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 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. S. TRECHSEL

M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 report provided for in Rule 47 of the Rules

of Procedure of the Commission;

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 applicant, 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.

On 12 September 1984 the Federal Tax Administration closed its

investigations, and on 8 February 1985 the applicant was informed of

the outcome.

Following further investigations of his private tax matters, the

Federal Tax Administration informed the Cantonal Administration in its

report of 9 December 1986 of the results obtained.

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 Frances (CHF).

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 17 November 1992 the Appeals Commission held a hearing at

which E. acted as Secretary. On the same day, the Appeals Commission

partly upheld the applicant's appeal and reduced the fines to 100 % of

the taxes due. The case was referred to the Cantonal Administration

for renewed examination.

The applicant filed an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) with the Federal Court. In his appeal he

complained, inter alia, that the Appeals Commission was not an

independent judicial body. Under the heading "absolute prescription"

(absolute Verjährung) he complained that the proceedings had meanwhile

lasted more than ten years. He further complained that he had not been

able fully to consult the case-file and that an expert opinion had been

refused concerning the value of certain shares. He also analysed

statements, inter alia, of N., a member of the tax administration of

the Canton of Basel-Stadt, in respect of certain remunerations.

In administrative law proceedings before the Federal Court, the

President may order a hearing with the parties according to S. 112 of

the Federal Judiciary Act (Organisationsgesetz).

The applicant's administrative law appeal was transmitted to the

Cantonal Tax Administration and to the Federal Tax Administration both

of which filed observations thereupon on 9 and 23 November 1993,

respectively. The Cantonal Tax Administration stated, inter alia, that

one statement of, and one particular document signed by, the applicant

were "untrue, as the applicant's tax declarations ... demonstrate"

("wahrheitswidrig, wie die Steuererklärungen des Beschwerdeführers ...

aufzeigen"). The Federal Tax Administration stated, inter alia, that

the applicant "constantly made unproven or even incorrect statements,

for instance that he had not been granted a legal hearing" ("laufend

unbewiesene oder gar falsche Behauptungen , so z.B., dass

ihm das rechtliche Gehör nicht gewährt worden sei").

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. He was informed of the decision on

22 November. On 6 December 1994, upon the applicant's inquiry, he was

informed that no public session had taken place in his case. The

reasons of the decision were served on him on 20 January 1995.

In its decision, the Federal Court summarised the facts of the

case and the applicant's observations of 18 February 1994. In respect

of its own jurisdiction the Federal Court found that the Appeals

Commission was a judicial body for which reason the Federal Court's

jurisdiction was limited to the question whether federal law had been

breached and whether the previous instance had incorrectly established

the facts.

The Federal Court further noted that E. had acted as Secretary

to the Appeals Commission. Insofar as the applicant complained that

this breached his right to an independent and impartial tribunal, the

Court found that the applicant had failed to raise this complaint at

the latest at the oral hearing on 17 November 1992 before the Appeals

Commission when it became clear that E. was acting as Secretary.

The Court further found that the applicant's complaint about

"prescription" was unfounded, the time-limit in respect of the

applicant's offences expiring at the latest on 31 December 1995. It

also considered that the case-file had been open for consultation and

that the applicant had had sufficient occasion in the proceedings

orally and in writing to comment on the various issues. The Court did

not regard it as established that the minutes of the Appeals Commission

omitted important statements of the applicant. There was also no

obligation of the Cantonal Administration to order the preparation of

external expert opinions as the Administration itself was called upon

to establish the facts.

The Federal Court also 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.

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.

COMPLAINTS

1. The applicant complains that the Cantonal Administration did not

permit his lawyer to take the case-file to his office. As it turned

out before the Appeals Commission, the Cantonal Administration also did

not let him consult certain "unfavourable" ("ungünstige") documents of

the case-file.

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

that the Appeals Commission is not an independent and impartial court

established by law within the meaning of Article 6 para. 1 of the

Convention. The members are appointed by the administration and only

act part-time as they are all busy lawyers. Furthermore, the

Commission is based only on an ordinance, not a statute, and its

Secretary is not independent in that he is a member of the Government

of the Canton of Basel-Stadt.

The applicant also submits that the minutes of the Appeals

Commission were insufficient; and that he was not invited to

participate when the Appeals Commission deliberated his case.

3. The applicant complains under Article 6 subpara. 3 (b) of the

Convention that he only had 30 days' time to prepare his remedy against

the decision of the Appeals Commission, whereas the latter took one

year to prepare its decision.

4. The applicant complains that in the proceedings before the

Federal Court he was not permitted to reply to the observations of the

Cantonal Administration and Federal Tax Administration.

5. Under Article 6 para. 2 of the Convention the applicant complains

that the observations filed with the Federal Court breached the

presumption of innocence. The Cantonal Administration stated in

particular that a document submitted by him proved to be "untrue"

("wahrheitswidrig"). The Federal Tax Administration stated that the

applicant had "constantly made unproven or even incorrect statements"

("laufend unbewiesene oder gar falsche Behauptungen ").

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

that the Federal Court decided without public deliberation (ohne

öffentliche Beratung entschieden).

7. The applicant complains under Article 6 subpara. 3 (d) of the

Convention that throughout the proceedings his request was refused for

the preparation of an expert opinion as to the market value of a stock

corporation. He was also not permitted to have N., a member of the tax

administration of the Canton of Basel-Stadt, heard in respect of

certain remunerations.

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

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

commenced in 1983. The decision of the Appeals Commission was only

served a year later. 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.

THE LAW

1. The applicant complains under Article 6 paras. 1, 2 and 3

subparas. (b) and (d) (Art. 6-1, 6-2, 6-3-b, 6-3-d) of the Convention

of the proceedings in which he was involved. These provisions 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

established by law ...

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 ..."

The Commission notes that the applicant was accused of the

criminal offence of tax evasion. Article 6 (Art. 6) of the Convention

is therefore applicable to the present proceedings.

2. The applicant complains under Article 6 (Art. 6) of the

Convention that in the proceedings before the Cantonal Administration

and the Appeals Commission he could not consult "unfavourable"

documents and that the Appeals Commission was not an independent and

impartial court established by law within the meaning of Article 6

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

Insofar as the applicant complains that in the proceedings before

the Cantonal Administration and the Appeals Commission he was not

permitted to consult certain documents of the case-file, the Commission

cannot find any indication as to the documents which were allegedly

missing. Moreover, the applicant has not claimed that he could not

duly defend himself in respect of these documents.

Insofar as the applicant complains that the Appeals Commission

was not a "tribunal" within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention, the Commission notes that the Federal Court, in its

decision of 21 November 1994, referred to the Appeals Commission as a

judicial body. The Commission need nevertheless not decide this issue

for the following reasons.

On the one hand, the Commission notes that, upon the applicant's

administrative law appeal, a further instance which undoubtedly is a

court, i.e. the Federal Court, reviewed the decision of the Appeals

Commission. The applicant has not claimed that the Federal Court's

jurisdiction was limited in that it declined to examine, for instance,

any factual aspects of the applicant's complaints (see Eur. Court HR,

Zumtobel v. Austria judgment of 21 September 1993, Series A no. 268-A,

p. 14, para. 32).

On the other hand, the applicant may be understood as complaining

that, as the Appeals Commission was not a court, the Federal Court

should have conducted a hearing. However, S. 112 of the Federal

Judiciary Act expressly envisages the possibility of a hearing before

the Federal Court, and the applicant could have been expected to apply

for one if he attached importance to it. As he did not do so, it may

reasonably be considered that the applicant unequivocally waived his

right hereto (see Eur. Court HR, Schuler-Zgraggen v. Switzerland

judgment of 24 June 1993, Series A no. 263, p. 20, para. 58).

This part of the application is, therefore, manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant complains under Article 6 paras. 1 and 3 (b) of the

(Art. 6-1, 6-3-b) Convention that he only had 30 days' time to prepare

his administrative law appeal against the decision of the Appeals

Commission, and that in the proceedings before the Federal Court he was

not permitted to reply to the observations of the Cantonal

Administration and the Federal Tax Administration to his administrative

law appeal.

The Commission notes, first, that the applicant has not explained

why the time-limit of 30 days did not suffice for him to prepare his

administrative law appeal. The applicant himself has stated before the

Commission that the matters at issue were not particularly complex.

Second, it is true that the Federal Court on 9 February 1994

informed the applicant that it would not grant his request to submit

a reply to the observations of the Cantonal Administration and the

Federal Tax Administration. However, the applicant nevertheless filed

a reply on 18 February 1994, and the Federal Court, in its decision of

21 November 1994, duly noted its content.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant complains under Article 6 subpara. 3 (d)

(Art. 6-3-d) of the Convention of the refusal of his requests for the

preparation of an expert opinion and for the hearing of N., a member

of the tax administration of the Canton of Basel-Stadt, in respect of

certain remunerations.

According to the Convention organs' case-law, the admissibility

of evidence is primarily a matter for regulation by national law and,

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 Federal Court found in its decision of

21 November 1994 that such an expert opinion was unnecessary. The

applicant was furthermore free to put forward the results of any

private expert opinion which he considered pertinent to his defence.

As regards the witness N., the applicant has, on the one hand,

not shown that he sufficiently raised this complaint in his

administrative law appeal before the Federal Court. On the other hand,

as his administrative law appeal demonstrates he was able therein to

refer to, and to analyse, various statements of N. The Federal Court

subsequently examined 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.

As a result, there is no indication that in the proceedings the

applicant could not sufficiently put forward his point of view or any

evidence which he regarded as being pertinent.

This part of the application is manifestly ill-founded within the

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

5. The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that the observations filed by the

Cantonal Administration and the Federal Tax Administration with the

Federal Court contained statements which breached the presumption of

innocence.

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

representative of the State declares that a person is guilty of having

committed an offence, before that guilt is established by a court (see

No. 7986/77, Dec. 3.10.78, Krause v. Switzerland, D.R. 13, p. 73).

In the present case, the Cantonal Administration, in its

observations to the Federal Court, wrote inter alia, that one statement

of, and one particular document signed by, the applicant proved to be

"untrue, as the applicant's tax declarations ... demonstrate". The

Federal Tax Administration stated, inter alia, that the applicant

"constantly made unproven or even incorrect statements, for instance

that he had not been granted a legal hearing".

In the Commission's opinion, these statements disclose that the

authorities considered certain of the applicant's statements as being

incorrect and not corresponding to the facts. It does not transpire

therefrom that the applicant was found guilty of having committed an

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

Convention.

This part of the application is manifestly ill-founded within the

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

6. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the length of the proceedings.

The Commission considers that it cannot on the basis of the file

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Commission's

Rules of Procedure to give notice of the complaint to the respondent

Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint

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

length of the proceedings;

by a majority,

DECLARES INADMISSIBLE the remainder of the application.

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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