AS TO THE ADMISSIBILITY OF
Application No. 16215/90
by Hans HESS
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting in
private on 2 December 1992, the following members being present:
MM. G. JÖRUNDSSON, Acting President of the Second Chamber
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 December 1989 by
Hans HESS against Switzerland and registered on 26 February 1990 under file
No. 16215/90;
Having regard to the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a Swiss citizen born in 1945, is a lawyer residing at
Sarnen in Switzerland. At the time of the facts leading to the present
application the applicant was also Minister of Justice (Justizdirektor) of
the Canton of Obwalden. This was a part-time office. Before the
Commission the applicant is represented by Mr. J. Nigg, a lawyer practising
in Sarnen.
I.
In 1980 the applicant represented S., a businessman, in tax matters.
For purposes of the Federal Tax (Wehrsteuer) the applicant submitted a
declaration of the income of S. for the taxation period 1979/80. For the
taxation period 1981/82 the applicant requested the tax authorities to
determine the taxes due by S. on the basis of the previous period as he was
not able to assess the income and fortune of S. The Obwalden tax authority
then determined the taxes "according to their discretion" ("nach
Ermessen").
In 1982 S. founded a company providing counselling and other
assistance in football matters. Between 1983 and 1985 it apparently
obtained licensing fees from the German footballer X. amounting to
1,432,000 DM.
On 28 December 1983 the applicant again requested the tax authorities
to determine the taxes due by S. for the period 1983/84 "in analogy to the
previous taxation period" ("analog der vorangegangenen Steuer-Periode) as
he, the applicant, was not able to assess the income and fortune of S. On
27 February 1984 the Obwalden tax authority again determined the taxes
"according to their discretion".
In 1986 the Federal Tax Administration (Eidgenössische
Steuerverwaltung) noted that S. had not paid taxes for the income of his
company. It requested the Obwalden tax authority to institute tax evasion
proceedings against S., and against the applicant on account of aiding and
abetting (Gehilfenschaft) in tax evasion.
II.
On 19 May 1987 the Obwalden tax authority imposed fines on S. in the
amount of 24,000 SFr for the period 1981/82, and 124,000 SFr for the period
1983/84, on account of intentional evasion of federal taxes (vorsätzliche
Hinterziehung der Wehrsteuer/direkten Bundessteuer); it also imposed
supplementary taxes (Nachsteuern) on S.
S. appealed against this order. On 30 November 1987 the Obwalden Tax
Appeal Commission for Direct Federal Tax (Steuerrekurskommission für die
direkte Bundessteuer) partly upheld the appeal, inter alia as S. had only
committed the offence negligently (fahrlässig).
Against this decision both S. and the Federal Tax Administration filed
further appeals with the Federal Court (Bundesgericht). The Federal Tax
Administration claimed inter alia that S. had committed the offences
intentionally (vorsätzlich). On 20 June 1989 the Federal Court partly
upheld the appeal of the Federal Tax Administration and ordered the Tax
Appeal Commission again to decide the case.
III.
In a separate decision of 19 May 1987 the Obwalden tax authority
imposed fines on the applicant in the amount of 24,000 SFr for the period
1981/82, and 124,000 SFr for the period 1983/84. It considered that by not
filing tax declarations and other documents the applicant had aided and
abetted in the tax evasion by S.
The applicant appealed against this decision claiming inter alia that
the tax administration had failed in their duties properly to assess the
taxes concerned. Moreover, even if S. was to be punished for tax evasion,
he, the applicant, could not be found guilty of abetment as he had only
acted as a lawyer and had not had insight into the income and fortune of
S.
On 30 November 1987 the Obwalden Tax Appeal Commission upheld the
applicant's appeal and quashed the fines imposed. The Commission found
that the offence of abetment in tax evasion presupposed that the main
offence had been committed intentionally, yet S. had only negligently
evaded taxes for the period 1983/84. In any event, the applicant had
himself not acted intentionally for which further reason he could not be
accused of abetment.
Against the decision of the Tax Appeal Commission the Federal Tax
Administration filed an administrative law appeal (Verwaltungsgerichts-
beschwerde) with the Federal Court. Therein it requested the Court to fine
the applicant 17,800 SFr for the period 1981/82 and 92,000 SFr for the
period 1983/84. The Federal Tax Administration recalled that in its
separate appeal concerning S. (see above II.) it claimed that S. had acted
intentionally, for which reason the applicant could not be acquitted of the
offence of abetment.
The applicant filed observations on the administrative law appeal of
the Federal Tax Administration. He requested in particular to adjourn the
proceedings against him pending the outcome of the proceedings against S.
He also explained why he had not intentionally abetted in the tax evasion
by S.
On 20 June 1989 the Federal Court upheld the administrative law appeal
of the Federal Tax Administration. The Court found that the applicant had
intentionally abetted in tax evasion in respect of the period 1983/84, and
referred the case to the Tax Appeal Commission for the determination of the
fine to be imposed on the applicant. The decision was served on the
applicant on 5 July 1989.
In its decision the Court considered inter alia that there was no need
to adjourn the proceedings, and to inform the applicant of its decision in
the case concerning S., as the applicant had had sufficient opportunity to
comment on the circumstances of his case. The Court further considered
that the applicant had indeed acted intentionally while being reckless as
to the consequences (Eventualvorsatz), in particular when on 28 December
1983 he had requested the tax authorities to determine the taxes due by S.
"in analogy to the previous taxation period".
COMPLAINTS
The applicant complains under Article 6 of the Convention that a
person accused of abetment must be granted the right to comment on the
principal offence, since abetment will depend on the punishment for that
offence. In his case the proceedings concerning the charges relating to
the principal offence were conducted before the Federal Court separately.
By finding that S. had committed the offence intentionally, the Federal
Court had created the basis for the applicant's punishment on account of
abetment without the applicant having had the possibility to comment on the
other decision.
THE LAW
The applicant complains under Article 6 (Art. 6) of the Convention
that, although his conviction of abetment in tax evasion depended on the
outcome of the criminal proceedings instituted against S., he could not
comment on the conviction of S.
The Commission has examined these complaints under Article 6 paras.
1 and 3 (a) and (b) (Art. 6-1, 6-3-a, 6-3-b) of the Convention. Article
6 para. 1 (Art. 6-1) states:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ..."
Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b)states:
"Everyone charged with a criminal offence has the following
minimum rights:
(a) to be informed promptly, ... in detail, of the nature and cause
of the accusation against him;
(b) to have adequate time and facilities for the preparation of his
defence."
According to these provisions an accused has the right to be informed
of the cause of his accusation, i.e. the acts with which he is charged, and
of the nature of the accusation, i.e. the legal classification of the acts
in question. The information thus provided must be adequate to enable the
accused to prepare his defence accordingly, in particular to comment on the
charges raised against him (see No. 10857/84, Dec. 15.7.86, D.R. 48 p.
106).
In the present case the Commission notes that the applicant was
clearly aware of the charge of abetment in tax evasion brought against him.
In his administrative law appeal to the Federal Court he was able to
comment thereupon.
Furthermore, the applicant was fully aware of the charges brought
against S. Thus, in first instance the applicant had already been fined
on account of abetment in the tax evasion by S. In the ensuing proceedings
before the Tax Appeal Commission, one of the applicant's arguments was
based precisely on the assumption that S. had committed the tax evasion.
The applicant subsequently used the opportunity to comment on these issues
in his administrative law appeal before the Federal Court. The applicant
has not shown in what respect his rights of defence were breached if, while
being aware of the charges brought against both himself and S. as well as
being able fully to comment thereupon, he could not comment on the outcome
of the criminal proceedings instituted against S.
As a result, there is no indication that the applicant did not have
a fair trial within the meaning of Article 6 paras. 1 and 3 (a) and (b)
(Art. 6-1, 6-3-a, 6-3-b) of the Convention. The application must therefore
be rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to Acting President of
the Second Chamber the Second Chamber
(K. ROGGE) (G. JÖRUNDSSON)
Full & Egal Universal Law Academy