AS TO THE ADMISSIBILITY OF

                      Application No. 27032/95

                      by L.-G. R.

                      against Sweden

      The European Commission of Human Rights (Second Chamber) sitting

in private on 15 January 1997, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, 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 12 October 1994

by L.-G. R. against Sweden and registered on 13 April 1995 under file

No. 27032/95;

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

of Procedure of the Commission;

      Having regard to the observations submitted by the respondent

Government on 22 January and 23 April 1996 and the observations in

reply submitted by the applicant on 14 March and 29 May 1996;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant, a Swedish citizen born in 1941, resides in Malmö.

Before the Commission he is represented by Mr. Magnus Berlin, a lawyer

practising in Malmö.

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

summarised as follows.

A.    Particular circumstances of the case

      In their tax returns for the assessment years 1979-1982, the

applicant and two business partners failed to declare certain amounts

deposited on foreign bank accounts.  As a consequence, the amounts were

not taxed.

      A tax audit (taxeringsrevision) concerning the deposited amounts

was later commenced.  It led to proceedings being taken against the

applicant and the two partners concerning the levying of additional tax

(eftertaxering) for the above assessment years.  In these proceedings,

the applicant and his partners, on 1 April and 2 December 1985,

submitted to the County Administrative Court (länsrätten) in Malmö two

letters signed by a fourth person who certified, inter alia, that the

deposited amounts did not belong to the applicant and the partners but

had been used as bribes in their business activities.  The court did

not believe this statement, and, by judgments of 20 December 1985, it

levied additional tax on the applicant and the partners.  On

23 June 1988 the judgment was upheld on appeal by the Administrative

Court of Appeal (kammarrätten) in Gothenburg.

      A preliminary criminal investigation was also initiated.  On

25 August 1983 the applicant was heard by the police and informed that

he was suspected of aggravated tax fraud (grovt skattebedrägeri) and

gross violation of exchange control regulations (grovt valutabrott) due

to the deposits on the foreign bank accounts and the failure to declare

the amounts to the tax authorities.

      On 1 November and 12 December 1985 the police seized, inter alia,

the two letters invoked in the tax case before the County

Administrative Court.  The seizures were made at the court and at the

County Administrative Board (länsstyrelsen) in Malmö.  By decisions of

16 and 20 December 1985, they were confirmed by the Public Prosecutor.

It appears that the seizures were made as part of the preliminary

investigation concerning the alleged offences in connection with the

deposits on the foreign bank accounts and the failure to declare the

amounts to the tax authorities.  At the time, the applicant was not

aware of the measures.

      In 1986 the Public Prosecutor decided not to take any action in

regard to the alleged tax offence.  The applicant was indicted for the

exchange control offence, however, and on 9 June 1988 he was convicted

by the District Court (tingsrätten) of Malmö and given a suspended

sentence.  This judgment gained legal force.

      In May 1988 the police made a further preliminary investigation,

during which it heard the applicant on 9 May 1988.  He was informed

that he was suspected of, inter alia, attempted tax fraud (försök till

skattebedrägeri) on account of the submission of the above-mentioned

letters to the County Administrative Court.  On 1 and 2 March 1989

investigation reports were prepared.  On 3 April 1989 the reports were

served on the applicant and his public defence counsel, who were given

an opportunity to submit observations.  At that time, suspicions were

held against the applicant's partners also.

      By an application (stämningsansökan) filed with the District

Court on 21 September 1989, the Public Prosecutor requested the court

to arraign the applicant, which it did on 25 September.  The applicant

was charged with the instigation of aggravated fraudulent certification

(anstiftan till grovt osant intygande) and attempted aggravated tax

fraud.  At the subsequent hearing, the Prosecutor amended the charges

to include also the applicant's aiding and abetting his partners'

attempted aggravated tax fraud.  However, no proceedings were brought

against the partners.

      The District Court held hearings on 9 and 10 January 1990.

      By judgment of 24 January 1990, the District Court found the

applicant guilty of the charges against him.  However, as the

instigation offence was considered to be included in the two tax

offences, he was only convicted on the latter counts.  As concerns the

partners' attempted tax fraud, the applicant's conviction for aiding

and abetting was based on the Tax Offences Act (Skattebrottslagen,

1971:69) and Chapter 23, Section 4 of the Penal Code (Brottsbalken).

The applicant was sentenced to eight months' imprisonment.

      On 21 February 1990 the applicant lodged an appeal with the Court

of Appeal (hovrätten) of Skåne and Blekinge.  He submitted further

observations in the case on 27 February.  On 5 April the appellate

court requested the applicant to indicate, within two weeks, the

evidence he wished to adduce.  The applicant was subsequently granted

an extension of the time-limit for submission of this statement until

15 May.  On 27 November, not having received any statement, the court

reminded the applicant thereof.  On 28 January 1991 the applicant

submitted the statement to the court. However, no evidence was adduced.

      On 14 February 1991 the applicant was summoned by the Court of

Appeal to a hearing due to take place on 25 March.  On 13 March the

applicant requested that the hearing be postponed as he had important

business matters to attend to and also intended to adduce evidence.

The applicant's request was granted and he was ordered to state his

evidence within two weeks.  On 14 June the applicant submitted a

statement of evidence.

      On 2 October 1991 the applicant was summoned to the rescheduled

Court of Appeal hearing which took place on 11 November 1991.

      By judgment of 9 December 1991, the Court of Appeal upheld the

District Court's judgment.

      On 9 January 1992 the applicant appealed to the Supreme Court

(Högsta domstolen) and informed the court that he had appointed new

counsel.  After having requested extensions of time-limits on three

occasions, the new counsel submitted further observations on 13 and

31 March.  On 22 October the Supreme Court gave the Prosecutor-General

(Riksåklagaren) an opportunity to submit observations in the case,

which he did on 24 November.     On 25 February 1993 the Supreme Court

granted the applicant leave to appeal with respect to the two tax

offences.  On 30 April the applicant was requested to submit his

concluding arguments within three weeks.  After an extension of the

time-limit, the concluding arguments were submitted on 1 July.  The

Prosecutor-General replied on 4 October.

      The Supreme Court held a hearing in the case on 13 April 1994.

      By judgment of 3 May 1994, the Supreme Court upheld the Court of

Appeal's judgment.  The Supreme Court noted that the conduct with which

the applicant was charged was the submission of incorrect information

to the County Administrative Court in the proceedings concerning the

levying of additional tax.  The Supreme Court found that the submission

of such information to a court in tax proceedings was punishable under

the Tax Offences Act.  As the information had not been available to the

tax authorities when they originally examined the applicant's tax

returns, its submission to the County Administrative Court constituted

an offence separate from the false declaration given in the tax

returns.

      The applicant started to serve his prison sentence on

10 July 1994.  On 22 September 1994 the Government rejected his

petition for pardon.

B.    Relevant domestic law and practice

Complicity in crime

      Criminal liability for certain tax offences are prescribed in the

Tax Offences Act.  Section 4 provides that a person guilty of

aggravated tax fraud shall be sentenced to prison for a period of six

months to six years.  Criminal liability for attempted tax fraud

follows from Section 6 which, as regards the applicable penalty, refers

to Chapter 23, Section 1 of the Penal Code.  The latter provision

states that the penalty for an attempt may not exceed the penalty for

a completed action and may not be less than imprisonment if the minimum

penalty for a completed action is two years or more in prison.

      The Tax Offences Act contains no provision on complicity in

crime, nor does it refer, in this respect, to other penal legislation.

A general provision on complicity in crime is to be found in

Chapter 23, Section 4 of the Penal Code.  Before 1 July 1994, its first

paragraph read, in relevant parts, as follows:

(Translation)

      "Liability for an act, as provided for by this Code, shall

      be imposed not only on the person who committed the act but

      also on anyone who furthered it by advice or assistance.

      ..."

      At this time, it was thus directly applicable only to offences

mentioned in the Penal Code.  However, the Supreme Court had, in a

number of published judgments, applied this provision in relation to

offences under the present Tax Offences Act of 1971 and the previous

Tax Offences Act of 1943 (cf., e.g., NJA 1958 p. 304, NJA 1972 p. 377,

NJA 1976 p. 580 and NJA 1981 p. 277).

      The Committee which prepared the present Tax Offences Act stated

in its report that Chapter 23, Section 4 of the Penal Code was to be

applied by analogy in relation to the draft Tax Offences Act (cf.

SOU 1969:42, pp. 190-194).  Furthermore, the report by the

Parliamentary Standing Committee on Taxation included the following

statement (cf. SkU 1971:16, p. 69):

(Translation)

      "The provisions of the Penal Code in respect of complicity

      in crime are applicable by analogy to tax offences.  This

      means that a person who is not regarded as the perpetrator

      shall, if he induced another person to commit the criminal

      act, be convicted for instigation of the offence or

      otherwise for being an accessory to the offence."

      On 1 July 1994 a prohibition on the analogous application of

criminal provisions was introduced by an amendment to Chapter 1,

Section 1 of the Penal Code.  According to the travaux préparatoires,

the purpose of the amendment was to reduce the scope of applying

criminal law provisions beyond what followed from a strict reading of

the provisions in question.  Although the amendment was thought to be

of more symbolic than practical importance, the compliance of Swedish

law with Article 7 of the Convention was an important consideration.

      As the intention was not to limit the number of acts which were

to be considered as criminal offences, Chapter 23, Section 4 of the

Penal Code was made expressly applicable also to criminal offences

regulated by other legislation whenever the range of possible penalties

for these offences encompassed imprisonment.  This was done by the

addition of the following sentence to the first paragraph:

(Translation)

      "The same also applies in relation to acts subject to the

      penalty of imprisonment under another statute or statutory

      instrument."

      Subsequent to the amendments of 1 July 1994, the Supreme Court

dealt with the present matter in a judgment concerning complicity in

a drunken driving offence, another field of criminal law regulated by

special legislation, the Road Traffic Offences Act (Lagen om straff för

vissa trafikbrott, 1951:649).  The Supreme Court made the following

statement:

(Translation)

      "To sum up, the change in legislation can be said to

      entail, as far as liability for complicity in crime is

      concerned, that the non-regulated application until 1 July

      1994 of Chapter 23, Section 4 in relation to penal

      legislation outside the Penal Code has been replaced by

      codification, according to which the provision, having been

      amended to a certain extent, is applicable throughout the

      entire penal law.  The criminal liability, which was

      previously exacted in respect of complicity in drunken

      driving offences, by means of analogous application of

      Chapter 23, Section 4, is therefore still unaltered in

      force, now with the confirmation of an explicit provision."

Probationary release

      By an amendment to Chapter 26, Section 6 of the Penal Code, which

entered into force on 1 July 1993, the rules on probationary release

were changed.  Previously, a convict would normally be released on

probation after having served half his sentence.  After the amendment,

a person sentenced to a year or less in prison must serve at least two

thirds of the sentence.  The amended provision is applied to persons

convicted after 1 July 1993 even if they committed the offences before

that date.

COMPLAINTS

1.    The applicant alleges that the criminal case ending with the

Supreme Court's judgment of 3 May 1994 was not heard within a

reasonable time within the meaning of Article 6 of the Convention.

2.    The applicant also maintains that, under the Tax Offences Act,

the accused is under an obligation to give true and complete

information concerning his taxation.  Thus, he will be convicted for

a tax offence if he remains silent, which means that he is forced to

confess to possible offences.  In this respect, he invokes Article 6

of the Convention.

3.    The applicant further complains that his conviction for aiding

and abetting his partners' attempted tax fraud violated Article 7 of

the Convention, as it had no basis in the Tax Offences Act.  Instead,

the conviction was based on an analogous application of a general

provision of the Penal Code.

4.    Also under Article 7 of the Convention, the applicant contends

that a heavier penalty than the one applicable at the time the offences

were committed was imposed on him, as the rules on probationary release

were changed before the Supreme Court's judgment and, as a consequence,

he had to serve two thirds instead of half of his eight months'

sentence.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 12 October 1994 and registered

on 13 April 1995.

      On 19 October 1995 the Commission (Second Chamber) decided to

communicate the application to the respondent Government, pursuant to

Rule 48 para. 2 (b) of the Rules of Procedure.  The Government were

asked to deal with the questions whether the criminal charges against

the applicant were determined within a reasonable time and whether his

conviction for aiding and abetting his partners' tax fraud had a basis

in law.

      The Government's written observations were submitted on

22 January 1996 after an extension of the time-limit fixed for that

purpose.  The applicant replied on 14 March 1996.  The parties

thereafter submitted further observations, the Government on

23 April 1996 and the applicant on 29 May 1996.

THE LAW

1.    The applicant alleges that the criminal case ending with the

Supreme Court's judgment of 3 May 1994 was not heard within a

reasonable time.  He invokes Article 6 (Art. 6) of the Convention

which, in so far as relevant, reads as follows:

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

      against him, everyone is entitled to a ... hearing within

      a reasonable time ..."

      As regards the period to be considered the applicant maintains

that it commenced on 25 August 1983 when he was heard by the police and

informed that he was suspected of, inter alia, aggravated tax fraud.

The Government submit, however, that the period commenced on 9 May 1988

when the applicant was informed of the suspicion of, inter alia,

attempted tax fraud.

      The Commission recalls that according to the case-law of the

Convention organs the period to be taken into consideration under

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

autonomously. It begins at the time when formal charges are brought

against a person or when that person has otherwise been substantially

affected by actions taken by the prosecuting authorities as a result

of a suspicion against him (cf., e.g., Eur. Court HR, Eckle v. Germany

judgment of 15 July 1982, Series A no. 51, p. 33, para. 73).

      In the present case, the Commission recalls that the criminal

proceedings which ended with the Supreme Court's judgment of 3 May 1994

concerned the submission of false information to the County

Administrative Court.  The letters containing the false information

were submitted on 1 April and 2 December 1985, and events taking place

prior to 1 April 1985, therefore, cannot be taken into account.  The

Commission further notes that the seizures made by the police in

November and December 1985 apparently formed part of the preliminary

investigation concerning the charges of which the applicant had been

informed in 1983, inter alia the failure to declare certain amounts to

the tax authorities.  The seizures were not brought to the applicant's

attention and he was not, at this time, charged with any offence

relating to the submission of the letters in question to the County

Administrative Court.  Neither was the applicant's situation

substantially affected by the seizures.

      The applicant became directly involved in the preliminary

investigation on 9 May 1988 when he was heard by the police and

informed of the suspicions relating to the above-mentioned letters.

The Commission considers that, as from that date, the applicant was

substantially affected by the criminal proceedings.  Consequently, from

9 May 1988 the applicant was "charged" for the purposes of Article 6

para. 1 (Art. 6-1) of the Convention and the "reasonable time" referred

to in this provision began to run on that date.

      The Commission finds that the proceedings were terminated on

3 May 1994 when the Supreme Court pronounced judgment in the case.

Thus, the total length of the proceedings to be assessed under

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

years.

      From a general point of view the reasonableness of the length of

the proceedings must be assessed with reference to the complexity of

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

before which the case was brought (cf., e.g., Eur. Court HR, Boddaert

v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82,

para. 36).

      The Government maintain that the proceedings concerned

complicated matters, with regard to both facts and law.  Firstly, the

criminal investigation initially concerned not only the applicant but

also his business partners and the person who signed the letters in

question.  Secondly, the case concerned a company engaged in business

matters abroad.  Further, the legal issues involved were of a complex

nature.  This was shown, inter alia, by the Supreme Court's decision

to grant leave to appeal.

      As regards the applicant's conduct, the Government contend that

he delayed the proceedings considerably.  He requested extensions of

time-limits for the submission of arguments and statements of evidence

in the Court of Appeal and the Supreme Court.  On some occasions, he

failed to make his submissions in time.  Further, the hearing before

the Court of Appeal was postponed at the applicant's request.  In the

Government's opinion, the total delay caused by the applicant amounted

to almost one year and eight months.

      The applicant claims that, although the case involved some

difficult legal issues, the proceedings were not of a complex nature.

Only the applicant was prosecuted and no investigations were carried

out abroad.

      With respect to his conduct, the applicant maintains that the

case was not delayed in the Court of Appeal on account of his requests

for extensions of time-limits, as the appellate court examines cases

in the order they are lodged whether or not time-limits have been

extended.  Further, the applicant filed his statement of evidence in

that court on 14 June 1991 but the court's hearing did not take place

until 11 November 1991. This delay was not attributable to the

applicant, who can be held responsible for a delay in the Court of

Appeal of only three to four months.  As regards the Supreme Court, the

extensions of time-limits did not prolong the proceedings. The

applicant's counsel was informed by the judge in charge of the case

that granting additional time for submission of concluding arguments

would not delay the proceedings.  Further, the Supreme Court requested

the observations of the Prosecutor-General seven months after the

applicant had submitted his final observations on the question of leave

to appeal.

      The Commission considers that the criminal proceedings concerned

issues of some complexity.

      As regards the conduct of the applicant, the Commission finds

that he was essentially responsible for the delays in the Court of

Appeal.  In this respect, the Commission recalls that the applicant was

asked to indicate the evidence he wished to adduce within two weeks

from 5 April 1990, a time-limit later extended until 15 May 1990 at the

applicant's request. However, the applicant did not submit his

statement until 28 January 1991.  The Court of Appeal hearing was

supposed to take place two months later.  It was postponed, however,

again at the applicant's request.  Thereafter, the applicant failed to

observe the time-limit set for the submission of a statement of

evidence.  The appellate court subsequently took five months to arrange

a new hearing.  This period cannot be considered unacceptable.

      With respect to the proceedings in the Supreme Court, the

Commission recalls that the applicant requested several extensions of

time-limits for submission of further observations and concluding

arguments.  It is true that the Supreme Court requested the Prosecutor-

General's observations in the case almost seven months after the

applicant had submitted his final observations on the question of leave

to appeal.  Having regard to the fact that the Prosecutor-General

submitted observations on two occasions, that the Supreme Court held

a hearing in the case and that it decided separately and consecutively

on both the question of leave to appeal and the merits of the case, the

Commission considers, however, that the total duration of the

proceedings in the Supreme Court was not unreasonable.

      Therefore, making an overall assessment of the length of the

proceedings, they did not, in the Commission's view, go beyond what may

be considered reasonable in the particular circumstances of the case.

Thus, the present complaint does not disclose any appearance of a

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

      It follows that this part of the application is manifestly

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

Convention.

2.    The applicant also maintains that, under the Tax Offences Act,

the accused is under an obligation to give true and complete

information concerning his taxation.  Thus, he will be convicted for

a tax offence if he remains silent, which means that he is forced to

confess to possible offences.  In this respect, he invokes Article 6

(Art. 6) of the Convention.

      The Commission recalls that the applicant was convicted of

attempted aggravated tax fraud on account of having submitted false

information, i.e. the letters certifying that the amounts on the

foreign bank accounts had been used as bribes, to the County

Administrative Court in the proceedings concerning the levying of

additional tax.  It is true that the letters and the information

contained therein were aimed to support the information previously

given to the tax authorities by the applicant and his partners in their

tax returns and, thus, were submitted in an attempt to conceal earlier

tax offences.  However, the submission of new false information in the

tax proceedings constituted a new specific offence.  It is clear that,

in the proceedings concerning the levying of additional tax, the

applicant could have remained silent or simply maintained the

information given in the tax returns.  He was not forced to confess to

any offences, neither in the tax proceedings nor in the criminal

proceedings.  It was for the prosecutor to prove, according to the

normal rules of evidence, that the applicant had committed the offences

with which he was charged.

      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.

3.    The applicant further complains that his conviction for aiding

and abetting his partners' attempted tax fraud violated Article 7

(Art. 7) of the Convention, as it had no basis in the Tax Offences Act.

Instead,  the conviction was based on an analogous application of a

general provision of the Penal Code.  In relevant parts, Article 7

(Art. 7) of the Convention provides the following:

      "1.  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. ..."

      The Government contend firstly that the present complaint is

incompatible ratione materiae with the Convention, as the applicant's

conviction by analogous application of the Chapter 23, Section 4 of the

Penal Code had a basis in law and as the 1994 amendment to that

provision, even assuming that it entailed a change in the legal

situation, was of no relevance in the applicant's case as it had no

retroactive effect.  The Government maintain furthermore that the

applicant failed to exhaust domestic remedies as he did not claim

before the Court of Appeal or the Supreme Court that the judgment of

the District Court in part lacked a basis in law.  The fact that the

applicant did not raise this argument is, in the Government's view, an

indication that he shared the generally accepted view that an analogous

application of the above provision to tax offences was lawful.

      With regard to the merits of the present complaint, the

Government maintain that it is manifestly ill-founded.  The Government

argue that, at the time of the applicant's conviction, there had been

for decades a consistent case-law to the effect that the provisions on

aiding and abetting in the present Penal Code and its predecessor were

to be applied by analogy to tax offences.  The 1994 amendment to

Chapter 23, Section 4 of the Penal Code thus only entailed a

codification or confirmation of long-standing consistent case-law.

This case-law, established by the Supreme Court, had been followed by

the lower courts.  Furthermore, as it had been published and thereby

made accessible, the applicant was able to foresee that the aiding and

abetting of his partners' tax offence would involve criminal liability

also on his part.

      The applicant submits that his conviction for aiding and abetting

his partners' tax offence was clearly based on an analogous application

of Chapter 23, Section 4 of the Penal Code.  However, a challenge of

the legal basis of his conviction would have had no prospects of

success, as Swedish law prior to 1 July 1994 did not prohibit analogous

application of provisions concerning criminal offences and as there

were a number of precedents to the effect that the provisions in the

Penal Code on complicity in crime should be applied by analogy in a

case like the applicant's.  Thus, as such a challenge was destined to

fail, there was no effective remedy which the applicant had to exhaust.

      The applicant maintains, however, that analogies to the detriment

of the accused are prohibited by Article 7 (Art. 7) of the Convention.

It is true that the applicant, with the assistance of his counsel, was

able to foresee that Swedish courts would apply the relevant provision

in the Penal Code to tax offences.  However, the fact that the

Convention had been violated on numerous occasions in the past is no

excuse.

      The Commission first notes that the applicant claims a violation

of Article 7 (Art. 7) in that his conviction did not have a basis in

the applicable statute, the Tax Offences Act.  His complaint thus

concerns the question whether the act he committed constituted a

criminal offence under national law.  The Commission considers that it

does not have to determine whether the applicant failed to exhaust

domestic remedies by not raising this issue in his appeals as, in any

event, the complaint is inadmissible for the following reasons.

      The Commission recalls that Article 7 (Art. 7) of the Convention

is not confined to prohibiting the retrospective application of the

criminal law to an accused's disadvantage.  It also embodies, more

generally, the principle that only the law can define a crime and

prescribe a penalty (nullum crimen, nulla poena sine lege) and the

principle that the criminal law must not be extensively construed to

an accused's detriment, for instance by analogy.  From these principles

it follows that an offence must be clearly defined in law.  This

requirement is satisfied where the individual can find out from the

wording of the relevant provision and, if need be, with the assistance

of the courts' interpretation of it, what acts and omissions are likely

to make him criminally liable.  When referring to "law", Article 7

(Art. 7) alludes to the very same concept as that to which the

Convention refers elsewhere when using that term, a concept which

comprises written as well as unwritten law and implies qualitative

requirements, notably those of accessibility and foreseeability (cf.,

e.g., S.W. v. the United Kingdom judgment of 22 November 1995, Series

A no. 335-B, para. 35).

      The Commission notes that the applicant's conviction for aiding

and abetting his business partners' attempted tax fraud was based not

only on the relevant provisions of the Tax Offences Act but also on

Chapter 23, Section 4 of the Penal Code.  The wording of the latter

provision, as it was at the time when the relevant acts were committed

and when the applicant was convicted, prescribed liability for

complicity in crime only in relation to offences under the Penal Code.

The wording did not indicate that the provision was applicable to penal

legislation outside the Penal Code, e.g. the Tax Offences Act.

      However, as noted above, the concept of "law" under Article 7

(Art. 7) of the Convention comprises not only written but also

unwritten law, most importantly the case-law of the national courts.

Consequently, if the applicant, on account of the existing case-law,

was able to foresee, with a reasonable degree of certainty, that the

aiding and abetting in question would make him criminally liable, his

conviction was not incompatible with Article 7 (Art. 7).

      In this respect, the Commission notes that the Supreme Court, on

numerous occasions, had held persons guilty of complicity in tax

offences.  These convictions were based on Chapter 23, Section 4 of the

Penal Code in conjunction with the relevant provisions of the present

Tax Offences Act of 1971 or the previous one of 1943.  Thus, in 1985,

when the applicant committed the relevant acts, there existed a body

of settled national case-law to the effect that complicity in tax

offences constituted a criminal offence.  This case-law had been

published and was therefore accessible.  Accordingly, as admitted by

the applicant himself, it was foreseeable that his conduct would make

him criminally liable.

      In conclusion, the Commission finds that the applicant's

conviction for aiding and abetting his partners' attempted tax fraud

had a basis in national law.

      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.    Also under Article 7 (Art. 7) of the Convention, the applicant

contends that a heavier penalty than the one applicable at the time the

offences were committed was imposed on him.  He refers to the fact that

if he had not appealed against the judgment of the Court of Appeal he

would have had to serve only half of his eight months' sentence.  As

he appealed and the Supreme Court's judgment was delivered after the

provision on probationary release had been amended, he, instead, had

to serve two thirds of the sentence.

      The Commission notes that the applicant was sentenced to eight

months in prison for the offences he had committed in 1985.  Had he

been finally convicted before 1 July 1993, he would have had to serve

half of the sentence, i.e. four months, in accordance with Chapter 26,

Section 6 of the Penal Code as it stood at that time.  As he was not

finally convicted until 3 May 1994 - after the amendment of Chapter 26,

Section 6 - he instead had to serve two thirds of the sentence, i.e.

approximately five months and ten days.

      It has not been argued that the eight months' sentence as such

was heavier than the penalty applicable to the offences in question

according to the law in force at the time the offences were committed.

Instead, the present complaint concerns the fact that, as a consequence

of a change in the law, the applicant was released on probation at a

later stage than he would have been had the relevant legal provision

not been changed.  The Commission considers, however, that this matter

concerns the execution of the sentence as opposed to the "penalty"

which remains that of eight months' imprisonment (cf. No. 11653/85,

Hogben v. the United Kingdom, Dec. 3.3.86, D.R. 46 p. 231).  Noting

that the applicant did not have to serve more than eight months in

prison, the Commission does not find that the execution of the sentence

in the present case constitutes a violation of Article 7 (Art. 7) of

the Convention.

      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.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

        M.-T. SCHOEPFER                        G.H. THUNE

           Secretary                            President

      to the Second Chamber               of the Second Chamber