C.B. v. SWITZERLAND

THE FACTS

The applicant, a Swiss citizen born in 1932, is a bank employee

residing in Riehen in Switzerland.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant was the director of the S. AG bank which

administered fortunes. He was suspected by the Federal Tax

Administration (Eidgenössische Steuerverwaltung) of having evaded

taxes.

On 9 December 1983 the Administration for Direct Federal Taxes

of the Canton of Basel-Stadt (Kantonale Verwaltung für die direkte

Bundessteuer, hereafter: Cantonal Administration) instituted tax

evasion proceedings against the applicant.

On 12 September 1984 the Federal Tax Administration closed its

investigations, and on 8 February 1985 the applicant was informed of

the outcome.

Following further investigations of his private tax matters, the

Federal Tax Administration informed the Cantonal Administration in its

report of 9 December 1986 of the results obtained.

On 13 September 1989 the Cantonal Administration informed the

applicant of the taxes and fines due, the latter amounting to 150-200 %

of the taxes due. In a statement of 3 October 1989 the Cantonal

Administration explained the details of the various fines. The various

sums evaded concerned amounts of the years 1979-1984 and ranged from

2,400 to 2,059,000 Swiss Frances (CHF).

On 16 October 1989 the applicant filed an appeal with the Appeals

Commission for Federal Taxes (Kantonale Rekurskommission für

eidgenössische Abgaben, hereafter: Appeals Commission).

On 17 November 1992 the Appeals Commission held a hearing at

which E. acted as Secretary. On the same day, the Appeals Commission

partly upheld the applicant's appeal and reduced the fines to 100 % of

the taxes due. The case was referred to the Cantonal Administration

for renewed examination.

The applicant filed an administrative law appeal (Verwaltungs-

gerichtsbeschwerde) with the Federal Court. In his appeal he

complained, inter alia, that the Appeals Commission was not an

independent judicial body. Under the heading "absolute prescription"

(absolute Verjährung) he complained that the proceedings had meanwhile

lasted more than ten years. He further complained that he had not been

able fully to consult the case-file and that an expert opinion had been

refused concerning the value of certain shares. He also analysed

statements, inter alia, of N., a member of the tax administration of

the Canton of Basel-Stadt, in respect of certain remunerations.

In administrative law proceedings before the Federal Court, the

President may order a hearing with the parties according to S. 112 of

the Federal Judiciary Act (Organisationsgesetz).

The applicant's administrative law appeal was transmitted to the

Cantonal Tax Administration and to the Federal Tax Administration both

of which filed observations thereupon on 9 and 23 November 1993,

respectively. The Cantonal Tax Administration stated, inter alia, that

one statement of, and one particular document signed by, the applicant

were "untrue, as the applicant's tax declarations ... demonstrate"

("wahrheitswidrig, wie die Steuererklärungen des Beschwerdeführers ...

aufzeigen"). The Federal Tax Administration stated, inter alia, that

the applicant "constantly made unproven or even incorrect statements,

for instance that he had not been granted a legal hearing" ("laufend

unbewiesene oder gar falsche Behauptungen <aufgestellt>, so z.B., dass

ihm das rechtliche Gehör nicht gewährt worden sei").

On 7 February 1994 the applicant wrote to the Federal Court,

stating that the observations of the Cantonal Administration and the

Federal Tax Administration contained many new statements and arguments

and that he would like to reply thereto, as criminal tax proceedings

were at issue.

On 9 February 1994 the President of the Federal Court informed

the applicant that for the time being his request could not be granted,

though later a second round of observations might become necessary.

On 18 February 1994 the applicant submitted further observations

in which he substantiated his allegations as to the incorrect

statements in the observations concerned.

On 21 November 1994 the Federal Court dismissed the applicant's

administrative law appeal. He was informed of the decision on

22 November. On 6 December 1994, upon the applicant's inquiry, he was

informed that no public session had taken place in his case. The

reasons of the decision were served on him on 20 January 1995.

In its decision, the Federal Court summarised the facts of the

case and the applicant's observations of 18 February 1994. In respect

of its own jurisdiction the Federal Court found that the Appeals

Commission was a judicial body for which reason the Federal Court's

jurisdiction was limited to the question whether federal law had been

breached and whether the previous instance had incorrectly established

The Federal Court further noted that E. had acted as Secretary

to the Appeals Commission. Insofar as the applicant complained that

this breached his right to an independent and impartial tribunal, the

Court found that the applicant had failed to raise this complaint at

the latest at the oral hearing on 17 November 1992 before the Appeals

Commission when it became clear that E. was acting as Secretary.

The Court further found that the applicant's complaint about

"prescription" was unfounded, the time-limit in respect of the

applicant's offences expiring at the latest on 31 December 1995. It

also considered that the case-file had been open for consultation and

that the applicant had had sufficient occasion in the proceedings

orally and in writing to comment on the various issues. The Court did

not regard it as established that the minutes of the Appeals Commission

omitted important statements of the applicant. There was also no

obligation of the Cantonal Administration to order the preparation of

external expert opinions as the Administration itself was called upon

to establish the facts.

The Federal Court also dealt extensively with the applicant's

submissions as to various amounts allegedly evaded and the manner in

which the various taxes and fines had been calculated, inter alia,

concerning certain remunerations.

On 16 February 1995 the Tax Administration of the Canton of

Basel-Stadt (Steuerverwaltung des Kantons Basel-Stadt) wrote to the

applicant, noting that the Federal Court had confirmed the decision of

the Appeals Commission of 17 November 1992. On the basis of the latter

decision, the amounts due had to be amended; the sums now ranged from

27,456 to 591,566 CHF, and amounted to more than three million CHF.

On 2 March 1995 the applicant filed an appeal against the

decision of 16 February 1995 which was dismissed by the Tax

Administration of the Canton of Basel-Stadt on 30 March 1995.

On 10 April 1995 the applicant filed an appeal against this

decision with the Appeals Commission. The proceedings are apparently

still pending.

COMPLAINTS

1. The applicant complains that the Cantonal Administration did not

permit his lawyer to take the case-file to his office. As it turned

out before the Appeals Commission, the Cantonal Administration also did

not let him consult certain "unfavourable" ("ungünstige") documents of

the case-file.

2. The applicant complains under Article 6 para. 1 of the Convention

that the Appeals Commission is not an independent and impartial court

established by law within the meaning of Article 6 para. 1 of the

Convention. The members are appointed by the administration and only

act part-time as they are all busy lawyers. Furthermore, the

Commission is based only on an ordinance, not a statute, and its

Secretary is not independent in that he is a member of the Government

of the Canton of Basel-Stadt.

The applicant also submits that the minutes of the Appeals

Commission were insufficient; and that he was not invited to

participate when the Appeals Commission deliberated his case.

3. The applicant complains under Article 6 subpara. 3 (b) of the

Convention that he only had 30 days' time to prepare his remedy against

the decision of the Appeals Commission, whereas the latter took one

year to prepare its decision.

4. The applicant complains that in the proceedings before the

Federal Court he was not permitted to reply to the observations of the

Cantonal Administration and Federal Tax Administration.

5. Under Article 6 para. 2 of the Convention the applicant complains

that the observations filed with the Federal Court breached the

presumption of innocence. The Cantonal Administration stated in

particular that a document submitted by him proved to be "untrue"

("wahrheitswidrig"). The Federal Tax Administration stated that the

applicant had "constantly made unproven or even incorrect statements"

("laufend unbewiesene oder gar falsche Behauptungen <aufgestellt>").

6. The applicant complains under Article 6 para. 1 of the Convention

that the Federal Court decided without public deliberation (ohne

öffentliche Beratung entschieden).

7. The applicant complains under Article 6 subpara. 3 (d) of the

Convention that throughout the proceedings his request was refused for

the preparation of an expert opinion as to the market value of a stock

corporation. He was also not permitted to have N., a member of the tax

administration of the Canton of Basel-Stadt, heard in respect of

certain remunerations.

8. The applicant complains under Article 6 para. 1 of the Convention

of the length of the proceedings. He submits that the proceedings

commenced in 1983. The decision of the Appeals Commission was only

served a year later. He did not contribute to the length of the

proceedings. On the other hand, the authorities were overburdened, and

the case was not particularly complex.