DISSENTING OPINION OF MR. K. HERNDL

        (regarding Article 6 para. 2 of the Convention)

     I voted against the finding that there was no violation of

Article 6 para. 2 of the Convention, and in that respect share entirely

and wholeheartedly the reasoning of my colleagues MM. E. Busuttil,

A.S. Gözübüyük, J.-C. Soyer, F. Martinez, L. Loucaides, B. Marxer,

G. Ress and A. Perenic.

     I wish, however, to add some further elements to that reasoning.

     It is obvious that the Swiss Tax authorities, at the cantonal

level and again at the Federal level, imposed on the applicants a fine

and thus a criminal sanction.  The reasoning of the Zürich Tax Office

is worth recalling: "By incorrectly declaring his income [the deceased]

became guilty of tax evasion ...  His heirs must therefore pay a fine

of the fourfold amount in addition to the tax withheld."  And in view

of the correct attitude of the heirs (the applicants) which the

authorities expressly recognised, the fine was reduced to 1/4.

     This decision was taken after the Zürich Administrative Court had

quashed a prior decision of the tax authorities on the ground that the

responsibility of heirs in matters of criminal taxes contradicted

fundamental principles of criminal law in a State governed by the rule

of law (rechtsstaatliches Strafrecht).

     It is indeed this very issue which was at stake in the present

proceedings before the Commission.  I fail to see any reason for the

tax authorities not taking into account the above view expressed by the

Zürich Administrative Court.  Instead, the tax authorities continued

to strictly apply the letter of a law which, by the way, has been

repelled in the meantime and replaced by a provision which

unequivocally states that if tax evasion proceedings are not concluded

at the time of the death of the person owing the tax, and if no guilt

falls upon the heirs in connection with the tax evasion, no fine can

be imposed ("... entfällt die Erhebung einer Busse ...") (Federal

Taxation Act, in force since 1 January 1995).

     In acting as they did, the Swiss tax authorities, at all levels,

were thus clearly disregarding the presumption of innocence, one of the

fundamental principles enshrined in the Convention.

                                                 (Or. English)