C.B. AND A.M. v. SWITZERLAND
Rubrum
AS TO THE ADMISSIBILITY OF
Application No. 17443/90
by C.B. and A.M.
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 22 May 1990 by
C.B. and A.M. against Switzerland and registered on 19 November 1990
under file No. 17443/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The first applicant is a German citizen born in 1948. The second
applicant is a Swiss citizen born in 1949. Both applicants are
business consultants residing in Zurich.
Particular circumstances of the case
I.
The applicants were members of the board (Verwaltungsrat) of
Cominta Holding, a company dealing inter alia with investments in, and
the administration of, commercial companies.
In 1981 the Federal Tax Administration (Eidgenössische
Steuerverwaltung) undertook an auditing of the accounts (Buchprüfung)
of Cominta Holding. As a result, on 8 December 1981 the Administration
claimed compensation taxes (Verrechnungssteuer) amounting to
2,408,560 SFr. It stated inter alia that the difference between
profits obtained by Cominta Holding from sales, on the one hand, and
the commercial value (Verkehrswert) of shares obtained by the company,
on the other, constituted a taxable pecuniary value indirectly
affecting the shareholders of the company.
By decision of 17 March 1982 the Federal Tax Administration
confirmed its claim. The applicants filed an objection (Einsprache)
against this decision.
On 29 April 1982 the Federal Tax Administration informed the
applicants that it had instituted criminal proceedings against them on
account of tax evasion or tax fraud.
By letter of 5 December 1984 the Federal Tax Administration
informed the applicants that it was terminating the criminal
proceedings and pursuing the objection proceedings. The Administration
stated that Cominta Holding had in fact been liquidated in 1979; that
the taxable performance amounted to 6,728,000 SFr; and that all the
persons participating in the liquidation of Cominta would be jointly
liable.
By decision of 16 October 1985 the Federal Tax Administration
partly upheld the applicants' objection against the decision of
17 March 1982. Against this decision the applicants and other persons
filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with
the Federal Court (Bundesgericht) which the latter partly upheld on
21 April 1986.
Proceedings were then resumed before the Federal Tax
Administration which by decision of 18 May 1988 rejected the
applicants' objection against the decision of 17 March 1982. The
Administration found that the applicants and other persons were jointly
liable to pay taxes amounting to 2,211,125 SFr.
The applicants and other persons filed a further administrative
law appeal which, insofar as it concerned the applicants, was dismissed
by the Federal Court on 20 October 1989, the decision being served on
the applicants on 28 November 1989. The Court found in particular that
the applicants and a third person were jointly liable with the Cominta
company for the amount of 2,211,125 SFr, excluding 5% interest.
II.
Against the decision of the Federal Court of 20 October 1989 the
applicants filed a request for the reopening of proceedings (Revision).
Therein they claimed inter alia that in fact no profits had arisen from
the liquidation of the Cominta Holding.
On 5 September 1990 the Federal Court dismissed the applicants'
request to reopen the proceedings. The Court also imposed an
administrative fine of 100 SFr on each applicant and their lawyer. The
relevant part of the judgment states in this respect:
<Translation>
"6. Both a party and its representative shall be fined with
a disciplinary fine up to 100 SFr if in their communications with
the Court they breach propriety required by public policy
(Section 131 <recte: 31> para. 1 Federal Judiciary Act). The
applicants have stated that the Court registrar participating in
the preparation of the case <S.> prepared the judgment together
with the competent administrator of the Federal Tax
Administration <H.-P. H.> and that the 'team H.-P. H./S.' had
succeeded in influencing the Court. This statement amounts to
a serious defamatory insinuation, which the applicants do not
justify by means of so-called (not mentioned) 'determinations';
the Federal Court has no indication how they reach such a
statement. The applicants, who have declared the insinuation as
being an integral part of their request, and their lawyer thus
seriously violate the necessary propriety. They must therefore
each be punished with a disciplinary fine of 100 SFr."
<German>
"6. Sowohl die Partei als auch ihr Vertreter sind mit einer
Ordnungsbusse bis zu Fr. 100. -- zu bestrafen, wenn sie im
Verkehr mit dem Gericht den durch die gute Sitte gebotenen
Anstand verletzen (Art. 131 <recte: 31> Abs. 1 OG). Bei der
Behauptung, der an der Instruktion mitwirkende Gerichtsschreiber
<S.> habe das Urteil zusammen mit dem Sachbearbeiter der
Eidgenössischen Steuerverwaltung <H.-P. H.> vorbereitet bzw. es
sei dem 'Team H.-P. H./S.' gelungen, das Gericht zu vereinnahmen,
handelt es sich um eine grob ehrverletzende Unterstellung, welche
die Gesuchsteller durch angebliche (nicht genannte)
'Feststellungen' nicht begründen; das Bundesgericht hat keine
Anhaltspunkte, wie sie zu einer solchen Behauptung kommen. Die
Gesuchsteller, welche die Unterstellung zum integrierenden
Bestandteil ihres Gesuchs machen, und ihr Anwalt verletzen damit
den gebotenen Anstand schwer. Sie sind daher je mit einer
Ordnungsbusse von Fr. 100.-- zu bestrafen."
Relevant domestic law
Section 31 of the Federal Judiciary Act stated in the version
applicable at the relevant time:
<Translation>
"1. Whosoever in his oral or written communications breaches
propriety required by public policy, or disturbs the conduct of
proceedings, shall be punished with a reprimand or a disciplinary
fine of up to 100 SFr.
2. Both the party and its representative may be punished by
means of a disciplinary fine of up to 200 SFr, in case of relapse
up to 500 SFr, on account of malevolent or wanton conduct of the
proceedings."
<German>
"1. Wer im mündlichen oder schriftlichen Geschäftsverkehr den
durch die gute Sitte gebotenen Anstand verletzt oder den
Geschäftsgang stört, ist mit einem Verweis oder mit Ordnungsbusse
bis auf 100 Franken zu bestrafen.
2. Wegen böswilliger oder mutwilliger Prozessführung kann
sowohl die Partei als deren Vertreter mit einer Ordnungsbusse bis
auf 200 Franken und bei Rückfall bis auf 500 Franken bestraft
werden."
COMPLAINTS
The applicants complain under Articles 6 and 7 of the Convention
of the unfairness of the proceedings.
The applicants allege that because the tax authorities did not
succeed in instituting criminal proceedings against them, they started
other proceedings in which the applicants now had to prove that they
were innocent. The applicants complain inter alia that the proceedings
before the Federal Court were not conducted in public; that they could
not consult the case-file; that the court registrar dealing with the
case was biased; and that the judgment of the Federal Court contained
contradictions.
The applicants also complain that the Federal Court in its
decision of 5 September 1990 imposed a fine on the applicants in secret
proceedings and in violation of fundamental principles. There was no
possibility of appeal.
Considerations
THE LAW
1. The applicants raise various complaints under Articles 6 and 7
(Art. 6, 7) of the Convention about the unfairness of the proceedings
before the Federal Court.
Article 6 para. 1 (Art. 6-1), first sentence, of the Convention
states:
"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 before an independent and impartial
tribunal established by law."
Article 7 para. 1 (Art. 7-1) of the Convention states:
"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."
2. The Commission has first examined under these provisions the
applicants' complaints about the unfairness of the proceedings leading
to the Federal Court's decisions of 20 October 1989.
The Commission notes that the applicants' complaints are not
directed against the criminal tax proceedings instituted against them.
Indeed, these proceedings, which were instituted on 29 April 1982, were
eventually discontinued on 5 December 1984.
It follows that the proceedings at issue did not concern "the
determination of (any) criminal charge" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention, nor did they relate to a
"criminal offence" within the meaning of Article 7 para. 1 (Art. 7-1)
of the Convention.
An issue arises whether the proceedings related to "the
determination of (the applicants') civil rights and obligations" within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission notes that the proceedings about which the
applicants are complaining concern the assessment of the compensation
taxes due by the company in question, the amount of which the
applicants dispute.
However, according to the Commission's constant case-law, in
proceedings concerning the assessment and determination of taxes the
"rights" of the applicants involved are not of a "civil" nature as
required by Article 6 para. 1 (Art. 6-1) of the Convention (see No.
11189/84, Dec. 11.12.86, D.R. 50 p. 121 with further references).
It follows that the proceedings at issue did not concern the
"determination of (the applicants') civil rights and obligations"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The Commission has next examined the applicants' complaints of
the unfairness of the proceedings leading to the decision of the
Federal Court of 5 September 1990. However, these proceedings
concerned the reopening of previous proceedings and did not involve the
determination of a civil right or a criminal charge against the
applicant within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention (see No. 7761/77, Dec. 8.5.78, D.R. 14 p. 171).
It follows that this part of the application is also incompatible
ratione materiae with the Convention within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicants also complain under Article 6 (Art. 6) of the
Convention that the Federal Court in its decision of 5 September 1990
imposed a fine on each of them without having conducted a hearing and
in violation of fundamental principles. There was no possibility of
an appeal.
With regard to the applicants' complaints the Commission
considers that further information is required and that the
Government's observations on the application should be obtained under
Rule 48 para. 2 (b) of the Commission's Rules of Procedure.
Accordingly, the Commission reserves the examination of this part of
the application.
Order
For these reasons, the Commission, by a majority,
1. DECIDES TO ADJOURN THE EXAMINATION OF THE APPLICANTS'
COMPLAINT ABOUT THE PROCEEDINGS REGARDING THE FINE
IMPOSED ON THEM BY THE FEDERAL COURT IN ITS DECISION OF
5 SEPTEMBER 1990;
2. DECLARES INADMISSIBLE THE REMAINDER OF THE APPLICATION.
Secretary to the Second Chamber Acting President of the Second Chamber
(K. ROGGE) (G. JÖRUNDSSON)