CEDH · CASELAW;REPORTS;ENG — 10 avril 1996

.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 }                EUROPEAN COMMISSION OF HUMAN RIGHTS                        Application No. 20919/92                        E. L., R. L. and J. O.-L.                                 against                               Switzerland                        REPORT OF THE COMMISSION                     (adopted on 10 April 1996)                            TABLE OF CONTENTS                                                             Page     I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-26). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 27-30). . . . . . . . . . . . . . . . . . .4     III. OPINION OF THE COMMISSION      (paras. 31-50) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . . .6        C.    Article 6 para. 2 of the Convention           (paras. 33-49). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 50). . . . . . . . . . . . . . . . . . . . .8     DISSENTING OPINION OF MM. E. BUSUTTIL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, L. LOUCAIDES, B. MARXER, I. BÉKÉS, J. MUCHA, G. RESS, A. PERENIC, C. BÎRSAN and K. HERNDL . . . . . . . . . . . . . . . . . .   9     DISSENTING OPINION OF MR. S. TRECHSEL . . . . . . . . . . . 10     DISSENTING OPINION OF MR. H.G. SCHERMERS. . . . . . . . . . 11     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 12     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicants, Swiss citizens, are the heirs of Mr. L. who died on 7 October 1985.   The first applicant, a housewife born in 1922 and residing at Sarnen, is L.'s widow.   The second applicant, a businessman born in 1951 and residing at Sarnen, and the third applicant, a housewife born in 1956 and residing at Ennetmoos, are the children of L.   They are represented before the Commission by Mr. R. Küchler, a lawyer practising in Lucerne.   3.    The application is directed against Switzerland.   The respondent Government are represented by Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.   4.    The case concerns the applicants' complaint that, irrespective of any personal guilt, they were convicted of an offence allegedly committed by L.   The applicants invoke Article 6 para. 2 of the Convention.     B.    The proceedings   5.    The application was introduced on 29 October 1992 and registered on 6 November 1992.   6.    On 5 September 1994 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 15 November 1994. The applicants replied on 10 and 11 January, 10 February and 14 June 1995.   8.    On 16 October 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 3 November 1995 and they were invited to submit such further information or observations on the merits as they wished. However, no further submissions were made.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.    The present Report   11.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   H. DANELIUS, Acting President                S. TRECHSEL                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H.G. SCHERMERS           Mrs. G.H. THUNE           Mr.   F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                E. KONSTANTINOV                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL   12.   The text of this Report was adopted on 10 April 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS     A.    The particular circumstances of the case   16.   L. was the proprietor of a mail-order company.   It appears that he had not reported to the tax authorities certain monies earned in Germany.   Following the advice of a tax adviser, he informed the Sarnen Municipal Tax Office (Gemeindesteueramt) on 21 December 1984 thereof, namely that he had not declared the amount of 270,000 SFr.   17.   After L.'s death on 7 October 1985 the Tax Administration (Steuerverwaltung) of the Canton of Obwalden informed the first applicant on 29 October 1985 of the institution of tax and criminal tax proceedings.   18.   On 7 January 1986 the period expired during which the applicant's heirs could have refused the heritage (see below, para. 30).   19.   On 18 August 1990 the Tax Administration found that L. had committed tax evasion and ordered the applicants as heirs to pay taxes of 13,227.90 SFr and a fine of 38,069.60 SFr.   20.   On 19 December 1989 the Cantonal Tax Appeals Board (Steuerrekurs- kommission) of the Canton of Obwalden partly upheld the applicants' appeal and reduced the taxes due to 1,481.30 SFr and the fine to 630.90 SFr.   The Appeals Board considered in particular that there were no indications that the amount at issue had arisen from evaded monies. The Appeals Board further found that the Tax Administration had not sufficiently expressed itself on L.'s guilt.   However, it did not refer the case back for renewed decision, finding that the applicants had had sufficient opportunity to state their views before the Appeals Board itself.   In respect of the liability of heirs the Appeals Board referred to Section 130 para. 1 of the Ordinance on Federal Taxes (Beschluss über die direkte Bundessteuer; see below, para. 28).   21.   The Federal Tax Administration (Eidgenössische Steuerverwaltung) then filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht) upheld on 22 May 1992.   22.   In the Federal Court's opinion, the Appeals Board had incorrectly distributed the burden of proof, as it fell to the taxpayer to prove that any increase of fortune did not result from undeclared income. The Court concluded that L. had deliberately evaded the entire amount of 270,000 SFr and that L.'s heirs were liable to pay the incurred fine, irrespective of their personal guilt.   23.   Insofar as the applicants maintained that the imposition of the fine breached Article 6 para. 2 of the Convention, the Court referred to its case-law according to which the fine concerned the deceased, not the heirs, the latter merely being liable in respect of their part of the inheritance which they were free to refuse.   A further confirmation of this could be seen in the fact that the amount of the fine was determined according to the culpability of the deceased.   24.   As a result, the Federal Court imposed taxes on the applicants to the amount of 29,470.10 SFr and ordered the Appeals Board again to determine the fine.   25.   On 4 February 1993 the Cantonal Appeals Board imposed a fine of 14,678.80 SFr on the applicants.   The applicants then filed an administrative law appeal with the Federal Court in which they complained of the amount imposed.   26.   On 9 January 1994, the Federal Court upheld the applicants' administrative law appeal and referred the case back to the Cantonal Appeals Board.   On 24 July 1995 the Cantonal Tax Appeals Board imposed a fine of 5,513.80 SFr on the applicants.   No further appeal was fined against this decision.     B.    Relevant domestic law          1.    Swiss Penal Code   27.   The Swiss Penal Code (Strafgesetzbuch) determines fines (Bussen) as one of the forms of punishment for a criminal offence (Section 48 et seq.).   According to Section 48 para. 3, a fine is extinguished if the convicted person dies (stirbt der Verurteilte, so fällt die Busse weg).          2.    Ordinance on Direct Federal Taxes   28.   According to Section 129 para. 1 of the Ordinance on Direct Federal Taxes (Beschluss über die direkte Bundessteuer <BdBST>)in force at the relevant time, tax evasion (Steuerhinterziehung) shall be punished with a fine.   Section 130 para. 1 provides, inter alia:   <Translation>        "If the evasion is discovered only after the death of the person      liable to pay taxes, proceedings are instituted and carried out      against his heirs.   Irrespective of personal guilt, these will      be jointly liable for the deceased person's evaded taxes and the      fine incurred by him up to an amount not exceeding their share      in the estate."   <German>        "Wird die Hinterziehung erst nach dem Tode des Steuerpflichtigen      entdeckt, so wird das Verfahren gegenüber seinen Erben angehoben      und durchgeführt, und diese haften bis zur Höhe ihrer Erbteile      solidarisch für die vom Erblasser hinterzogene Steuer und die von      ihm verwirkten Bussen ohne Rücksicht auf ein eigenes      Verschulden."   29.   Section 179 para. 1 of the Federal Direct Taxation Act (Bundesgesetz über die direkte Bundessteuer), in force since 1 January 1995, envisages the liability of the heirs inter alia in respect of any fines determined with legal force.   According to para. 2, if the tax evasion proceedings have been concluded after the death of the person concerned, and if no guilt falls on the heirs, they shall not pay a fine.          3.    Swiss Civil Code   30.   Section 560 para. 2 of the Swiss Civil Code (Zivilgesetzbuch) provides:   <Translation>        "Subject to the statutory exceptions, all claims, the property,      the mortgages and the possessions of the deceased shall      automatically pass over to (the heirs) and the debts of the      deceased shall become the personal debts of the heirs."   <German>        "Unter Vorbehalt der gesetzlichen Ausnahmen gehen die      Forderungen, das Eigentum, die beschränkten dinglichen Rechte und      der Besitz des Erblassers ohne weiteres auf (die Erben) über, und      die Schulden des Erblassers werden zu persönlichen Schulden der      Erben."        According to Section 566 para. 1 of the Swiss Civil Code, "the legal and instituted heirs have the possibility to refuse the inheritance which has fallen to them" ("die gesetzlichen und eingesetzten Erben haben die Befugnis, die Erbschaft, die ihnen zugefallen ist, auszuschlagen").     III. OPINION OF THE COMMISSION     A.    Complaint declared admissible   31.   The Commission declared admissible the applicants' complaint that, irrespective of any personal guilt, they were convicted of an offence allegedly committed by L.     B.    Point at issue   32.   The point at issue is whether there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention.     C.    Article 6 para. 2 (Art. 6-2) of the Convention   33.   The applicants complain under Article 6 para. 2 (Art. 6-2) of the Convention that they have been convicted of an offence irrespective of any personal guilt.   34.   Article 6 para. 2 (Art. 6-2) of the Convention provides:        "Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."   35.   In the applicants' opinion, it transpires from the case-law of the Federal Court that criminal tax proceedings clearly fall under the guarantees of Article 6 (Art. 6) of the Convention, and that the statutory provisions on the punishment of tax evasion clearly constitute criminal provisions.   The applicants find it difficult to understand why a different solution should apply in the case of proceedings instituted against the heirs of a person who evaded taxes. It is not possible merely to charge the estate but not the heirs.   Even if it is assumed that the deceased was culpable (schuldhaft), such culpability cannot be transposed on the heirs.   36.   The applicants refer to various Swiss authors according to which the liability of heirs for tax fines of the deceased clearly breaches the presumption of innocence enshrined in Article 6 para. 2 (Art. 6-2) of the Convention.   This view is also maintained by certain cantonal courts.   37.   The respondent Government contest, with reference to the decision of the Federal Court, that the applicants were charged with a criminal offence.   It is submitted that the proceedings at issue established the guilt of the deceased, not of the applicants.   Furthermore, according to Section 566 of the Swiss Civil Code, the applicants were not obliged to accept the inheritance.   Indeed, the applicants only become liable to the extent that they have inherited, and not in respect of the entire estate.   Finally, the names of the heirs assuming the deceased's fine will not be listed in the criminal register.   38.   The Government point out that under Swiss law the estate has no legal personality and that the heirs, as it were, represent the deceased in proceedings where only the latter, not the heirs, is the accused.   By envisaging the responsibility of the heirs, the law aims at discouraging a person from withholding taxes during his lifetime. In the present case, the guilt of the deceased was established.   39.   According to the Commission's case-law, Article 6 para. 2 (Art. 6-2) of the Convention protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court.   This provision may therefore be violated if somebody is found guilty of criminal acts without this having been duly proved during a trial (see No. 7986/77, Krause v. Switzerland, dec. 3.10.78, D.R. 13 p. 73; No. 11669/85, dec. 7.12.87, D.R. 54 p. 95).   40.   In the present case, the Commission must first examine whether the applicants were "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.   41.   The Commission notes that after L.'s death on 7 October 1985, the Tax Administration of the Canton of Obwalden informed the first applicant on 29 October 1985 of the institution of tax and criminal tax proceedings.   On 18 August 1990 the Tax Administration found that L. had committed tax evasion.   42.   Thus, the decision of the Tax Administration formally refers to criminal offences committed by L.   However, it does not transpire from the decision that the Tax Administration also laid criminal charges against the applicants.   There is furthermore no indication that the applicants were in any other way accused of having committed a criminal offence.   43.   Nevertheless, on 18 August 1990 the Tax Administration ordered the applicants to pay the fine for the tax evasion committed by L. as well as the taxes which L. had withheld.   The Tax Administration thereby relied on the fact that, after L.'s death in 1985, the applicants had become heirs to L.'s estate.   44.   The Commission has examined the nature of the obligation imposed on the applicants.   According to Section 130 para. 1 of the Ordinance on Direct Federal Taxes, the applicants assumed the obligation to pay the fine and the outstanding taxes, not on account of their own guilt, but because they had become liable therefor as heirs.   This is confirmed by the Federal Court's decision of 22 May 1992 which emphasised the element of liability and excluded in such cases the applicability of Article 6 para. 2 (Art. 6-2) of the Convention which applied only to criminal offences.   45.   In this respect the Commission also notes that fines imposed on the basis of Section 130 para. 1 of the said Ordinance are not entered into the criminal register.   46.   In the Commission's opinion, the applicants' liability must be seen in connection with Section 560 para. 2 of the Swiss Civil Code according to which heirs shall become liable for any debts of the inheritance.   Thus, according to Section 130 para. 1 of the Ordinance on Direct Federal Taxes the applicants only became liable up to the amount which they had actually inherited.   The applicants could not become liable in respect of the entire estate, nor was the liability made dependent on their own fortune.   Indeed, after L.'s death the applicants could have refused to accept the inheritance altogether. Had they done so, they would not have been liable either for L.'s debts or for any fines associated with his estate.   47.   As the applicants chose to accept the inheritance, they became responsible for their share of the inheritance.   They were thus obliged to pay L.'s tax debts as well as L.'s fine, not on account of their own criminal responsibility, but because they had become liable therefor as heirs to L.'s estate.   48.   It follows that the applicants were not "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.   This provision does not therefore apply to the present case.   49.   On the other hand, the Commission does not exclude that the proceedings at issue concerned "the determination of (the applicants') civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that to this extent guarantees of this provision concerning the fairness of civil proceedings would apply to the present case. However, the Commission finds it unnecessary to resolve this issue as the applicants have not raised any further complaints about the unfairness of the proceedings.          CONCLUSION   50.   The Commission concludes, by 15 votes to 13, that in the present case there has been no violation Article 6 para. 2 (Art. 6-2) of the Convention.     Secretary to the Commission                 Acting President                                           of the Commission          (H.C. KRÜGER)                          (H. DANELIUS)                                                      (Or. English)           DISSENTING OPINION OF MM. E. BUSUTTIL, A.S. GÖZÜBÜYÜK,    J.-C. SOYER, L. LOUCAIDES, B. MARXER, I. BÉKÉS, J. MUCHA,          G. RESS, A. PERENIC, C. BÎRSAN and K. HERNDL            We have voted against the finding of no violation of Article 6 para. 2 of the Convention for the following reasons.        In our opinion even where no formal accusation is raised, Article 6 para. 2 of the Convention will be breached where a criminal sanction, implying guilt, is imposed on a person without it having been duly proved that that person had committed a criminal offence.        In the present case, we note that on 18 August 1990 the Tax Administration ordered the applicants to pay the fine for the tax evasion committed by L. as well as the taxes which L. had withheld. The Tax Administration thereby relied on the fact that, after L.'s death in 1985, the applicants had become heirs to L.'s estate.        It is true that according to Section 130 para. 1 of the Ordinance on Direct Federal Taxes, the applicants assumed the obligation to pay the fine and the outstanding taxes, not on account of their own guilt, but because they had become liable therefor as heirs.   Indeed, the applicants only became liable up to the amount which they had actually inherited.   Moreover, fines imposed on the basis of Section 130 para. 1 are not entered into the criminal register.        We nevertheless observe that the measure imposed on the applicants was a fine.   According to the Swiss Penal Code, a fine serves the purpose of punishing a criminal offence (see above, para. 27) and therefore implies guilt.   A confirmation of the criminal nature of the fine can further be seen in the present case, on the one hand, in that the fine was imposed on account of the criminal offence of tax evasion; and, on the other, in that the deceased, L., was considered guilty after his death of having committed this offence.        The applicants were, therefore, victims of a criminal sanction. The fine, however, as well as its amount, were determined, not on the basis of the applicants' conduct or of their guilt, but of the conduct and guilt of another person, namely the deceased L.        Contrary to Article 6 para. 2 of the Convention, therefore, the applicants were punished for a criminal offence which was not duly proved during a trial and which indeed another person had committed.        Consequently we consider that there has been a violation of Article 6 para. 2 of the Convention.                                                    (Or. English)                  DISSENTING OPINION OF MR. S. TRECHSEL            I regret that, in the present case, I cannot agree with the majority of the Commission.   In my view there has been a violation of Article 6 paragraph 2 of the Convention.        It is true that the applicants themselves have not formally been charged with a criminal offence.   Nevertheless, they in fact had the position of defendants in the proceedings concerning the tax evasion allegedly committed by the deceased.   After L.'s death it was the first applicant whom the authorities informed of the opening of criminal tax proceedings.   I accept that the issue in these proceedings was the guilt not of the applicants but of L.        However, at the time the decision to impose a penalty was taken the person found guilty had died and those directly affected were the applicants.        According to the case-law of the Commission and the Court, Article 6 paragraph 2 can be violated even in the absence of any conviction by a declaration of an authority that a person is guilty of an offence.   In my view, on the other hand, there must also be a violation of that guarantee in a case where a retributive sanction is imposed upon a person for an offence committed by another person.        I am not impressed by the Government's argument that the heirs could have refused the inheritance.   At the time the fine was imposed they had, according to Section 560 of the Swiss Civil Code, already acquired title to and possession of whatever the deceased had left. Rejecting the inheritance would only have eliminated the problem if, even disregarding the fine, the applicant had left more debts than assets.   They would also have suffered a loss if they had had to reject the inheritance because after deduction of the fine nothing was left over.        In a nutshell:   The present case concerns applicants who were punished for an offence somebody else had committed.   Such a punishment is not compatible with Article 6 para. 2 of the Convention and there has, accordingly, been a violation of that guarantee.                                                      (Or. English)                DISSENTING OPINION OF MR. H.G. SCHERMERS          Unlike the majority of the Commission I am of the opinion that Article 6 para. 2 of the Convention has been violated in the present case.        The rights of the applicants cannot be fully separated from those of the de cujus, Mr. L.   Had L. been lawfully convicted to pay a fine, then that fine would have been part of the inheritance and there would be no objection against charging the heirs for payment.   Therefore, we first have to consider whether Mr. L. had been lawfully charged of the fine and in particular, whether L.'s presumption of innocence was respected.   In my opinion that is not the case.   Only after his death suspicion arose against him and after his death he was prosecuted for tax evasion.   According to the Federal Court he was to be found guilty unless he could prove his innocence (para. 22 of the Report).   Being dead L. could not prove anything.   Subsequently, he was convicted (post mortem) of having deliberately evaded taxes.   Under Article 6 para. 2 L. had to be considered innocent until proved guilty according to law. In my opinion "law" also includes the Convention and the general principles of law.   I cannot accept that the de cujus L. was proved guilty according to law.        This affects the case of the applicants.   At the time of the death of Mr. L. there was no fine yet, not even a suspicion against him.   Only after the heritage had gone into the legal possession of the applicants was a fine established, but that fine cannot be seen as a lawful part of the inheritance.   Considering the date of its establishment the fine can hardly be other than a fine upon the heirs. One cannot punish a dead person.   If the fine is any kind of a punishment of the heirs, it is obviously in violation of Article 6 para. 2, as no guilt of the heirs has been proved.        Remains the question whether the fine can be seen as a charge on the heritage other than a fine.   As noticed above there can be no question of a lawful fine of the de cujus which is binding for the heirs as a charge on the heritage.   Can it be seen as any other kind of charge forming part of the inheritance?   Of course, the taxes themselves can be charged against the heritance, even if their being due is established only after the death of the de cujus.   In my opinion, the same will apply to a reasonable interest automatically added to taxes in undeclared income.   The finding out of the duty to pay such taxes and the delays involved cause costs to the tax authorities and an extra charge may be justified for covering such costs.   This should, however, be irrespective of any guilt of the assessable person.   When, as in the present case, the additional charge is named "fine" and depends on the question whether or not the tax evasion was deliberate, it cannot be otherwise determined than a criminal charge in the sense of Article 6.   Therefore, the requirements of Article 6 should be fulfilled.   As the applicants have been fined without having been found guilty of any offence, Article 6 para. 2, has been violated.