AS TO THE ADMISSIBILITY OF
Application No. 27032/95
by L.-G. R.
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 January 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
Ms. M.-T. SCHOEPFER, 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 12 October 1994
by L.-G. R. against Sweden and registered on 13 April 1995 under file
No. 27032/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 22 January and 23 April 1996 and the observations in
reply submitted by the applicant on 14 March and 29 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Swedish citizen born in 1941, resides in Malmö.
Before the Commission he is represented by Mr. Magnus Berlin, a lawyer
practising in Malmö.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
In their tax returns for the assessment years 1979-1982, the
applicant and two business partners failed to declare certain amounts
deposited on foreign bank accounts. As a consequence, the amounts were
not taxed.
A tax audit (taxeringsrevision) concerning the deposited amounts
was later commenced. It led to proceedings being taken against the
applicant and the two partners concerning the levying of additional tax
(eftertaxering) for the above assessment years. In these proceedings,
the applicant and his partners, on 1 April and 2 December 1985,
submitted to the County Administrative Court (länsrätten) in Malmö two
letters signed by a fourth person who certified, inter alia, that the
deposited amounts did not belong to the applicant and the partners but
had been used as bribes in their business activities. The court did
not believe this statement, and, by judgments of 20 December 1985, it
levied additional tax on the applicant and the partners. On
23 June 1988 the judgment was upheld on appeal by the Administrative
Court of Appeal (kammarrätten) in Gothenburg.
A preliminary criminal investigation was also initiated. On
25 August 1983 the applicant was heard by the police and informed that
he was suspected of aggravated tax fraud (grovt skattebedrägeri) and
gross violation of exchange control regulations (grovt valutabrott) due
to the deposits on the foreign bank accounts and the failure to declare
the amounts to the tax authorities.
On 1 November and 12 December 1985 the police seized, inter alia,
the two letters invoked in the tax case before the County
Administrative Court. The seizures were made at the court and at the
County Administrative Board (länsstyrelsen) in Malmö. By decisions of
16 and 20 December 1985, they were confirmed by the Public Prosecutor.
It appears that the seizures were made as part of the preliminary
investigation concerning the alleged offences in connection with the
deposits on the foreign bank accounts and the failure to declare the
amounts to the tax authorities. At the time, the applicant was not
aware of the measures.
In 1986 the Public Prosecutor decided not to take any action in
regard to the alleged tax offence. The applicant was indicted for the
exchange control offence, however, and on 9 June 1988 he was convicted
by the District Court (tingsrätten) of Malmö and given a suspended
sentence. This judgment gained legal force.
In May 1988 the police made a further preliminary investigation,
during which it heard the applicant on 9 May 1988. He was informed
that he was suspected of, inter alia, attempted tax fraud (försök till
skattebedrägeri) on account of the submission of the above-mentioned
letters to the County Administrative Court. On 1 and 2 March 1989
investigation reports were prepared. On 3 April 1989 the reports were
served on the applicant and his public defence counsel, who were given
an opportunity to submit observations. At that time, suspicions were
held against the applicant's partners also.
By an application (stämningsansökan) filed with the District
Court on 21 September 1989, the Public Prosecutor requested the court
to arraign the applicant, which it did on 25 September. The applicant
was charged with the instigation of aggravated fraudulent certification
(anstiftan till grovt osant intygande) and attempted aggravated tax
fraud. At the subsequent hearing, the Prosecutor amended the charges
to include also the applicant's aiding and abetting his partners'
attempted aggravated tax fraud. However, no proceedings were brought
against the partners.
The District Court held hearings on 9 and 10 January 1990.
By judgment of 24 January 1990, the District Court found the
applicant guilty of the charges against him. However, as the
instigation offence was considered to be included in the two tax
offences, he was only convicted on the latter counts. As concerns the
partners' attempted tax fraud, the applicant's conviction for aiding
and abetting was based on the Tax Offences Act (Skattebrottslagen,
1971:69) and Chapter 23, Section 4 of the Penal Code (Brottsbalken).
The applicant was sentenced to eight months' imprisonment.
On 21 February 1990 the applicant lodged an appeal with the Court
of Appeal (hovrätten) of Skåne and Blekinge. He submitted further
observations in the case on 27 February. On 5 April the appellate
court requested the applicant to indicate, within two weeks, the
evidence he wished to adduce. The applicant was subsequently granted
an extension of the time-limit for submission of this statement until
15 May. On 27 November, not having received any statement, the court
reminded the applicant thereof. On 28 January 1991 the applicant
submitted the statement to the court. However, no evidence was adduced.
On 14 February 1991 the applicant was summoned by the Court of
Appeal to a hearing due to take place on 25 March. On 13 March the
applicant requested that the hearing be postponed as he had important
business matters to attend to and also intended to adduce evidence.
The applicant's request was granted and he was ordered to state his
evidence within two weeks. On 14 June the applicant submitted a
statement of evidence.
On 2 October 1991 the applicant was summoned to the rescheduled
Court of Appeal hearing which took place on 11 November 1991.
By judgment of 9 December 1991, the Court of Appeal upheld the
District Court's judgment.
On 9 January 1992 the applicant appealed to the Supreme Court
(Högsta domstolen) and informed the court that he had appointed new
counsel. After having requested extensions of time-limits on three
occasions, the new counsel submitted further observations on 13 and
31 March. On 22 October the Supreme Court gave the Prosecutor-General
(Riksåklagaren) an opportunity to submit observations in the case,
which he did on 24 November. On 25 February 1993 the Supreme Court
granted the applicant leave to appeal with respect to the two tax
offences. On 30 April the applicant was requested to submit his
concluding arguments within three weeks. After an extension of the
time-limit, the concluding arguments were submitted on 1 July. The
Prosecutor-General replied on 4 October.
The Supreme Court held a hearing in the case on 13 April 1994.
By judgment of 3 May 1994, the Supreme Court upheld the Court of
Appeal's judgment. The Supreme Court noted that the conduct with which
the applicant was charged was the submission of incorrect information
to the County Administrative Court in the proceedings concerning the
levying of additional tax. The Supreme Court found that the submission
of such information to a court in tax proceedings was punishable under
the Tax Offences Act. As the information had not been available to the
tax authorities when they originally examined the applicant's tax
returns, its submission to the County Administrative Court constituted
an offence separate from the false declaration given in the tax
returns.
The applicant started to serve his prison sentence on
10 July 1994. On 22 September 1994 the Government rejected his
petition for pardon.
B. Relevant domestic law and practice
Complicity in crime
Criminal liability for certain tax offences are prescribed in the
Tax Offences Act. Section 4 provides that a person guilty of
aggravated tax fraud shall be sentenced to prison for a period of six
months to six years. Criminal liability for attempted tax fraud
follows from Section 6 which, as regards the applicable penalty, refers
to Chapter 23, Section 1 of the Penal Code. The latter provision
states that the penalty for an attempt may not exceed the penalty for
a completed action and may not be less than imprisonment if the minimum
penalty for a completed action is two years or more in prison.
The Tax Offences Act contains no provision on complicity in
crime, nor does it refer, in this respect, to other penal legislation.
A general provision on complicity in crime is to be found in
Chapter 23, Section 4 of the Penal Code. Before 1 July 1994, its first
paragraph read, in relevant parts, as follows:
(Translation)
"Liability for an act, as provided for by this Code, shall
be imposed not only on the person who committed the act but
also on anyone who furthered it by advice or assistance.
..."
At this time, it was thus directly applicable only to offences
mentioned in the Penal Code. However, the Supreme Court had, in a
number of published judgments, applied this provision in relation to
offences under the present Tax Offences Act of 1971 and the previous
Tax Offences Act of 1943 (cf., e.g., NJA 1958 p. 304, NJA 1972 p. 377,
NJA 1976 p. 580 and NJA 1981 p. 277).
The Committee which prepared the present Tax Offences Act stated
in its report that Chapter 23, Section 4 of the Penal Code was to be
applied by analogy in relation to the draft Tax Offences Act (cf.
SOU 1969:42, pp. 190-194). Furthermore, the report by the
Parliamentary Standing Committee on Taxation included the following
statement (cf. SkU 1971:16, p. 69):
(Translation)
"The provisions of the Penal Code in respect of complicity
in crime are applicable by analogy to tax offences. This
means that a person who is not regarded as the perpetrator
shall, if he induced another person to commit the criminal
act, be convicted for instigation of the offence or
otherwise for being an accessory to the offence."
On 1 July 1994 a prohibition on the analogous application of
criminal provisions was introduced by an amendment to Chapter 1,
Section 1 of the Penal Code. According to the travaux préparatoires,
the purpose of the amendment was to reduce the scope of applying
criminal law provisions beyond what followed from a strict reading of
the provisions in question. Although the amendment was thought to be
of more symbolic than practical importance, the compliance of Swedish
law with Article 7 of the Convention was an important consideration.
As the intention was not to limit the number of acts which were
to be considered as criminal offences, Chapter 23, Section 4 of the
Penal Code was made expressly applicable also to criminal offences
regulated by other legislation whenever the range of possible penalties
for these offences encompassed imprisonment. This was done by the
addition of the following sentence to the first paragraph:
(Translation)
"The same also applies in relation to acts subject to the
penalty of imprisonment under another statute or statutory
instrument."
Subsequent to the amendments of 1 July 1994, the Supreme Court
dealt with the present matter in a judgment concerning complicity in
a drunken driving offence, another field of criminal law regulated by
special legislation, the Road Traffic Offences Act (Lagen om straff för
vissa trafikbrott, 1951:649). The Supreme Court made the following
statement:
(Translation)
"To sum up, the change in legislation can be said to
entail, as far as liability for complicity in crime is
concerned, that the non-regulated application until 1 July
1994 of Chapter 23, Section 4 in relation to penal
legislation outside the Penal Code has been replaced by
codification, according to which the provision, having been
amended to a certain extent, is applicable throughout the
entire penal law. The criminal liability, which was
previously exacted in respect of complicity in drunken
driving offences, by means of analogous application of
Chapter 23, Section 4, is therefore still unaltered in
force, now with the confirmation of an explicit provision."
Probationary release
By an amendment to Chapter 26, Section 6 of the Penal Code, which
entered into force on 1 July 1993, the rules on probationary release
were changed. Previously, a convict would normally be released on
probation after having served half his sentence. After the amendment,
a person sentenced to a year or less in prison must serve at least two
thirds of the sentence. The amended provision is applied to persons
convicted after 1 July 1993 even if they committed the offences before
that date.
COMPLAINTS
1. The applicant alleges that the criminal case ending with the
Supreme Court's judgment of 3 May 1994 was not heard within a
reasonable time within the meaning of Article 6 of the Convention.
2. The applicant also maintains that, under the Tax Offences Act,
the accused is under an obligation to give true and complete
information concerning his taxation. Thus, he will be convicted for
a tax offence if he remains silent, which means that he is forced to
confess to possible offences. In this respect, he invokes Article 6
of the Convention.
3. The applicant further complains that his conviction for aiding
and abetting his partners' attempted tax fraud violated Article 7 of
the Convention, as it had no basis in the Tax Offences Act. Instead,
the conviction was based on an analogous application of a general
provision of the Penal Code.
4. Also under Article 7 of the Convention, the applicant contends
that a heavier penalty than the one applicable at the time the offences
were committed was imposed on him, as the rules on probationary release
were changed before the Supreme Court's judgment and, as a consequence,
he had to serve two thirds instead of half of his eight months'
sentence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 October 1994 and registered
on 13 April 1995.
On 19 October 1995 the Commission (Second Chamber) decided to
communicate the application to the respondent Government, pursuant to
Rule 48 para. 2 (b) of the Rules of Procedure. The Government were
asked to deal with the questions whether the criminal charges against
the applicant were determined within a reasonable time and whether his
conviction for aiding and abetting his partners' tax fraud had a basis
in law.
The Government's written observations were submitted on
22 January 1996 after an extension of the time-limit fixed for that
purpose. The applicant replied on 14 March 1996. The parties
thereafter submitted further observations, the Government on
23 April 1996 and the applicant on 29 May 1996.
THE LAW
1. The applicant alleges that the criminal case ending with the
Supreme Court's judgment of 3 May 1994 was not heard within a
reasonable time. He invokes Article 6 (Art. 6) of the Convention
which, in so far as relevant, reads as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within
a reasonable time ..."
As regards the period to be considered the applicant maintains
that it commenced on 25 August 1983 when he was heard by the police and
informed that he was suspected of, inter alia, aggravated tax fraud.
The Government submit, however, that the period commenced on 9 May 1988
when the applicant was informed of the suspicion of, inter alia,
attempted tax fraud.
The Commission recalls that according to the case-law of the
Convention organs the period to be taken into consideration under
Article 6 para. 1 (Art. 6-1) of the Convention must be determined
autonomously. It begins at the time when formal charges are brought
against a person or when that person has otherwise been substantially
affected by actions taken by the prosecuting authorities as a result
of a suspicion against him (cf., e.g., Eur. Court HR, Eckle v. Germany
judgment of 15 July 1982, Series A no. 51, p. 33, para. 73).
In the present case, the Commission recalls that the criminal
proceedings which ended with the Supreme Court's judgment of 3 May 1994
concerned the submission of false information to the County
Administrative Court. The letters containing the false information
were submitted on 1 April and 2 December 1985, and events taking place
prior to 1 April 1985, therefore, cannot be taken into account. The
Commission further notes that the seizures made by the police in
November and December 1985 apparently formed part of the preliminary
investigation concerning the charges of which the applicant had been
informed in 1983, inter alia the failure to declare certain amounts to
the tax authorities. The seizures were not brought to the applicant's
attention and he was not, at this time, charged with any offence
relating to the submission of the letters in question to the County
Administrative Court. Neither was the applicant's situation
substantially affected by the seizures.
The applicant became directly involved in the preliminary
investigation on 9 May 1988 when he was heard by the police and
informed of the suspicions relating to the above-mentioned letters.
The Commission considers that, as from that date, the applicant was
substantially affected by the criminal proceedings. Consequently, from
9 May 1988 the applicant was "charged" for the purposes of Article 6
para. 1 (Art. 6-1) of the Convention and the "reasonable time" referred
to in this provision began to run on that date.
The Commission finds that the proceedings were terminated on
3 May 1994 when the Supreme Court pronounced judgment in the case.
Thus, the total length of the proceedings to be assessed under
Article 6 para. 1 (Art. 6-1) of the Convention was approximately six
years.
From a general point of view the reasonableness of the length of
the proceedings must be assessed with reference to the complexity of
the case, the conduct of the applicant and that of the authorities
before which the case was brought (cf., e.g., Eur. Court HR, Boddaert
v. Belgium judgment of 12 October 1992, Series A no. 235-D, p. 82,
para. 36).
The Government maintain that the proceedings concerned
complicated matters, with regard to both facts and law. Firstly, the
criminal investigation initially concerned not only the applicant but
also his business partners and the person who signed the letters in
question. Secondly, the case concerned a company engaged in business
matters abroad. Further, the legal issues involved were of a complex
nature. This was shown, inter alia, by the Supreme Court's decision
to grant leave to appeal.
As regards the applicant's conduct, the Government contend that
he delayed the proceedings considerably. He requested extensions of
time-limits for the submission of arguments and statements of evidence
in the Court of Appeal and the Supreme Court. On some occasions, he
failed to make his submissions in time. Further, the hearing before
the Court of Appeal was postponed at the applicant's request. In the
Government's opinion, the total delay caused by the applicant amounted
to almost one year and eight months.
The applicant claims that, although the case involved some
difficult legal issues, the proceedings were not of a complex nature.
Only the applicant was prosecuted and no investigations were carried
out abroad.
With respect to his conduct, the applicant maintains that the
case was not delayed in the Court of Appeal on account of his requests
for extensions of time-limits, as the appellate court examines cases
in the order they are lodged whether or not time-limits have been
extended. Further, the applicant filed his statement of evidence in
that court on 14 June 1991 but the court's hearing did not take place
until 11 November 1991. This delay was not attributable to the
applicant, who can be held responsible for a delay in the Court of
Appeal of only three to four months. As regards the Supreme Court, the
extensions of time-limits did not prolong the proceedings. The
applicant's counsel was informed by the judge in charge of the case
that granting additional time for submission of concluding arguments
would not delay the proceedings. Further, the Supreme Court requested
the observations of the Prosecutor-General seven months after the
applicant had submitted his final observations on the question of leave
to appeal.
The Commission considers that the criminal proceedings concerned
issues of some complexity.
As regards the conduct of the applicant, the Commission finds
that he was essentially responsible for the delays in the Court of
Appeal. In this respect, the Commission recalls that the applicant was
asked to indicate the evidence he wished to adduce within two weeks
from 5 April 1990, a time-limit later extended until 15 May 1990 at the
applicant's request. However, the applicant did not submit his
statement until 28 January 1991. The Court of Appeal hearing was
supposed to take place two months later. It was postponed, however,
again at the applicant's request. Thereafter, the applicant failed to
observe the time-limit set for the submission of a statement of
evidence. The appellate court subsequently took five months to arrange
a new hearing. This period cannot be considered unacceptable.
With respect to the proceedings in the Supreme Court, the
Commission recalls that the applicant requested several extensions of
time-limits for submission of further observations and concluding
arguments. It is true that the Supreme Court requested the Prosecutor-
General's observations in the case almost seven months after the
applicant had submitted his final observations on the question of leave
to appeal. Having regard to the fact that the Prosecutor-General
submitted observations on two occasions, that the Supreme Court held
a hearing in the case and that it decided separately and consecutively
on both the question of leave to appeal and the merits of the case, the
Commission considers, however, that the total duration of the
proceedings in the Supreme Court was not unreasonable.
Therefore, making an overall assessment of the length of the
proceedings, they did not, in the Commission's view, go beyond what may
be considered reasonable in the particular circumstances of the case.
Thus, the present complaint does not disclose any appearance of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also maintains that, under the Tax Offences Act,
the accused is under an obligation to give true and complete
information concerning his taxation. Thus, he will be convicted for
a tax offence if he remains silent, which means that he is forced to
confess to possible offences. In this respect, he invokes Article 6
(Art. 6) of the Convention.
The Commission recalls that the applicant was convicted of
attempted aggravated tax fraud on account of having submitted false
information, i.e. the letters certifying that the amounts on the
foreign bank accounts had been used as bribes, to the County
Administrative Court in the proceedings concerning the levying of
additional tax. It is true that the letters and the information
contained therein were aimed to support the information previously
given to the tax authorities by the applicant and his partners in their
tax returns and, thus, were submitted in an attempt to conceal earlier
tax offences. However, the submission of new false information in the
tax proceedings constituted a new specific offence. It is clear that,
in the proceedings concerning the levying of additional tax, the
applicant could have remained silent or simply maintained the
information given in the tax returns. He was not forced to confess to
any offences, neither in the tax proceedings nor in the criminal
proceedings. It was for the prosecutor to prove, according to the
normal rules of evidence, that the applicant had committed the offences
with which he was charged.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains that his conviction for aiding
and abetting his partners' attempted tax fraud violated Article 7
(Art. 7) of the Convention, as it had no basis in the Tax Offences Act.
Instead, the conviction was based on an analogous application of a
general provision of the Penal Code. In relevant parts, Article 7
(Art. 7) of the Convention provides the following:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed. ..."
The Government contend firstly that the present complaint is
incompatible ratione materiae with the Convention, as the applicant's
conviction by analogous application of the Chapter 23, Section 4 of the
Penal Code had a basis in law and as the 1994 amendment to that
provision, even assuming that it entailed a change in the legal
situation, was of no relevance in the applicant's case as it had no
retroactive effect. The Government maintain furthermore that the
applicant failed to exhaust domestic remedies as he did not claim
before the Court of Appeal or the Supreme Court that the judgment of
the District Court in part lacked a basis in law. The fact that the
applicant did not raise this argument is, in the Government's view, an
indication that he shared the generally accepted view that an analogous
application of the above provision to tax offences was lawful.
With regard to the merits of the present complaint, the
Government maintain that it is manifestly ill-founded. The Government
argue that, at the time of the applicant's conviction, there had been
for decades a consistent case-law to the effect that the provisions on
aiding and abetting in the present Penal Code and its predecessor were
to be applied by analogy to tax offences. The 1994 amendment to
Chapter 23, Section 4 of the Penal Code thus only entailed a
codification or confirmation of long-standing consistent case-law.
This case-law, established by the Supreme Court, had been followed by
the lower courts. Furthermore, as it had been published and thereby
made accessible, the applicant was able to foresee that the aiding and
abetting of his partners' tax offence would involve criminal liability
also on his part.
The applicant submits that his conviction for aiding and abetting
his partners' tax offence was clearly based on an analogous application
of Chapter 23, Section 4 of the Penal Code. However, a challenge of
the legal basis of his conviction would have had no prospects of
success, as Swedish law prior to 1 July 1994 did not prohibit analogous
application of provisions concerning criminal offences and as there
were a number of precedents to the effect that the provisions in the
Penal Code on complicity in crime should be applied by analogy in a
case like the applicant's. Thus, as such a challenge was destined to
fail, there was no effective remedy which the applicant had to exhaust.
The applicant maintains, however, that analogies to the detriment
of the accused are prohibited by Article 7 (Art. 7) of the Convention.
It is true that the applicant, with the assistance of his counsel, was
able to foresee that Swedish courts would apply the relevant provision
in the Penal Code to tax offences. However, the fact that the
Convention had been violated on numerous occasions in the past is no
excuse.
The Commission first notes that the applicant claims a violation
of Article 7 (Art. 7) in that his conviction did not have a basis in
the applicable statute, the Tax Offences Act. His complaint thus
concerns the question whether the act he committed constituted a
criminal offence under national law. The Commission considers that it
does not have to determine whether the applicant failed to exhaust
domestic remedies by not raising this issue in his appeals as, in any
event, the complaint is inadmissible for the following reasons.
The Commission recalls that Article 7 (Art. 7) of the Convention
is not confined to prohibiting the retrospective application of the
criminal law to an accused's disadvantage. It also embodies, more
generally, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege) and the
principle that the criminal law must not be extensively construed to
an accused's detriment, for instance by analogy. From these principles
it follows that an offence must be clearly defined in law. This
requirement is satisfied where the individual can find out from the
wording of the relevant provision and, if need be, with the assistance
of the courts' interpretation of it, what acts and omissions are likely
to make him criminally liable. When referring to "law", Article 7
(Art. 7) alludes to the very same concept as that to which the
Convention refers elsewhere when using that term, a concept which
comprises written as well as unwritten law and implies qualitative
requirements, notably those of accessibility and foreseeability (cf.,
e.g., S.W. v. the United Kingdom judgment of 22 November 1995, Series
A no. 335-B, para. 35).
The Commission notes that the applicant's conviction for aiding
and abetting his business partners' attempted tax fraud was based not
only on the relevant provisions of the Tax Offences Act but also on
Chapter 23, Section 4 of the Penal Code. The wording of the latter
provision, as it was at the time when the relevant acts were committed
and when the applicant was convicted, prescribed liability for
complicity in crime only in relation to offences under the Penal Code.
The wording did not indicate that the provision was applicable to penal
legislation outside the Penal Code, e.g. the Tax Offences Act.
However, as noted above, the concept of "law" under Article 7
(Art. 7) of the Convention comprises not only written but also
unwritten law, most importantly the case-law of the national courts.
Consequently, if the applicant, on account of the existing case-law,
was able to foresee, with a reasonable degree of certainty, that the
aiding and abetting in question would make him criminally liable, his
conviction was not incompatible with Article 7 (Art. 7).
In this respect, the Commission notes that the Supreme Court, on
numerous occasions, had held persons guilty of complicity in tax
offences. These convictions were based on Chapter 23, Section 4 of the
Penal Code in conjunction with the relevant provisions of the present
Tax Offences Act of 1971 or the previous one of 1943. Thus, in 1985,
when the applicant committed the relevant acts, there existed a body
of settled national case-law to the effect that complicity in tax
offences constituted a criminal offence. This case-law had been
published and was therefore accessible. Accordingly, as admitted by
the applicant himself, it was foreseeable that his conduct would make
him criminally liable.
In conclusion, the Commission finds that the applicant's
conviction for aiding and abetting his partners' attempted tax fraud
had a basis in national law.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Also under Article 7 (Art. 7) of the Convention, the applicant
contends that a heavier penalty than the one applicable at the time the
offences were committed was imposed on him. He refers to the fact that
if he had not appealed against the judgment of the Court of Appeal he
would have had to serve only half of his eight months' sentence. As
he appealed and the Supreme Court's judgment was delivered after the
provision on probationary release had been amended, he, instead, had
to serve two thirds of the sentence.
The Commission notes that the applicant was sentenced to eight
months in prison for the offences he had committed in 1985. Had he
been finally convicted before 1 July 1993, he would have had to serve
half of the sentence, i.e. four months, in accordance with Chapter 26,
Section 6 of the Penal Code as it stood at that time. As he was not
finally convicted until 3 May 1994 - after the amendment of Chapter 26,
Section 6 - he instead had to serve two thirds of the sentence, i.e.
approximately five months and ten days.
It has not been argued that the eight months' sentence as such
was heavier than the penalty applicable to the offences in question
according to the law in force at the time the offences were committed.
Instead, the present complaint concerns the fact that, as a consequence
of a change in the law, the applicant was released on probation at a
later stage than he would have been had the relevant legal provision
not been changed. The Commission considers, however, that this matter
concerns the execution of the sentence as opposed to the "penalty"
which remains that of eight months' imprisonment (cf. No. 11653/85,
Hogben v. the United Kingdom, Dec. 3.3.86, D.R. 46 p. 231). Noting
that the applicant did not have to serve more than eight months in
prison, the Commission does not find that the execution of the sentence
in the present case constitutes a violation of Article 7 (Art. 7) of
the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy