CEDH · CASELAW;REPORTS;ENG — 18 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. 19958/92                         A. P., M. P. and T. P.                                 against                               Switzerland                        REPORT OF THE COMMISSION                     (adopted on 18 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. 16-29) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-24). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law           (paras. 25-29). . . . . . . . . . . . . . . . . . .5     III. OPINION OF THE COMMISSION      (paras. 30-63) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 30). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 31). . . . . . . . . . . . . . . . . . . . .7        C.    Article 6 para. 2 of the Convention           (paras. 32-49). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 50). . . . . . . . . . . . . . . . . . . . .9        D.    Article 6 para. 1 of the Convention           (paras. 51-60). . . . . . . . . . . . . . . . . . .9             CONCLUSION           (para. 61). . . . . . . . . . . . . . . . . . . . 11        E.    Recapitulation           (paras. 62-63). . . . . . . . . . . . . . . . . . 11     DISSENTING OPINION OF MM. E. BUSUTTIL, A.S. GÖZÜBÜYÜK, J.-C. SOYER, F. MARTINEZ, L. LOUCAIDES, B. MARXER, G. RESS AND A. PERENIC (regarding Article 6 para. 2 of the Convention) . . . . . . 12     DISSENTING OPINION OF MR. S. TRECHSEL (regarding Article 6 para. 2 of the Convention) . . . . . . 13                            TABLE OF CONTENTS                                                             Page     DISSENTING OPINION OF MR. H.G. SCHERMERS (regarding Article 6 para. 2 of the Convention) . . . . . . 14     DISSENTING OPINION OF MR. K. HERNDL (regarding Article 6 para. 2 of the Convention) . . . . . . 15     CONCURRING OPINION OF MR. N. BRATZA JOINED BY MRS. J. LIDDY (regarding Article 6 para. 1 of the Convention) . . . . . . 16     DISSENTING OPINION OF MR. H. DANELIUS JOINED BY MM. I. CABRAL BARRETO, E. KONSTANTINOV, D. SVÁBY AND P. LORENZEN (regarding Article 6 para. 1 of the Convention) . . . . . . 17     DISSENTING OPINION OF MR. M.P. PELLONPÄÄ (regarding Article 6 para. 1 of the Convention) . . . . . . 18     DISSENTING OPINION OF MM. G. JÖRUNDSSON AND J.-C. GEUS (regarding Article 6 para. 1 of the Convention) . . . . . . 19     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 20     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 residing at Hombrechtikon in Switzerland, are the heirs of Mr. P., who died on 28 February 1984. The first applicant, a housewife born in 1924, is P.'s widow.   The second applicant, a construction engineer born in 1951, and the third applicant, a construction entrepreneur born in 1955, are sons of P. They are represented before the Commission by Mr. H.-P. Derksen, a lawyer practising in Zurich.   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' complaints that, irrespective of any personal guilt, they were convicted of an offence allegedly committed by P.; and that they could not defend themselves in a public hearing before an independent and impartial court.   The applicants invoke Article 6 paras. 1 and 2 of the Convention.     B.    The proceedings   5.    The application was introduced on 13 March 1992 and registered on 11 May 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 7 November 1994. The applicants replied on 6 January 1995, and on 29 June 1995 they submitted further observations.   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 18 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.   After P.'s death on 28 February 1984, a tax inventory was drawn up on 8 May 1984.   Towards the end of May 1984 the period expired during which P.'s heirs, the applicants, could have refused the heritage (see below, para. 28).   17.   Following a control of the accounts of a company formerly owned by P. the suspicion arose that between 1977 and 1982 he had drawn company income without declaring it.   On 13 December 1985 the Cantonal Tax Office (Kantonales Steueramt) of the Canton of Zurich instituted proceedings against P.'s heirs for the payment of federal taxes.   18.   In the ensuing proceedings the applicants were represented by a lawyer.   19.   On 3 February 1989 the Finance Directorate of the Canton of Zurich imposed taxes and criminal taxes (Nach- und Strafsteuern) on the applicants for the cantonal taxes in respect of the period 1979 until 1983.   However, on 2 November 1989 the Zurich Administrative Court (Verwaltungsgericht) quashed the decision on the ground that the responsibility of heirs in matters of criminal taxes contradicted fundamental principles of criminal law in a State governed by law (rechtsstaatliches Strafrecht).   20.   On 16 January 1990 the Tax Office found that P. had committed tax evasion in respect of the tax periods 1981/1982 and 1983/84.   The decision stated inter alia:   <Translation>        "By incorrectly declaring his income the person liable for tax      withheld taxes from the State and thus became guilty of tax      evasion.   According to Sections 130 para. 1 and 129 para. 1,      respectively, of the Ordinance on Direct Federal Taxes his heirs      must therefore pay a fine of up to the fourfold amount in      addition to the tax withheld.   For the taxation period 1981/82,      when more than 5/10 were evaded, the fine amounts to 1,5 times      the amount, and for the taxation period 1983/84, when more than      3/10 were evaded, to 1,3 times the amount of the taxes withheld.      However, as it can be observed that the heirs have done      everything possible to clarify the incorrect declaration of      taxes, the fine is reduced to 1/4."   <Original>        "Durch die unvollständige Deklaration seines Einkommens hat der      Pflichtige dem Staat eine Steuer vorenthalten und sich dadurch      der Steuerhinterziehung schuldig gemacht.   Seine Erben haben      daher gemäss Art. 130 Abs. 1 resp. Art. 129 Abs. 1 des Beschlus-      ses über die direkte Bundessteuer ausser der hinterzogenen Steuer      eine Busse bis zum vierfachen Betrag zu entrichten.   Diese wird      im vorliegenden Falle bei der Veranlagungsperiode 1981/82 da mehr      als 5/10 hinterzogen wurde, auf den 1,5-fachen Betrag und bei der      Veranlagungsperiode 1983/84 da mehr als 3/10 hinterzogen wurde,      auf den 1,3-fachen Betrag der hinterzogenen Steuer festgesetzt.      Indem aber festgestellt werden kann, dass die Erben alles ihnen      Zumutbare zur Bereinigung der unrichtigen Deklaration getan      haben, wird die Busse auf 1/4 herabgesetzt."   21.   The decision concluded that the heirs had to pay taxes of 19,206 SFr and a fine of 6,758.75 SFr.   22.   On 19 September 1990 the Federal Taxes Appeals Board (Bundes- steuer-Rekurskommission) of the Canton of Zurich partly upheld the applicants' appeal and quashed the contested decision in respect of the period 1981/82; in respect of the period 1983/84 the Board reduced the taxes due to 8,870.40 and the fine to 2,882.90 SFr.   23.   On 21 December 1990 the applicants lodged an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht) complaining of a breach of the presumption of innocence in that they were fined without any personal guilt.   The appeal also stated:   <Translation>        "Thus, the applicants are entitled in the determination of the      criminal charge against them to a fair and public hearing by an      independent and impartial tribunal established by law.   They are      furthermore entitled to the special rights of defence under      Article 6 para. 3 of the Convention.   The applicants, who were      charged with a criminal offence, should have been granted these      defence rights ex officio, but this has not happened so far."   <German>        "So haben die Beschwerdeführer Anspruch darauf, dass ihre Sache      in billiger Weise öffentlich von einem unabhängigen und      unparteiischen, auf Gesetz beruhenden Gericht, das über die      Stichhaltigkeit der gegen sie erhobenen strafrechtlichen Anklage      zu entscheiden hat, gehört wird.   Ferner stehen ihnen die      besonderen Verteidigungsrechte gemäss Art. 6 Ziff. 3 EMRK zu.      Diese Verfahrensrechte sind den Beschwerdeführern als einer      strafbaren Handlung Angeklagten von Amtes wegen einzuräumen, was      bisher nicht geschehen ist."   24.   On 5 July 1991 the Federal Court dismissed the appeal, the decision being served on 16 October 1991.   In respect of the alleged violation of the presumption of innocence the Court found:   <Translation>        "However, according to the principle of the succession in taxes      of the heirs ... the latter shall, under Section 130 para. 1 of      the Ordinance on Direct Federal Taxes, be liable up to the amount      of their share in the estate, and irrespective of any personal      guilt, for the deceased person's evaded taxes and the fines.   The      statutory provision in question of the Ordinance on Direct      Federal Taxes thus expressly envisages that the heirs without      being held personally guilty enter into the position of the      deceased also in respect of the criminal tax.   The applicants      therefore cannot deduce anything in respect of the heirs'      liability from the presumption of innocence stipulated in      Article 6 of the Convention, which only applies to persons      charged with a criminal offence ...   Nor can the general      principles of penal law invoked by the applicants be of avail to      them in these circumstances."     <German>        "Nach dem Grundsatz der Steuernachfolge der Erben ... haften      diese gemäss Art. 130 Abs. 1 BdBST jedoch ohne Rücksicht auf ein      eigenes Verschulden bis zur Höhe ihrer Erbteile für die vom      Erblasser hinterzogene Steuer und für die Bussen.   Die fragliche      Gesetzesbestimmung des BdBST sieht somit ausdrücklich vor, dass      die Erben auch bezüglich der Strafsteuer in die Stellung des      Erblassers eintreten, ohne dass sie ein persönliches Verschulden      trifft.   Aus der Unschuldsvermutung des Art. 6 EMRK, die nur für      den wegen einer strafbaren Handlung Angeklagten gilt ... , können      die Beschwerdeführer daher nichts zur Frage der Erbenhaftung      ableiten.   Die angerufenen allgemeinen Grundsätze des Strafrechts      sind den Beschwerdeführern unter diesen Umständen ebenfalls      unbehelflich."     B.    Relevant domestic law          1.    Swiss Penal Code   25.   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   26.   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."   27.   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   28.   Section 560 para. 2 of the Swiss Civil Code (Zivilgesetzbuch) states:   <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").          4.    Federal Organisation of Justice Act   29.   According to the then applicable Section 109 of the Federal Organisation of Justice Act (Bundesgesetz über die Organisation der Bundesrechtspflege), the Federal Court (Bundesgericht) could upon a unanimous decision decide to dismiss, without conducting a hearing, an administrative law appeal as being manifestly ill-founded.   Otherwise, according to Section 112 a final hearing with the parties' presentation (Parteivorträgen) could be fixed.     III. OPINION OF THE COMMISSION     A.    Complaints declared admissible   30.   The following complaints were declared admissible:   -     under Article 6 para. 2 (Art. 6-2) of the Convention the applicants' complaint that, irrespective of any personal guilt, they were convicted of an offence allegedly committed by P.;   -     under Article 6 para. 1 (Art. 6-1) of the Convention the applicants' complaints that they were not heard in a fair and public manner by an independent and impartial tribunal established by law.     B.    Points at issue   31.   Accordingly, the issues to be determined are:   -     whether there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention;   -     whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     C.    Article 6 para. 2 (Art. 6-2) of the Convention   32.   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.   The tax authorities established neither their own guilt nor that of P.   33.   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."   34.   The applicants dispute that tax evasion proceedings lose their criminal character within the meaning of Article 6 (Art. 6) of the Convention when they are instituted against the heirs.   Not even the guilt of the deceased was established according to the requirements of Article 6 para. 2 (Art. 6-2) of the Convention.   35.   In the applicants' view, it is irrelevant that as heirs they could have refused the inheritance; thus, the offence which the deceased committed may only become known after the expiry of the time- limit for refusing the inheritance.   Finally, as regards entry into the criminal register, the applicants point out that the tax authorities do not require a special register; thus, the records to be taken into account when assessing a tax offence are always available in the taxpayer's personal file.   36.   The applicants further point out that the heirs are not only liable for taxes but also for a punishment imposed on the deceased. On the other hand, the State's right to punish an offence loses its inherent justification after the person's death.   It is questioned how a decision can be given as regards the reasons for the offences, or the manner in which they were committed, or on the issue of guilt, if the offender is no longer present.   Section 130 of the Ordinance on Direct Federal Taxes is clearly an exception to Section 48 para. 3 of the Penal Code.   37.   The applicants dispute that the deceased's guilt was legally established.   It would have been precisely the task of proceedings duly conducted in accordance with Article 6 paras. 1 and 2 (Art. 6-1, 6-2)of the Convention to prove this.   Indeed, in these proceedings the heirs either cooperate with the authorities by helping to "convict" the offender, or risk themselves, as a consequence of refusing to cooperate, incurring a more severe penalty.   Article 6 para. 2 (Art. 6-2) of the Convention prohibits the conduct of any criminal proceedings against third parties, including heirs, in place of the accused, because this would make it impossible to observe the principle of the presumption of innocence.   38.   The respondent Government contest 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.   39.   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.   40.   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 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).   41.   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.   42.   The Commission notes that after a control of a company formerly owned by P., the suspicion arose that P. had drawn company income without having declared it between 1977 and 1982.   As a result, on 16 January 1990 the Cantonal Tax Office of the Canton of Zurich found P. guilty of having committed tax evasion.   43.   Thus, the decision of the Cantonal Tax Office formally refers to criminal offences committed by P.   However, it does not transpire from the decision that the Cantonal Tax Office 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.   44.   Nevertheless, on 16 January 1990 the Cantonal Tax Office ordered the applicants to pay the fine for the tax evasion committed by P. as well as the taxes which P. had withheld.   The Cantonal Tax Office thereby relied on the fact that, after P.'s death in 1984, the applicants had become heirs to P.'s estate.   45.   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 5 July 1991 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.   46.   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.   47.   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 P.'s death the applicants could have refused to accept the inheritance altogether. Had they done so, they would not have been liable either for P.'s debts or for any fines associated with his estate.   48.   As the applicants chose to accept the inheritance, they became responsible for their share of the inheritance.   They were thus obliged to pay P.'s tax debts as well as P.'s fine, not on account of their own criminal responsibility, but because they had become liable therefor as heirs to P.'s estate.   49.   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.          CONCLUSION   50.   The Commission concludes, by 17 votes to 11, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention.     D.    Article 6 para. 1 (Art. 6-1) of the Convention   51.   The applicants have also complained that they could not defend themselves in a public hearing before an independent and impartial court.   52.   The Commission must first examine whether Article 6 para. 1 (Art. 6-1) of the Commission is applicable to the proceedings at issue. This provision states, insofar as relevant:        "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 ... by an independent and impartial tribunal      established by law."   53.   The proceedings of which the applicants complain related to a fine for which they had become liable as heirs, though the offence had been committed by the deceased, P.   The Commission is divided as to whether these proceedings determined either the applicants' "civil rights and obligations" or "any criminal charge against (them)" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission considers that in either case such proceedings call for the protection of the guarantees of Article 6 para. 1 (Art. 6-1) of the Convention.   This provision is, therefore, applicable in the present case.   54.   The Commission recalls the Convention organs' case-law according to which the public character of court hearings constitutes a fundamental principle enshrined in Article 6 para. 1 (Art. 6-1) of the Convention.   The principle of publicity must be fully respected at least in one instance dealing with the merits of the case (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25 et seq., paras. 59 et seq.). Neither the letter nor the spirit of this provision prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to have his case heard in public, but any such waiver must be made in an unequivocal manner (see Eur. Court H.R., Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 19 et seq., para. 58).   55.   In the present case the Commission notes that the then applicable Sections 109 and 112 of the Federal Organisation of Justice Act envisaged in principle the possibility of a hearing in administrative law proceedings before the Federal Court (see above, para. 29).   56.   Indeed, in their administrative law appeal to the Federal Court the applicants expressly stated that they were entitled under Article 6 para. 1 (Art. 6-1) of the Convention to a public hearing, though they complained that this had not until then been granted to them.   57.   In the Commission's opinion, it cannot therefore be said that the applicants waived of their own free will their right to a public hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   58.   The Commission moreover considers that the proceedings, concerning the imposition of a fine on the applicants for an offence committed by P., raised issues of public importance such as to make a hearing necessary (see mutatis mutandis Eur. Court H.R., Schuler- Zgraggen judgment, loc. cit., p. 20, para. 58).   59.   As a result, there were no special features to justify the denial of a public hearing and of the applicants' right to be heard in person.   60.   On the other hand, insofar as the applicants raise further complaints about the alleged unfairness of the proceedings, there is no reason to believe that the applicants, who were represented by a lawyer, could not sufficiently present their arguments in writing or adduce any evidence which they consider relevant.          CONCLUSION   61.   The Commission concludes, by 20 votes to 8, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     E.    Recapitulation   62.   The Commission concludes, by 17 votes to 11, that there has been no violation of Article 6 para. 2 (Art. 6-2) of the Convention (see above, para. 50).   63.   The Commission concludes, by 20 votes to 8, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see above, para. 61).     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, F. MARTINEZ, L. LOUCAIDES, B. MARXER,                     G. RESS AND A. PERENIC         (regarding Article 6 para. 2 of the Convention)          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 16 January 1990 the Cantonal Tax Office ordered the applicants to pay the fine for the tax evasion committed by P. as well as the taxes which P. had withheld.   The Cantonal Tax Office thereby relied on the fact that, after P.'s death in 1984, the applicants had become heirs to P.'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. 25) 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, P., 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 P.        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         (regarding Article 6 para. 2 of the Convention)          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 P.'s death it was the applicants 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 P.        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         (regarding Article 6 para. 2 of the Convention)          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. P.   Had P. 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. P. had been lawfully charged of the fine and in particular, whether P.'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. 24 of the Report).   Being dead P. could not prove anything.   Subsequently, he was convicted (post mortem) of having deliberately evaded taxes.   Under Article 6 para. 2 P. 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 P. was proved guilty according to law.        This affects the case of the applicants.   At the time of the death of Mr. P. 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.                                                    (Or. English)                   DISSENTING OPINION OF MR. K. HERNDL         (regarding Article 6 para. 2 of the Convention)          I voted against the finding that there was no violation of Article 6 para. 2 of the Convention, and in that respect share entirely and wholeheartedly the reasoning of my colleagues MM. E. Busuttil, A.S. Gözübüyük, J.-C. Soyer, F. Martinez, L. Loucaides, B. Marxer, G. Ress and A. Perenic.        I wish, however, to add some further elements to that reasoning.      &#xa0