Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27741/95

by C. B.

against Switzerland

The European Commission of Human Rights (First Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs J. LIDDY, President

MM S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

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 20 April 1995 by

C. B. against Switzerland and registered on 28 June 1995 under file

No. 27741/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

21 March 1997 and the observations in reply submitted by the

applicant on 1 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Swiss citizen born in 1932, is a bank employee

residing in Riehen in Switzerland.

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

summarised as follows.

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.

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.

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.

Meanwhile, investigations were undertaken in respect of the

applicant's private tax matters.

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.

On 13 November 1985 the applicant personally spoke with the

Cantonal Administration. On 27 January 1986 he filed further

submissions.

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.

On 9 December 1986 the Federal Tax Administration informed the

Cantonal Administration of the results of its investigations.

On 4 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.

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.

On 26 May 1988 the applicant again personally spoke with the

Cantonal Administration.

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.

On 25 August 1989 the proceedings concerning the applicant were

resumed. The applicant filed further observations on 12 September

1989. 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).

On 9 October 1989 the applicant personally spoke with the

Cantonal Administration.

On 16 October 1989 the applicant filed an appeal with the Appeals

Commission for Federal Taxes (Kantonale Rekurskommission für

eidgenössische Abgaben, hereafter: Appeals Commission).

On 15 June 1990 the Federal Court gave its decision on the case

concerning the applicant's company B.AG.

On 17 April 1991 a decision was given concerning arrears in the

applicant's tax payments.

On 13 May 1991 the applicant filed an appeal against the decision

of 17 April 1991.

On 25 April 1991 the applicant personally spoke with the Cantonal

Administration.

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.

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.

On 22 December 1992 the Appeals Commission requested further

information from the Federal Tax Administration. The applicant replied

thereto on 2 February 1993.

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.

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. The applicant continued

in respect of his case:

"The proceedings have meanwhile lasted more than ten years. The

Cantonal Administration first wanted to make the applicant

responsible therefore, but on 26 March 1993 it had to admit: 'the

delay in the proceedings on behalf of the Cantonal Administration

is regrettable, even if it can be explained with lack of staff

etc'."

The Federal Court transmitted the applicant's administrative law

appeal to the Cantonal Administration and to the Federal Tax

Administration both of which filed observations thereupon on 9 and

23 November 1993, respectively.

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.

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.

On 18 February 1994 the applicant submitted further observations

in which he substantiated his allegations as to the incorrect

statements in the observations concerned.

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. 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.

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 amended; the sums now ranged from

27,456 to 591,566 CHF, and amounted to more than three million CHF.

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.

On 10 April 1995 the applicant filed an appeal against this

decision with the Appeals Commission. The proceedings are apparently

still pending.

COMPLAINT

The applicant complains under Article 6 para. 1 of the Convention

of the length of the criminal proceedings. He submits that the

proceedings commenced in 1983. He did not contribute to the length of

the proceedings. On the other hand, the authorities were overburdened,

and the case was not particularly complex.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 April 1995 and registered

on 28 June 1995.

On 17 January 1997 the Commission decided to communicate the

applicant's complaint under Article 6 para. 1 of the Convention

concerning the length of the proceedings to the respondent Government

and to declare the remainder of the application inadmissible.

The Government's written observations were submitted on 21 March

1997. The applicant replied on 1 May 1997.

THE LAW

1. The applicant's remaining complaint under Article 6 para. 1

(Art. 6-1) of the Convention concerns the length of the criminal

proceedings in which he was involved.

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

as relevant:

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

..."

2. The Government submit that the applicant has not complied with

the requirement under Article 26 (Art. 26) of the Convention as to the

exhaustion of domestic remedies as he did not offer the domestic

authorities the opportunity to examine the complaint at issue. Thus,

in his administrative law appeal the applicant complained of the

absolute prescription of the offence, and it was in this context that

he mentioned that the proceedings had meanwhile lasted more than ten

years. However, the issue of prescription is completely different from

that of the length of the proceedings. Moreover, in its decision of

21 November 1994, the Federal Court merely dealt with the issue of

prescription, not with any unjustifiably lengthy periods during the

proceedings.

The Government also point out that the Federal Court examines

annually some 6,000 appeals. It would be viewed with some anxiety if

Article 26 (Art. 26) of the Convention were to be interpreted as

requiring the Federal Court to examine appeals also in respect of

possible breaches of the Convention which had been raised neither

expressly nor in substance. In the present case, the proceedings had

already been pending for ten years when the applicant filed his appeal

with the Federal Court, and he could have been expected to complain

expressly about the length of the proceedings under Article 6 para. 1

(Art. 6-1) of the Convention.

The applicant submits that he repeatedly referred in the domestic

proceedings to his right under Article 6 para. 1 (Art. 6-1) of the

Convention to speedy proceedings, though he did not expressly file a

request in this respect as the Federal Court is not competent to

examine federal statutes. Thus, the prescription of 15 years is

enshrined in federal legislation.

Under Article 26 (Art. 26) of the Convention, "the Commission may

only deal with the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law".

In the present case the Commission notes that the applicant, in

his administrative law appeal of 29 September 1993 to the Federal

Court, first discussed the maximum length of proceedings compatible

with the requirements under the Convention. He then complained that

the proceedings in which he had been involved had meanwhile lasted more

than ten years, and he noted that the Cantonal Administration had in

fact admitted responsibility for certain delays. The applicant raised

these complaints in the wider context of the prescription of tax

offences.

The Commission thus considers that the applicant sufficiently

raised before the Federal Court the complaint he is now making before

the Commission.

As a result, the application cannot be declared inadmissible for

non-exhaustion of domestic remedies.

3. The Government further submit that in any event the complaint

would also be manifestly ill-founded. The proceedings to be examined

under Article 6 para. 1 (Art. 6-1) of the Convention commenced on 9

December 1983 when criminal investigations were instituted against the

applicant on account of tax offences, and they lasted until 20 January

1995 when the decision of the Federal Court of 21 November 1994 was

served on the applicant.

The Government point out 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.

The Government submit 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.

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.

The applicant disputes that he is 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.

The Commission considers, in the light of the parties'

submissions, that this complaint raises complex issues of law and of

fact under the Convention, the determination of which should depend on

an examination of the merits of the application as a whole. The

Commission concludes, therefore, that the remainder of the application

is not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE THE REMAINDER OF THE APPLICATION, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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C.B. v. SWITZERLAND

C.B. v. SWITZERLAND

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