Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 19958/92

A. P., M. P. and T. P.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 18 April 1996)

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. 16-29) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-24). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 25-29). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 30-63) . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 30). . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 31). . . . . . . . . . . . . . . . . . . . .7

C. Article 6 para. 2 of the Convention

(paras. 32-49). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 50). . . . . . . . . . . . . . . . . . . . .9

D. Article 6 para. 1 of the Convention

(paras. 51-60). . . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 61). . . . . . . . . . . . . . . . . . . . 11

E. Recapitulation

(paras. 62-63). . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF MM. E. BUSUTTIL, A.S. GÖZÜBÜYÜK, J.-C. SOYER,

F. MARTINEZ, L. LOUCAIDES, B. MARXER, G. RESS AND A. PERENIC

(regarding Article 6 para. 2 of the Convention) . . . . . . 12

DISSENTING OPINION OF MR. S. TRECHSEL

(regarding Article 6 para. 2 of the Convention) . . . . . . 13

TABLE OF CONTENTS

Page

DISSENTING OPINION OF MR. H.G. SCHERMERS

(regarding Article 6 para. 2 of the Convention) . . . . . . 14

DISSENTING OPINION OF MR. K. HERNDL

(regarding Article 6 para. 2 of the Convention) . . . . . . 15

CONCURRING OPINION OF MR. N. BRATZA JOINED BY MRS. J. LIDDY

(regarding Article 6 para. 1 of the Convention) . . . . . . 16

DISSENTING OPINION OF MR. H. DANELIUS JOINED BY MM. I. CABRAL BARRETO,

E. KONSTANTINOV, D. SVÁBY AND P. LORENZEN

(regarding Article 6 para. 1 of the Convention) . . . . . . 17

DISSENTING OPINION OF MR. M.P. PELLONPÄÄ

(regarding Article 6 para. 1 of the Convention) . . . . . . 18

DISSENTING OPINION OF MM. G. JÖRUNDSSON AND J.-C. GEUS

(regarding Article 6 para. 1 of the Convention) . . . . . . 19

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 20

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 applicants, Swiss citizens residing at Hombrechtikon in

Switzerland, are the heirs of Mr. P., who died on 28 February 1984.

The first applicant, a housewife born in 1924, is P.'s widow. The

second applicant, a construction engineer born in 1951, and the third

applicant, a construction entrepreneur born in 1955, are sons of P.

They are represented before the Commission by Mr. H.-P. Derksen, a

lawyer practising in Zurich.

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 applicants' complaints that, irrespective

of any personal guilt, they were convicted of an offence allegedly

committed by P.; and that they could not defend themselves in a public

hearing before an independent and impartial court. The applicants

invoke Article 6 paras. 1 and 2 of the Convention.

B. The proceedings

5. The application was introduced on 13 March 1992 and registered

on 11 May 1992.

6. On 5 September 1994 the Commission 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 its admissibility and merits.

7. The Government's observations were submitted on 7 November 1994.

The applicants replied on 6 January 1995, and on 29 June 1995 they

submitted further observations.

8. On 16 October 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 3 November 1995 and they were invited to submit such

further information or observations on the merits as they wished.

However, no further submissions were made.

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 in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

12. The text of this Report was adopted on 18 April 1996 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 decision on the admissibility of the application

is annexed hereto.

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

A. The particular circumstances of the case

16. After P.'s death on 28 February 1984, a tax inventory was drawn

up on 8 May 1984. Towards the end of May 1984 the period expired

during which P.'s heirs, the applicants, could have refused the

heritage (see below, para. 28).

17. Following a control of the accounts of a company formerly owned

by P. the suspicion arose that between 1977 and 1982 he had drawn

company income without declaring it. On 13 December 1985 the Cantonal

Tax Office (Kantonales Steueramt) of the Canton of Zurich instituted

proceedings against P.'s heirs for the payment of federal taxes.

18. In the ensuing proceedings the applicants were represented by a

lawyer.

19. On 3 February 1989 the Finance Directorate of the Canton of

Zurich imposed taxes and criminal taxes (Nach- und Strafsteuern) on the

applicants for the cantonal taxes in respect of the period 1979 until

1983. However, on 2 November 1989 the Zurich Administrative Court

(Verwaltungsgericht) quashed the decision on the ground that the

responsibility of heirs in matters of criminal taxes contradicted

fundamental principles of criminal law in a State governed by law

(rechtsstaatliches Strafrecht).

20. On 16 January 1990 the Tax Office found that P. had committed tax

evasion in respect of the tax periods 1981/1982 and 1983/84. The

decision stated inter alia:

"By incorrectly declaring his income the person liable for tax

withheld taxes from the State and thus became guilty of tax

evasion. According to Sections 130 para. 1 and 129 para. 1,

respectively, of the Ordinance on Direct Federal Taxes his heirs

must therefore pay a fine of up to the fourfold amount in

addition to the tax withheld. For the taxation period 1981/82,

when more than 5/10 were evaded, the fine amounts to 1,5 times

the amount, and for the taxation period 1983/84, when more than

3/10 were evaded, to 1,3 times the amount of the taxes withheld.

However, as it can be observed that the heirs have done

everything possible to clarify the incorrect declaration of

taxes, the fine is reduced to 1/4."

"Durch die unvollständige Deklaration seines Einkommens hat der

Pflichtige dem Staat eine Steuer vorenthalten und sich dadurch

der Steuerhinterziehung schuldig gemacht. Seine Erben haben

daher gemäss Art. 130 Abs. 1 resp. Art. 129 Abs. 1 des Beschlus-

ses über die direkte Bundessteuer ausser der hinterzogenen Steuer

eine Busse bis zum vierfachen Betrag zu entrichten. Diese wird

im vorliegenden Falle bei der Veranlagungsperiode 1981/82 da mehr

als 5/10 hinterzogen wurde, auf den 1,5-fachen Betrag und bei der

Veranlagungsperiode 1983/84 da mehr als 3/10 hinterzogen wurde,

auf den 1,3-fachen Betrag der hinterzogenen Steuer festgesetzt.

Indem aber festgestellt werden kann, dass die Erben alles ihnen

Zumutbare zur Bereinigung der unrichtigen Deklaration getan

haben, wird die Busse auf 1/4 herabgesetzt."

21. The decision concluded that the heirs had to pay taxes of

19,206 SFr and a fine of 6,758.75 SFr.

22. On 19 September 1990 the Federal Taxes Appeals Board (Bundes-

steuer-Rekurskommission) of the Canton of Zurich partly upheld the

applicants' appeal and quashed the contested decision in respect of the

period 1981/82; in respect of the period 1983/84 the Board reduced the

taxes due to 8,870.40 and the fine to 2,882.90 SFr.

23. On 21 December 1990 the applicants lodged an administrative law

appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court

(Bundesgericht) complaining of a breach of the presumption of innocence

in that they were fined without any personal guilt. The appeal also

stated:

"Thus, the applicants are entitled in the determination of the

criminal charge against them to a fair and public hearing by an

independent and impartial tribunal established by law. They are

furthermore entitled to the special rights of defence under

Article 6 para. 3 of the Convention. The applicants, who were

charged with a criminal offence, should have been granted these

defence rights ex officio, but this has not happened so far."

"So haben die Beschwerdeführer Anspruch darauf, dass ihre Sache

in billiger Weise öffentlich von einem unabhängigen und

unparteiischen, auf Gesetz beruhenden Gericht, das über die

Stichhaltigkeit der gegen sie erhobenen strafrechtlichen Anklage

zu entscheiden hat, gehört wird. Ferner stehen ihnen die

besonderen Verteidigungsrechte gemäss Art. 6 Ziff. 3 EMRK zu.

Diese Verfahrensrechte sind den Beschwerdeführern als einer

strafbaren Handlung Angeklagten von Amtes wegen einzuräumen, was

bisher nicht geschehen ist."

24. On 5 July 1991 the Federal Court dismissed the appeal, the

decision being served on 16 October 1991. In respect of the alleged

violation of the presumption of innocence the Court found:

"However, according to the principle of the succession in taxes

of the heirs ... the latter shall, under Section 130 para. 1 of

the Ordinance on Direct Federal Taxes, be liable up to the amount

of their share in the estate, and irrespective of any personal

guilt, for the deceased person's evaded taxes and the fines. The

statutory provision in question of the Ordinance on Direct

Federal Taxes thus expressly envisages that the heirs without

being held personally guilty enter into the position of the

deceased also in respect of the criminal tax. The applicants

therefore cannot deduce anything in respect of the heirs'

liability from the presumption of innocence stipulated in

Article 6 of the Convention, which only applies to persons

charged with a criminal offence ... Nor can the general

principles of penal law invoked by the applicants be of avail to

them in these circumstances."

"Nach dem Grundsatz der Steuernachfolge der Erben ... haften

diese gemäss Art. 130 Abs. 1 BdBST jedoch ohne Rücksicht auf ein

eigenes Verschulden bis zur Höhe ihrer Erbteile für die vom

Erblasser hinterzogene Steuer und für die Bussen. Die fragliche

Gesetzesbestimmung des BdBST sieht somit ausdrücklich vor, dass

die Erben auch bezüglich der Strafsteuer in die Stellung des

Erblassers eintreten, ohne dass sie ein persönliches Verschulden

trifft. Aus der Unschuldsvermutung des Art. 6 EMRK, die nur für

den wegen einer strafbaren Handlung Angeklagten gilt ... , können

die Beschwerdeführer daher nichts zur Frage der Erbenhaftung

ableiten. Die angerufenen allgemeinen Grundsätze des Strafrechts

sind den Beschwerdeführern unter diesen Umständen ebenfalls

unbehelflich."

B. Relevant domestic law

1. Swiss Penal Code

25. The Swiss Penal Code (Strafgesetzbuch) determines fines (Bussen)

as one of the forms of punishment for a criminal offence (Section 48

et seq.). According to Section 48 para. 3, a fine is extinguished if

the convicted person dies (stirbt der Verurteilte, so fällt die Busse

weg).

2. Ordinance on Direct Federal Taxes

26. According to Section 129 para. 1 of the Ordinance on Direct

Federal Taxes (Beschluss über die direkte Bundessteuer ) in

force at the relevant time, tax evasion (Steuerhinterziehung) shall be

punished with a fine. Section 130 para. 1 provides, inter alia:

"If the evasion is discovered only after the death of the person

liable to pay taxes, proceedings are instituted and carried out

against his heirs. Irrespective of personal guilt, these will

be jointly liable for the deceased person's evaded taxes and the

fine incurred by him up to an amount not exceeding their share

in the estate."

"Wird die Hinterziehung erst nach dem Tode des Steuerpflichtigen

entdeckt, so wird das Verfahren gegenüber seinen Erben angehoben

und durchgeführt, und diese haften bis zur Höhe ihrer Erbteile

solidarisch für die vom Erblasser hinterzogene Steuer und die von

ihm verwirkten Bussen ohne Rücksicht auf ein eigenes

Verschulden."

27. Section 179 para. 1 of the Federal Direct Taxation Act

(Bundesgesetz über die direkte Bundessteuer), in force since

1 January 1995, envisages the liability of the heirs inter alia in

respect of any fines determined with legal force. According to

para. 2, if the tax evasion proceedings have been concluded after the

death of the person concerned, and if no guilt falls on the heirs, they

shall not pay a fine.

3. Swiss Civil Code

28. Section 560 para. 2 of the Swiss Civil Code (Zivilgesetzbuch)

states:

"Subject to the statutory exceptions, all claims, the property,

the mortgages and the possessions of the deceased shall

automatically pass over to (the heirs), and the debts of the

deceased shall become the personal debts of the heirs."

"Unter Vorbehalt der gesetzlichen Ausnahmen gehen die

Forderungen, das Eigentum, die beschränkten dinglichen Rechte und

der Besitz des Erblassers ohne weiteres auf (die Erben) über, und

die Schulden des Erblassers werden zu persönlichen Schulden der

Erben."

According to Section 566 para. 1 of the Swiss Civil Code, "the

legal and instituted heirs have the possibility to refuse the

inheritance which has fallen to them" ("die gesetzlichen und

eingesetzten Erben haben die Befugnis, die Erbschaft, die ihnen

zugefallen ist, auszuschlagen").

4. Federal Organisation of Justice Act

29. According to the then applicable Section 109 of the Federal

Organisation of Justice Act (Bundesgesetz über die Organisation der

Bundesrechtspflege), the Federal Court (Bundesgericht) could upon a

unanimous decision decide to dismiss, without conducting a hearing, an

administrative law appeal as being manifestly ill-founded. Otherwise,

according to Section 112 a final hearing with the parties' presentation

(Parteivorträgen) could be fixed.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

30. The following complaints were declared admissible:

- under Article 6 para. 2 (Art. 6-2) of the Convention the

applicants' complaint that, irrespective of any personal guilt, they

were convicted of an offence allegedly committed by P.;

- under Article 6 para. 1 (Art. 6-1) of the Convention the

applicants' complaints that they were not heard in a fair and public

manner by an independent and impartial tribunal established by law.

B. Points at issue

31. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 6 para. 2

(Art. 6-2) of the Convention;

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

C. Article 6 para. 2 (Art. 6-2) of the Convention

32. The applicants complain under Article 6 para. 2 (Art. 6-2) of the

Convention that they have been convicted of an offence irrespective of

any personal guilt. The tax authorities established neither their own

guilt nor that of P.

33. Article 6 para. 2 (Art. 6-2) of the Convention provides:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

34. The applicants dispute that tax evasion proceedings lose their

criminal character within the meaning of Article 6 (Art. 6) of the

Convention when they are instituted against the heirs. Not even the

guilt of the deceased was established according to the requirements of

Article 6 para. 2 (Art. 6-2) of the Convention.

35. In the applicants' view, it is irrelevant that as heirs they

could have refused the inheritance; thus, the offence which the

deceased committed may only become known after the expiry of the time-

limit for refusing the inheritance. Finally, as regards entry into the

criminal register, the applicants point out that the tax authorities

do not require a special register; thus, the records to be taken into

account when assessing a tax offence are always available in the

taxpayer's personal file.

36. The applicants further point out that the heirs are not only

liable for taxes but also for a punishment imposed on the deceased.

On the other hand, the State's right to punish an offence loses its

inherent justification after the person's death. It is questioned how

a decision can be given as regards the reasons for the offences, or the

manner in which they were committed, or on the issue of guilt, if the

offender is no longer present. Section 130 of the Ordinance on Direct

Federal Taxes is clearly an exception to Section 48 para. 3 of the

Penal Code.

37. The applicants dispute that the deceased's guilt was legally

established. It would have been precisely the task of proceedings duly

conducted in accordance with Article 6 paras. 1 and 2 (Art. 6-1, 6-2)of

the Convention to prove this. Indeed, in these proceedings the heirs

either cooperate with the authorities by helping to "convict" the

offender, or risk themselves, as a consequence of refusing to

cooperate, incurring a more severe penalty. Article 6 para. 2

(Art. 6-2) of the Convention prohibits the conduct of any criminal

proceedings against third parties, including heirs, in place of the

accused, because this would make it impossible to observe the principle

of the presumption of innocence.

38. The respondent Government contest that the applicants were

charged with a criminal offence. It is submitted that the proceedings

at issue established the guilt of the deceased, not of the applicants.

Furthermore, according to Section 566 of the Swiss Civil Code, the

applicants were not obliged to accept the inheritance. Indeed, the

applicants only become liable to the extent that they have inherited,

and not in respect of the entire estate. Finally, the names of the

heirs assuming the deceased's fine will not be listed in the criminal

register.

39. The Government point out that under Swiss law the estate has no

legal personality and that the heirs, as it were, represent the

deceased in proceedings where only the latter, not the heirs, is the

accused. By envisaging the responsibility of the heirs, the law aims

at discouraging a person from withholding taxes during his lifetime.

In the present case, the guilt of the deceased was established.

40. According to the Commission's case-law, Article 6 para. 2

(Art. 6-2) of the Convention protects everybody against being treated

by public officials as guilty of an offence before this is established

according to law by a competent court. This provision may therefore

be violated if somebody is found guilty of criminal acts without this

having been duly proved during a trial (see No. 7986/77, Krause v.

Switzerland, dec. 3.10.78, D.R. 13 p. 73; No. 11669/85, dec. 7.12.87,

D.R. 54 p. 95).

41. In the present case, the Commission must first examine whether

the applicants were "charged with a criminal offence" within the

meaning of Article 6 para. 2 (Art. 6-2) of the Convention.

42. The Commission notes that after a control of a company formerly

owned by P., the suspicion arose that P. had drawn company income

without having declared it between 1977 and 1982. As a result, on

16 January 1990 the Cantonal Tax Office of the Canton of Zurich found

P. guilty of having committed tax evasion.

43. Thus, the decision of the Cantonal Tax Office formally refers to

criminal offences committed by P. However, it does not transpire from

the decision that the Cantonal Tax Office also laid criminal charges

against the applicants. There is furthermore no indication that the

applicants were in any other way accused of having committed a criminal

offence.

44. Nevertheless, on 16 January 1990 the Cantonal Tax Office ordered

the applicants to pay the fine for the tax evasion committed by P. as

well as the taxes which P. had withheld. The Cantonal Tax Office

thereby relied on the fact that, after P.'s death in 1984, the

applicants had become heirs to P.'s estate.

45. The Commission has examined the nature of the obligation imposed

on the applicants. According to Section 130 para. 1 of the Ordinance

on Direct Federal Taxes, the applicants assumed the obligation to pay

the fine and the outstanding taxes, not on account of their own guilt,

but because they had become liable therefor as heirs. This is

confirmed by the Federal Court's decision of 5 July 1991 which

emphasised the element of liability and excluded in such cases the

applicability of Article 6 para. 2 (Art. 6-2) of the Convention which

applied only to criminal offences.

46. In this respect the Commission also notes that fines imposed on

the basis of Section 130 para. 1 of the said Ordinance are not entered

into the criminal register.

47. In the Commission's opinion, the applicants' liability must be

seen in connection with Section 560 para. 2 of the Swiss Civil Code

according to which heirs shall become liable for any debts of the

inheritance. Thus, according to Section 130 para. 1 of the Ordinance

on Direct Federal Taxes, the applicants only became liable up to the

amount which they had actually inherited. The applicants could not

become liable in respect of the entire estate, nor was the liability

made dependent on their own fortune. Indeed, after P.'s death the

applicants could have refused to accept the inheritance altogether.

Had they done so, they would not have been liable either for P.'s debts

or for any fines associated with his estate.

48. As the applicants chose to accept the inheritance, they became

responsible for their share of the inheritance. They were thus obliged

to pay P.'s tax debts as well as P.'s fine, not on account of their own

criminal responsibility, but because they had become liable therefor

as heirs to P.'s estate.

49. It follows that the applicants were not "charged with a criminal

offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the

Convention. This provision does not therefore apply to the present

case.

CONCLUSION

50. The Commission concludes, by 17 votes to 11, that there has been

no violation of Article 6 para. 2 (Art. 6-2) of the Convention.

D. Article 6 para. 1 (Art. 6-1) of the Convention

51. The applicants have also complained that they could not defend

themselves in a public hearing before an independent and impartial

court.

52. The Commission must first examine whether Article 6 para. 1

(Art. 6-1) of the Commission is applicable to the proceedings at issue.

This provision states, insofar as relevant:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing ... by an independent and impartial tribunal

established by law."

53. The proceedings of which the applicants complain related to a

fine for which they had become liable as heirs, though the offence had

been committed by the deceased, P. The Commission is divided as to

whether these proceedings determined either the applicants' "civil

rights and obligations" or "any criminal charge against (them)" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The

Commission considers that in either case such proceedings call for the

protection of the guarantees of Article 6 para. 1 (Art. 6-1) of the

Convention. This provision is, therefore, applicable in the present

case.

54. The Commission recalls the Convention organs' case-law according

to which the public character of court hearings constitutes a

fundamental principle enshrined in Article 6 para. 1 (Art. 6-1) of the

Convention. The principle of publicity must be fully respected at

least in one instance dealing with the merits of the case (see Eur.

Court H.R., Le Compte, Van Leuven and De Meyere judgment of

23 June 1981, Series A no. 43, p. 25 et seq., paras. 59 et seq.).

Neither the letter nor the spirit of this provision prevents a person

from waiving of his own free will, either expressly or tacitly, the

entitlement to have his case heard in public, but any such waiver must

be made in an unequivocal manner (see Eur. Court H.R., Schuler-Zgraggen

v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19 et

seq., para. 58).

55. In the present case the Commission notes that the then applicable

Sections 109 and 112 of the Federal Organisation of Justice Act

envisaged in principle the possibility of a hearing in administrative

law proceedings before the Federal Court (see above, para. 29).

56. Indeed, in their administrative law appeal to the Federal Court

the applicants expressly stated that they were entitled under Article 6

para. 1 (Art. 6-1) of the Convention to a public hearing, though they

complained that this had not until then been granted to them.

57. In the Commission's opinion, it cannot therefore be said that the

applicants waived of their own free will their right to a public

hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

58. The Commission moreover considers that the proceedings,

concerning the imposition of a fine on the applicants for an offence

committed by P., raised issues of public importance such as to make a

hearing necessary (see mutatis mutandis Eur. Court H.R., Schuler-

Zgraggen judgment, loc. cit., p. 20, para. 58).

59. As a result, there were no special features to justify the denial

of a public hearing and of the applicants' right to be heard in person.

60. On the other hand, insofar as the applicants raise further

complaints about the alleged unfairness of the proceedings, there is

no reason to believe that the applicants, who were represented by a

lawyer, could not sufficiently present their arguments in writing or

adduce any evidence which they consider relevant.

CONCLUSION

61. The Commission concludes, by 20 votes to 8, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

62. The Commission concludes, by 17 votes to 11, that there has been

no violation of Article 6 para. 2 (Art. 6-2) of the Convention (see

above, para. 50).

63. The Commission concludes, by 20 votes to 8, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see

above, para. 61).

Secretary to the Commission Acting President

of the Commission

(H.C. KRÜGER) (H. DANELIUS)

(Or. English)

DISSENTING OPINION OF MM. E. BUSUTTIL, A.S. GÖZÜBÜYÜK,

J.-C. SOYER, F. MARTINEZ, L. LOUCAIDES, B. MARXER,

G. RESS AND A. PERENIC

(regarding Article 6 para. 2 of the Convention)

We have voted against the finding of no violation of Article 6

para. 2 of the Convention for the following reasons.

In our opinion even where no formal accusation is raised,

Article 6 para. 2 of the Convention will be breached where a criminal

sanction, implying guilt, is imposed on a person without it having been

duly proved that that person had committed a criminal offence.

In the present case, we note that on 16 January 1990 the Cantonal

Tax Office ordered the applicants to pay the fine for the tax evasion

committed by P. as well as the taxes which P. had withheld. The

Cantonal Tax Office thereby relied on the fact that, after P.'s death

in 1984, the applicants had become heirs to P.'s estate.

It is true that according to Section 130 para. 1 of the Ordinance

on Direct Federal Taxes, the applicants assumed the obligation to pay

the fine and the outstanding taxes, not on account of their own guilt,

but because they had become liable therefor as heirs. Indeed, the

applicants only became liable up to the amount which they had actually

inherited. Moreover, fines imposed on the basis of Section 130 para. 1

are not entered into the criminal register.

We nevertheless observe that the measure imposed on the

applicants was a fine. According to the Swiss Penal Code, a fine

serves the purpose of punishing a criminal offence (see above,

para. 25) and therefore implies guilt. A confirmation of the criminal

nature of the fine can further be seen in the present case, on the one

hand, in that the fine was imposed on account of the criminal offence

of tax evasion; and, on the other, in that the deceased, P., was

considered guilty after his death of having committed this offence.

The applicants were, therefore, victims of a criminal sanction.

The fine, however, as well as its amount, were determined, not on the

basis of the applicants' conduct or of their guilt, but of the conduct

and guilt of another person, namely the deceased P.

Contrary to Article 6 para. 2 of the Convention, therefore, the

applicants were punished for a criminal offence which was not duly

proved during a trial and which indeed another person had committed.

Consequently we consider that there has been a violation of

Article 6 para. 2 of the Convention.

(Or. English)

DISSENTING OPINION OF MR. S. TRECHSEL

(regarding Article 6 para. 2 of the Convention)

I regret that, in the present case, I cannot agree with the

majority of the Commission. In my view there has been a violation of

Article 6 paragraph 2 of the Convention.

It is true that the applicants themselves have not formally been

charged with a criminal offence. Nevertheless, they in fact had the

position of defendants in the proceedings concerning the tax evasion

allegedly committed by the deceased. After P.'s death it was the

applicants whom the authorities informed of the opening of criminal tax

proceedings. I accept that the issue in these proceedings was the

guilt not of the applicants but of P.

However, at the time the decision to impose a penalty was taken

the person found guilty had died and those directly affected were the

applicants.

According to the case-law of the Commission and the Court,

Article 6 paragraph 2 can be violated even in the absence of any

conviction by a declaration of an authority that a person is guilty of

an offence. In my view, on the other hand, there must also be a

violation of that guarantee in a case where a retributive sanction is

imposed upon a person for an offence committed by another person.

I am not impressed by the Government's argument that the heirs

could have refused the inheritance. At the time the fine was imposed

they had, according to Section 560 of the Swiss Civil Code, already

acquired title to and possession of whatever the deceased had left.

Rejecting the inheritance would only have eliminated the problem if,

even disregarding the fine, the applicant had left more debts than

assets. They would also have suffered a loss if they had had to reject

the inheritance because after deduction of the fine nothing was left

over.

In a nutshell: The present case concerns applicants who were

punished for an offence somebody else had committed. Such a punishment

is not compatible with Article 6 para. 2 of the Convention and there

has, accordingly, been a violation of that guarantee.

(Or. English)

DISSENTING OPINION OF MR. H.G. SCHERMERS

(regarding Article 6 para. 2 of the Convention)

Unlike the majority of the Commission I am of the opinion that

Article 6 para. 2 of the Convention has been violated in the present

case.

The rights of the applicants cannot be fully separated from those

of the de cujus, Mr. P. Had P. been lawfully convicted to pay a fine,

then that fine would have been part of the inheritance and there would

be no objection against charging the heirs for payment. Therefore, we

first have to consider whether Mr. P. had been lawfully charged of the

fine and in particular, whether P.'s presumption of innocence was

respected. In my opinion that is not the case. Only after his death

suspicion arose against him and after his death he was prosecuted for

tax evasion. According to the Federal Court he was to be found guilty

unless he could prove his innocence (para. 24 of the Report). Being

dead P. could not prove anything. Subsequently, he was convicted (post

mortem) of having deliberately evaded taxes. Under Article 6 para. 2

P. had to be considered innocent until proved guilty according to law.

In my opinion "law" also includes the Convention and the general

principles of law. I cannot accept that the de cujus P. was proved

guilty according to law.

This affects the case of the applicants. At the time of the

death of Mr. P. there was no fine yet, not even a suspicion against

him. Only after the heritage had gone into the legal possession of the

applicants was a fine established, but that fine cannot be seen as a

lawful part of the inheritance. Considering the date of its

establishment the fine can hardly be other than a fine upon the heirs.

One cannot punish a dead person. If the fine is any kind of a

punishment of the heirs, it is obviously in violation of Article 6

para. 2, as no guilt of the heirs has been proved.

Remains the question whether the fine can be seen as a charge on

the heritage other than a fine. As noticed above there can be no

question of a lawful fine of the de cujus which is binding for the

heirs as a charge on the heritage. Can it be seen as any other kind

of charge forming part of the inheritance? Of course, the taxes

themselves can be charged against the heritance, even if their being

due is established only after the death of the de cujus. In my

opinion, the same will apply to a reasonable interest automatically

added to taxes in undeclared income. The finding out of the duty to

pay such taxes and the delays involved cause costs to the tax

authorities and an extra charge may be justified for covering such

costs. This should, however, be irrespective of any guilt of the

assessable person. When, as in the present case, the additional charge

is named "fine" and depends on the question whether or not the tax

evasion was deliberate, it cannot be otherwise determined than a

criminal charge in the sense of Article 6. Therefore, the requirements

of Article 6 should be fulfilled. As the applicants have been fined

without having been found guilty of any offence, Article 6 para. 2, has

been violated.

(Or. English)

DISSENTING OPINION OF MR. K. HERNDL

(regarding Article 6 para. 2 of the Convention)

I voted against the finding that there was no violation of

Article 6 para. 2 of the Convention, and in that respect share entirely

and wholeheartedly the reasoning of my colleagues MM. E. Busuttil,

A.S. Gözübüyük, J.-C. Soyer, F. Martinez, L. Loucaides, B. Marxer,

G. Ress and A. Perenic.

I wish, however, to add some further elements to that reasoning.

It is obvious that the Swiss Tax authorities, at the cantonal

level and again at the Federal level, imposed on the applicants a fine

and thus a criminal sanction. The reasoning of the Zürich Tax Office

is worth recalling: "By incorrectly declaring his income [the deceased]

became guilty of tax evasion ... His heirs must therefore pay a fine

of the fourfold amount in addition to the tax withheld." And in view

of the correct attitude of the heirs (the applicants) which the

authorities expressly recognised, the fine was reduced to 1/4.

This decision was taken after the Zürich Administrative Court had

quashed a prior decision of the tax authorities on the ground that the

responsibility of heirs in matters of criminal taxes contradicted

fundamental principles of criminal law in a State governed by the rule

of law (rechtsstaatliches Strafrecht).

It is indeed this very issue which was at stake in the present

proceedings before the Commission. I fail to see any reason for the

tax authorities not taking into account the above view expressed by the

Zürich Administrative Court. Instead, the tax authorities continued

to strictly apply the letter of a law which, by the way, has been

repelled in the meantime and replaced by a provision which

unequivocally states that if tax evasion proceedings are not concluded

at the time of the death of the person owing the tax, and if no guilt

falls upon the heirs in connection with the tax evasion, no fine can

be imposed ("... entfällt die Erhebung einer Busse ...") (Federal

Taxation Act, in force since 1 January 1995).

In acting as they did, the Swiss tax authorities, at all levels,

were thus clearly disregarding the presumption of innocence, one of the

fundamental principles enshrined in the Convention.

(Or. English)

CONCURRING OPINION OF MR. N. BRATZA

JOINED BY MRS. J. LIDDY

(regarding Article 6 para. 1 of the Convention)

I agree with the majority of the Commission that there has been

no breach of Article 6 para. 2 of the Convention on the grounds that

the applicants were not "charged with a criminal offence" within the

meaning of that paragraph.

It follows in my view that for the purposes of para. 1 of

Article 6 the proceedings against the applicants cannot be said to have

involved "the determination of a criminal charge" against the

applicants. On the other hand, I consider that the proceedings did

involve a determination of the "civil rights and obligations" of the

applicants. The purpose and effect of the proceedings was to determine

the liability of the applicants for the evaded taxes and fines due from

P. and to fix the amount of such liability up to the maximum value of

the applicants' share in P.'s estate. As such, the proceedings not

only determined the civil obligations of the applicants but, by their

effect on the value of the applicants' inheritance, also determined

their rights which were of a "pecuniary" character. The rights in

question were therefore in my view "civil rights", notwithstanding that

the dispute in question concerned the application of rules relating to

tax and to the imposition of fines for the evasion of tax (cf. Eur.

Court H.R., Éditions Périscope judgment of 26 March 1992, Series A

no. 234-B, p. 66, para. 40).

The applicants were therefore in principle entitled to a public

hearing. I agree with the majority of the Commission that the

applicants cannot be regarded as having waived their right to a

hearing. I also agree that there were no other special features of the

case which would justify the refusal to hold such a hearing. In

particular, the proceedings not only involved questions concerning the

determination and calculation of the taxes unpaid by P.; they also

involved the question whether P. had evaded the payment of taxes so as

to become liable to the payment of a penalty and, if so, the amount of

the penalty to be imposed. Accordingly there has been a violation of

Article 6 para. 1 in the present case.

(Or. English)

DISSENTING OPINION OF MR. H. DANELIUS

JOINED BY MM. I. CABRAL BARRETO, E. KONSTANTINOV,

D. SVÁBY AND P. LORENZEN

(regarding Article 6 para. 1 of the Convention)

I have voted against the finding of a violation of Article 6

para. 1 of the Convention for the following reasons.

In regard to Article 6 para. 2 of the Convention the Commission

found - rightly in my opinion - that the applicants were not "charged

with a criminal offence" and that Article 6 para. 2 was therefore not

applicable in the present case. For the same reasons, Article 6

para. 1 should not be considered applicable insofar as it relates to

the determination of a "criminal charge".

The question remains, however, whether the proceedings at issue

could be considered to concern the determination of the applicants'

"civil rights and obligations" within the meaning of Article 6 para. 1.

In this respect I recall that, according to the Commission's

long-standing case-law, proceedings regarding taxation do not concern

civil rights and obligations and Article 6 para. 1 is therefore not

applicable to such proceedings.

The proceedings in the present case concerned the applicants'

liability as heirs for P.'s taxes. It is true that there was an

additional element insofar as the applicants were also ordered to pay

a fine on account of tax evasion committed by P. However, from the

point of view of the heirs the taxes and the fine both concerned P.'s

obligations according to the tax laws, and there would seem to be no

convincing reason for making a distinction between these two elements

when considering the applicability of Article 6 para. 1 to proceedings

in which not P. but only his heirs were parties.

I therefore consider that the proceedings are to be regarded in

their entirety as taxation proceedings and did not concern the

determination of the applicants' "civil rights and obligations".

It follows that Article 6 para. 1 of the Convention was not

applicable to these proceedings and that there has therefore been no

violation of that provision.

(Or. English)

DISSENTING OPINION OF MR. M.P. PELLONPÄÄ

(regarding Article 6 para. 1 of the Convention)

I have voted against the finding of a violation of Article 6

para. 1 of the Convention on the ground that, for the reasons mentioned

in the dissenting opinion of MM. G. Jörundsson and J.-C. Geus, an oral

hearing was in any case not required by the provision in question.

In view of this, I do not find necessary to decide whether

Article 6 is applicable as regards this part of the present case.

(Or. English)

DISSENTING OPINION OF MM. G. JÖRUNDSSON AND J.-C. GEUS

(regarding Article 6 para. 1 of the Convention)

We have voted against the finding of a violation of Article 6

para. 1 of the Convention for the following reasons.

We agree with the majority in finding Article 6 para. 1 to be

applicable in the present case.

In our opinion, however, the determination and calculation of the

taxes withheld by P. were mainly of a technical character and could

better be dealt with in written proceedings than in oral argument. Nor

would there seem to have been any issues of public interest which would

have required a public hearing (cf. Eur. Court H.R., Schuler-Zgraggen

v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20,

para. 58).

Moreover, an oral hearing would have further prolonged the

proceedings and might have made it difficult to comply with the

"reasonable time" requirement in Article 6 para. 1 (cf. Schuler-

Zgraggen judgment, loc. cit.). Indeed, when the applicants filed their

administrative law appeal on 21 December 1990 with the Federal Court,

five years had already elapsed after the proceedings had started

in 1985.

Finally, there is no reason to believe that the applicants, who

were represented by a lawyer, could not sufficiently present their

arguments in writing or adduce any evidence which they considered

relevant.

Consequently, we consider that Article 6 para. 1 has not been

violated in the present case.

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A.P., M.P. and T.P. v. SWITZERLAND

A.P., M.P. and T.P. v. SWITZERLAND

LEXI