CONCURRING OPINION OF JUDGE DE MEYER

( Translation )

A fine for tax evasion, just like any other penalty imposed for conduct considered to be reprehensible, is inherently punitive in nature. It was unnecessary for the questionable criteria [6] set out in the Engel and Others v. the Netherlands [7] judgment to be referred to for that conclusion to be reached.

DISSENTING OPINION OF JUDGE BAKA, JOINED BY JUDGE BERNHARDT

Unlike the majority of the Court, I have voted against finding that there has been a violation of Article 6 § 2 of the Convention.

I consider that the fine imposed by the authorities on the heirs in the instant case was fiscal in nature and not criminal. Such types of fines are designed to prevent tax evasion. In doing so their main purpose is to protect the financial interests of the State and in a broader sense those of the community. Their undeniably severe punitive character is not just to punish for the tax which was withheld, but also to deter the offender, through the imposition of a financial penalty, from committing further offences and to deter other taxpayers from possible tax evasion in the future.

In the present case, the applicants were under an obligation to pay the tax withheld and the fine not on account of their own conduct but by virtue of Article 560 § 2 of the Swiss Civil Code according to which the heirs “... shall become personally liable for the deceased’s debts”. The fact that the fine, which Mr P.’s heirs were supposed to pay for the fraudulent tax evasion of the deceased, was reduced to 1/4 demonstrates that the tax authorities sought to lessen the punitive component of the fine while at the same time maintaining part of its more general deterrent features.

That the fine is basically fiscal in nature is also supported by the fact that the applicants have never been accused of having committed a criminal offence in connection with the tax evasion of the deceased. It cannot be said that “[t]he fact that no entry was made in the criminal records of the heirs was irrelevant, since in some cases (for example, for petty offences) no such entry was made even concerning those responsible” (see paragraph 38 of the judgment). It is more justified, however, to point to the fact that while the incorrectly declared income was significant and the imposed fine “not inconsiderable” (see paragraph 40 of the judgment) no entry was made in the criminal records of Mr P.’s heirs, thus excluding the assumption that the fine was criminal in character.

As far as the classification of the proceedings under national law is concerned, I do not consider that the Swiss Federal Court when it said “that the fine in question was ‘penal’ in character and depends on the ‘guilt’ of the offending taxpayer” can be read as classifying the fine as criminal. It simply emphasised the punitive “penal” element of the fiscal fine for tax evasion.

It follows that I am of the opinion that Article 6 § 2 of the Convention is not applicable in the present case since the applicants were not charged with a criminal offence as required by this provision.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

1. The case is numbered 71/1996/690/882. The first number is the case's position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] 2. Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4] . Case no. 75/1996/694/886.

[5] 1. Note by the Registrar .  For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions - 1997), but a copy of the Commission's report is obtainable from the registry.

[6] . See on this subject my dissenting opinion in the Putz v. Austria case (judgment of 22 February 1996, Reports of Judgments and Decisions 1996-I, p. 329).

[7] 2. Judgment of 8 June 1976, Series A no. 22.