CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    AS TO THE ADMISSIBILITY OF                     Application No. 11464/85                   by M.S.                   against Sweden             The European Commission of Human Rights sitting in private on 12 May 1987, the following members being present:                   MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   M. A. TRIANTAFYLLIDES                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ                 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 21 February 1985 by M.S. against Sweden and registered on 22 March 1985 under file N° 11464/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 29 January 1986 and the observations in reply submitted by the applicant on 24 April 1986 as well as the submissions of the parties at the hearing held on 12 May 1987;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Swedish citizen, born in 1929 and resident in Rome.   He is represented before the Commission by Mr.   Carl Göran Risberg, a lawyer practising in Stockholm.   A.       The particular circumstances of the case           On 4 December 1973 the applicant received a letter from the National Tax Board (riksskatteverket) requesting him to explain why an aggregate amount of 611,827 Swedish crowns (SEK) paid to a certain company had not been reported by the applicant in his annual tax returns for the income years 1969, 1970 and 1972 (which is equal to the "taxation years" 1970, 1971 and 1973).           The applicant replied that he was not the owner of the company in question, that he was a salaried employee of that company in its function as his manager according to a long term contract in compliance with long established practice in the show business and that the salary he had received from the company had been properly declared in his annual tax declarations.           On 30 April 1975 the Regional Tax Court (länsskatterätten) of Stockholm decided to impose on the applicant additional taxation (eftertaxering) in the amount of 206,950 SEK for the taxation year 1970, 157,769 SEK for 1971 and 247,108 SEK for 1973.   The amounts had been paid by the companies Swedish Film Industry (Svensk Filmindustri) and SF Production AB to the company in question.   The Regional Tax Court considered that the amounts were taxable income for the applicant.           On 23 April 1979 the Administrative Court of Appeal (kammarrätten) of Stockholm confirmed the decision of the Regional Tax Court, and on 8 October 1980 the Supreme Administrative Court (regeringsrätten) refused to grant leave to appeal.           On 16 November 1978 the Regional Tax Court of Stockholm decided to impose additional taxation on the applicant in the amount of 156,352 SEK for the taxation year 1974, 175,976 SEK for 1975 and 14,019 SEK for 1976 for reasons similar to those referred to above in the decision of 30 April 1975, namely that the amounts in question were taxable income for the applicant, notwithstanding the contract between him and the company in its function as his manager.   In addition to imposing additional taxation, the Regional Tax Court imposed a special charge (tax supplement) (särskild avgift (skattetillägg)) which amounted to 50 % of the tax imposed as a result of the additional taxation.   The total amount of the special charge (tax supplement) for the three years amounted to 120,399 SEK.    The proceedings before the Regional Tax Court were conducted entirely in writing, no oral hearing having been required by the applicant.           The applicant appealed to the Administrative Court of Appeal of Stockholm.   In his written submissions to the Court the applicant explained the factual circumstances concerning his income and set out his arguments as to whether or not an additional taxation should be imposed.   Likewise he argued that the circumstances in his case did not allow for the imposition of the special charge (tax supplement). Finally the applicant requested that an oral hearing be held before the Court.   He did not, however, specify any reasons for this request.           In a decision of 24 November 1981 the Administrative Court of Appeal rejected the request for an oral hearing.   In the decision the Court stated as follows:           " ... (The applicant) has not previously requested a hearing         before the Regional Tax Court or the Administrative Court of         Appeal, neither in the cases relating to the taxation years 1970,         1971 and 1973 nor in the present case.   Moreover, (the         applicant) has not alleged that the facts as submitted in         the case are incomplete.           The Administrative Court of Appeal attaches particular         importance to the fact that the question whether (the         applicant) is liable to pay tax on the amounts transmitted         to the company ... has been dealt with in a particularly         thorough manner in the previous as well as the present         case.   The Administrative Court of Appeal finds that         an oral hearing is unnecessary and that there are special         reasons militating against it."           No separate appeal lay against the decision of the Administrative Court of Appeal in this respect.           On 15 February 1982 the Administrative Court of Appeal confirmed the decision of the Regional Tax Court of 16 November 1978. In its judgment the Court stated, as regards the special charge (tax supplement):           "Furthermore the Court finds that the Regional Tax Court had good reasons to impose the special charge (tax supplement) on the applicant.   Such reasons or circumstances as could warrant the remission of this special charge (tax supplement) are not at hand."            On 22 April 1982 the applicant asked for leave to appeal against this decision to the Supreme Administrative Court (regerings- rätten).   He maintained that he was not liable to pay any additional tax and furthermore he argued that the refusal to hold an oral hearing was a procedural error.   He requested that the case be referred back to the Administrative Court of Appeal where an oral hearing should take place so that oral evidence could be produced.   The applicant also asked for an oral hearing before the Supreme Administrative Court.   The applicant developed his arguments further in his submissions dated 23 June and 6 July 1982 in which he also referred to Article 6 of the Convention in respect of the Administrative Court of Appeal's refusal to hold an oral hearing.             On 31 August 1984 the Supreme Administrative Court decided not to grant leave to appeal.     B.       Relevant domestic law and practice           The procedural network governing the levying of income taxes is compiled in the 1956 Act on Taxation (taxeringslag 1956:623).   This Act governs the procedure by which the tax authorities assess the taxable income, and it also contains provisions regarding the obligations of the taxpayer with respect to this procedure as well as certain sanctions which may be imposed upon him in case he fails to fulfil these obligations.           Sections 22-36 of the Act contain provisions concerning the obligation of the taxpayer to submit to the tax authorities information for the purpose of guiding them in their assessment of his taxable income.   The income tax return, submitted by the taxpayer, is subsequently reviewed by a Local Tax Assessment Board (lokal taxeringsnämnd) for the purpose of assessment.           Under Section 114 of the Act, an additional assessment (eftertaxering) may be made in case the taxpayer has made an incorrect statement on a matter relevant to the assessment of his taxable income.   An additional assessment must not be made by the Local Tax Assessment Board, but by an administrative court of first instance (länsrätt or previously länsskatterätt) upon the application by a Tax Superintendent (taxeringsintendent) or, as regards municipal income taxes as opposed to state income tax, the local municipality.   The decision on such an application is taken only upon the completion of proceedings before the court in which the taxpayer is given the opportunity to argue his case on an equal footing with the Tax Superintendent or the municipality.           Sections 116 a - 116 t of the Act provide for various administrative sanctions in the form of "special charges" that may be imposed upon the taxpayer in case he fails to file his return or files it later than provided for, and in case he makes incorrect statements on a matter relevant to the assessment of his taxable income.           Section 116 a provides inter alia that a special charge (tax supplement) shall be imposed on a taxpayer if he, in the fulfilment of his obligation to submit information required for the assessment, has made a statement that is found to be incorrect.   The tax supplement amounts to 40 percent - at the time it was imposed on the applicant 50 percent - of that part of his income taxes that would not have been imposed in case the taxes had been determined on the basis of the incorrect statement.   Under Section 116 h, the taxpayer may be relieved from the special charge if his submission of the incorrect statement is due to circumstances such as his age, illness or lack of experience or any comparable reason which could make his act or omission excusable.   The taxpayer may also, under the same section, be relieved on the ground that his failure is found to be excusable in view of circumstances related to the incorrect statement as such.           The question whether a special charge (tax supplement) should be imposed on a taxpayer is normally determined by a Local Tax Office (lokal skattemyndighet).   However, in case the question of the special charge (tax supplement) is raised as a result of an additional assessment, the question cannot be decided by the Local Tax Office, but has to be brought before an administrative court of first instance by a Tax Superintendent.   This claim has to be brought simultaneously with the claim for additional assessment.   The decision of the court is taken only upon the completion of proceedings in which the taxpayer is given the opportunity to argue his case on an equal footing with the Tax Superintendent.           The failure of a taxpayer to abide by the stipulations set forth in the Act for the purpose of aiding the tax authorities in correctly determining his income taxes, may also subject him to a criminal charge.   Provisions to this effect are laid down in Sections 119 - 121 of the Act and also in the 1971 Act on Tax Offences (skattebrottslag 1971:69).   A charge under these provisions is brought in accordance with the rules governing criminal charges in general.           A decision taken by an administrative court of first instance regarding an additional assessment or the imposition of a special charge (tax supplement) may be appealed to an Administrative Court of Appeal (kammarrätt).   Subject to certain statutory restrictions, a judgment of the Court of Appeal may ultimately be brought before the Supreme Administrative Court (regeringsrätten).           The procedural rules for these administrative courts appear in the 1971 Act on Administrative Court Procedure (förvaltningsprocesslag 1971:291).   As a general rule, laid down in Section 9, first paragraph of the Act, the proceedings should be in writing.   However, according to the second paragraph of the same section, an oral hearing may be held regarding a particular issue if this would be advantageous to the examination or further a speedy determination of the case.   Moreover, under the third paragraph of the same section, such a hearing shall be held in the court of first instance and the Court of Appeal when requested by a private party, provided that the hearing is not unnecessary and that there are no particular reasons against holding an oral hearing.   COMPLAINTS           The applicant complains that a "tax penalty" amounting to 120,399 SEK has been imposed upon him without a fair and public hearing as guaranteed by Article 6 of the Convention.           The applicant also complains of a violation of Article 13 of the Convention in that he had no separate effective remedy against the refusal of the Administrative Court of Appeal to have an oral hearing, or against that Court's judgment of 15 February 1982.           In his letter of 27 November 1985 the applicant finally complains that, insofar as the "tax penalty" concerns the determination of a criminal charge, Article 6 para. 2 has been violated since the "accused" has to prove his innocence or particular circumstances in order to avoid the penalty.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 21 February 1985 and registered on 22 March 1985.           After a preliminary examination by the Rapporteur, the Commission decided on 9 October 1985 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits.           After an extension of the time-limit the Government's observations were submitted on 29 January 1986.           After an extension of the time-limit the applicant's observations in reply were submitted on 24 April 1986.           On 16 October 1986 the Commission decided to invite the parties to appear before it at a hearing on the admissibility and merits of the application.           At the hearing, which was held on 12 May 1987, the parties were represented as follows:   The Government   Mr.   Hans Corell          Ministry of Foreign Affairs, agent Mrs.   Lena Moore          Ministry of Justice, adviser Mr.   Håkan Berglin        Ministry of Foreign Affairs, adviser Mr.   Nils Dexe            Ministry of Finance, adviser   The applicant   Mr.   Carl G. Risberg      Counsel for the applicant Prof.   Lars Hjerner       adviser Miss Ulrika Sundberg     adviser       SUBMISSIONS OF THE PARTIES   The Government           The Government contend that the present case does not involve the applicant's civil rights and obligations.   The proceedings complained of concerned the imposition of taxes and tax supplements. Even though the concept of civil rights and obligations has to be viewed as an autonomous concept which must be interpreted independently of the distinction in Swedish law between civil and public law, there would appear to be no doubt that, as regards proceedings concerning taxes as such, the public law character of the obligation is so predominant as to exclude the application of Article 6.           An issue is whether the tax supplement imposed on the applicant should be considered as a form of tax or, if not, whether the reasons for holding that Article 6 is not applicable to proceedings concerning the imposition of taxes are equally relevant to proceedings concerning the tax supplement.   At least the latter question has to be answered in the affirmative.   Thus, the most significant prerequisite for imposing the tax supplement is that the taxpayer is found liable for the taxes at issue.   Furthermore, the size of the tax supplement is directly related to the outcome of the tax issue as such.   Consequently, as to these two questions, once the tax issue as such is determined, no further considerations need to be made as regards the tax supplement.   The additional prerequisite that needs to be present before a tax supplement could be imposed, i.e. that the taxpayer has made an incorrect statement, is to be determined solely on objective grounds and, furthermore, on the basis of statements made by the taxpayer in the fulfilment of his obligation to submit correct information necessary for the assessment of the taxes as such.           The criteria for imposing a tax supplement are thus the same as those needed for an additional assessment and there is consequently hardly reason for viewing the tax supplement issue as something else than a strictly fiscal matter.   Obviously, a provision providing for some form of economic hardships for those who fail to fulfil such an obligation has to be viewed as a quite natural part of the complex of administrative rules aimed at securing the payment of taxes.   In this context attention is drawn to Article 1 para. 2 of Protocol No. 1 to the Convention in which a State's right to enforce such laws as it deems necessary to secure the payment of taxes is made explicit.           The contention that the case involves the determination of a criminal charge is also rejected.   In cases concerning tax matters the Commission has frequently observed that such proceedings do not involve the determination of a criminal charge within the meaning of Article 6 of the Convention.   The close relationship between the taxes as such and the tax supplement strongly urges that, for the present purpose, no other considerations be made with regard to the latter.           Furthermore, the very same failure of the taxpayer to submit correct information to the tax authorities may also constitute a criminal offence, namely if the failure is the result of criminal intent or, as the case may be, a certain degree of negligence on the part of the taxpayer.   In such a case, the pre-trial investigation, the prosecution and the trial are carried out by the bodies concerned with and under the procedural framework governing criminal charges in general.   It is in this context of no relevance whether or not the tax supplement has been imposed upon the taxpayer, and the imposition of the tax supplement does not exclude the possibility of a criminal charge on the basis of the very same material facts.           Moreover, in the case law of the Commission, the applicability of Article 6 to proceedings allegedly relating to a criminal charge has frequently been viewed in light of the criteria laid down by the European Court of Human Rights in the Engel case (Eur.   Court H.R., Engel and others judgment of 8 June 1976, Series A No. 22).   The Court held that the question of the applicability of Article 6 was to be determined in view of, firstly, whether or not under the legal system of the respondent State the offence charged belongs to the criminal law sphere; secondly, the very nature of the offence as such; and thirdly, the degree of severity of the penalty that the person concerned risks incurring.   Considering the facts of the present case on the basis of these criteria the conclusion is that the imposition of the tax supplement involved in the present case does not amount to the determination of a "criminal charge" within the meaning of Article 6 of the Convention.           Systematically the imposition of a tax supplement has never been regarded in Sweden as forming part of the criminal law but of the administrative law.   Unlike the Öztürk case (Eur.   Court H. R., Öztürk judgment of 21 February 1984, Series A No. 73) there has accordingly never been any "decriminalisation" of the law governing the tax supplements.           Furthermore, a number of other circumstances clearly distinguish the imposition of the tax supplement from the conviction of a criminal offence.           Firstly, a significant rationale for subjecting certain acts and omissions to a criminal charge is to condemn these acts and omissions as being inconsistent with the state's notions of morality and justice.   Inherent in this is that a violation of a penal law is considered an offence only when committed with criminal intent or, as the case may be, by negligence.   The imposition of a tax supplement, by contrast, is determined exclusively on objective grounds, i.e. without regard to any form of criminal intent or of negligence, and, therefore, lacks the morally delicate element of condemnation inherent in a criminal conviction (cf.   Eur.   Court H.R., Deweer judgment of 27 July 1980, Series A No. 35, Minelli judgment of 25 March 1983, Series A No. 62 and the Öztürk judgment mentioned above).   Another difference is that the tax fraud is investigated by the police and the prosecutor, while the question of a tax supplement is investigated by the tax authorities.           Secondly, in the course of the pre-trial investigation of a suspected criminal, as well as during the court proceedings, the person accused is subject to a number of severe coercive measures, including deprivation of liberty.   The legal provisions providing for these measures are not to any extent applicable to proceedings for the imposition of a tax supplement.           Thirdly, as a general rule those convicted of criminal offences are registered in a national crime register.   In addition to the fact that even the very registration as such certainly has to be considered as involving significant hardship for a person thus registered, the registration should also be seen in connection with the fact that a conviction of a criminal offence may have negative effects of vital importance for the convicted not only in case he would subsequently commit further offences but also in other contexts in his daily life.   A person on whom a tax supplement is imposed is not subject to such registration and the imposition of a tax supplement does not entail the negative consequences related to the conviction of a criminal offence.           Fourthly, unlike a criminal conviction, the imposition of a tax supplement has no effect of res judicata with respect to any subsequent criminal charge based on the same facts.   It follows from this that the present case is in total lack of the characteristics which the European Court of Human Rights has found decisive when considering an offence as being criminal in nature.           As regards the severity of the sanction imposed, it is observed that the Court and the Commission in this context almost exclusively seem to have considered proceedings involving deprivation of liberty, and that not even penalties of this severe character have been found to necessarily require the proceedings to come within the guarantees of Article 6.   The present case, by contrast, involves nothing else than a purely pecuniary sanction, which unlike fines, cannot be transformed into imprisonment under any circumstances.           It follows from the above that the imposition of the tax supplement does not amount to the determination of the applicant's civil rights and obligations.   Furthermore, as set out above, the imposition of the tax supplement lacks the characteristics generally associated with a criminal conviction, both in respect of its character, the procedural framework within which it is administered and the consequences following from its imposition.   Under these circumstances, the Government maintain that the economical consequences alone cannot suffice to render the imposition of a tax supplement equivalent to the determination of a "criminal charge" within the meaning of Article 6 of the Convention.           Assuming that Article 6 applies in the present case the Government do not contest the allegation that the applicant was denied oral proceedings before the courts.   For the following reasons, however, this did not constitute a breach of Article 6 of the Convention.           The question whether the denial to grant the applicant an oral hearing constitutes a violation of the Convention has to be viewed purely in light of the facts that were presented to, or otherwise known by, the Administrative Court of Appeal prior to the Court's decision.   There was no indication that the applicant intended to present oral evidence before the Court.           The appeal was lodged with the Administrative Court of Appeal on 12 January 1979.   The decision refusing the applicant's request for an oral hearing was taken on 24 November 1981.   Furthermore, by that decision the applicant was given an opportunity to submit further written observations before 10 December 1981.   The judgment was rendered on 15 February 1982.   At any time prior to the delivery of the judgment, the Court would have been obliged to reconsider the question of whether to hold an oral hearing, had the applicant so requested.   Different considerations would then have been necessary had the applicant indicated that he wanted to present oral evidence. However, no such request or indication was made.   In view of this, the Government find that the applicant was given a fair chance of indicating his reasons for requesting an oral hearing.           Furthermore, any possible finding indicating, in principle, that Article 6 requires an oral hearing in review proceedings, becomes considerably less, if at all, meritorious in a case like the present one where the party himself voluntarily refrained from availing himself of the opportunity to request an oral hearing, and to tender oral evidence, before the court of first instance when this could have been done.   This is so because, even assuming that Article 6 in part might be construed to apply to review proceedings, it cannot be interpreted so as to require a state to provide guarantees in review proceedings that would allow a party to cure deficiencies in his case caused by his own failure to properly, by using the facilities available to him, present the case before the lower court.   In other words, all that could possibly be required under the Convention as regards appeal proceedings would be a fair review of the case as presented before the lower court.           Turning now to the question of the extent to which the rules of Article 6 could be construed to apply to appeal proceedings even though the right to appeal as such is not guaranteed by the Convention, attention should be drawn to Article 2 of Protocol No. 7 to the Convention.   In this Article, which concerns criminal proceedings, the right to appeal is guaranteed (n.b. that the Protocol is not yet in force).   In the preparation of this Article it was deemed necessary to make an exception from the right to a public hearing by a higher court.   This indicates that Article 6 of the Convention must not be construed so as to pertain fully to proceedings in a higher instance.   From the case-law of the European Court of Human Rights it can safely be concluded that Article 6 para. 1 does not necessarily call for an oral hearing in appeal proceedings. Whether this would be required would depend upon the special features of the proceedings involved (cf. for example Eur.   Court H.R., Delcourt judgment of 17 January 1970, Series A No. 11 and the Monnell and Morris judgment of 2 March 1987, Series A No. 115).           A higher tribunal should of course be independent and impartial.   Above this, however, the High Contracting Parties should have a considerable leeway in designing the system for appeal in their respective countries.   For various reasons it is necessary in a system with two or more instances to rationalise the procedure in the higher instances in order to create a well-functioning administration of the law.   The procedure should be quick, cheap and simple, while at the same time satisfying the demands for legal security.           The proceedings in the Administrative Court of Appeal are according to the main rule to be conducted in writing.   Oral proceedings can be held under certain conditions.   The cases which the court deals with vary considerably, and the rules of procedure make it possible for the Court to adjust the proceedings accordingly; in many cases there is no need for oral proceedings, while such proceedings could sometimes be an advantage or even necessary.   The opinion and requests from the parties are of great importance when the Court decides on how the proceedings should be conducted.           An important factor in this context is the Swedish principle of general access to official documents.   According to this principle - which is laid down in the Freedom of the Press Act forming part of the Swedish Constitution - anybody has the right to have access to the written submissions to Swedish courts, including the Administrative Court of Appeal.   This means that there is a full publicity about the proceedings even if there is no oral hearing.           Attention is also drawn to the Commission's constant case law concerning the interpretation of Article 6 and the concept of "equality of arms", from which it can be deduced that such equality is at hand if neither party is present before the court during the proceedings.   It shows that Article 6 must not necessarily be construed so as to guarantee to the parties the right to appear in person before a court.           Finally it could be questioned whether Article 6 of the Convention calls at all for oral proceedings regardless of the character of the issues that are presented.   The Commission has in numerous decisions dealt with the concept of a "fair and public hearing" in a manner that seems to indicate that all that would be required would be that a party is provided with appropriate facilities for presenting and arguing his case and that the opposing party is not put in a more favourable position with regard to the possibilities of presenting his position.   This would seem to call for a consideration of such matters as the scope of the powers of the Court of Appeal, the nature of the issues presented and the manner in which the applicant's interests could be presented and protected.   It certainly goes without saying that the circumstances in a case might be such as to call for an oral hearing for these requirements to be fulfilled.           However, it would seem to be equally conceivable that a party under certain circumstances could be given a perfectly fair chance to present his case, even though he was not afforded the opportunity of doing so at an oral hearing (cf.   Eur.   Court H.R., Axen judgment of 8 December 1983, Series A No. 73 and Sutter judgment of 22 February 1984, Series A No. 74).           As regards the scope of the proceedings, they did indeed involve a full review of the case, but the power of the Administrative Court of Appeal was not unlimited.   Thus, in the absence of an appeal by the tax superintendent, the Court was, as a matter of law, unable to raise the tax supplement imposed by the lower court.   Furthermore, the calculation of the tax supplement being a matter of pure arithmetic, the scope of the Court's powers was in fact limited to upholding or quashing the lower court's principal decision to impose a tax supplement.           In the present case the character and mode of living of the applicant were of no relevance to the formation of the Court's opinion.   Furthermore, the facts, as presented by the applicant, were accepted by the Court with one exception.   In his complaint to the Commission, the applicant also admits that in the first place the judgment of the Court was criticised "as a matter of application of the present Swedish tax law".           In view of this, and even assuming that the applicant's case would fall within the scope of Article 6, and that this Article could be construed to apply to appeal proceedings, an oral hearing in this case given the way the case stood before the Administrative Court of Appeal, would obviously not have served any reasonable purpose.           Finally, as regards the applicant's complaint under Article 6 para. 2 of the Convention, the Government submit that, insofar as Article 6 is found to be applicable, this complaint has been introduced out of time and must be rejected for that reason.   The applicant           When the special charge (skattetillägg) was introduced in 1971-72 incorrect statements in the income declaration were to be punished as crimes either as fraud or as incorrect statement by gross negligence.   In case of conviction a tax penalty could also be imposed.   The legislator wanted, however, to punish more or less every incorrect statement - not only those made by gross negligence.   The ordinary courts, being bound to apply the ordinary procedural rules and hampered thereby, were considered to lack the capacity to handle such an increasing number of cases, and consequently in order to cope therewith, the system of "administrative sanctions" was invented.           The purpose to deter, repress and retaliate remained obvious, however, and this new system was met with criticism from some circles already at its start.   Later, in the middle of the seventies a reappraisal was made by a governmental committee, which also proposed some changes in the Act based on the experience up till then.           The committee pointed out that the persons who have had to pay special charges (skattetillägg) were not to be considered "criminals" in the social sense.   They had, however, violated an obligation as against the community and the means of pressure intended to enforce such obligation had therefore entered into function.   This, in the view of the committee, led to the result that the tax-administrative sanctions were of a special character and to be understood as a special kind of "social sanction" but not as a punishment.           From this it is reasonably clear that the function of the special charge (skattetillägg) is the same as that of a fine, namely to deter, to repress and, in case of failure thereof, to inflict an economic suffering upon the wrongdoer.   The difference is that the sanction is supposed not to be dishonouring, that the presumption of not-guilty is eliminated and that some other procedural safeguards in the criminal procedure are more or less abolished.           Regarding the applicability of Article 6 of the Convention it is acknowledged that proceedings in tax matters are not per se governed by this provision.   However, if in the same proceedings tax matters and criminal charges are handled by the same authority or the same court, the fact that tax matters are involved will not exclude the proceedings from the application of Article 6 insofar as a criminal charge is concerned or made dependent on the outcome of the tax dispute.   Consequently, if the special charge is considered to be a tax in the sense of the Convention then Article 6 seems not to apply.   It is, however, likewise clear that if the special charge is considered to involve a criminal charge then Article 6 does apply.           Admittedly, the Swedish Act on Taxation and the provisions on the special charge have a public-law character - so has also any penal code of a country - but this does not take it out of the application of Article 6.   The special charge is officially called, at its introduction, a system of "administrative sanctions" and the "economic hardship" is called "avgift" (fee), because if it had been openly called a punishment (straff) or a fine (böter), the task to impose these sanctions could not have been entrusted to tax authorities or tax courts but only to the ordinary courts and then the whole purpose of the reform would have been spoiled.           Furthermore it should be pointed out that, as indicated above, the governmental committee which made an appraisal of the first years of practice of the system of administrative sanctions and special charges, in response to the critics of the system, defended it as being "standing penalties" and compared it to the German system of "Steuerordnungswidrigkeiten".   The committee said:           "In this context it may be mentioned that the type of         contraventions against which the present sanctions are         directed, in German law is called Steuerordnungswidrigkeiten.         Ordnungswidrigkeiten are, according to German legal         terminology, not to be considered as criminal offences.         Neither are sanctions against them (Verwarnung, Verwarnungsgeld         and Geldbusse) to be considered punishment but as means         of pressure to enforce a better state of things (ein Aufruf         zur Ordnung)."           The Government have in their observations, when considering the question of a criminal charge, in particular referred to the Engel case (Eur.   Court H.R., Engel and others judgment of 8 June 1976, Series A No. 22).   The Öztürk case (Eur.   Court H.R., Öztürk judgment of 21 February 1984, Series A No. 73) and the Adolf case (Eur.   Court H.R., Adolf judgment of 26 March 1982, Series A No. 49) appear, however, to be of more importance when considering the present case.           Having regard to the above judgments it is clear that the interpretation of "criminal charge" as well as "civil rights and obligations" in the sense of the Convention is an autonomous one which may or may not follow the characterisation made in the national legal system.   The characterisation made under the national law seems to be conclusive only where the national law itself qualifies the proceedings as "criminal".           The Court also paid attention to circumstances such as how close the system in question comes to the ordinary criminal proceedings.   In this context it may be pointed out that the Swedish system, although it is called "skattetillägg" and "administrative sanctions", nevertheless is handled by the courts, i.e. the tax courts.   The general character of the rule and the purpose of the special charge are both deterrent and punitive.           A tax is imposed on income or on fortune or upon a sales price but not because a person does not comply with a legal obligation to present his tax return or to give any other type of information.   This is a typical sanction, a penalty, and has nothing to do with taxes even if it is handled by the tax authorities.   The reason for that is to make it easy for the authorities to impose the sanction upon the taxpayer.   Furthermore, if an incorrect statement is discovered which would justify the imposition of a special charge and if the taxpayer happens to die before the special charge has been imposed there will be no special charge.   A tax is not dispensed with in relation to the taxpayer because he dies.   If he is subject to tax, either he pays it when he is alive or his estate pays the tax.   The comparison with regular punishment of penalties is obvious.   There the rule is, just as in regard to the special charge, that if the accused person or the person upon whom the fine is imposed dies before the fine is paid, the fine will not be executed.           It is true that tax authorities cannot arrest a person, but subject only to that exception they can order as fargoing coercive measures as any prosecutor.   A tax inspector may search the tax- payer's home and seize any documents without asking any court for authorisation or confirmation.   Only when the tax inspector wishes to search some other person's house he has to request the permission of a tax court.   Furthermore, if the tax inspector refers the taxpayer's case as a matter of fraud to a public prosecutor, the result of the criminal investigation led by the prosecutor and of the proceedings may likewise be used for the determination of the special charge by a tax court.           Regarding the severity of the sanction imposed, the Öztürk case involved a fine of only 60 German marks and an amount of only 63.90 German marks for the interpreter's fee.   Nevertheless both the Commission and the Court found Article 6 applicable.           The special charge or charges amount in this case to 120,399 Swedish crowns.   At that time the maximum fine which could be imposed in criminal proceedings was 180 "day-fines" at a maximum of 500 Swedish crowns per day or 90,000 Swedish crowns corresponding to 90 days in prison.   It is obvious from this that the special charge is not to be compared with any petty offences.   Together with the tax it may easily take away more than the total income.   Although there may be valid reasons to consider some petty offences not to be covered by Article 6 of the Convention, this cannot apply to the applicant's case and there is therefore no reason to try to point out where for the purpose of Article 6 of the Convention such distinctive line, if any, should be drawn.   It should only be added that, if the special charge would not be considered a "criminal charge", the amounts which are claimed by the Government as "fees" are of such magnitude that the claim must then be considered a civil "obligation" in the sense of Article 6 of the Convention.           Regarding the proceedings in question it is undisputed that the applicant requested an oral hearing.   This in common language and by necessity means that he wanted to address the Court orally.   It was not at that time said that the applicant wanted to have some other expert or witness examined but he reserved explicitly his right to indicate so later, which is quite normal in Swedish proceedings.   The Court, however, never gave him a chance thereto before its decision. On its own motion, without awaiting any reaction on the applicant's written request from the other party the Court already the next day decided not to allow an oral hearing.           The applicant did not request an oral hearing before the court of first instance.   However, the fact that no oral hearing was held in the first instance would speak in favour of rather than against the need for an oral hearing in the appeal court.   The Swedish Act on Administrative Court Procedure makes no distinction between appeal proceedings and the proceedings in the first instance.   In both cases oral hearings shall be held unless there are particular reasons against it.           Further, when the applicant's case was before the court of first instance, the tax superintendent had requested that a special charge should be imposed, but in an earlier decision concerning the previous years no such request had been made and no charge had been imposed.   In a similar case the tax court had dispensed with the special charge referring to the complexity of the legal situation.   So in the present case the applicant had no reason to believe that the