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 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 22 May 1990 by

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

under file No. 17443/90;

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 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. It stated inter alia that the difference between

profits obtained by Cominta Holding from sales, on the one hand, and

the commercial value (Verkehrswert) of shares obtained by the company,

on the other, constituted a taxable pecuniary value indirectly

affecting the shareholders of the company.

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. The Administration

stated that Cominta Holding had in fact been liquidated in 1979; that

the taxable performance amounted to 6,728,000 SFr; and that all the

persons participating in the liquidation of Cominta would be jointly

liable.

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' 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 decision being served on

the applicants on 28 November 1989. The Court found in particular that

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

company for the amount of 2,211,125 SFr, excluding 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 the 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 how they reach 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 with 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 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 under Articles 6 and 7 of the Convention

of the unfairness of the proceedings.

The applicants allege that because the tax authorities did not

succeed in instituting criminal proceedings against them, they started

other proceedings in which the applicants now had to prove that they

were innocent. The applicants complain inter alia that the proceedings

before the Federal Court were not conducted in public; that they could

not consult the case-file; that the court registrar dealing with the

case was biased; and that the judgment of the Federal Court contained

contradictions.

The applicants also 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 LAW

1. The applicants raise various complaints under Articles 6 and 7

(Art. 6, 7) of the Convention about the unfairness of the proceedings

before the Federal Court.

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

states:

"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 before an independent and impartial

tribunal established by law."

Article 7 para. 1 (Art. 7-1) 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."

2. The Commission has first examined under these provisions the

applicants' complaints about the unfairness of the proceedings leading

to the Federal Court's decisions of 20 October 1989.

The Commission notes that the applicants' complaints are not

directed against the criminal tax proceedings instituted against them.

Indeed, these proceedings, which were instituted on 29 April 1982, were

eventually discontinued on 5 December 1984.

It follows that the proceedings at issue did not concern "the

determination of (any) criminal charge" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention, nor did they relate to a

"criminal offence" within the meaning of Article 7 para. 1 (Art. 7-1)

of the Convention.

An issue arises whether the proceedings related to "the

determination of (the applicants') civil rights and obligations" within

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

The Commission notes that the proceedings about which the

applicants are complaining concern the assessment of the compensation

taxes due by the company in question, the amount of which the

applicants dispute.

However, according to the Commission's constant case-law, in

proceedings concerning the assessment and determination of taxes the

"rights" of the applicants involved are not of a "civil" nature as

required by Article 6 para. 1 (Art. 6-1) of the Convention (see No.

11189/84, Dec. 11.12.86, D.R. 50 p. 121 with further references).

It follows that the proceedings at issue did not concern the

"determination of (the applicants') civil rights and obligations"

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

It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

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

3. The Commission has next examined the applicants' complaints of

the unfairness of the proceedings leading to the decision of the

Federal Court of 5 September 1990. However, these proceedings

concerned the reopening of previous proceedings and did not involve the

determination of a civil right or a criminal charge against the

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

Convention (see No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).

It follows that this part of the application is also incompatible

ratione materiae with the Convention within the meaning of Article 27

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

4. The applicants also complain under Article 6 (Art. 6) of the

Convention that the Federal Court in its decision of 5 September 1990

imposed a fine on each of them without having conducted a hearing and

in violation of fundamental principles. There was no possibility of

an appeal.

With regard to the applicants' complaints the Commission

considers that further information is required and that the

Government's observations on the application should be obtained under

Rule 48 para. 2 (b) of the Commission's Rules of Procedure.

Accordingly, the Commission reserves the examination of this part of

the application.

For these reasons, the Commission, by a majority,

1. DECIDES TO ADJOURN THE EXAMINATION OF THE APPLICANTS'

COMPLAINT ABOUT THE PROCEEDINGS REGARDING THE FINE

IMPOSED ON THEM BY THE FEDERAL COURT IN ITS DECISION OF

5 SEPTEMBER 1990;

2. DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.

Secretary to the Second Chamber Acting President of the Second Chamber

(K. ROGGE) (G. JÖRUNDSSON)

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

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

LEXI