JOINT PARTLY DISSENTING OPINION OF JUDGE S COSTA, CABRAL BARRETO AND MULARONI JOINED BY JUDGE CAFLISCH

(Translation)

1 . We concur with the majority in finding that in this case there has been no violation of Article 6 § 1 of the Convention.

2 . However, we have reached that conclusion because we consider this Article to be inapplicable.

3 . The majority refer (see paragraphs 29 to 34 of the judgment) to the Court ’ s relevant case-law, which, until now, we had found to be relatively clear.

4 . The assessment of taxes and the possible imposition of surcharges fall outside the scope of Article 6 § 1 under its civil head, as the Grand Chamber clearly indicated in Ferrazzini v. Italy ( [GC] , no. 44759/98, ECHR 2001- VII ). In paragraph 29 of that judgment, as the respondent Government rightly pointed out, the Court considered that “ tax matters still form[ ed ] part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant”.

5 . In this case the question was whether or not Article 6 § 1 applied under its criminal head. The Court, in line with the judgment in Engel and Others v. the Netherlands ( 8 June 1976, Series A no. 22 ), takes three criteria into account, as the Grand Chamber recently confirmed (see Ezeh and Connors v. the United Kingdom [GC] , nos. 39665/98 and 40086/98, § 82 , ECHR 2003- X ) :

(a) the classification of the “offence” as “criminal” according to the domestic legal system;

(b) the very nature of the offence;

(c) the degree of severity of the penalty that the person concerned risks incurring.

6 . We agree with the majority that these criteria should be applied. However, the first and third criteria are clearly not satisfied in the present case. The majority relied in essence on the nature of the offence, finding that:

(a) t he tax surcharges had been imposed under general legal provisions applying to taxpayers generally; and that

(b) t he penalties were both deterrent and punitive.

7 . In our view, those two aspects do not suffice for a “criminal charge”, within the meaning of Article 6, to obtain.

8 . Firstly, why would it not be possible to impose administrative penalties (in the form of surcharges) on all taxpayers who break the law, and

what legal reasoning leads to the conclusion that such administrative penalties are therefore criminal in nature?

9 . Secondly, purely administrative penalties as well as criminal penalties can have a deterrent purpose and a punitive purpose. The Court has indeed reached findings to this effect in the past (see, among other authorities, Öztürk v. Germany , 21 February 1984, § 53, Series A no. 73 , and Janosevic v. Sweden , no. 34619/97, § 68 , ECHR 2002 ‑ VII ). By contrast, in Bendenoun v. France ( 24 February 1994, § 47, Series A no. 284 ), which is cited in paragraph 31 of the judgment, the Court carried out a finer and, in our opinion, fairer analysis, taking into consideration, in the tax field (the specific nature of which is emphasised in Ferrazzini , cited above) , a fourth criterion, in addition to the three Engel criteria, namely the fact that the surcharges were “very substantial”. In that same paragraph of the Bendenoun judgment, the Court concluded as follows: “ Having weighed the various aspects of the case, the Court notes the predominance of those which have a criminal connotation . None of them is decisive on its own, but taken together and cumulatively they made the ‘ charge ’ in issue a ‘ criminal ’ one within the meaning of Article 6 § 1 ..., which was therefore applicable” (emphasis added). A contrario , where, as in this case, that fourth criterion, specific as it is to criminal penalties, is found to be lacking, the “criminal connotation” is significantly diminished to the point where, in our view, Article 6 becomes inapplicable.

10 . The circumstances of the case show that the applicant ’ s situation cannot be characterised as criminal or as having a “criminal connotation”. Firstly, he had simply made errors in his book-keeping which had resulted in incorrect value-added tax returns being filed. Does this necessarily constitute a criminal offence? We find this far from certain. Secondly, the penalty imposed on him represented 10% of the reassessed tax liability, amounting to approximately 308 euros. Can this really be described as “very substantial” or even just “substantial”? Whether expressed as a percentage or as an absolute value, we have serious doubts.

11 . Admittedly, there was some inconsistency between two lines of case-law that are both specific to tax litigation, as embodied in Bendenoun and Janosevic , hence the relinquishment of jurisdiction to the Grand Chamber with a view to resolving the inconsistency within the meaning of Article 30 of the Convention. However, we are convinced that the Bendenoun line was wiser, and that in the present case neither the three Engel criteria nor the additional fourth criterion in Bendenoun were satisfied, such that Article 6 § 1 did not apply.

It is, moreover, unfortunate to extend the “criminal” head of that provision excessively, rather than recognising that the tax field is a specific one, as the Ferrazzini judgment formally asserted and as is apparent from other Convention provisions (see the wording of the second paragraph of Article 1 of Protocol No. 1).

12 . If Article 6 § 1 is not applicable, it evidently cannot have been breached. That is why we voted with the majority in favour of point 2 of the operative provisions. Accordingly, we do not need to examine the question that would have arisen if we had found Article 6 § 1 to be applicable under its criminal head and to decide whether we would then have agreed with the majority in finding that a public hearing was not indispensable. That is a highly debatable – albeit hypothetical – question.