AS TO THE ADMISSIBILITY OF

                      Application No. 20241/92

                      by H. W. K.

                      against Switzerland

      The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

           MM.   C.L. ROZAKIS, President

                 S. TRECHSEL

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           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 22 June 1992 by

H. W. K. against Switzerland and registered on 30 June 1992 under file

No. 20241/92;

      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

      14 December 1994 and the observations in reply submitted by the

      applicant on 27 February 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

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

summarised as follows.

      The applicant, a Swiss citizen born in 1931, is a lawyer residing

at Zumikon in Switzerland.  Before the Commission he is represented by

Messrs B. Badertscher and T. Poledna, lawyers practising in Zurich.

Particular circumstances of the case

                                  I.

      Based on information provided by T., a former accountant of the

applicant, the Zurich tax authorities instituted tax and tax penalty

proceedings against the applicant, first in 1985, and, after these

proceedings had been terminated for lack of evidence, again in 1988.

      On 22 December 1988 the Finance Directorate (Finanzdirektion) of

the Canton of Zurich imposed cantonal taxes (Staatssteuern) and tax

penalties (Strafsteuern) on the applicant in respect of the tax

assessment period between 1978 and 1981.  The taxes and the tax

penalties due each amounted to 54,032.20 SFr.

      In its decision the Finance Directorate found in particular that

after 1975 the applicant had only insufficiently supervised his

accountant.  His negligence (Fahrlässigkeit) in this respect amounted

to culpability (Verschulden) within the meaning of the Tax Act

(Steuergesetz) of the Canton of Zurich, and tax penalties were,

therefore, due (eine Strafsteuer ist daher zu erheben).  As the

culpability was not insignificant, the tax penalties were set at the

same amount as the taxes due.

                                  II.

      On the basis of the decision of the Finance Directorate of

22 December 1988 (see above I.) the Zumikon Municipal Tax Office

(Gemeindesteueramt) imposed on 30 December 1988 municipal taxes

(Gemeindesteuern) and tax penalties on the applicant, each amounting

to 50,827.55 SFr.

                                 III.

       Against the decisions of the Finance Directorate of

22 December 1988 (see above I.) and of the Zumikon Municipal Tax Office

of 30 December 1988 (see above II.) the applicant filed an appeal

(Rekurs) with the Administrative Court of Appeal (Verwaltungsgericht)

of the Canton of Zurich in which he requested an oral hearing.

      In his appeal the applicant also complained that he could not be

accused either of negligence (Fahrlässigkeit) or of culpability

(Verschulden).  In particular, it did not suffice if the tax

authorities stated that he had insufficiently supervised his

accountant.  The applicant concluded that "there was no legal basis

(=culpability) for imposing tax penalties" ("die Rechtsgrundlage

<=Verschulden> liegt also für die Erhebung einer Strafsteuer nicht

vor").

      On 27 April 1989 the Finance Directorate filed its submissions

with the Administrative Court on the applicant's appeal.  The

submissions contained inter alia a list of undeclared fees of the

applicant which the accountant T. had given to the tax authorities.

A stamp was issued on the submissions stating that they were

transmitted to the applicant for information; the text continues: "a

2nd round of submissions has not been ordered.  Any further requests

would be dismissed" ("Ein 2. Schriftenwechsel ist nicht angeordnet

worden.  Allfällige weitere Eingaben würden aus dem Recht gewiesen").

The stamp is signed by the Court Secretary acting for the President of

the Administrative Court.

      On 3 October 1989 the Administrative Court (Verwaltungsgericht)

partly upheld, partly dismissed and partly rejected the appeal.  Thus,

the Court quashed the imposition of cantonal taxes and tax penalties

for the year 1978 by reason of prescription (Verjährung), and reduced

the cantonal taxes for the years 1979 to 25,967.80 SFr and the tax

penalties to 12,983.90 SFr.  The Court declared inadmissible the appeal

concerning the municipal taxes and tax penalties as the matter had

first to be decided by the Finance Directorate.

      In its decision the Court explained why it had considered it

unnecessary to communicate the Finance Directorate's submissions for

further observations to the applicant or to order an oral hearing:

      "The reply to the appeal by the Finance Directorate contains no

      new submissions, in respect of which the tax subject should have

      been heard in the light of Section 4 para. 1 of the Swiss

      Constitution.  Moreover, he had sufficient opportunity duly to

      put forward his point of view in respect of the facts and the law

      - and both orally and in writing.  His subsidiary request to fix

      an oral hearing will not therefore be granted."

      "Die Rekursantwort der Finanzdirektion enthält keine neuen

      Vorbringen, zu denen der Pflichtige im Lichte von Art. 4 Abs. 1

      BV hätte angehört werden müssen.  Er hat überdies hinreichend

      Gelegenheit gehabt, seinen Standpunkt in tatsächlicher und

      rechtlicher Hinsicht gehörig - sowohl mündlich als auch

      schriftlich - zu vertreten.  Seinem Eventualantrag auf Anordnung

      einer mündlichen Verhandlung ist daher nicht stattzugeben."

      The Court further found that the applicant who was an experienced

lawyer should have duly supervised the accountant T.  By not doing so

he had not demonstrated the necessary care.  It was irrelevant in this

respect whether T. had acted culpably.  As a result, the applicant had

negligently caused the insufficient tax assessments of the years 1979

until 1981.

                                  IV.

      The applicant's appeal concerning the imposition of municipal

taxes and tax penalties (above II.) which had been declared

inadmissible by the Administrative Court (above III.) was transferred

to the Finance Directorate.  On 30 October 1989 the latter partly

upheld and partly dismissed the appeal.  Thus, the municipal taxes were

reduced to 23,933.65 SFr and the tax penalties to 11,966.80 SFr.

                                  V.

      Against the decision of the Finance Directorate of 30 October

1989 concerning the applicant's municipal taxes and tax penalties

(above IV.) the applicant filed an appeal with the Administrative Court

of the Canton of Zurich.  Therein he complained inter alia that there

was no legal basis for the punishment of his conduct.  Thus, according

to the Zurich tax law, tax evasion required culpability, and the

offence had to be committed with intention (vorsätzlich).  By relying

on the applicant's negligence when imposing tax penalties, the tax

authorities had breached the principle of "nulla poena sine lege".

      On 27 March 1990 the Administrative Court partly upheld the

appeal.  The Court quashed the imposition of municipal taxes and tax

penalties for the year 1979 by reason of prescription, and, as a

result, reduced the municipal taxes and tax penalties due to 14,347.55

SFr, and 7,173.75 SFr, respectively.

      In respect of the applicant's complaint that there was no legal

basis for punishing him for negligent tax evasion, and his affirmation

that he was not guilty, the Court found that these issues had already

been dealt with in substance by the Administrative Court in its

decision of 3 October 1989 which concerned cantonal taxes (above III.);

that this decision was binding on the municipal authorities; and that

the Court could not reconsider these issues in the present case.

                                  VI.

      The applicant filed public law appeals (staatsrechtliche

Beschwerden) against the decisions of the Administrative Court of

3 October 1989 (above III.) and of 27 March 1990 (above V.).

      In respect of the decision of 3 October 1989 the applicant

complained inter alia that the Administrative Court, by refusing an

oral hearing, had deprived him of the possibility of commenting on the

new submissions filed by the Finance Directorate.

      In respect of the decision of 27 March 1990, the applicant

complained that he was entitled to an examination of all relevant

conditions for punishment (Strafbarkeitsgründe).  The applicant

referred to case-law of another Swiss court according to which the

imposition of a fine required culpability.  The imposition of tax

penalties in his case without any examination of these conditions of

punishment breached the principle "nulla poena sine culpa".

      On 16 December 1991 the Federal Court (Bundesgericht) joined the

public law appeals and dismissed them, the decision being served on the

applicant on 23 December 1991.

      The Federal Court first dealt with the applicant's complaint that

the Administrative Court, in its decision of 3 October 1989, had

considered it unnecessary, in respect of the cantonal taxes and tax

penalties, to order an oral hearing or to communicate the Finance

Directorate's submissions for further observations to the applicant,

finding that they contained no new observations.

      The Court referred in this respect to the necessity of first

exhausting cantonal remedies, in particular by requesting the reopening

of the cantonal proceedings.  The decision continues, with reference

to Section 108 para. 1 of the Tax Act of the Canton of Zurich (see

below, Relevant domestic law):

      "the reopening of definite tax decisions ... is admissible, if

      the deciding authority (here the Administrative Court)

      disregarded important facts or means of evidence which it knew

      or should have known, or if it breached essential procedural

      principles in any other manner.  ... A reopening of proceedings

      in advance will only then not be required, if the disputed

      question has already been decided in the contested decision ..."

      "die Revision von rechtskräftigen Steuerentscheiden ... ist

      zulässig, wenn die urteilende Behörde (vorliegend das

      Verwaltungsgericht) erhebliche Tatsachen oder Beweismittel, die

      ihr bekannt waren oder hätten bekannt sein müssen, ausser acht

      gelassen oder wenn sie in anderer Weise wesentliche

      Verfahrensgrundsätze verletzt hat. ... Eine Revision ist

      vorgängig nur dann nicht erforderlich, wenn die streitige Frage

      bereits im angefochtenen Entscheid behandelt worden ist ..."

      The Court then applied these principles to the applicant's

complaints:

      "In the contested decision the Administrative Court decides at

      the outset solely that the appeal statement in reply by the

      Finance Directorate did not contain any new submissions, for

      which reason the person concerned in view of Article 4 para. 1

      of the Federal Constitution did not have to be heard and for

      which reason also the request for an oral hearing did not have

      to be granted.  The point at issue (in the present case), namely

      why there were no new submissions, had not however been dealt

      with, or explained, by the Administrative Court.

           Thus, the applicant's submissions in this respect amount to

      the reproach that the Administrative Court breached essential

      principles of procedure.  This complaint should therefore have

      been raised in reopening proceedings ... before filing the public

      law appeal; however, no request for reopening was submitted.  In

      respect of this issue therefore there is no last instance

      decision, and this complaint cannot therefore be entertained.

           The applicant also implicitly accuses the Administrative

      Court of disregarding the facts of the case-file by stating that

      the contested decision incorrectly assumed that the appeal

      statement in reply of the Finance Directorate did not contain any

      new submissions.  In this respect he should also immediately have

      filed a complaint by requesting reopening of the proceedings..."

      "Im angefochtenen Entscheid wird durch das Verwaltungsgericht

      einleitend einzig festgestellt, dass die Rekursantwort der

      Finanzdirektion keine neuen Vorbringen enthalte, weshalb der

      Pflichtige im Licht von Art. 4 Abs. 1 BV nicht angehört und dem

      Begehren um eine mündliche Verhandlung daher nicht stattgegeben

      werden müsse.  Die (im vorliegenden Verfahren) strittige Frage,

           weshalb keine neuen Vorbringen gegeben seien, wurde

           indessen durch das Verwaltungsgericht nicht behandelt oder

           näher begründet.

           Was der Beschwerdeführer zu diesem Punkt vorträgt, läuft

      somit auf den Vorwurf der Verletzung wesentlicher

      Verfahrensgrundsätze durch das Verwaltungsgericht hinaus.  Diese

      Rüge hätte demnach vor Ergreifung der staatsrechtlichen

      Beschwerde im Verfahren der Revision ... vorgetragen werden

      müssen; ein entsprechendes Revisionsgesuch ist indessen nicht

      eingereicht worden.  Insofern liegt daher mit Bezug auf diesen

      Punkt kein letztinstanzlicher Entscheid ... vor, wehsalb auf

      diese Rüge nicht einzutreten ist.

           Insoweit der Beschwerdeführer dem Verwaltungsgericht

      ausserdem sinngemäss Aktenwidrigkeit vorwirft, indem er geltend

      macht, im angefochtenen Entscheid sei zu Unrecht davon

      ausgegangen worden, dass die Rekursantwort der Finanzdirektion

      keine neuen Vorbringen enthalte, so hätte er dies ebenfalls

      vorweg mittels Revision ... rügen müssen ..."

      In respect of the cantonal taxes the Federal Court further found

that negligence was indeed a form of culpability.  As a result, it

upheld the Administrative Court's conclusion that the applicant's

negligent conduct was punishable.

      The Court then dealt with the applicant's complaint that

municipal tax penalties had been imposed on him without the conditions

for punishment having been examined.  The Court found that this

complaint was new and therefore inadmissible.  Thus, before the

Administrative Court the applicant had invoked the principle of "nulla

poena sine lege" whereas in his public law appeal before the Federal

Court he had relied on the principle "nulla poena sine culpa".

      In respect of the applicant's complaint that in the municipal tax

proceedings he had not had an oral hearing, the Court found no issue

as on 27 March 1990 the Administrative Court had quashed the imposition

of municipal taxes and tax penalties for the year 1979 by reason of

prescription.

Relevant domestic law

      According to Section 108 para. 1 of the Tax Act (Steuergesetz)

of the Canton of Zurich, proceedings may be reopened (Revision), "if

the deciding body disregards important facts or means of evidence which

it knew or should have known or in any other manner breached essential

principles of procedure" ("went die entscheidende Behörde erhebliche

Tatsachen oder Beweismittel, die ihr bekannt waren oder hätten bekannt

sein müssen, ausser acht gelassen oder in anderer Weise wesentliche

Verfahrensgrundsätze verletzt hat").

COMPLAINTS

1.    The applicant complains that the Administrative Court in its

decision of 3 October 1989 relied on the submissions of the Finance

Directorate of 27 April 1989 without the applicant having had the

opportunity to comment thereupon.  The applicant refers here to the

list of fees which the accountant T. handed over to the tax

authorities.  The applicant submits that the Administrative Court

breached Article 6 para. 1 of the Convention by refusing him an oral

hearing and not granting him any other possibility to reply to these

submissions.

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

that the authorities did not consider, in respect of the municipal

taxes and tax penalties, whether he was culpable (Verschulden), for

which reason he should not have been punished.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 22 June 1992 and registered on

30 June 1992.

      On 31 August 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

      The Government's written observations were submitted on

14 December 1994, after an extension of the time-limit fixed for that

purpose.  The applicant replied on 27 February 1995, also after an

extension of the time-limit.

THE LAW

1.    The applicant raises various complaints under Article 6 paras. 1

and 2 (Art. 6-1, 6-2) of the Convention about the proceedings in which

he was involved, and their outcome.  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 ..."

      2. Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law."

      In the Commission's opinion, the proceedings at issue concerned

inter alia the imposition of tax penalties and, therefore, "the

determination of ... (a) criminal charge" against the applicant within

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

      Article 6 (Art. 6) of the Convention is, therefore, applicable

in the present case.

2.    The applicant complains that the Administrative Court in its

decision of 3 October 1989 relied on the submissions of the Finance

Directorate of 27 April 1989 without giving him the opportunity to

comment thereupon.  The applicant submits that the Administrative Court

breached Article 6 para. 1 (Art. 6-1) of the Convention by refusing him

an oral hearing and not granting him any other possibility to reply to

these submissions.

      The Government submit that the applicant has not complied with

the requirement as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.  The applicant could

have filed a request with the Administrative Court of the Canton of

Zurich for reopening the proceedings according to Section 108 para. 1

of the Zurich Tax Act.  In such a request, he could have complained

about the lack of an oral hearing; and that he could not comment on the

submissions of the Finance Directorate of 27 April 1989.  Had the

applicant done so and if he had been unsuccessful, the Federal Court

could have dealt with these points in his public law appeal.

      In the Government's view, it cannot be said that the

Administrative Court had already effectively dealt with the issue in

its decision of 3 October 1989 and that therefore a request for

reopening the proceedings would not have offered prospects of success.

Rather, the Administrative Court merely stated that the Finance

Directorate's submissions of 27 April 1989 contained no new elements.

It was only in his subsequent public law appeal to the Federal Court

that the applicant complained in detail of the Finance Directorate's

submissions.  Had the applicant raised these issues directly before the

Administrative Court, the latter would have had the opportunity to

reopen the proceedings.  In fact, the applicant could still have filed

a request for reopening the proceedings even after the Administrative

Court's decision of 3 October 1989.

      The Government submit that these issues of domestic law had been

clarified by the Federal Court.  In this respect, reference is made to

the Commission's case-law according to which, when examining the

requirements under Article 26 (Art. 26) of the Convention, regard must

be had to the interpretation and application by the national

authorities of domestic law (see No. 9022/80, W. v. Switzerland, dec.

13.7.83, D.R. 33 p. 21).

      The applicant submits that in respect of these complaints he has

complied with the requirements under Article 26 (Art. 26) of the

Convention.  Thus, according to Swiss doctrine the request for

reopening proceedings according to Section 108 of the Zurich Tax Act

is not an effective remedy which must be exhausted before filing a

public law appeal with the Federal Court; rather, proceedings cannot

be reopened as long as a public law appeal to the Federal Court is

possible.  Indeed, the Federal Court misunderstood the consequences of

such a request for reopening.

      The applicant further submits that even if the request for

reopening proceedings was an effective remedy, it would have proved

useless where, as in the present case, the Administrative Court

deliberately refused to consider a fact.  Thus, in its decision of

3 October 1989 the Administrative Court considered in detail whether

an oral hearing should be held.  The Court concluded that this was not

necessary as the Finance Directorate's reply to the appeal did not

contain any new submissions and that, moreover, the applicant had had

sufficient opportunity duly to put forward orally and in writing his

point of view in respect of both the facts and the law.

      In the applicant's view, the Federal Court in its decision of

16 December 1991 arbitrarily refused to admit his public law appeal.

The Court incorrectly stated that the Administrative Court had not

dealt with the applicant's complaints and that he should therefore have

asked for the reopening of these proceedings.  In any event, the

request for the reopening of the proceedings would again have been

dealt with by the same Administrative Court, and it was unlikely that

that Court would contradict its own previous decision.

      The Commission recalls that there is no exhaustion of domestic

remedies where a domestic appeal is not admitted because of a

procedural mistake (see No. 6878/75, dec. 6.10.76, D.R. 6 p. 79).

      In the present case, the Federal Court in its decision of

16 December 1991 declared the applicant's complaints inadmissible as

he had failed previously to file a request for reopening the

proceedings before the Administrative Court.

      It is true that according to the Commission's case-law requests

for the reopening of proceedings do not as a rule constitute an

effective remedy within the meaning of Article 26 (Art. 26) of the

Convention (see No. 8850/80, dec. 7.10.80, D.R. 22 p. 232).

      The situation may nevertheless be different if it is established

under domestic law that a request for the reopening of proceedings in

fact constitutes an effective remedy.  Thus, the Commission has found

that the request for reopening proceedings according to Section 108

para. 1 of the Zurich Tax Act may constitute an effective remedy to

complain about the unfairness of proceedings (see No. 19117/91, dec.

12.1.94, D.R. 76-A p. 74).

      In the present case the Commission sees no reason to doubt that

a request for reopening the proceedings according to Section 108

para. 1 of the Tax Act of the Canton of Zurich would have been an

effective remedy.  Thus, the Federal Court in its decision of

16 December 1991 stated that, had the applicant filed such a request,

the Administrative Court could have examined inter alia the applicant's

allegations that essential procedural principles had been breached.

      It is true that such a request for reopening the proceedings

would only have offered prospects of success if the Administrative

Court had not already previously dealt with the complaints at issue.

In the present case, the applicant was in particular complaining that

the Finance Directorate's reply contained new submissions, in

particular as regards the list of fees which the accountant T. had

handed over to the tax authorities, in respect of which he could not

reply.

      The applicant contends that in its decision of 3 October 1989 the

Administrative Court indeed had dealt with these complaints when it

stated that the reply concerned no new submissions in respect of which

the applicant should have been heard, and that he had had sufficient

opportunity duly to put forward his point of view in respect of the

facts and the law, both orally and in writing.

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

Administrative Court had thereby effectively dealt with the applicant's

complaint in particular as regards the list of fees which the

accountant T. had handed over to the tax authorities.  The Commission

finds a confirmation herefor in the Federal Court's decision of

16 December 1991 which equally found that the point at issue had not

previously been dealt with by the Administrative Court.

      As a result, the applicant could have filed a request for

reopening the proceedings which would have been an effective remedy.

The applicant failed to do so, and the Federal Court did not therefore

admit the applicant's public law appeal in view of a procedural mistake

(see No. 6878/75, loc. cit.).

      It follows that the applicant has not complied with the

requirement as to the exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.

      The application must in this respect, therefore, be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

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

(Art. 6-2) of the Convention that the authorities did not consider, in

respect of the municipal taxes and tax penalties, whether he was

culpable, for which reason he should not have been punished.

      The Commission need not examine whether or not the applicant has

in this respect complied with the requirements under Article 26

(Art. 26) of the Convention as to the exhaustion of domestic remedies,

as this part of the application is in any event inadmissible for the

following reasons:

      With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

      The Commission has examined this complaint under Article 6

paras. 1 and 2 (Art. 6-1, 6-2) of the Convention.

      It notes that in its decision of 22 December 1988 the Finance

Directorate of the Canton of Zurich found that after 1975 the applicant

had only insufficiently supervised his accountant T., and that his

negligence in this respect amounted to culpability.  These findings

also provided the basis for the calculation of the tax penalties

imposed by the Zumikon Municipal Tax Office on 30 December 1988.

      It cannot therefore be said that the domestic authorities did not

establish the applicant's guilt.

      It follows that the remainder of the application is manifestly

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

Convention.

      For these reasons, the Commission, unanimously,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

   (M.F. BUQUICCHIO)                    (C.L. ROZAKIS)