Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17443/90

by C. B. and A. M.

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 May 1990 by

C. A. and A. M. against Switzerland and registered on 19 November 1990

under file No. 17443/90;

Having regard to:

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

Commission;

- the observations submitted by the respondent Government on

1 April 1993 and the observations in reply submitted by the

applicants on 14 May 1993;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a German citizen born in 1948. The second

applicant is a Swiss citizen born in 1949. Both applicants are

business consultants residing in Zurich.

Particular circumstances of the case

I.

The applicants were members of the board (Verwaltungsrat) of

Cominta Holding, a company dealing inter alia with investments in, and

the administration of, commercial companies.

In 1981 the Federal Tax Administration (Eidgenössische

Steuerverwaltung) undertook an auditing of the accounts (Buchprüfung)

of Cominta Holding. As a result, on 8 December 1981 the Administration

claimed compensation taxes (Verrechnungssteuer) amounting to

2,408,560 SFr.

By decision of 17 March 1982 the Federal Tax Administration

confirmed its claim. The applicants filed an objection (Einsprache)

against this decision.

On 29 April 1982 the Federal Tax Administration informed the

applicants that it had instituted criminal proceedings against them on

account of tax evasion or tax fraud.

By letter of 5 December 1984 the Federal Tax Administration

informed the applicants that it was terminating the criminal

proceedings and pursuing the objection proceedings.

By decision of 16 October 1985 the Federal Tax Administration

partly upheld the applicants' objection against the decision of

17 March 1982. Against this decision the applicants and other persons

filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with

the Federal Court (Bundesgericht) which the latter partly upheld on

21 April 1986.

Proceedings were then resumed before the Federal Tax

Administration which by decision of 18 May 1988 rejected the

applicants' remaining objection against the decision of 17 March 1982.

The Administration found that the applicants and other persons were

jointly liable to pay taxes amounting to 2,211,125 SFr.

The applicants and other persons filed a further administrative

law appeal which, insofar as it concerned the applicants, was dismissed

by the Federal Court on 20 October 1989. The Court found in particular

that the applicants and a third person were jointly liable with Cominta

Holding for the amount of 2,211,125 SFr plus 5% interest.

II.

Against the decision of the Federal Court of 20 October 1989 the

applicants filed a request for the reopening of proceedings (Revision).

Therein they claimed inter alia that in fact no profits had arisen from

the liquidation of Cominta Holding.

On 5 September 1990 the Federal Court dismissed the applicants'

request to reopen the proceedings. The Court also imposed an

administrative fine of 100 SFr on each applicant and their lawyer. The

relevant part of the judgment states in this respect:

"6. Both a party and its representative shall be fined

with a disciplinary fine up to 100 SFr if in their

communications with the Court they breach propriety

required by public policy (Section 131 para.

1 Federal Judiciary Act). The applicants have stated that

the Court registrar participating in the preparation of

the case prepared the judgment together with the

competent administrator of the Federal Tax Administration

and that the 'team H.-P. H./S.' had succeeded

in influencing the Court. This statement amounts to a

serious defamatory insinuation, which the applicants do

not justify by means of so-called (not mentioned)

'determinations'; the Federal Court has no indication as

to how they arrived at such a statement. The applicants,

who have declared the insinuation as being an integral

part of their request, and their lawyer thus seriously

violate the necessary propriety. They must therefore each

be punished by a disciplinary fine of 100 SFr."

"6. Sowohl die Partei als auch ihr Vertreter sind mit

einer Ordnungsbusse bis zu Fr. 100. -- zu bestrafen, wenn

sie im Verkehr mit dem Gericht den durch die gute Sitte

gebotenen Anstand verletzen (Art. 131 Abs. 1

OG). Bei der Behauptung, der an der Instruktion

mitwirkende Gerichtsschreiber habe das Urteil

zusammen mit dem Sachbearbeiter der Eidgenössischen

Steuerverwaltung vorbereitet bzw. es sei dem

'Team H.-P. H./S.' gelungen, das Gericht zu vereinnahmen,

handelt es sich um eine grob ehrverletzende Unterstellung,

welche die Gesuchsteller durch angebliche (nicht genannte)

'Feststellungen' nicht begründen; das Bundesgericht hat

keine Anhaltspunkte, wie sie zu einer solchen Behauptung

kommen. Die Gesuchsteller, welche die Unterstellung zum

integrierenden Bestandteil ihres Gesuchs machen, und ihr

Anwalt verletzen damit den gebotenen Anstand schwer. Sie

sind daher je mit einer Ordnungsbusse von Fr. 100.-- zu

bestrafen."

Relevant domestic law

Section 31 of the Federal Judiciary Act (Organisationsgesetz)

stated in the version applicable at the relevant time:

"1. Whosoever in his oral or written communications

breaches propriety required by public policy, or disturbs

the conduct of proceedings, shall be punished with a

reprimand or a disciplinary fine of up to 100 SFr.

2. Both the party and its representative may be punished

by means of a disciplinary fine of up to 200 SFr, in case

of relapse up to 500 SFr, on account of malevolent or

wanton conduct of the proceedings."

"1. Wer im mündlichen oder schriftlichen Geschäftsverkehr

den durch die gute Sitte gebotenen Anstand verletzt oder

den Geschäftsgang stört, ist mit einem Verweis oder mit

Ordnungsbusse bis auf 100 Franken zu bestrafen.

2. Wegen böswilliger oder mutwilliger Prozessführung

kann sowohl die Partei als deren Vertreter mit einer

Ordnungsbusse bis auf 200 Franken und bei Rückfall bis auf

500 Franken bestraft werden."

COMPLAINTS

The applicants complain that the Federal Court in its decision

of 5 September 1990 imposed a fine on the applicants in secret

proceedings and in violation of fundamental principles. There was no

possibility of appeal.

The applicants invoke Articles 6 and 7 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 May 1990 and registered on

19 November 1990.

On 2 December 1992 the Commission decided to communicate the

complaint about the proceedings regarding the fine imposed on the

applicants and to declare inadmissible the remainder of the

application.

The Government submitted their observations on 1 April 1993 and

the applicants their observations in reply on 14 May 1993.

THE LAW

1. The applicants' remaining complaints are that the Federal Court

in its decision of 5 September 1990 imposed a fine on the applicants

in secret proceedings and in violation of fundamental principles and

that there was no possibility of appeal.

2. The Commission has first examined the applicants' complaint that

a fine was imposed on them in secret proceedings and in violation of

fundamental principles under Article 6 para. 1 (Art. 6-1), first

sentence of the Convention which states:

"In the determination of ... any criminal charge

against him, everyone is entitled to a fair and public

hearing before an independent and impartial tribunal

established by law."

The Government submit, with reference to the judgment of Engel

and others (see Eur. Court H.R., judgment of 8 June 1976, Series A

no. 22, p. 35, para. 82), that under Swiss law the fine was

disciplinary in nature. Moreover, the nature of the offence was not

criminal in that it only concerned particular persons and particular

proceedings, namely those appearing before the Federal Court, and did

not affect general interests of society. The degree of severity of the

penalty, amounting to 100 SFr, was also not such as to bring it under

the sphere of criminal law. Finally, the fine was not listed in the

criminal register and could not be replaced by a prison sentence.

The applicants submit that the exclusive purpose of the fine was

to punish them for allegedly insulting the honour of the Federal Court.

While in defamation proceedings the accused has the opportunity to

prove the truth of the remarks, the present applicants could not do so.

The degree of severity of the punishment, a fine amounting to 100 SFr,

is irrelevant to the applicants. In view of its position towards

citizens, the Federal Court should exercise extreme caution regarding

the observance of the rights enshrined in Article 6 (Art. 6) of the

Convention.

In order to determine whether Article 6 (Art. 6) was applicable

in the present case, the Commission has had regard to the three

alternative criteria laid down in the case-law (see Eur. Court H.R.,

Ravnsborg judgment of 23 March 1994, Series A no. 283-B, paras. 30 et

seq.; judgment of Engel and others, loc. cit.).

The Commission must first ascertain whether the provision

defining the offence at issue, namely Section 31 of the Federal

Judiciary Act, belongs according to the Swiss legal system to criminal

law. The Commission notes that, when such conduct as described in

Section 31 occurs, it is for the Federal Court to examine in the

particular case of its own motion and without the involvement of the

public prosecutor whether there has been an offence under that

provision. Moreover, the provision only deals with offences against

the good order of proceedings before the Federal Court. Finally, the

fines at issue were not entered in the criminal register and could not

be replaced by a prison sentence.

As a result, the Commission cannot find it established that the

provision concerning sanctions against disturbance of the good order

of court proceedings belongs to criminal law under the Swiss legal

system (see Eur. Court H.R., Ravnsborg judgment, loc. cit., para. 33).

It is therefore necessary to turn to the second criterion, namely

the very nature of the offence. The Commission notes that Section 31

applies to persons who make oral or written communications to the court

and thereby breach propriety or disturb the conduct of the proceedings.

This provision does not concern statements made in a different context

or by persons falling outside the circle of people covered by that

provision. It is for the court in the particular proceedings in which

the misconduct has occurred to examine of its own accord whether the

misconduct falls within Section 31.

However, such rules enabling a court to sanction disorderly

conduct in proceedings derive from the indispensable power of a court

to ensure the proper and orderly functioning of its own proceedings and

are a common feature of legal systems of Contracting States. Such

measures come closer to the exercise of disciplinary powers than to the

imposition of a punishment for committing a criminal offence (see Eur.

Court H.R., Ravnsborg judgment, loc. cit. para. 34). As a result, the

kind of proscribed conduct for which the applicants were fined falls

in principle outside the scope of Article 6 (Art. 6) of the Convention.

Finally, the nature and degree of severity of the penalty that

the person concerned risked incurring - the third criterion - may bring

the matter into the "criminal" sphere. However, in the Commission's

opinion, the maximum fine which the applicant risked incurring, i.e.

100 SFr, did not attain a level such as to warrant classification of

the offence as criminal. The Commission also notes that the fine could

not be replaced by a prison sentence.

It follows that Article 6 (Art. 6) of the Convention did not

apply to the proceedings at issue. This part of the application is

therefore incompatible ratione materiae with the Convention within the

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

3. In respect of this above complaint the applicants have also

invoked Article 7 (Art. 7) of the Convention. Their further complaint

that they did not have the possibility of an appeal falls to be

examined under Article 2 of Protocol No. 7 (P7-2) to the Convention.

Article 7 (Art. 7) of the Convention states:

"No one shall be held guilty of any criminal offence

on account of any act or omission which did not constitute

a criminal offence under national or international law at

the time when it was committed. Nor shall a heavier

penalty be imposed than the one that was applicable at the

time the criminal offence was committed."

Article 2 of Protocol No. 7 (P7-2) states:

"1. Everyone convicted of a criminal offence by a

tribunal shall have the right to have his conviction or

sentence reviewed by a higher tribunal. The exercise of

this right, including the grounds on which it may be

exercised, shall be governed by law.

2. This right may be subject to exceptions in regard to

offences of a minor character, as prescribed by law, or in

cases in which the person concerned was tried in the first

instance by the highest tribunal or was convicted

following an appeal against acquittal."

The Commission has just found that Article 6 para. 1

(Art. 6-1) of the Convention did not apply to the proceedings at issue,

in particular that they did not concern the "the determination of ...

any criminal charge against (the applicants)" within the meaning of

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

As there was no "criminal offence" at issue, Article 7

(Art. 7) of the Convention and Article 2 of Protocol No. 7 (P7-2) also

do not apply. This part of the application is therefore also

incompatible ratione materiae with the Convention within the meaning

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

For these reasons, the Commission by a majority

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Acting President of the

Second Chamber Second Chamber

(K. ROGGE) (H. DANELIUS)

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C.B. AND A.M. v. SWITZERLAND

C.B. AND A.M. v. SWITZERLAND

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