EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27741/95

C. B.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 1 July 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-52) 3

III. OPINION OF THE COMMISSION

(paras. 53-76) 6

A. Complaint declared admissible

(para. 53) 6

B. Point at issue

(para. 54) 6

C. Alleged violation of Article 6 para. 1 of the Convention

(paras. 55-75) 6

CONCLUSION

(para. 76) 8

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 9

APPENDIX II:   FINAL DECISION OF THE COMMISSION AS TO THE                                                   ADMISSIBILITY OF THE APPLICATION                                        17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Swiss citizen, born in 1932 and resident in Riehen in Switzerland.

3. The application is directed against Switzerland.  The respondent Government are represented by Mr Ph . Boillat , Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.

4. The case concerns the applicant's complaint about the length of criminal tax proceedings.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 20 April 1995 and registered on 28 June 1995.

6. On 17 January 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 para. 1 of the Convention concerning the length of the proceedings.  It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 21 March 1997.  The applicant replied on 1 May 1997.

8. On 22 October 1997 the Commission declared the remainder of the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 6 November 1997 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 17 November 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

S. TRECHSEL

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 1 July 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

16. The applicant was the director of the S.AG bank which administered fortunes.  He was suspected by the Federal Tax Administration ( Eidgenössische Steuerverwaltung ) of having evaded taxes.

17. On 9 December 1983 the Administration for Direct Federal Taxes of the Canton of Basel-Stadt ( Kantonale Verwaltung für die direkte Bundessteuer , hereafter: Cantonal Administration) instituted tax evasion proceedings against the applicant.

18. The Federal Tax Administration then investigated the accounts of another company of the applicant, the B.AG.  These investigations were closed on 12 September 1984, and on 8 February 1985 the applicant was informed of the outcome.

19. Meanwhile, investigations were undertaken in respect of the applicant's private tax matters.

20. On 25 March 1985 the applicant was requested to submit further documents and information.  The applicant replied on 27 April 1985.  On 9 August 1985 the Federal Tax Administration requested the applicant to submit all documents requested.  The applicant replied on 31 August 1985 that he refused to do so.

21. On 13 November 1985 the applicant personally spoke with the Cantonal Administration.  On 27 January 1986 he filed further submissions.

22. On 2 February 1986 the Cantonal Administration gave its decision in respect of the applicant's company B.AG.  The company then filed an appeal.

23. On 9 December 1986 the Federal Tax Administration informed the Cantonal Administration of the results of its investigations.

24. On 14 January 1987 the applicant and the Cantonal Administration agreed to suspend the proceedings until the taxes concerning the applicant's company had been definitely decided.

25. On 20 November 1987 the Cantonal Administration gave its decision concerning the appeal of the applicant's company.  The applicant's company filed a further appeal.

26. On 26 May 1988 the applicant again personally spoke with the Cantonal Administration.

27. On 10 March 1989 the Appeals Commission of the Canton of Basel-Stadt gave its decision on the appeal filed by the applicant's company. The decision was served on 18 August 1989.

28. On 25 August 1989 the proceedings concerning the applicant were resumed.  The applicant filed further observations on 12 September 1989.

29. On 13 September 1989 the Cantonal Administration informed the applicant of the taxes and fines due, the latter amounting to 150-200 % of the taxes due.  In a statement of 3 October 1989 the Cantonal Administration explained the details of the various fines.  The various sums evaded concerned amounts of the years 1979-1984 and ranged from 2,400 to 2,059,000 Swiss Francs (CHF).

30. On 9 October 1989 the applicant personally spoke with the Cantonal Administration.             

31. On 16 October 1989 the applicant filed an appeal with the Appeals Commission for Federal Taxes ( Kantonale Rekurskommission für eidgenössische Abgaben , hereafter: Appeals Commission).

32. On 15 June 1990 the Federal Court gave its decision on the case concerning the applicant's company B.AG.

33. On 17 April 1991 a decision was given concerning arrears in the applicant's tax payments.

34. On 13 May 1991 the applicant filed an appeal against the decision of 17 April 1991.

35. On 25 April 1991 the applicant personally spoke with the Cantonal Administration.

36. On 4 February 1992 the Cantonal Administration filed its observations on the applicant's appeal of 16 October 1989.  The applicant filed replies on 7 February and 21 March 1992, the Cantonal Administration filed further observations on 19 June 1992.

37. On 17 November 1992 after conducting a hearing, the Appeals Commission partly upheld the applicant's appeal and reduced the fines to 100 % of the taxes due.

38. On 22 December 1992 the Appeals Commission requested further information from the Federal Tax Administration.  The applicant replied thereto on 2 February 1993.

39. The decision of the Appeals Commission was served on the applicant on 1 September 1993.  In its decision, the Appeals Commission referred the case to the Cantonal Administration for renewed examination.

40. On 29 September 1993 the applicant filed an administrative law appeal ( Verwaltungsgerichtsbeschwerde ) with the Federal Court.  In his appeal he stated under the heading "absolute prescription" (absolute Verjährung ) that it was unclear whether the absolute prescription after 15 years of the offences under the relevant legislation complied with the requirement under the Convention to proceedings within a reasonable time, and he referred to one author who considered that the maximum duration of proceedings compatible with the Convention requirements appeared to be between ten and twelve years.

41. On 4 October 1993 the Federal Court imposed advance court costs on the applicant.

42. On 12 October 1993 the Federal Court transmitted the applicant's administrative law appeal to the Cantonal Appeals Commission and the Cantonal Administration.  The former did not reply, the latter submitted its observations on the applicant's appeal on 9 November 1993.

43. On 23 November 1993 the Federal Court transmitted the applicant's administrative law appeal to the Federal Tax Administration which filed observations thereupon on 4 January 1994.  The applicant filed his submissions on 13 January 1994.  The Department of Finances of the Canton of Basel-Stadt submitted its observations on 31 January 1994.

44. On 7 February 1994 the applicant wrote to the Federal Court, stating that the observations of the Cantonal Administration and the Federal Tax Administration contained many new statements and arguments and that he would like to reply thereto, as criminal tax proceedings were at issue.

45. On 9 February 1994 the President of the Federal Court informed the applicant that for the time being his request could not be granted, though later a second round of observations might become necessary.

46. On 18 February 1994 the applicant submitted further observations in which he substantiated his allegations as to the incorrect statements in the observations concerned.

47. On 21 November 1994 the Federal Court dismissed the applicant's administrative law appeal.  The decision was served on 22 November, the reasons for the decision were served on the applicant on 20 January 1995.

48. In its decision, the Federal Court dealt extensively with the applicant's submissions as to various amounts allegedly evaded and the manner in which the various taxes and fines had been calculated, inter alia , concerning certain remunerations .  The Federal Court also regarded the applicant's complaint about prescription as being unfounded, the time-limit in respect of the applicant's offences expiring at the latest on 31 December 1995.

49. On 16 February 1995 the Tax Administration of the Canton of Basel-Stadt ( Steuerverwaltung des Kantons Basel-Stadt ) wrote to the applicant, noting that the Federal Court had confirmed the decision of the Appeals Commission of 17 November 1992.  On the basis of the latter decision, the amounts due had to be rectified; the sums now ranged from 27,456 to 591,566 CHF, and amounted to more than three million CHF.

50. On 2 March 1995 the applicant filed an appeal against the decision of 16 February 1995 which was dismissed by the Tax Administration of the Canton of Basel-Stadt on 30 March 1995.

51. On 10 April 1995 the applicant filed an appeal against this decision with the Appeals Commission.  The latter gave its decision on 26 June 1997, stating, inter alia , that, after the Federal Court's decision of 21 November 1994, it could not longer examine, for instance, whether or not the taxes had been correctly assessed.  The decision was served on 10 March 1998.

52. On 30 March 1998 the applicant filed an administrative appeal with the Federal Court against the Appeals Commission's decision of 26 June 1997.  The proceedings are currently pending before the Federal Court.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

53. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

54. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 of the Convention.

C. Alleged violation of Article 6 para. 1 of the Convention

55. The applicant complains that the criminal proceedings against him were not terminated within a reasonable time.  He relies on Article 6 para. 1 of the Convention which includes the following provision:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal."

56. The Government consider that the proceedings did not attain an unreasonable length.

a. Period to be considered

57. The applicant submits that the proceedings are still pending and were not terminated by the decision of the Federal Court of 21 November 1994.  Rather, the case was referred back to the Cantonal Administration.  It is expected that the final decision will be given in 1999. 

58. The Government submit that the proceedings to be examined under Article 6 para. 1 of the Convention commenced on 9 December 1983 when criminal investigations were instituted against the applicant on account of tax offences, and lasted until 20 January 1995 when the decision of the Federal Court of 21 November 1994 was served on the applicant.

59. The Commission considers that the period to be examined under Article 6 para. 1 of the Convention commenced on 9 December 1983 when the Cantonal Administration of the Canton of Basel-Stadt instituted tax evasion proceedings against the applicant.

60. The period was interrupted from 14 January 1987 until 25 August 1989 when the proceedings were suspended.

61. As regards the end of the period, the Commission notes that the applicant filed a complaint about the length of the proceedings in his administrative law appeal before the Federal Court of 29 September 1993.  However, the terms "determination of any criminal charge" mean its final determination.  The time to be considered for the purpose of Article 6 para. 1 of the Convention thus covers in principle the entirety of the proceedings which, in the present case are still pending.

62. It follows that the period to be considered under Article 6 para. 1 of the Convention commenced on 9 December 1983 and are still pending, though they were interrupted from 14 January 1987 until 25 August 1989.

63. The period to be considered under Article 6 para. 1 of the Convention therefore lasted approximately 12 years.

b. Reasonableness of the length of the period to be considered

64. The applicant submits that he is not speculating that the offences will eventually be time-barred.  It has been confirmed that the administration, not the applicant, was responsible for the delays.  In the present proceedings delays arose as the same questions were decided by different authorities as regards cantonal taxes and federal taxes.  The applicant cannot be blamed herefor .  It must also be remembered that it was the Federal Tax Administration, and not the applicant, who instituted the proceedings.

65. The Government submit that the authorities were confronted with altogether nine different proceedings concerning the applicant, his company and his children.  These proceedings were linked with each other, and had to be coordinated by the authorities.  Thus, in 1987 the authorities suspended the proceedings in order to await the outcome of proceedings concerning the applicant's company; the applicant agreed thereto.  On the whole, the case was complex.

66. The Government also point out that the applicant employed all the means of cantonal and federal law at his disposal, i.e. approximately 20 appeals, often complaining that he had not been duly heard.  As a result, all decisions were particularly well reasoned.  In addition, he frequently intervened in the proceedings, constantly seeking personal discussions with the authorities.  Indeed, he had every interest in prolonging the proceedings, thus bringing about the prescription of his offences.  Even on 16 October 1989 he was still of the opinion that the proceedings should be suspended.

67. The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Convention organs' case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see the Philis v. Greece judgment [no. 2] of 27 June 1997, to be published in Reports of Judgments and Decisions for 1997, para. 35).

68. At the outset, the Commission considers that the case was complex, in particular as the authorities were also confronted with other cases concerning another company of the applicant as well as his private taxes.

69. The Commission further considers that the applicant contributed to the length of the proceedings by agreeing to their suspension lasting from 14 January 1987 until 25 August 1989.  He also contributed to some delays by seeking personal discussions with the authorities.

70. Next, the Commission has examined the conduct of the Swiss authorities.

71. Thus, after the proceedings were instituted on 9 December 1983, a substantial period of approximately three years lapsed until the proceedings were suspended on 14 January 1987 without there being any indication that the investigations were conducted in such a way as to bring about their early conclusion.

72. After the proceedings were resumed on 25 August 1989 and the Cantonal Administration had informed the applicant of the taxes and fines due, the applicant filed an appeal with the Appeals Commission on 16 October 1989.  However, a further substantial period of nearly four years lapsed until the decision of the Appeals Commission of 17 November 1992 was served on the applicant on 1 September 1993.

73. Before the Federal Court, no further substantial delays occurred.  Thus, the applicant filed his administrative law appeal on 29 September 1993, whereupon the Federal Court's decision of 21 November 1994 was served on the applicant on 20 January 1995, i.e. within a period of approximately 16 months.

74. After the Federal Court gave its decision, the Tax Administration of the Canton of Basel-Stadt dealt relatively speedily with the applicant's appeal filed on 30 March 1995.  However, the applicant's further appeal of 10 April 1995 was only dealt with by the Appeals Commission on 26 June 1997, its decision being served on the applicant on 10 March 1998, i.e. nearly three years later.  The proceedings are currently pending before the Federal Court.

75. The Commission recalls that the proceedings raised complex issues, and that the applicant to some extent contributed to their length.  Nevertheless, having regard to the authorities' conduct, in particular the periods of time which lapsed during the investigations between 1983 and 1987, and again before the Appeals Commission between 1989 and 1992, and between 1995 and 1998, the Commission finds that the length of the proceedings exceeded the requirement of a "reasonable time" referred to in Article 6 para. 1 of the Convention.

CONCLUSION

76. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary       President

to the First Chamber of the First Chamber