AS TO THE ADMISSIBILITY OF

                      Application No. 28332/95

                      by H. B.

                      against Switzerland

      The European Commission of Human Rights (First Chamber) sitting

in private on 14 January 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 S. TRECHSEL

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 29 June 1995 by

H. B. against Switzerland and registered on 28 August 1995 under file

No. 28332/95;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a German citizen born in 1940, is a business man

residing in Grellingen in Switzerland.  Before the Commission he is

represented by Mr H.P. Derksen, a lawyer practising in Wallisellen in

Switzerland.

      The applicant's previous Application No. 17951/91 was declared

admissible on 5 April 1995 insofar as it concerned his complaint under

Article 6 para. 1 of the Convention that he did not have a public

hearing in criminal proceedings concerning federal taxes.  In its

Report of 18 October 1995 under Article 31 of the Convention, the

Commission (Second Chamber) found no violation of Article 6 para. 1 of

the Convention.  In its resolution of 4 September 1996 the Committee

of Ministers agreed with the opinion expressed by the Commission in its

Report.

      The present application concerns complaints under Article 6 of

the Convention about the unfairness of criminal tax proceedings

concerning cantonal taxes.

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

Assessment of the applicant's taxes

      Upon establishing his residence in the Canton of Obwalden in

1980, the applicant reached an agreement with the Obwalden Cantonal Tax

Administration (Steuerverwaltung) according to which he would pay

cantonal taxes to the amount of 35,000 Swiss Francs (CHF) per year.

      In 1980, and again in 1981/82, his income was assessed as

amounting to 180,000 CHF.

      In 1982 the Federal Tax Administration audited the accounts of

the C. company.  It transpired that, upon instruction of the Foreign

Ministry of Poland, the C. company had commissioned Polish workers for

building sites in Libya, and that in 1980, it had paid the applicant

735,845 CHF for commission services.

      On 13 July 1983, the applicant submitted a further tax

declaration, backdated to 10 April 1981, in which he referred to

certain payments of the C. company.  Another tax declaration for the

years 1983/84 was submitted on 15 September 1983.

      In the tax forms in use at the time in the Canton of Obwalden,

certain questions had to be answered separately for the assessment of

the cantonal and the federal taxes.

Proceedings concerning federal taxes

      On 12 December 1985 criminal proceedings were instituted against

the applicant on account of evading federal taxes

(Steuerhinterziehung).  The applicant was then fined 413,587 CHF.  His

administrative law appeal (Verwaltungsgerichtsbeschwerde) was upheld

in last resort by the Federal Court on 8 July 1988.  Proceedings were

resumed before the Cantonal Tax Appeals Commission which reduced the

fine to 109,659 CHF.  The applicant's administrative law appeal was

dismissed by the Federal Court on 12 June 1990.

Imposition of fine for evasion of cantonal taxes

      By letter of 16 May 1987 the Obwalden Cantonal Tax Administration

(Steuerverwaltung) informed the applicant of the institution of

criminal tax proceedings and of supplementary tax proceedings against

him relating to the years 1980-1982.  The letter mentioned the amounts

received from the C. company which the applicant had not declared.

Reference was also made to the relevant provisions of the Tax Statute

(Steuergesetz) of the Canton of Obwalden.  The applicant was informed

that he could file any observations before 10 June 1987.

      In the subsequent proceedings, the applicant was represented by

a lawyer.

      On 10 June 1987 the applicant requested the suspension

(Sistierung) of the cantonal tax proceedings in view of the federal tax

proceedings then pending.  As a result, the cantonal tax proceedings

were suspended.

      After the Federal Court gave its decision on 12 June 1990

concerning the federal taxes, cantonal tax proceedings were resumed on

24 July 1990 whereupon the applicant was requested to submit his

observations.  Following various requests for prolongation of the time-

limit, the observations were filed on 24 October 1990.

      The applicant was invited to a hearing at the Cantonal Tax

Administration on 12 December 1990.  Following the applicant's request,

the hearing was postponed until 6 February 1991.  At this occasion, the

applicant's lawyer was granted the possibility to file further

observations.

      By letter of 15 March 1991, the lawyer stated that he would not

file any further submissions.

      By order of 27 March 1992 the Cantonal Tax Administration imposed

on the applicant a supplementary tax of 189,371 CHF, a fine of

109,438 CHF and interests of 96,232 CHF.  The fine was imposed for

evading cantonal and municipal taxes.  The Tax Administration referred

in its decision also to the establishment of the facts in, and the

considerations of, the various decisions relating to the applicant's

federal taxes.

      When determining the fine, the Cantonal Tax Administration

relied, inter alia, on S. 225 of the Tax Statute of the Canton of

Obwalden.  According to this provision, in the case of tax evasion the

fine will as a rule correspond to the amount of the taxes evaded.  If

culpability (Schuld) is not severe, the fine can be reduced by one

third, in the case of severe culpability it can be raised to twice the

amount.  If the tax evasion is reported by the tax payer concerned

before he has knowledge of the criminal proceedings, the fine will be

reduced to one fifth of the taxes evaded.

Proceedings before the Tax Appeals Commission

      On 29 April 1992 the applicant filed an appeal (Rekurs) with the

Tax Appeals Commission (Steuerrekurskommission) of the Canton of

Obwalden.

      The Cantonal Tax Administration filed its submissions in reply

on 22 July 1992.  A hearing was conducted on 22 April 1993 at which the

applicant and his lawyer participated.  It is unclear whether the

hearing was public.

      In its decision of 22 April 1993, the Tax Appeals Commission

reduced the fine to 94,685 CHF, while dismissing the remainder of the

appeal.  When determining the applicant's fine, the Tax Appeals

Commission considered that a relatively long period of time had lapsed

since the applicant had committed the offence.

Proceedings before the Administrative Court

      On 3 September 1993 the applicant filed an administrative law

appeal (Verwaltungsgerichtsbeschwerde), requesting the Administrative

Court (Verwaltungsgericht) of the Canton of Obwalden to annul the fine.

The Tax Appeals Commission filed its submissions in reply on

20 September 1993.

      The Administrative Court conducted a hearing on 11 January 1994

at which the applicant complained, inter alia, of the lack of

independence of the members of the Tax Appeals Commission.

      On 11 January 1994 the Administrative Court dismissed the

applicant's appeal.  In its decision it found that according to

Article 6 para. 2 of the Convention it fell to the authorities to prove

the applicant's guilt, rather than to the applicant to prove his

innocence.  The Court then assessed the applicant's various submissions

in the Administrative Court proceedings.  With reference, inter alia,

to the applicant's tax declarations of 13 July and 15 September 1983,

and to bank statements in the file, the Court found that his

submissions did not appear credible.  As a result, it referred to the

conclusions of the Federal Court in its judgment of 8 July 1988

concerning the federal taxes.

      The Administrative Court further noted that the order of the

Cantonal Tax Administration of 27 March 1992 had confronted the

applicant with all facts leading to the applicant's culpability.  He

had therefore had the opportunity to defend himself in respect of all

counts before the Tax Appeals Commission.

      In respect of the applicant's complaint about the length of the

proceedings, the Court considered that the subject-matter of the case

was extremely complex, as was confirmed by the many legal statements,

the many judgments in the parallel proceedings concerning federal

taxes, and the lengthy texts of the decisions.

      Insofar as the applicant complained of a breach of "ne bis idem",

the Court found that a person committing tax evasion knew that with his

faulty tax declaration he was evading both federal and cantonal taxes;

his conduct had two limbs (zweigliedrige Tathandlung), and he could

therefore be punished both according to Federal and to cantonal law.

      The Court also dealt with the applicant's complaint of a breach

of "nulla poena sine lege" in that S. 225 of the Tax Statute of the

Canton of Obwalden did not mention the maximum punishment.  After

analysing this provision, the Court found that it could not be said

that the person committing tax evasion could be surprised by a

punishment with which he did not reckon.

      To the extent that the applicant complained that the Tax Appeals

Commission had not conducted its hearing in public, the Court noted

that in its observations of 20 September 1993 the Tax Appeals

Commission had not claimed that it had done so.  It could also not be

said that the applicant had waived his right hereto.  On the other

hand, the Court found that the applicant had had a public hearing

before the Administrative Court itself which in fact had unlimited

jurisdiction to examine the case.

Proceedings before the Federal Court

      On 17 February 1994, the applicant filed a public law appeal

(staatsrechtliche Beschwerde) which the Federal Court dismissed on

4 January 1995, the decision being served on the applicant on 27 April

1995.  Insofar as the applicant complained of a breach of "ne bis in

idem", the Court stated:

      "It is true that only one tax declaration form had to be filled

      in for the cantonal and the federal taxes.  However, two

      different taxes were at issue in respect of which two different

      public entities (Gemeinwesen) - the Confederation and the Canton

      - were competent.  Two different tax jurisdictions were

      concerned, who had to protect their different tax demands each

      with a different tax penal law."

      The Federal Court dismissed the applicant's complaints that the

Administrative Court had not been independent as the latter had not

limited its freedom of decision by considering the case-file concerning

the federal taxes and in particular by having regard to the decisions

of the Federal Court of 8 July 1988 and 12 June 1990.  Rather,

Article 6 para. 1 of the Convention required the judge to consider all

relevant facts.  This included previous proceedings if they stood in

a factual relation with the present case.  In fact, the applicant's

submissions had been carefully examined by the previous instances.  The

Administrative Court, for instance, had discussed the applicant's

submissions, rather than automatically taken over the Federal Court's

previous conclusions as to the facts.

      The Federal Court further found that the applicant had belatedly

introduced his complaint that certain members of the Tax Appeals

Commission were not independent and impartial within the meaning of

Article 6 para. 1 of the Convention.  Thus, the applicant and his

lawyer had been aware of the composition of the Tax Appeals Commission

already on 22 April 1993, though they had only challenged the members

on 11 January 1994.

      The Federal Court also found that the applicant had been

sufficiently informed by letter of the Cantonal Tax Administration of

16 May 1987 as to the grounds for the criminal tax proceedings

instituted against him.  Moreover, at that time the proceedings

concerning federal taxes were already pending before the Federal Court.

      The Court also noted that the applicant had had sufficient

occasions orally to express himself on the facts and the evidence, for

instance on 6 February 1991 before the Cantonal Tax Administration; on

22 April 1993 before the Cantonal Tax Appeals Commission; and at the

hearing before the Administrative Court.  The applicant also had the

possibility before all instances to file written submissions.

      The Court further dismissed the applicant's complaint that the

proceedings had not been conducted "within a reasonable time" as

required by Article 6 para. 1 of the Convention.  Thus, upon the

applicant's request, proceedings had been suspended for over three

years until 24 July 1990; in the eight months thereafter until 15 March

1991, only one set of submissions had been filed by the applicant, and

it had only been possible to question him once.  To the extent that the

Tax Administration had required one year after 15 March 1991 to prepare

the order of 27 March 1992, this could be explained with the complexity

of the matter.

COMPLAINTS

1.    The applicant complains that he did not have an independent and

impartial tribunal within the meaning of Article 6 para. 1 of the

Convention.  Thus, after proceedings had been conducted against him

concerning federal taxes, the proceedings concerning cantonal taxes

served no further purpose (Leerlauf).  This was confirmed by the

decision of the Administrative Court of the Canton of Obwalden of

11 January 1994 which frequently referred to the previous decisions of

the Federal Court of 8 July 1988 and 12 June 1990.  The authorities in

the second set of proceedings were not in a position to reach a

conclusion differing from that in the first set of proceedings.

2.    Under Article 6 para. 1 of the Convention the applicant also

complains that various judges of the Cantonal Tax Appeals Commission

were not independent and impartial as they had already sat in the

proceedings concerning the federal taxes.

3.    The applicant complains that the proceedings in which he was

involved were not conducted "within a reasonable time" as required by

Article 6 para. 1 of the Convention.

4.    Under Article 6 paras. 1, 2 and 3 of the Convention the applicant

complains of the manner in which the Administrative Court reached its

conclusions, in particular in respect of his tax declaration of 13 July

1983.  He further complains that the authorities did not question him

as to the mitigating and incriminating circumstances of the charges

raised against him.  It was irrelevant in this respect that he had

sufficient opportunities to express himself.  It was not up to him to

do what the authorities should have done ex officio.  In the present

case, the authorities never asked him about the contractual basis in

the relations between him and the C. company.  In fact, the authorities

merely took over charges which had been established in separate

proceedings, and with a different burden of proof, namely of the

Federal Tax Administration.  As a result, he had not been informed in

detail of the accusations against him as required by Article 6

para. 3 (a) of the Convention.

5.    Under Article 7 of the Convention the applicant complains of a

breach of the principle "nulla poena sine lege".  He submits that

Section 225 of the Tax Act of the Canton of Obwalden contains no upper

limit of punishment, thus permitting an unlimited fine.

6.    Under Article 4 of Protocol No. 7 the applicant complains with

reference to domestic case-law and doctrinal writings of a breach of

"ne bis in idem" in that he was convicted of an offence in respect of

which he had already previously been punished.  Thus, he had been

punished both for evading federal and cantonal taxes.  Both sets of

proceedings concerned his income from the C. company.  In both sets of

proceedings, only one tax declaration has to be filled out, and the

offence concerned the truthfulness of the declaration.

THE LAW

1.    The applicant raises various complaints about the criminal

proceedings in which he was involved.  He relies on Article 6 paras. 1,

2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention which state, insofar as

relevant:

      "1.  In the determination ... of any criminal charge against

      him, everyone is entitled to a fair and public hearing within a

      reasonable time by an independent and impartial tribunal ..."

      2.   Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law.

      3.   Everyone charged with a criminal offence has the following

      minimum rights:

      ...

      b.   to have adequate time and facilities for the preparation of

      his defence;

      ...

      d.   to examine or have examined witnesses against him and

      to obtain the attendance and examination of witnesses on his

      behalf under the same conditions as witnesses against him."

a)    The applicant complains in two respects that he did not have an

independent and impartial tribunal within the meaning of Article 6

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

      He submits, first, that, after the federal tax proceedings had

been conducted against him, the authorities conducting the cantonal tax

proceedings were not in a position to reach a conclusion which differed

from that in the first set of proceedings.

      It is true that the Administrative Court in its decision of

11 January 1994 had regard to the findings of the Federal Court in its

judgment of 8 July 1988 concerning the applicant's federal taxes.

      However, the Commission notes that that Court only did so after

examining the applicant's submissions and in particular after

considering that they were not credible as they contradicted his

previous submissions.  In fact, the Court did not regard itself bound

by any previous decision.  Indeed, as the Federal Court later pointed

out in its decision of 4 January 1995, the Administrative Court had

been required to consider all relevant facts, including those of

previous proceedings if they stood in a factual relation with the

present case.

      As a result, there is no indication that the Administrative Court

did not have full jurisdiction to examine the case.

      Second, the applicant complains that various judges of the

Cantonal Tax Appeals Commission had already sat in the federal tax

proceedings.

      The Commission notes the decision of the Federal Court of

4 January 1995 according to which the applicant and his lawyer had been

aware of the composition of the Tax Appeals Commission already on

22 April 1993 when they participated at the hearing, though they only

challenged the members on 11 January 1994 in the proceedings before the

Administrative Court.  The Commission need not resolve whether in this

respect the applicant could be considered as having waived his right

to an independent and impartial tribunal within the meaning of

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

      Thus, the applicant was able to appeal against the decision of

the Tax Appeals Commission to the Administrative Court.  In respect of

this Court, however, the Commission has just concluded that there was

no indication that it did not have full jurisdiction.

b)    The applicant complains that proceedings were not conducted

"within a reasonable time" as required by Article 6 para. 1 (Art. 6-1)

of the Convention.

      In the present case, the proceedings commenced on 16 May 1987

when the Obwalden Cantonal Tax Administration instituted criminal

proceedings on account of tax evasion of cantonal and municipal taxes.

The proceedings ended on 27 April 1995 when the Federal Court's

judgment of 4 January 1995 was served on the applicant.

      The relevant period therefore lasted 7 years, 11 months and

11 days.

      The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and having regard in particular to the

complexity of the case, the conduct of the applicant and that of the

relevant authorities (see Eur. Court HR, Mansur v. Turkey judgment of

8 June 1995, Series A no. 319-B, p. 51, para. 61).

      The present case concerned the evasion of cantonal taxes.  In the

Commission's opinion, the case was of a certain complexity, justifying

to some extent the length of the proceedings conducted against the

applicant.

      The Commission must next examine whether the applicant

contributed to the length of the proceedings.  In this respect, it

notes that on 10 June 1987 the applicant requested the suspension of

the cantonal tax proceedings.  The proceedings were only resumed on

24 July 1990, i.e. after more than three years.

      Moreover, after the proceedings were resumed on 24 July 1990 the

applicant filed his submissions only after various requests for

prolongation of the time-limit on 24 October 1990.  Thereafter, the

applicant was invited to a hearing at the Cantonal Tax Administration

on 12 December 1990.  However, he requested a prolongation of the time-

limit, and he was eventually heard on 6 February 1991.

      In the Commission's opinion, to this extent the length of the

proceedings cannot be attributed to the respondent Government.

      As regards the authorities' conduct, the Commission notes that,

after the applicant's lawyer stated that he would not file any further

submissions on 15 March 1991, the Cantonal Tax Administration gave its

decision within approximately one year, i.e. on 27 March 1992.

      Again, after the applicant filed his appeal with the Tax Appeals

Commission on 29 April 1992, the latter gave its decision within one

year, i.e. on 22 April 1993.

      After the applicant filed his appeal with the Administrative

Court on 3 September 1993, the latter gave its decision after

approximately four months on 11 January 1994.

      Finally, on 17 February 1994 the applicant filed a public law

appeal which the Federal Court dismissed on 4 January 1995, the

decision being served on the applicant on 27 April 1995, i.e. after

approximately 14 months.

      In the Commission's opinion, no unduly lengthy periods of

inactivity on the part of the authorities transpire.

      In assessing the length of the proceedings, the Commission has

finally considered that the Tax Appeals Commission, when determining

the applicant's fine in its decision of 22 April 1993, considered that

a relatively long period of time had lapsed since the applicant had

committed the offence.

      Having regard to the complexity of the case, to the fact that

some of the delays were due to adjournments requested by the applicant,

and that the length of proceedings was considered when determining his

fine, the Commission does not find an appearance of a violation of the

requirement of "reasonable time" referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

c)    Under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the

Convention the applicant complains of the unfairness of the

proceedings.  He complains of the manner in which the Administrative

Court reached its conclusions, in particular in respect of his tax

declaration of 13 July 1983.  He further complains that the authorities

did not question him as to the mitigating and incriminating

circumstances of the charges raised against him.  In fact, the

authorities merely took over charges which had been established in

separate proceedings, and with a different burden of proof, namely of

the Federal Tax Administration.  As a result, he had not been informed

in detail of the accusations against him as required by Article 6 para.

3 (a) (Art. 6-3-a) of the Convention.

      The Commission recalls that it is not the Convention organs'

function to deal with errors of fact or law allegedly committed by a

national court unless they may have infringed rights and freedoms

protected by the Convention (see Eur. Court HR, Schenk v. Switzerland

judgment of 12 July 1988, Series A no. 140, p. 29, para. 43).

      It is true that the applicant also complains of the unfairness

of the proceedings.

      To the extent that he complains that he was not sufficiently

questioned by the courts, the Commission notes that the applicant had

sufficient occasions, at the latest in the proceedings before the

Administrative Court, to put forward any matter which he regarded

pertinent to his case.

      Insofar as the applicant complains under Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention that he was not informed in detail of

the charges raised against him, the Commission notes that the letter

of the Cantonal Tax Administration of 16 May 1987 sufficiently stated,

with reference to the relevant legal provisions, the amounts received

from the C. company which he had not declared, and the years to which

the proceedings referred to.

      Insofar as the applicant complains of the manner in which the

evidence was assessed, the Commission recalls that, as a rule, it is

for the national courts to assess the evidence before them.  The

Convention organs' task is to ascertain whether the proceedings

considered as a whole, including the way in which evidence was taken,

were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April

1991, Series A no. 203, p. 10, para. 26).

      In the present case, the Commission finds no indication that the

applicant, who was represented throughout the proceedings by a lawyer,

could not put forward any evidence which he regarded pertinent, or that

the proceedings were unfairly conducted in any other way.

d)    It follows that in this respect the applicant's complaints are

manifestly ill-founded and must be rejected according to Article 27

para. 2 (Art. 27-2) of the Convention.

2.    Under Article 7 (Art. 7) of the Convention the applicant

complains of a breach of the principle "nulla poena sine lege".  He

submits that Section 225 of the Tax Act of the Canton of Obwalden

contains no upper limit of punishment, thus permitting an unlimited

fine.  Article 7 para. 1 (Art. 7-1) of the Convention states:

      "No one shall be held guilty of any criminal offence on account

      of any act or omission which did not constitute a criminal

      offence under national or international law at the time when it

      was committed.  Nor shall a heavier penalty be imposed than the

      one that was applicable at the time the criminal offence was

      committed."

      According to the Convention organs' case-law, Article 7 para. 1

(Art. 7-1) of the Convention embodies the principle that only the law

can define a crime and prescribe a penalty, and the principle that the

criminal law must not be extensively construed to an accused's

detriment.  From these principles, it follows that an offence must be

clearly defined by the law (see Eur. Court HR, Cantoni v. France

judgment of 15 November 1996, Reports 1996-V, No. 20, p. 1627, para.

29).

      The Commission notes that according to S. 225 of the Tax Statute

of the Canton of Obwalden, the fine will as a rule correspond to the

amount of the taxes evaded.  If culpability is not severe, the fine can

be reduced by one third, in the case of severe culpability it can be

raised to double the amount.  If the tax evasion is reported by the tax

payer concerned before he has knowledge of the criminal proceedings,

the fine will be reduced to one fifth of the taxes evaded.

      In these circumstances, it cannot be said that, contrary to the

requirements of Article 7 para. 1 (Art. 7-1) of the Convention, S. 225

of the Tax Statute permitted an unlimited punishment.  This part of the

application is manifestly ill-founded according to Article 27 para. 2

(Art. 27-2) of the Convention.

3.    Under Article 4 of Protocol No. 7 (P7-4) the applicant complains

of a breach of "ne bis in idem" in that he was convicted of an offence

in respect of which he had already previously been punished.  Thus, he

was punished for evading both federal and cantonal taxes.  However,

both sets of proceedings concerned his income from the C. company.

      Article 4 of Protocol No. 7 (P7-4) to the Convention state:

      "1.  No one shall be liable to be tried or punished again in

      criminal proceedings under the jurisdiction of the same State for

      an offence for which he has already been finally acquitted or

      convicted in accordance with the law and penal procedure of that

      State.

      2.   The provisions of the preceding paragraph shall not prevent

      the reopening of the case in accordance with the law and penal

      procedure of the State concerned, if there is evidence of new or

      newly discovered facts, or if there has been a fundamental defect

      in the previous proceedings, which could affect the outcome of

      the case."

      The Commission recalls the Convention organs' case-law according

to which the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit

the repetition of criminal proceedings which have been concluded by a

final decision (see Eur. Court HR, Gradinger v. Austria judgment of

23 October 1995, Series A no. 328-C, p. 65, para. 53).

      In the present case, criminal proceedings were instituted against

the applicant on 12 December 1985 on account of evading federal taxes.

In particular, the applicant was accused of having received payment

from the C. company.  As a result, he was eventually fined 109,659 CHF.

This fine was confirmed in last resort by the Federal Court on 12 June

1990.  Meanwhile, on 16 May 1987 criminal proceedings were instituted

against the applicant on account of evading cantonal and municipal

taxes in view of the payments which he had received from the

C. company.  The applicant was eventually fined 94,685 CHF.  This

decision was confirmed by the Federal Court on 4 January 1995.

      The issue arises whether in the second proceedings the applicant

was "tried or punished again ... for an offence for which (he had)

already been finally acquitted or convicted" within the meaning of

Article 4 para. 1 of Protocol No. 7 (P7-4-1).  This provision does not

refer to "the same offence", but refers rather to trial and punishment

"again ... for an offence" (see Gradinger v. Austria, Comm. Report

19.5.94, para. 75, Eur. Court HR, Series A no. 328-C, p. 77).  Thus,

the Court found in the Gradinger case that "both impugned decisions

were based on the same conduct".  As a result, it found in that case

a breach of Article 4 of Protocol No. 7 (P7-4) (see Eur. Court HR,

ibid. p. 66, para. 55).

      In the present case, the Commission has had regard to the

decision of the Federal Court of 4 January 1995 according to which in

Switzerland two different taxes are at issue, in particular the

cantonal and the federal tax.  As a result, there are two different

jurisdictions which have to protect their different tax demands each

with a different penal law.

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

the same conduct of the applicant was at issue in the different

proceedings in which he was involved.  Rather, each jurisdiction

established independently the conduct on the basis of which it imposed

the taxes on the applicant.  Indeed, in the tax forms in use at the

time in the Canton of Obwalden, certain questions had to be answered

separately for the assessment of the cantonal and the federal taxes.

If he only had to fill in one form for both taxes, this can be

explained with practical considerations.  A confirmation herefor can

be seen in the decision of the Administrative Court of 11 January 1994

which, as the Commission has found, examined the applicant's case with

full jurisdiction and without being bound by the assessment of the

applicant's federal taxes.

      As a result, it cannot be said that the applicant was "tried or

punished again ... for an offence for which (he had) already been

acquitted or convicted" within the meaning of Article 4 para. 1 of

Protocol No. 7 (P7-4-1).  It follows that the remainder of the

application is also manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

      M.F. BUQUICCHIO                          M.P. PELLONPÄÄ

         Secretary                                President

   to the First Chamber                     of the First Chamber