EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 17951/91
H. B.
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 18 October 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-31). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 16-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 30-31) . . . . . . . . . . . . . . . . . . . . . 4
III. OPINION OF THE COMMISSION
(paras. 32-49). . . . . . . . . . . . . . . . . . . . . . . . 5
A. Complaint declared admissible
(para. 32) . . . . . . . . . . . . . . . . . . . . . . . 5
B. Point at issue
(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5
C. Article 6 para. 1 of the Convention
(paras. 34-48) . . . . . . . . . . . . . . . . . . . . . 5
CONCLUSION
(para. 49) . . . . . . . . . . . . . . . . . . . . . . 7
DISSENTING OPINION OF MM. J.-C. SOYER,
L. LOUCAIDES, J.-C. GEUS AND M.A. NOWICKI . . . . . . . . . . . . . 8
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 9
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, a German citizen born in 1940, is a businessman
residing in Engelberg in Switzerland. Before the Commission he is
represented by Mr. H.P. Derksen, a lawyer practising in Zurich.
3. The application is directed against Switzerland. The respondent
Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head
of the European Law and International Affairs Section of the Federal
Office of Justice.
4. The case concerns the applicant's complaint under Article 6
para. 1 of the Convention that the proceedings were not conducted in
public.
B. The proceedings
5. The application was introduced on 16 January 1991 and registered
on 19 March 1991.
6. On 8 January 1993 the Commission (Second Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaints under Article 6 para. 1 and
Article 7 of the Convention.
7. The Government's written observations were submitted on
16 April 1993. The applicant replied on 9 July 1993 after one
extension of the time-limit.
8. On 5 April 1995 the Commission declared admissible the complaint
that the applicant did not have a public hearing. The remainder of the
application was declared inadmissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 5 May 1995 and they were invited to submit further
observations on the merits of the case. The applicant submitted
further observations on 29 June 1995.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
MM. H. DANELIUS, President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
12. The text of this Report was adopted on 18 October 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto as an Appendix.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. Upon establishing his residence in the Canton of Obwalden in 1979
the applicant entered into an agreement with the Obwalden Cantonal Tax
Administration according to which he would pay cantonal taxes in the
amount of at least 35,000 SFr per year.
17. In 1981/1982 the applicant's income was assessed as amounting to
180,000 SFr for the years 1980 and 1981/82.
18. In 1982 the Federal Tax Administration audited the accounts of
the C. company. It transpired that the latter had paid the applicant
735,845 SFr for commission services.
19. In 1983 the applicant submitted a new tax declaration wherein he
referred, in addition to the previous 180,000 SFr, to remunerations
obtained from the C. company.
20. The Cantonal Tax Commission of the Canton of Obwalden then
introduced evasion proceedings (Hinterziehungsverfahren) against the
applicant.
21. On 19 August 1986 the Cantonal Tax Commission imposed on the
applicant a supplementary tax of 172,328.15 SFr for the years 1980-
1982, as well as a fine of 413,587.40 SFr on account of tax evasion
(Steuerhinterziehung). This fine was imposed on the basis of Section
129 para. 1 (b) of the Federal Decree on the Imposition of a Direct
Federal Tax (Bundesratsbeschluss über die Erhebung der direkten
Bundessteuer; see below, at para. 30) of 9 December 1940.
22. On 19 September 1986 the applicant complained against this order
to the Cantonal Tax Appeals Commission (Steuerrekurskommission) of the
Canton of Obwalden which then fixed an oral hearing for
19 February 1987. At short notice the hearing was postponed to
23 February 1987. At this hearing the applicant was prevented from
attending, though his lawyer was present. The hearing was not public,
and the applicant's lawyer did not ask for it to be conducted in
public.
23. On 23 February 1987 the Cantonal Tax Appeals Commission dismissed
the applicant's complaint.
24. On 23 April 1987 the applicant filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht).
Therein he complained, inter alia, that he had not been able personally
to participate in the proceedings, in particular at the oral hearing
of 23 February 1987.
25. On 8 July 1988 the Federal Court upheld the administrative law
appeal and referred the case back to the Tax Appeals Commission with
the directive that it should question the applicant personally and
determine the supplementary tax and the fine for the years 1980 until
1982. As to the applicant's absence at the hearing on
23 February 1987, the Federal Court found that he could not be blamed
for this as the hearing had been fixed at short notice.
26. Proceedings were then resumed before the Cantonal Tax Appeals
Commission. On 25 April 1989 the Cantonal Tax Appeals Commission
conducted a hearing. The applicant was questioned as to his personal
circumstances with a view to fixing the fine for the tax evasion in
1980, and as to the facts of the case concerning the alleged tax
evasion in 1981/1982. The hearing was not public, and the applicant
did not ask for it to be conducted in public.
27. On 7 November 1989 the Cantonal Tax Appeals Commission reduced
the supplementary tax imposed on the applicant to SFr 103,648.15, and
the fine to SFr 109,659.10.
28. On 9 January 1990 the applicant again filed an administrative law
appeal with the Federal Court. Therein he complained, inter alia, that
he had not had a public hearing in these proceedings.
29. On 12 June 1990 the Federal Court dismissed the administrative
law appeal. In its decision it did not refer to the applicant's
complaint that he had not had a public hearing.
B. Relevant domestic law
30. Section 129 para. 1 (b) of the Federal Decree on the Imposition
of a Direct Federal Tax (Bundesratsbeschluss über die Erhebung der
direkten Bundessteuer) of 9 December 1940 provides that the offence of
tax evasion "is subject to a fine of up to four times the fraudulently
concealed tax amount" ("unterliegt einer Busse bis zum Vierfachen des
entzogenen Steuerbetrages").
31. Section 71 of the Federal Decree states, insofar as relevant:
"Professional secrecy 1. Members and civil servants of the authorities of the Federation, the Cantons and the communities and members of the Cantonal Tax Appeals Commissions responsible for the Direct Federal Tax must observe secrecy in respect of facts of which they learn when assessing a taxpayer and in respect of the authorities' proceedings ... 2. Breaches of professional secrecy ... shall be punished ..." "Schweigepflicht 1. Die Mitglieder und Beamten der für die Direkte Bundessteuer zuständigen Behörden des Bundes, der Kantone und der Gemeinden und die Mitglieder der kantonalen Rekurskommissionen haben über Tatsachen, die ihnen bei der Veranlagung eines Steuerpflichtigen bekannt werden, und über die Verhandlungen in den Behörden Stillschweigen zu beobachten ... 2. Verletzungen der Schweigepflicht ... werden ... geahndet ..." III. OPINION OF THE COMMISSION A. Complaint declared admissible 32. The Commission has declared admissible the applicant's complaint that he did not have a public hearing. B. Point at issue 33. The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention. C. Article 6 para. 1 (Art. 6-1) of the Convention 34. The applicant complains that he did not have a public hearing. He relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as relevant: "In the determination of ... any criminal charge against him, everyone is entitled to a ... public hearing ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." 35. The Government submit with reference to Section 71 of the Federal Decree on the Imposition of a Direct Federal Tax that such cases are conducted in non-public proceedings in order to protect the private sphere of taxpayers. Article 6 para. 1 (Art. 6-1) of the Convention has not been breached as the applicant's lawyer, who was well versed in these matters, could have asked for a public hearing but failed to do so. 36. The applicant submits that Section 71 of the Federal Decree protects the secrecy of taxes in cases of ordinary tax assessment. It does not protect secrecy in criminal proceedings. Regular criminal courts have always conducted proceedings in public. 37. The Commission observes that Article 6 para. 1 (Art. 6-1), first sentence, of the Convention sets forth the principle of the public character of proceedings, while establishing in the second sentence certain exceptions to the general rule. 38. According to the Convention organs' case-law, the public character of the proceedings contemplated in Article 6 para. 1 (Art. 6-1) of the Convention protects litigants against the administration of justice in secret with no public scrutiny. It is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the aim of Article 6 para. 1 (Art. 6-1) of the Convention, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within the meaning of the Convention (see Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36; Pretto and others judgment of 8 December 1983, Series A no. 71, p. 11, para. 21; No. 15561/89, dec. 25.2.91, D.R. 69 p. 312). 39. Nevertheless, while the member States of the Council of Europe all recognise the principle of such publicity, there is some diversity as to its scope and manner of implementation, as regards both the holding of hearings and the pronouncement of judgments. 40. Thus, according to the Convention organs' case-law, provided that a public hearing has been held in first instance, the absence of a hearing before a second or third instance may be justified by the special features of the case (see Eur. Court H.R., Andersson judgment of 29 October 1991, Series A no. 212-B, p. 45, para. 27). 41. Moreover, both in criminal and civil cases it is possible to waive a right guaranteed by the Convention. However, insofar as the waiver is permissible, it must be established in an unequivocal manner. In the case of procedural rights, furthermore, a waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance (see Eur. Court H.R., Poitrimol judgment of 23 November 1993, Series A no. 277, p. 13 et seq., para. 31; Pfeiffer and Plankl judgment of 25 February 1992, Series A no. 227, p. 16 et seq., para. 37). Thus, it has so far been found in civil cases that neither the letter nor the spirit of this provision prevents a person from waiving of his own free will and in an unequivocal manner, the entitlement to have his case heard in public (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 59; H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 36, para. 54; De Moor judgment of 23 June 1994, Series A no. 292-A, p. 27, para. 60; No. 13800/88, Dec. 1.7.91, D.R. 71 p. 94). 42. In the present case, criminal proceedings were instituted against the applicant on account of tax evasion (see above, para. 20). A first hearing, which was not public, was held before the Cantonal Tax Appeals Commission on 23 February 1987. The applicant's complaint about this hearing has been declared inadmissible by the Commission (see below, Appendix, p. 15 et seq.). After the applicant's administrative appeal was upheld by the Federal Court on 8 July 1988, proceedings were resumed before the Cantonal Tax Appeals Commission. The latter conducted on 25 April 1989 as the only instance an oral hearing which was not, however, held in public. At this hearing, the applicant was questioned as to his personal circumstances with a view to fixing the fine for the tax evasion in 1980, and as to the facts of the case concerning the alleged tax evasion in 1981/1982 (see above, para. 26). 43. It transpires that at the hearing of 25 April 1989 the applicant, who was assisted by a lawyer, did not ask for it to be held in public though he later complained of the lack of a public hearing in his administrative law appeal of 9 January 1990 to the Federal Court (see above, para. 28). 44. The Commission has considered whether the applicant, by not asking for a hearing, could be considered to have waived, of his own free will and in an unequivocal manner, the entitlement to have his case heard in public before the Cantonal Tax Appeals Commission. 45. The Commission notes the respondent Government's submission according to which the legal basis for non-public hearings in criminal tax proceedings is Section 71 of the Federal Decree on the Imposition of a Direct Federal Tax. This provision enshrines the principle of professional secrecy in particular for members of the Cantonal Tax Appeals Commissions. Professional secrecy covers the tax assessment of a taxpayer as well as the proceedings. Paragraph 2 of Section 71 provides that breaches of professional secrecy shall be punished. 46. The applicant was aware that, other than in the common cantonal law of criminal procedure, public hearings are in principle excluded in criminal tax proceedings. Before the Commission the applicant has also argued that Section 71 of the Federal Decree does not protect secrecy in criminal proceedings and that regular criminal courts have always conducted proceedings in public. 47. In these circumstances, the applicant could have been expected to request the Cantonal Tax Appeals Commission that the hearing of 25 April 1989 be held in public, if he attached importance to it. However, he did not do so. Indeed, the Commission notes that already at the hearing of 23 February 1987 before the Cantonal Tax Appeals Commission the applicant's lawyer did not ask for the hearing to be held in public. 48. It may reasonably be considered, therefore, that the applicant unequivocally waived his right to a public hearing before the Cantonal Tax Appeals Commission. CONCLUSION 49. The Commission concludes, by 9 votes to 4, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention. Secretary to the Second Chamber President of the Second Chamber (M.-T. SCHOEPFER) (H. DANELIUS) (Or. English) DISSENTING OPINION OF MM. J.-C. SOYER, L. LOUCAIDES, J.-C. GEUS AND M.A. NOWICKI Contrary to the majority of the Commission we consider that the applicant could not have waived, of his own free will and in an unequivocal manner, the entitlement to have his case heard in public before the Cantonal Tax Appeals Commission. Thus, in view of the categoric wording of Section 71 of the Federal Decree, apparently based on the assumption that the tax secret generally requires the exclusion of the public from such proceedings, it does not appear that the applicant's request to have a public hearing would have had any reasonable prospects of success. The applicant could not therefore have been expected to ask for an oral hearing. It follows that the applicant did not benefit from his right to a "public hearing" within the meaning of Article 6 para. 1 of the Convention.
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