (dec.) (no. 22051/07, 19 January 2010, with further references):
“[The Court] had regard to the disproportion between the triviality of the facts, namely the pettiness of the amount involved and the fact that the proceedings concerned a dietary supplement, not a pharmaceutical product, and the extensive use of court proceedings - including the appeal to an international court - against the background of that Court’s overload and the fact that a large number of applications raising serious issues on human rights are pending. Furthermore, the Court observes that proceedings as the one at issue in the instant case also contribute to the congestion of the courts at the domestic level and thus to one of the causes for excessive length of court proceedings.”
The present case is marked by a similar disproportion between the triviality of the facts and the extensive use of court proceedings, including an appeal to an international court. The Court notes, in particular, that it is not the amount of EUR 137.91 in tax surcharges which was at stake. The complaint the applicant lodged before the Administrative Court was in essence that the first-instance authority had issued him with a “first surcharge”, whereas under the law in force at the time it should have issued him with a “surcharge” (which also would have amounted to EUR 137.91), but should have left out the word “first”. Clearly, complaints of such a nature contribute to the congestion of the courts at the domestic level and are one of the causes for the excessive length of proceedings. The Court further notes that the decision obliging the applicant to pay the surcharge has been annulled.
The Court further notes that it has dealt with the issue of the excessive length of court proceedings in numerous cases, including cases against the respondent Government. In that connection, the Court has addressed the problem of the procedural delays before the Administrative Court, and the lack of a remedy against such delays in several cases (see, inter alia, Schutte v. Austria, no. 18015/03, §§ 28-30, 26 July 2007; Schneider v. Austria, no. 25166/05, §§ 35-36, 31 July 2008; and Vitzthum v. Austria, no. 8140/04, §§ 21-23, 26 July 2007).
Under these exceptional circumstances, the Court considers that the application must be regarded as an abuse of the right of petition.
For these reasons, the Court unanimously
Declares the application inadmissible.
Nielsen Nina Vajic