Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16215/90

by Hans HESS

against Switzerland

The European Commission of Human Rights (Second Chamber) sitting in

private on 2 December 1992, the following members being present:

MM. G. JÖRUNDSSON, Acting President of the Second Chamber

S. TRECHSEL

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 29 December 1989 by

Hans HESS against Switzerland and registered on 26 February 1990 under file

No. 16215/90;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, a Swiss citizen born in 1945, is a lawyer residing at

Sarnen in Switzerland. At the time of the facts leading to the present

application the applicant was also Minister of Justice (Justizdirektor) of

the Canton of Obwalden. This was a part-time office. Before the

Commission the applicant is represented by Mr. J. Nigg, a lawyer practising

in Sarnen.

I.

In 1980 the applicant represented S., a businessman, in tax matters.

For purposes of the Federal Tax (Wehrsteuer) the applicant submitted a

declaration of the income of S. for the taxation period 1979/80. For the

taxation period 1981/82 the applicant requested the tax authorities to

determine the taxes due by S. on the basis of the previous period as he was

not able to assess the income and fortune of S. The Obwalden tax authority

then determined the taxes "according to their discretion" ("nach

Ermessen").

In 1982 S. founded a company providing counselling and other

assistance in football matters. Between 1983 and 1985 it apparently

obtained licensing fees from the German footballer X. amounting to

1,432,000 DM.

On 28 December 1983 the applicant again requested the tax authorities

to determine the taxes due by S. for the period 1983/84 "in analogy to the

previous taxation period" ("analog der vorangegangenen Steuer-Periode) as

he, the applicant, was not able to assess the income and fortune of S. On

27 February 1984 the Obwalden tax authority again determined the taxes

"according to their discretion".

In 1986 the Federal Tax Administration (Eidgenössische

Steuerverwaltung) noted that S. had not paid taxes for the income of his

company. It requested the Obwalden tax authority to institute tax evasion

proceedings against S., and against the applicant on account of aiding and

abetting (Gehilfenschaft) in tax evasion.

II.

On 19 May 1987 the Obwalden tax authority imposed fines on S. in the

amount of 24,000 SFr for the period 1981/82, and 124,000 SFr for the period

1983/84, on account of intentional evasion of federal taxes (vorsätzliche

Hinterziehung der Wehrsteuer/direkten Bundessteuer); it also imposed

supplementary taxes (Nachsteuern) on S.

S. appealed against this order. On 30 November 1987 the Obwalden Tax

Appeal Commission for Direct Federal Tax (Steuerrekurskommission für die

direkte Bundessteuer) partly upheld the appeal, inter alia as S. had only

committed the offence negligently (fahrlässig).

Against this decision both S. and the Federal Tax Administration filed

further appeals with the Federal Court (Bundesgericht). The Federal Tax

Administration claimed inter alia that S. had committed the offences

intentionally (vorsätzlich). On 20 June 1989 the Federal Court partly

upheld the appeal of the Federal Tax Administration and ordered the Tax

Appeal Commission again to decide the case.

III.

In a separate decision of 19 May 1987 the Obwalden tax authority

imposed fines on the applicant in the amount of 24,000 SFr for the period

1981/82, and 124,000 SFr for the period 1983/84. It considered that by not

filing tax declarations and other documents the applicant had aided and

abetted in the tax evasion by S.

The applicant appealed against this decision claiming inter alia that

the tax administration had failed in their duties properly to assess the

taxes concerned. Moreover, even if S. was to be punished for tax evasion,

he, the applicant, could not be found guilty of abetment as he had only

acted as a lawyer and had not had insight into the income and fortune of

S.

On 30 November 1987 the Obwalden Tax Appeal Commission upheld the

applicant's appeal and quashed the fines imposed. The Commission found

that the offence of abetment in tax evasion presupposed that the main

offence had been committed intentionally, yet S. had only negligently

evaded taxes for the period 1983/84. In any event, the applicant had

himself not acted intentionally for which further reason he could not be

accused of abetment.

Against the decision of the Tax Appeal Commission the Federal Tax

Administration filed an administrative law appeal (Verwaltungsgerichts-

beschwerde) with the Federal Court. Therein it requested the Court to fine

the applicant 17,800 SFr for the period 1981/82 and 92,000 SFr for the

period 1983/84. The Federal Tax Administration recalled that in its

separate appeal concerning S. (see above II.) it claimed that S. had acted

intentionally, for which reason the applicant could not be acquitted of the

offence of abetment.

The applicant filed observations on the administrative law appeal of

the Federal Tax Administration. He requested in particular to adjourn the

proceedings against him pending the outcome of the proceedings against S.

He also explained why he had not intentionally abetted in the tax evasion

by S.

On 20 June 1989 the Federal Court upheld the administrative law appeal

of the Federal Tax Administration. The Court found that the applicant had

intentionally abetted in tax evasion in respect of the period 1983/84, and

referred the case to the Tax Appeal Commission for the determination of the

fine to be imposed on the applicant. The decision was served on the

applicant on 5 July 1989.

In its decision the Court considered inter alia that there was no need

to adjourn the proceedings, and to inform the applicant of its decision in

the case concerning S., as the applicant had had sufficient opportunity to

comment on the circumstances of his case. The Court further considered

that the applicant had indeed acted intentionally while being reckless as

to the consequences (Eventualvorsatz), in particular when on 28 December

1983 he had requested the tax authorities to determine the taxes due by S.

"in analogy to the previous taxation period".

COMPLAINTS

The applicant complains under Article 6 of the Convention that a

person accused of abetment must be granted the right to comment on the

principal offence, since abetment will depend on the punishment for that

offence. In his case the proceedings concerning the charges relating to

the principal offence were conducted before the Federal Court separately.

By finding that S. had committed the offence intentionally, the Federal

Court had created the basis for the applicant's punishment on account of

abetment without the applicant having had the possibility to comment on the

other decision.

THE LAW

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

that, although his conviction of abetment in tax evasion depended on the

outcome of the criminal proceedings instituted against S., he could not

comment on the conviction of S.

The Commission has examined these complaints under Article 6 paras.

1 and 3 (a) and (b) (Art. 6-1, 6-3-a, 6-3-b) of the Convention. Article

6 para. 1 (Art. 6-1) states:

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

everyone is entitled to a fair ... hearing ..."

Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b)states:

"Everyone charged with a criminal offence has the following

minimum rights:

(a) to be informed promptly, ... in detail, of the nature and cause

of the accusation against him;

(b) to have adequate time and facilities for the preparation of his

defence."

According to these provisions an accused has the right to be informed

of the cause of his accusation, i.e. the acts with which he is charged, and

of the nature of the accusation, i.e. the legal classification of the acts

in question. The information thus provided must be adequate to enable the

accused to prepare his defence accordingly, in particular to comment on the

charges raised against him (see No. 10857/84, Dec. 15.7.86, D.R. 48 p.

106).

In the present case the Commission notes that the applicant was

clearly aware of the charge of abetment in tax evasion brought against him.

In his administrative law appeal to the Federal Court he was able to

comment thereupon.

Furthermore, the applicant was fully aware of the charges brought

against S. Thus, in first instance the applicant had already been fined

on account of abetment in the tax evasion by S. In the ensuing proceedings

before the Tax Appeal Commission, one of the applicant's arguments was

based precisely on the assumption that S. had committed the tax evasion.

The applicant subsequently used the opportunity to comment on these issues

in his administrative law appeal before the Federal Court. The applicant

has not shown in what respect his rights of defence were breached if, while

being aware of the charges brought against both himself and S. as well as

being able fully to comment thereupon, he could not comment on the outcome

of the criminal proceedings instituted against S.

As a result, there is no indication that the applicant did not have

a fair trial within the meaning of Article 6 paras. 1 and 3 (a) and (b)

(Art. 6-1, 6-3-a, 6-3-b) of the Convention. The application must therefore

be rejected as being 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 Acting President of

the Second Chamber the Second Chamber

(K. ROGGE) (G. JÖRUNDSSON)

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HESS v. SWITZERLAND

HESS v. SWITZERLAND

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