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1 The authors of the
communication are Arthur Irschik ("the author"), born on 4 January 1963, and
his two sons, Lukas and Stefan Irschik, born on 11 February 1994 and,
respectively, on 16 November 1996; they are Austrian nationals. The author
claims that he and his sons are victims of a violation by Austria [FN1] of
article 26 of the International Covenant on Civil and Political Rights (the
Covenant). He submits the communication on his own behalf as well as on
behalf of his sons; he is not represented by counsel.
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[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for the State party respectively on 10 December 1978 and 10 March
1988. Upon ratification of the Optional Protocol, the State party entered
the following reservation:
"On the understanding that, further to the provisions of article 5 (2) of
the Protocol, the Committee provided for in Article 28 of the Covenant shall
not consider any communication from an individual unless it has been
ascertained that the same matter has not been examined by the European
Commission on Human Rights established by the European Convention for the
Protection of Human Rights and Fundamental Freedoms."
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THE FACTS
2.1 The author, a tax consultant, claimed a reduction of his income tax in
his tax assessment forms for the years 1996, 1997 and 1998, as his
maintenance obligations towards his two children were not (fully) deductible
from the taxable base of his income.
2.2 In doing so, he relied on the landmark decision of the Austrian
Constitutional Court of 17 October 1997, in which the Court, after having
examined ex officio the constitutionality of several provisions of the
Income Tax Law (Einkommenssteuergesetz) and of the Law on Family Taxation (Familienbesteuerungsgesetz),
declared these provisions unconstitutional insofar as they did not allow tax
payers with maintenance obligations towards their children to deduct at
least half of these expenditures from the taxable base of their income. The
Court held that the direct child benefits and child maintenance deductibles
available in Austria fell short of compensating for the extra burden placed
on parents with obligations to pay maintenance for their children. The fact
that such expenditures, which were already taken off their personal budget,
formed part of the taxable base (with the exception of the above-mentioned
deductibles) placed parents at a disadvantage as compared to persons not
liable to pay maintenance.
2.3 Under article 140, paragraph 5, [FN2] of the Austrian Federal
Constitution Act (Bundes-Verfassungsgesetz), the Court ruled that the
declaration of unconsititutionality would take effect from 1 January 1999,
so as to grant the legislator sufficient time to amend the law. In
accordance with the so-called "test case legislation" (Anlassfallregelung),
the old legislation continued to apply to all cases arising before that
date, with the exception of the two "test cases" that had given rise to the
proceedings before the Constitutional Court (article 140, paragraph 7, FN3
of the Federal Constitution Act). In these two cases, which concerned fiscal
years 1993 and 1994, respectively, the impugned tax assessments were
annulled.
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[FN2] Article 140, paragraph 5, reads, in pertinent parts: "The rescission
enters into force on the day of publication [of the Constitutional Court's
decision in the Federal Law Gazette] if the Court does not set a deadline
for the rescission. This deadline may not exceed 18 months."
[FN3] Article 140, paragraph 7, reads, in pertinent parts: "If a law has
been rescinded on grounds of unconstitutionality [...], all courts and
administrative authorities are bound by the decision of the Constitutional
Court. The law shall, however, continue to apply to all cases arising before
the rescission, with the exception of the test case, unless the Court, in
its rescinding judgment, decides otherwise. If the Court, in its rescinding
judgment, has set a deadline pursuant to paragraph 5, the law shall apply to
all cases arising before the expiry of this deadline, with the exception of
the test case."
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2.4 The author's appeals against the tax assessment invoices for 1996, 1997,
and 1998, in which his deduction claims had been rejected, were dismissed by
the Vienna Regional Finance Directorate (Finanzlandesdirektion für Wien,
Niederösterreich und Burgenland). Similarly, his complaints against two of
these decisions (concerning tax assessments for the years 1996 and 1997),
alleging violations of his constitutionally guaranteed rights to equality
before the law and to security of property, were dismissed by the
Constitutional Court on 8 June 1999, for lack of reasonable prospect of
success. With regard to the 1998 tax assessment, the author did not complain
to the Constitutional Court.
2.5 On 11 March 2000, the author, acting on his own behalf and not in the
name of his children, submitted an application to the European Court of
Human Rights, claiming violations of his rights under articles 6, 8, 12, and
13 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, as well as article 1, paragraph 1, of Protocol No. 1,
read in conjunction with article 14 of the Convention. By decision of 11
September 2000, the Court declared the application inadmissible under
article 35, paragraph 4, of the Convention, finding that the material before
it did "not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols".
THE COMPLAINT
3.1 The author claims to be a victim of a violation of article 26 of the
Covenant, as the continued application of the repealed provisions of the
Income Tax Law and the Law on Family Taxation to his tax assessments for
1996, 1997 and 1998 amounted to discrimination, given that this legislation
was no longer applied to the test cases which had given rise to the legal
proceedings before the Constitutional Court resulting in the rescission of
the said provisions. He claims that his sons are also victims of a violation
of article 26, since the denial of the rights to deduct his maintenance
expenditures from the taxable base of his income effectively reduced his net
income, thereby reducing his children's maintenance entitlements, which were
calculated on the basis of a certain percentage of his net income.
3.2 The author considers the preferential treatment of the test cases to be
arbitrary, in the absence of any reasonable and objective criteria which
would justify the application of less favourable provisions to his and all
other cases not benefiting from the test case legislation. This legislation
was discriminatory for all parents obliged to pay maintenance for their
children, whose complaints were not among the first ones pending at the
Constitutional Court, although their financial burden was similar to that of
the plaintiffs in the test cases. In lieu of remedy, the author claims a
compensation of 255.413,00 AST, based on calculations enclosed with the
communication.
3.3 Furthermore, the author submits that the rescinded provisions of the
Income Tax Law and the Law on Family Taxation were not adequately amended by
the legislator, who, apart from insignificantly increasing maintenance
deductibles, merely re-enacted the same legislation, with effect from 1
January 1999.
3.4 The author claims that he has exhausted all effective domestic remedies.
Although he could have lodged an appeal with the Administrative Court, after
the Constitutional Court dismissed his complaints for fiscal years 1996 and
1997, this remedy would have been ineffective for purposes of invoking the
principle of equality, since the Administrative Court is not competent to
review the constitutionality of administrative acts, but only their
conformity with lower-ranking law. As regards the tax assessment for 1998,
another complaint to the Constitutional Court would have been ineffective in
the light of the dismissal, by that Court, of identical complaints
concerning tax assessments for 1996 and 1997.
3.5 The author states that the same matter is not being and has not been
examined under another procedure of international investigation or
settlement, since the rejection of his application by the European Court of
Human Rights, declaring it inadmissible for being manifestly ill-founded,
was not based on an examination of the merits of his complaint.
STATE PARTY'S OBSERVATIONS ON THE ADMISSIBILITY OF THE COMMUNICATION
4.1 By note verbale of 17 September 2001, the State party objected to the
admissibility of the communication, invoking its reservation to article 5,
paragraph 2 (a), of the Optional Protocol, the effect of which was to
preclude the Committee's competence to examine the communication, since the
same matter had already been examined by the European Court of Human Rights.
4.2 The State party argues that the applicability of its reservation is not
impeded by the fact that the European Court of Human Rights declared the
author's application inadmissible under article 35, paragraph 4, of the
European Convention, because the wording of the Court's decision ("[...] do
not disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols") clearly indicates that the Court
examined "far-reaching aspects of the merits in the light of article 35,
paragraph 3, of the Convention".
4.3 Although the reservation does not expressly refer to the European Court
but to the European Commission of Human Rights, the State party submits that
it also applies to cases where the same matter has been examined by the
Court, since the Court has taken over the tasks hitherto discharged by the
Commission, as a result of the reorganization of the Council of Europe
organs.
4.4 Insofar as the author submits the communication on behalf of his
children, the State party invokes non-exhaustion of domestic remedies,
arguing that he failed to raise violations of his children's constitutional
or Covenant rights in the domestic proceedings.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5.1 By letter of 13 November 2001, the author responded to the State party's
submission, challenging the applicability of the State party's reservation
in his case. He argues that the same matter was not examined by the European
Court of Human Rights, since the Court dismissed his application on purely
formal grounds, without addressing the substance of his claims. There was
consequently no risk of subjecting the decision of the European Court to
review by the Committee, or of diverging case-law of these bodies.
5.2 The reasoning of the Court's decision, declaring the application
inadmissible under article 35, paragraph 4, of the Convention, was limited
to a standard formula, from which it could not be ascertained what
considerations led the Court to conclude that the author's claims were
manifestly ill-founded. This conclusion, moreover, constituted an "abusive
exercise" of the Court's power under article 35, paragraph 4, as it was in
conflict with the former Commission's jurisprudence that, following a
national court's decision to rescind a law, which as such violates the
European Convention, that law must be repealed without delay and may not
even be applied to cases having arisen before the date of rescission. The
author concludes that, in the light of this jurisprudence, his application
should have been treated as "manifestly founded", rather than manifestly
ill-founded.
5.3 According to the author, a rejection on purely procedural grounds cannot
be considered an examination, within the meaning of article 5, paragraph 2
(a), of the Optional Protocol, read in conjunction with the Austrian
reservation. Otherwise, each rejection on formal grounds by the European
Court would necessarily entail a similar decision by the Committee, de facto
resulting in its lack of jurisdiction to examine the case on the merits. In
a similar case, [FN4] the Committee had therefore decided that the European
Commission did not "examine" an application, when it had declared it
inadmissible on procedural grounds.
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[FN4] Communication No. 716/1996, Dietmar Pauger v. Austria, Views adopted
on 25 March 1999, UN Doc. CCPR/C/65/D/716/1996, 30 April 1999, at para. 6.4.
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5.4 The author argues that considering a rejection of an application on the
ground of being manifestly ill-founded as an "examination of the same
matter" would lead to arbitrary results, depending on which one of the
inadmissibility grounds enumerated in article 35 of the Convention the Court
chooses to base its finding, in cases where more than one may apply.
5.5 With regard to his children, the author claims that no domestic remedies
were available to them for purposes of challenging the tax assessment
invoices, which were addressed to him exclusively. In the absence of direct
applicability of the Covenant in Austria, as well as the necessary
implementing legislation, his children were precluded from invoking their
Covenant rights before the Austrian courts and authorities. He also
emphasizes that he was not acting on behalf of his sons when he submitted
his application to the European Court of Human Rights. The Austrian
reservation was therefore inapplicable, by logical implication, insofar as
the communication relates to his children's rights under article 26 of the
Covenant.
STATE PARTY'S OBSERVATIONS ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION
6.1 By note verbale of 16 January 2002, the State party made additional
comments on the admissibility, and this time on the merits, of the
communication. It reiterates that the dismissal of the author's application
by the European Court of Human Rights, under article 35, paragraph 4, of the
Convention, required an examination, if only summarily, of the merits of the
complaint. Insofar as the author's children are concerned, the State party
argues that any infringement of his Covenant rights, through the impugned
tax assessments, "would only trigger reflex actions which are legally
irrelevant in the present case".
6.2 In the alternative, if the Committee declares the communication
admissible, the State party subsidiarily challenges its merits, arguing 1)
that the assessment of taxable income falls outside the scope of the
Covenant, 2) that the continued application of the old legislation to
non-test cases was justified by the objective need to grant the legislator
enough time for adjusting the rescinded provisions, 3) that the author
himself had failed to appeal to the Constitutional Court in time, so as to
benefit from the test case effect, and 4) that, even if the relevant legal
provisions had been repealed with immediate effect, the author would not
have been successful to the full extent of his claim, given that the taxable
base of his income for 1996 and 1997 would still have had to be calculated
according to the old legislation.
AUTHOR'S COMMENTS ON THE STATE PARTY'S ADDITIONAL OBSERVATIONS
7.1 By letter of 15 April 2003, the author, in response to the State party's
additional observations, reiterated the arguments of his previous
submission, and challenged the State party's contention that the assessment
of taxable income falls outside the scope of article 26 of the Covenant. If
the Committee had found the discriminatory calculation of a lump-sum payment
under the Austrian Pensions Act to be in breach of article 26, then this
article must a fortiori cover discrimination in the determination of the
taxable base of an individual's income.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
8.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee notes the author's argument that further complaints to the
Administrative Court of Austria (regarding tax assessments for 1996 and
1997), as well as to the Austrian Constitutional Court (regarding tax
assessment for 1998), would have been futile in his situation, as the
Administrative Court was not competent to review the conformity of the
contested acts with the constitutional principle of equality, and since the
Constitutional Court had already adjudicated on basically the same issue in
its decision of 8 June 1999, dismissing the author's claims for lack of
reasonable prospect of success. The State party has not challenged this
argument. The Committee therefore concludes that the requirements of article
5, paragraph 2 (b), of the Optional Protocol have been met, insofar as the
author claims a violation of his rights under article 26 of the Covenant.
8.3 With respect to the State party's argument that the communication is
inadmissible under article 5, paragraph 2 (a), of the Optional Protocol,
read in conjunction with the Austrian reservation to that article, the
Committee notes that the author's application submitted to the European
Court of Human Rights related to the same facts and issues as the
communication pending before the Committee; the only difference is that the
author did not act on behalf of his sons before the European Court. While
the scope of article 14 of the European Convention is different from article
26 of the Covenant, given that the application of the latter is not limited
to the other rights guaranteed in the Covenant, property rights are
protected by article 1 of Protocol No. 1 to the European Convention and no
separate issue therefore arises under article 26 of the Covenant.
Accordingly, the Committee considers that it is seized of the "same matter"
as the European Court was, to the extent that the author submits the
communication on his own behalf.
8.4 As to the question of whether the European Court has "examined" the
matter, the Committee recalls its jurisprudence that where the Strasbourg
organs have based a decision of inadmissibility not solely on procedural
grounds, [FN5] but on reasons that involve even limited consideration of the
merits of the case, the same matter has been "examined" within the meaning
of the respective reservations to article 5, paragraph 2 (a), of the
Optional Protocol. [FN6] It considers that, in the present case, the
European Court proceeded beyond an examination of purely procedural
admissibility criteria, finding that the author's application "[did] not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols". [FN7] The Committee observes that the
State party's reservation cannot be denied simply on the assumption that
this reasoning reflects a standard formula, from which it may not be
ascertained on which considerations the Court's conclusion that the
application was manifestly ill-founded was based.
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[FN5] See Communication No. 716/1996, Dietmar Pauger v. Austria, at para.
10.2
[FN6] See Communication No. 121/1982, A.M. v. Denmark, Decision on
admissibility adopted on 23 July 1982, UN Doc. CCPR/C/16/D/121/1982, at
para. 6; Communication No. 744/1997, Linderholm v. Croatia, Decision on
admissibility adopted on 23 July 1999, UN Doc. CCPR/C/66/D/744/1997, at
para. 4.2.
[FN7] See Communication No. 744/1997, at paras. 3 and 4.2.
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8.5 Regarding the author's contention that the European Court's decision was
in conflict with the jurisprudence of the former Commission, the Committee
notes that it has no remit to review decisions and judgments of the European
Court.
8.6 Accordingly, the Committee concludes that the communication is
inadmissible under article 5, paragraph 2 (a), of the Optional Protocol,
insofar as it relates to the author's claim that his rights under article 26
of the Covenant have been violated, since the same matter has already been
examined by the European Court.
8.7 Insofar as the author submits the communication in the name of his
children, the Committee notes the State party's objection that the author
has not raised a possible violation of their constitutional or Covenant
rights before the Austrian courts, and has therefore failed to exhaust
domestic remedies on their behalf. It equally notes the author's argument
that no legal remedies were available to his sons to challenge his tax
assessment invoices for 1996, 1997 and 1998, and that the Covenant was not
directly applicable under Austrian law. However, the Committee considers
that it need not examine the issue of whether domestic remedies have been
exhausted, in accordance with article 5, paragraph 2 (b), of the Optional
Protocol, with regard to the author's sons, because the author has failed to
substantiate, for purposes of admissibility, that any detrimental effects
that his tax assessment invoices may have had, directly or indirectly, on
his children's maintenance entitlements, would amount to a violation of
their rights under article 26 of the Covenant. The Committee therefore
concludes that this part of the communication is inadmissible under article
2 of the Optional Protocol.
9. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and article 5,
paragraph 2 (a), of the Optional Protocol, the latter as modified by the
State party's reservation;
(b) That this decision shall be communicated to the State party and to the
authors.
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[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.] |
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