Resolution CM/ ResDH (2019)318 Execution of the judgment of the European Court of Human Rights Chambaz against Switzerland

(Adopted by the Committee of Ministers on 5 December 2019 at the 1362 nd meeting of the Ministers ’ Deputies)

Application No.

Case

Judgment of

Final on

11663/04

CHAMBAZ

05/04/2012

05/07/2012

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the information provided by the government indicating the measures adopted to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see Appendix);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH ( 2019)318

Information about the measures to comply with the judgment

in the Chambaz case against Switzerland

Case summary

This case concerns a violation of the applicant ’ s right not to incriminate himself on account of the fines imposed on him in August 1994 by the tax authorities on the ground that he refused to produce all the items requested from him and the subsequent upholding of these fines by the courts while an investigation was ongoing into alleged tax evasion concerning matters linked to those in respect of which the applicant had exercised his right to remain silent (violation of Article 6, paragraph 1).

This case also concerns a violation of the right to equality of arms on account of the domestic courts ’ refusal in 2002–2003 to grant the applicant access to all the items in the file of the tax authorities concerning him (violation of Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Paid on

Chambaz , No. 11663/04

EUR 3 599

-

EUR 7 198

EUR 10 797

10/09/2012

b) Other individual measures

On 3 October 2012 the applicant lodged a revision request with the Federal Court asking for annulment of its decision of 2 October 2003 and the decision of the Administrative Court of 21 October 2002. He also requested a new examination of his case, the application of the statute of limitation to the tax claims against him and the reimbursement by the tax authorities of the sums paid in tax arrears and fines for tax evasion, plus interest and costs and expenses.

On 21 June 2013 the Federal Court rejected his request. It noted, in particular, that the European Court had awarded the applicant just satisfaction for pecuniary damage, which represented the amount of the fines imposed in the proceedings breaching Article 6; that the violation found by the European Court did not concern the applicant ’ s tax obligations and related decisions by the tax authorities; and that the applicant admitted that after the Federal Court ’ s decision of 2 October 2003 he had had access to the entire file of the Federal Tax Administration, but did not claim that his knowledge of this information should have led to a change in the impugned decisions by the tax authorities. The Federal Court concluded that the applicant had failed to explain why the European Court ’ s judgment was not sufficient in itself to remedy the violation found and to prove that the revision was necessary in his case.

The applicant lodged a new application with the European Court concerning the refusal by the Federal Court to reopen the domestic proceedings. In 2014 the European Court declared this application inadmissible

No further individual measures are therefore necessary.

II. General measures

The Swiss authorities submitted that the relevant domestic legislation was amended before the adoption of the European Court ’ s judgment. In particular, on 20 December 2006 a new provision was introduced into the Federal Law on Direct Federal Tax (in force as of 1 January 2008). Article 183 of this law now provides that the initiation of criminal proceedings for tax evasion is communicated in writing to the person concerned, who is invited to express him/herself on the charges and is informed on the right to refuse to testify and cooperate with the investigating authority. The evidence gathered during the fiscal proceedings may be used in criminal proceedings for tax evasion only if it has not been collected under the warning of an ex officio taxation with a reversed burden of proof, or under the warning of a fine in the event of a breach of a procedural obligation. This last provision was introduced in order to ensure the fair trial guarantees in criminal proceedings on tax evasion.

In its judgment the European Court acknowledged that Article 183 was amended in order to give the persons subject to tax investigation sufficient guarantees, including the guarantee that the information provided during a purely fiscal procedure will not be used during the investigation for tax evasion (see paragraph 56 of the Court ’ s judgment).

Furthermore, the Swiss authorities consider that the relevant authorities will, according to their usual practice, give full effect to the judgment of the European Court in this case. To this end, the judgment of the Court was also disseminated to the Federal Court and to the authorities directly concerned, as well as published in the quarterly Report on the jurisprudence of the ECHR 2/2012 in the three official languages.

III. Conclusions of the respondent State

The government considers that no further individual measure is required, that the general measures adopted will prevent similar violations, and that Switzerland has, therefore, complied with its obligations under Article 46, paragraph 1, of the Convention in the present case.