AS TO THE ADMISSIBILITY OF
Application No. 15967/90
by Edward McLOUGHLIN
against Ireland
The European Commission of Human Rights sitting in private on
6 July 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 December 1989
by Edward McLoughlin against Ireland and registered on 11 September
1990 under file No. 15967/90;
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 applicant is an Irish citizen born in 1940 and resident in
Dublin. The facts as submitted by the parties may be summarised as
follows.
On 22 December 1982, the Revenue Commissioners issued a summons
against the applicant under Section 500 of the Income Tax Act 1967
seeking the amount of £ 5.500 in respect of an alleged failure to make
tax returns for the years 1972-1983. In the proceedings before the
High Court, the applicant denied that he had failed to submit the tax
returns and argued under the Irish Constitution that the penalty which
was sought to be imposed was a criminal sanction and ought to be dealt
with under the criminal jurisdiction of the courts. Following a
hearing on 25 July 1983, the High Court ordered the applicant to pay
£ 5.500 plus costs.
The applicant instituted proceedings challenging the
constitutionality of the income tax legislation which provided for the
above penalties.
The action was heard in the High Court on 5 and 6 June 1985. By
a judgment dated 4 October 1985, the High Court found that the
imposition of a penalty for failure to make returns was not indicative
of a criminal offence and not repugnant to the Constitution.
The applicant appealed. By a judgment dated 13 June 1989, the
Supreme Court rejected the applicant's appeal. The Court considered
that Section 500 was devoid of all phraseology with criminal overtones
and did not create an express statutory offence. While it imposed a
coercive sanction, there was no provision for detention for failure to
pay or to allow search or examination of documents on default of
payment. The Court also found that no question of "mens rea" arose
while other provisions of the tax code, which created express criminal
offences, require the element of "mens rea". The Court concluded that
the section did not impose penalties which were criminal in character
but civil penalties recoverable as a liquidated sum in the civil
courts. The final order of the Supreme Court was perfected on 20 June
1989.
RELEVANT DOMESTIC LAW AND PRACTICE
The relevant provisions at the material time of the Income Tax
Act 1967 (as submitted by the respondent Government) were:
Section 500:
"(1) Where any person -
(a) has been required, by notice or precept given under or for
the purposes of any of the provisions specified in column
1 or 2 of Schedule 15, to deliver any return, statement,
declaration, list or other document, to furnish any
particulars, to produce any document, or to make anything
available for inspection, and he fails to comply with the
notice or precept, or
(b) fails to do any act, furnish any particulars or deliver any
account in accordance with any of the provisions specified
in column 3 of that Schedule,
he shall, subject to subsection (2) and to section 503, be liable
to a penalty of £100 and, if the failure continues after judgment
has been given by the court before which proceedings for the
penalty have been commenced, to a further penalty of £10 for each
day on which the failure so continues.
(2) Where the said notice was given under or for the purposes of any
of the provisions specified in column 1 of the said Schedule and
the failure continues after the end of the year of assessment
following that during which the notice was given, the first of
the penalties mentioned in subsection (1) shall be £250,
Section 508 "(1) Without prejudice to any other mode of recovery of a penalty under the preceding provisions of this Part, or section 238, 240 or 296, an officer of the Revenue Commissioners, authorised by them for the purposes of this subsection, may sue in his own name by civil proceedings for the recovery of the penalty in the High Court as a liquidated sum and the provisions of section 94 of the Courts of Justice Act, 1924, shall apply accordingly." COMPLAINTS The applicant submits that he has been convicted of a criminal offence in civil proceedings. He complains therefore that he has been denied a fair hearing as required by Article 6 of the Convention in respect of this offence. He also invokes Article 6 in conjunction with Article 14 of the Convention (a complaint which was added in the applicant's observations of 1 April 1992). PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 18 December 1989 and registered on 11 September 1990. On 8 April 1991 the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application. The Government's observations were submitted on 1 November 1991 and the applicant's observations in reply were submitted on 1 April 1992 after two extensions in the time-limit. THE LAW The applicant complains of being convicted of a criminal offence without receiving a fair hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention, which provides in its first sentence: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The applicant has also invoked Article 6 in conjunction with Article 14 (Art. 6+14) of the Convention. The Government submit that the applicant has failed to comply with the six month time-limit imposed by Article 26 (Art. 26) of the Convention since he introduced his complaints on 18 December 1989, whereas the final decision concerning these complaints was that of the Supreme Court of 13 June 1989. The applicant submits that while the Supreme Court gave its judgment on that latter date, its final order was not perfected until 20 June 1989 which date is within the six month time-limit. The Commission however finds it unnecessary to decide this issue for the reasons set out below. The Commission recalls that the applicant complains that the imposition of a penalty of £5 500 was a criminal sanction and not a civil sanction and that as such it should have been dealt with under the criminal jurisdiction of the courts in Ireland. In his observations in reply to the Government he submits that this would have afforded him the entitlement to trial by jury. He concedes that during the proceedings he had the benefit of the minimum rights set forth in Article 6 para. 3 (Art. 6-3). The respondent Government submit that the proceedings did not concern a criminal charge and that in any case the proceedings before the High Court which is an independent and impartial tribunal established under the provisions of the Constitution of Ireland, provided all the guarantees required by Article 6 (Art. 6) of the Convention. The Commission finds it unnecessary for the purposes of the present application to determine whether the proceedings involved the determination of a criminal charge within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission recalls that Article 6 (Art. 6) of the Convention imposes the requirement that the proceedings be conducted before "an independent and impartial tribunal established by law". The only specific matter raised by the applicant in respect of the fairness of the proceedings before the High Court is that they were not conducted before a jury. While the Commission notes that trial by jury is widely considered in common law jurisdictions as an important element in ensuring fairness in a system of criminal justice, Article 6 (Art. 6) of the Convention does not specify trial by jury as an essential requirement in the determination of a criminal charge. The case-law of the Commission has established in this respect that there is no right to a trial by jury contained in the Convention (see e.g. No. 8299/78, Dec. 10.10.80, D.R. 22 p.51, at p. 73). Consequently, the Commission concludes that in the circumstances of the present case there is no appearance of a violation of Article 6 (Art. 6), either alone or in conjunction with Article 14 (Art. 14) of the Convention. It follows that this application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously, DECLARES THIS APPLICATION INADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)
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