AS TO THE ADMISSIBILITY OF
Application No. 23399/94
by H. W. K.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 31 August 1994, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the 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 26 January 1994
by H. W. K. against Switzerland and registered on 4 February 1994 under
file No. 23399/94;
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 1931, is a lawyer residing
at Zumikon in Switzerland. Before the Commission he is represented by
Messrs. B. Badertscher and Th. Poledna, lawyers practising in Zurich.
Particular circumstances of the case
In 1984 the applicant's taxes due for the tax period 1981/1982
were assessed at 1,030,000 SFr. In 1987, following the denunciation
by a former accountant, investigations were instituted against the
applicant on suspicion that he had incorrectly declared taxes. On
10 May 1989 the Tax Office (Steueramt) of the Canton of Zurich imposed
further taxes of 12,259 SFr and a fine of 6,129.50 SFr for negligent
tax evasion (fahrlässige Steuerhinterziehung).
The applicant's appeal (Beschwerde) against this decision was
heard on 22 June 1992 by the Appeals Commission for Federal Taxes
(Bundessteuer-Rekurskommission, see below, Relevant domestic law),
consisting of the President, four members, a substitute and the
secretary. The applicant was present at the hearing. The Appeals
Commission dismissed the appeal on the same day. In its decision,
numbering 25 pages, it found inter alia that it was an independent
judicial body within the meaning of Article 6 para. 1 of the
Convention.
The applicant's administrative law appeal (Verwaltungsgerichts-
beschwerde) was dismissed by the Federal Court (Bundesgericht) on
7 June 1993, the decision being served on the applicant on
27 July 1993. In its decision, the Court found inter alia that the
Appeals Commission for Federal Taxes constituted an independent tax
court within the meaning of Article 6 of the Convention, as the
supervision by the Finance Directorate and the Council of State of the
Canton of Zurich did not concern its judicial activities. Indeed, the
Appeals Commission dealt with issues of Federal, and not Cantonal,
taxes. As such, it was able to examine all procedural aspects as well
as the fine.
As a result, and with reference to Section 105 para. 2 of the
Federal Judiciary Act (Organisationsgesetz, see below, Relevant
domestic law) the Federal Court found that it was not free to examine
the facts as established by the Appeals Commission. The Court further
considered that the Appeals Commission had not incorrectly established
the facts or assumed the applicant's negligence (Fahrlässigkeit).
Relevant domestic law
I.
According to Section 105 para. 1 of the Federal Judiciary Act
(Organisationsgesetz) the Federal Court (Bundesgericht), when seised
with an administrative law appeal (Verwaltungsgerichtsbeschwerde), is
free to examine the facts of a case. According to Section 105 para.
2, if a judicial body previously examined the case, the Federal Court
is bound by that body's determination of the facts except if it is
incorrect, incomplete or in breach of essential rules of procedure.
II.
Section 106 of the Federal Council Decree on the imposition of
direct Federal taxes (Bundesratsbeschluss über die Erhebung einer
direkten Bundessteuer) states that an appeal can be filed against a
decision of the tax authority determining the taxes to the Cantonal
Appeals Commission (kantonale Rekurskommission) which functions as an
Appeals Commission for Federal Taxes (Bundessteuer-Rekurskommission).
III.
According to Section 6 of the Ordinance of the Canton of Zurich
on the implementation of direct Federal taxes (Verordnung über die
Durchführung der direkten Bundessteuer), the Appeals Commission for
Federal Taxes (Bundessteuer-Rekurskommission) consists of five members
(para. 1). The Council of State (Regierungsrat) elects its president,
the members, and their substitutes, for a period of four years
(para. 2). The Finance Directorate (Finanzdirektion) organises the
Secretariat (para. 3).
According to Section 27 of the Ordinance, the Finance Directorate
also determines the remuneration of the Appeals Commission.
IV.
Section 69 of the Tax Act (Steuergesetz) of the Canton of Zurich
states that the Appeals Commissions for Federal Taxes are under the
supervision (unterstehen der Aufsicht) of the Finance Directorate.
According to Section 70 of the Tax Act, in cases of a breach of
duty, of a refusal of justice, or of delays, an appeal may be filed
against the Appeals Commission for Federal Taxes to the Finance
Directorate; a further appeal may be lodged with the Council of State.
COMPLAINTS
1. The applicant complains that his fine was not decided by an
independent tribunal within the meaning of Article 6 para. 1 of the
Convention. The Tax Office was part of the administration of the
Canton of Zurich, and the Federal Court, acting upon an administrative
law appeal, relied on the establishment of the facts by the Appeals
Commission for Federal Taxes according to Section 105 para. 2 of the
Federal Judiciary Act.
The Appeals Commission for Federal Taxes did not constitute an
independent tribunal within the meaning of Article 6 para. 1 as it was
instituted and supervised by the Cantonal Government. The latter also
appointed the Secretariat of the Appeals Commission and determined
members' salaries. If the various connections between the Appeals
Commission and the Cantonal Government were viewed together, the
Appeals Commission appeared as part of the cantonal administration.
2. The applicant further complains under Article 6 para. 2 of the
Convention that he was convicted of negligence (Fahrlässigkeit)
although he could not be reproached for the manner in which he ran and
supervised his accounts. He submits that he was entitled to limit
himself to a control of what appeared plausible (Plausibilitätskontrol-
le). The accounting system employed by the applicant had otherwise
never given rise to remarks by the tax authorities.
THE LAW
1. The applicant complains of his conviction on account of tax
evasion leading to the imposition of a fine. He submits in particular
that he was convicted of negligence although he could not be reproached
for the manner in which he ran his accounts. He also raises other
complaints under Article 6 (Art. 6) of the Convention.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its only task is to ensure the observance of the obligations
undertaken by the Parties to the Convention. In particular, it is not
competent to deal with an application alleging that errors of law or
fact have been committed by domestic courts, except where it considers
that such errors might have involved a possible violation of any of the
rights and freedoms set out in the Convention. The Commission refers
on this point to its established case-law (see e.g. No. 458/59,
Dec. 29.3.60, Yearbook 3 p. 222, 236; No. 5258/71, Dec. 8.2.73,
Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18
pp. 31, 45). It follows that the Commission cannot examine the
applicant's conviction as such.
2. It is true that the applicant complains under Article 6
(Art. 6) of the Convention that his fine for tax evasion was not
decided by an "independent ... tribunal" within the meaning of this
provision. He submits in particular that the Appeals Commission for
Federal Taxes appears as part of the cantonal administration.
In determining whether this body can be considered to be
"independent", notably of the executive and of the parties to the case,
the Commission has had regard to the manner of appointment of its
members and the duration of their term of office, the existence of
guarantees against outside pressures and the question whether the body
presents an appearance of independence (cf. Eur. Court H.R., Campbell
and Fell judgment of 28 June 1984, Series A no. 80, p. 39 et seq.,
para. 78).
The Commission notes, first, that members of the Appeals
Commission for Federal Taxes are appointed by the Council of State of
the Canton of Zurich, and its Secretariat is organised by the Finance
Directorate (see Section 6 of the Ordinance of the Canton of Zurich on
the implementation of direct Federal taxes). However, according to the
Convention organs' case-law, this manner of appointment cannot in
itself call in question the independence of the tribunal (loc. cit.,
p. 40, para. 79).
Moreover, the duration of office of the members of the Appeals
Commission, lasting four years, is not so short as to raise an issue
as to their independence. The absence in the applicable legislation
of a formal recognition of the irremovability from office again cannot
in itself imply lack of independence (loc. cit. p. 40, para. 80).
There remains the question of the Appeals Commission's
independence in view of the supervisory functions of the Finance
Directorate under Section 69 of the Tax Act of the Canton of Zurich.
In the Commission's opinion, it does not transpire from this provision
that the members of the Appeals Commission are in any way subject to
instructions by the Finance Directorate regarding their judiciary
functions. A confirmation herefor can be seen in Section 70 of the Tax
Act according to which the Finance Directorate and the Council of State
will solely supervise, upon appeal, the Appeals Commission in respect
of any breach of duty or refusal of justice or delay. In any event,
the Finance Directorate is a cantonal body, whereas the Appeals
Commission is called upon to examine matters under Federal tax law.
As a result, the Commission is satisfied that the Appeals
Commission was an "independent tribunal" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. With regard to his conviction of negligence the applicant invokes
the presumption of innocence guaranteed by Article 6 para. 2 (Art. 6-2)
of the Convention. The Commission finds no issue under this provision.
The applicant may be understood as complaining under Article 6 para.
1 (Art. 6-1) of the Convention of an incorrect assessment of evidence
in that he could not be reproached for the manner in which he ran his
accounts.
The Commission recalls that the admissibility of evidence is
primarily a matter for regulation by national law and, as a rule, it
is for the national courts to assess the evidence before them. The
Convention organs' task is to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (see Eur. Court H.R., Asch judgment of 26 April 1991,
Series A no. 203, p. 10, para. 26).
In the present case there is no indication that the applicant,
who is a lawyer and was represented by a lawyer throughout the
proceedings, could not put forward the evidence which he wished to
produce, or that the proceedings were otherwise unfairly conducted.
The remainder of the application is therefore also 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 the Second Chamber Acting President of the
Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy