DISSENTING OPINION OF MR. H.G. SCHERMERS

        (regarding Article 6 para. 2 of the Convention)

     Unlike the majority of the Commission I am of the opinion that

Article 6 para. 2 of the Convention has been violated in the present

case.

     The rights of the applicants cannot be fully separated from those

of the de cujus, Mr. P.  Had P. been lawfully convicted to pay a fine,

then that fine would have been part of the inheritance and there would

be no objection against charging the heirs for payment.  Therefore, we

first have to consider whether Mr. P. had been lawfully charged of the

fine and in particular, whether P.'s presumption of innocence was

respected.  In my opinion that is not the case.  Only after his death

suspicion arose against him and after his death he was prosecuted for

tax evasion.  According to the Federal Court he was to be found guilty

unless he could prove his innocence (para. 24 of the Report).  Being

dead P. could not prove anything.  Subsequently, he was convicted (post

mortem) of having deliberately evaded taxes.  Under Article 6 para. 2

P. had to be considered innocent until proved guilty according to law.

In my opinion "law" also includes the Convention and the general

principles of law.  I cannot accept that the de cujus P. was proved

guilty according to law.

     This affects the case of the applicants.  At the time of the

death of Mr. P. there was no fine yet, not even a suspicion against

him.  Only after the heritage had gone into the legal possession of the

applicants was a fine established, but that fine cannot be seen as a

lawful part of the inheritance.  Considering the date of its

establishment the fine can hardly be other than a fine upon the heirs.

One cannot punish a dead person.  If the fine is any kind of a

punishment of the heirs, it is obviously in violation of Article 6

para. 2, as no guilt of the heirs has been proved.

     Remains the question whether the fine can be seen as a charge on

the heritage other than a fine.  As noticed above there can be no

question of a lawful fine of the de cujus which is binding for the

heirs as a charge on the heritage.  Can it be seen as any other kind

of charge forming part of the inheritance?  Of course, the taxes

themselves can be charged against the heritance, even if their being

due is established only after the death of the de cujus.  In my

opinion, the same will apply to a reasonable interest automatically

added to taxes in undeclared income.  The finding out of the duty to

pay such taxes and the delays involved cause costs to the tax

authorities and an extra charge may be justified for covering such

costs.  This should, however, be irrespective of any guilt of the

assessable person.  When, as in the present case, the additional charge

is named "fine" and depends on the question whether or not the tax

evasion was deliberate, it cannot be otherwise determined than a

criminal charge in the sense of Article 6.  Therefore, the requirements

of Article 6 should be fulfilled.  As the applicants have been fined

without having been found guilty of any offence, Article 6 para. 2, has

been violated.

                                                 (Or. English)