Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15967/90

by Edward McLOUGHLIN

against Ireland

The European Commission of Human Rights sitting in private on

6 July 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 December 1989

by Edward McLoughlin against Ireland and registered on 11 September

1990 under file No. 15967/90;

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 applicant is an Irish citizen born in 1940 and resident in

Dublin. The facts as submitted by the parties may be summarised as

follows.

On 22 December 1982, the Revenue Commissioners issued a summons

against the applicant under Section 500 of the Income Tax Act 1967

seeking the amount of £ 5.500 in respect of an alleged failure to make

tax returns for the years 1972-1983. In the proceedings before the

High Court, the applicant denied that he had failed to submit the tax

returns and argued under the Irish Constitution that the penalty which

was sought to be imposed was a criminal sanction and ought to be dealt

with under the criminal jurisdiction of the courts. Following a

hearing on 25 July 1983, the High Court ordered the applicant to pay

£ 5.500 plus costs.

The applicant instituted proceedings challenging the

constitutionality of the income tax legislation which provided for the

above penalties.

The action was heard in the High Court on 5 and 6 June 1985. By

a judgment dated 4 October 1985, the High Court found that the

imposition of a penalty for failure to make returns was not indicative

of a criminal offence and not repugnant to the Constitution.

The applicant appealed. By a judgment dated 13 June 1989, the

Supreme Court rejected the applicant's appeal. The Court considered

that Section 500 was devoid of all phraseology with criminal overtones

and did not create an express statutory offence. While it imposed a

coercive sanction, there was no provision for detention for failure to

pay or to allow search or examination of documents on default of

payment. The Court also found that no question of "mens rea" arose

while other provisions of the tax code, which created express criminal

offences, require the element of "mens rea". The Court concluded that

the section did not impose penalties which were criminal in character

but civil penalties recoverable as a liquidated sum in the civil

courts. The final order of the Supreme Court was perfected on 20 June

1989.RELEVANT DOMESTIC LAW AND PRACTICE

The relevant provisions at the material time of the Income Tax

Act 1967 (as submitted by the respondent Government) were:

Section 500:

"(1) Where any person -

(a) has been required, by notice or precept given under or for

the purposes of any of the provisions specified in column

1 or 2 of Schedule 15, to deliver any return, statement,

declaration, list or other document, to furnish any

particulars, to produce any document, or to make anything

available for inspection, and he fails to comply with the

notice or precept, or

(b) fails to do any act, furnish any particulars or deliver any

account in accordance with any of the provisions specified

in column 3 of that Schedule,

he shall, subject to subsection (2) and to section 503, be liable

to a penalty of £100 and, if the failure continues after judgment

has been given by the court before which proceedings for the

penalty have been commenced, to a further penalty of £10 for each

day on which the failure so continues.

(2) Where the said notice was given under or for the purposes of any

of the provisions specified in column 1 of the said Schedule and

the failure continues after the end of the year of assessment

following that during which the notice was given, the first of

the penalties mentioned in subsection (1) shall be £250,

."

Section 508

"(1) Without prejudice to any other mode of recovery of a

penalty under the preceding provisions of this Part, or section

238, 240 or 296, an officer of the Revenue Commissioners,

authorised by them for the purposes of this subsection, may sue

in his own name by civil proceedings for the recovery of the

penalty in the High Court as a liquidated sum and the provisions

of section 94 of the Courts of Justice Act, 1924, shall apply

accordingly."

COMPLAINTS

The applicant submits that he has been convicted of a criminal

offence in civil proceedings. He complains therefore that he has been

denied a fair hearing as required by Article 6 of the Convention in

respect of this offence. He also invokes Article 6 in conjunction with

Article 14 of the Convention (a complaint which was added in the

applicant's observations of 1 April 1992).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 December 1989 and registered

on 11 September 1990.

On 8 April 1991 the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 1 November 1991

and the applicant's observations in reply were submitted on 1 April

1992 after two extensions in the time-limit.

THE LAW

The applicant complains of being convicted of a criminal offence

without receiving a fair hearing as required by Article 6 para. 1

(Art. 6-1) of the Convention, which provides in its first sentence:

"In the determination of his civil rights and obligations

or 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."

The applicant has also invoked Article 6 in conjunction with

Article 14 (Art. 6+14) of the Convention.

The Government submit that the applicant has failed to comply

with the six month time-limit imposed by Article 26 (Art. 26) of the

Convention since he introduced his complaints on 18 December 1989,

whereas the final decision concerning these complaints was that of the

Supreme Court of 13 June 1989. The applicant submits that while the

Supreme Court gave its judgment on that latter date, its final order

was not perfected until 20 June 1989 which date is within the six month

time-limit. The Commission however finds it unnecessary to decide this

issue for the reasons set out below.

The Commission recalls that the applicant complains that the

imposition of a penalty of £5 500 was a criminal sanction and not a

civil sanction and that as such it should have been dealt with under

the criminal jurisdiction of the courts in Ireland. In his

observations in reply to the Government he submits that this would have

afforded him the entitlement to trial by jury. He concedes that during

the proceedings he had the benefit of the minimum rights set forth in

Article 6 para. 3 (Art. 6-3). The respondent Government submit that

the proceedings did not concern a criminal charge and that in any case

the proceedings before the High Court which is an independent and

impartial tribunal established under the provisions of the Constitution

of Ireland, provided all the guarantees required by Article 6

(Art. 6) of the Convention.

The Commission finds it unnecessary for the purposes of the

present application to determine whether the proceedings involved the

determination of a criminal charge within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention. The Commission recalls that

Article 6 (Art. 6) of the Convention imposes the requirement that the

proceedings be conducted before "an independent and impartial tribunal

established by law". The only specific matter raised by the applicant

in respect of the fairness of the proceedings before the High Court is

that they were not conducted before a jury. While the Commission notes

that trial by jury is widely considered in common law jurisdictions as

an important element in ensuring fairness in a system of criminal

justice, Article 6 (Art. 6) of the Convention does not specify trial

by jury as an essential requirement in the determination of a criminal

charge. The case-law of the Commission has established in this respect

that there is no right to a trial by jury contained in the Convention

(see e.g. No. 8299/78, Dec. 10.10.80, D.R. 22 p.51, at p. 73).

Consequently, the Commission concludes that in the circumstances

of the present case there is no appearance of a violation of Article

6 (Art. 6), either alone or in conjunction with Article 14 (Art. 14)

of the Convention.

It follows that this 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 THIS APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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McLOUGHLIN v. IRELAND

McLOUGHLIN v. IRELAND

LEXI