CEDH · CASELAW;REPORTS;ENG — 18 octobre 1995

.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                               SECOND CHAMBER                          Application No. 17951/91                                    H. B.                                   against                                 Switzerland                          REPORT OF THE COMMISSION                        (adopted on 18 October 1995)                              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. 16-31). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 30-31) . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 32-49). . . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaint declared admissible            (para. 32) . . . . . . . . . . . . . . . . . . . . . . . 5         B.    Point at issue            (para. 33) . . . . . . . . . . . . . . . . . . . . . . . 5         C.    Article 6 para. 1 of the Convention            (paras. 34-48) . . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 49)    . . . . . . . . . . . . . . . . . . . . . . 7   DISSENTING OPINION OF MM. J.-C. SOYER, L. LOUCAIDES, J.-C. GEUS AND M.A. NOWICKI . . . . . . . . . . . . . 8   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . 9   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 applicant, a German citizen born in 1940, is a businessman residing in Engelberg in Switzerland.   Before the Commission he is represented by Mr. H.P. Derksen, a lawyer practising in Zurich.   3.     The application is directed against Switzerland.   The respondent Government are represented by their Deputy Agent, Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice.   4.     The case concerns the applicant's complaint under Article 6 para. 1 of the Convention that the proceedings were not conducted in public.   B.     The proceedings   5.     The application was introduced on 16 January 1991 and registered on 19 March 1991.   6.     On 8 January 1993 the Commission (Second Chamber) 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 the admissibility and merits of the applicant's complaints under Article 6 para. 1 and Article 7 of the Convention.   7.     The Government's written observations were submitted on 16 April 1993.   The applicant replied on 9 July 1993 after one extension of the time-limit.   8.     On 5 April 1995 the Commission declared admissible the complaint that the applicant did not have a public hearing.   The remainder of the application was declared inadmissible.   9.     The text of the Commission's decision on admissibility was sent to the parties on 5 May 1995 and they were invited to submit further observations on the merits of the case.   The applicant submitted further observations on 29 June 1995.   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 (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    H. DANELIUS, President                  S. TRECHSEL                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN   12.    The text of this Report was adopted on 18 October 1995 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 as an Appendix.   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.    Upon establishing his residence in the Canton of Obwalden in 1979 the applicant entered into an agreement with the Obwalden Cantonal Tax Administration according to which he would pay cantonal taxes in the amount of at least 35,000 SFr per year.   17.    In 1981/1982 the applicant's income was assessed as amounting to 180,000 SFr for the years 1980 and 1981/82.   18.    In 1982 the Federal Tax Administration audited the accounts of the C. company.   It transpired that the latter had paid the applicant 735,845 SFr for commission services.   19.    In 1983 the applicant submitted a new tax declaration wherein he referred, in addition to the previous 180,000 SFr, to remunerations obtained from the C. company.   20.    The Cantonal Tax Commission of the Canton of Obwalden then introduced evasion proceedings (Hinterziehungsverfahren) against the applicant.   21.    On 19 August 1986 the Cantonal Tax Commission imposed on the applicant a supplementary tax of 172,328.15 SFr for the years 1980- 1982, as well as a fine of 413,587.40 SFr on account of tax evasion (Steuerhinterziehung).   This fine was imposed on the basis of Section 129 para. 1 (b) of the Federal Decree on the Imposition of a Direct Federal Tax (Bundesratsbeschluss über die Erhebung der direkten Bundessteuer; see below, at para. 30) of 9 December 1940.   22.    On 19 September 1986 the applicant complained against this order to the Cantonal Tax Appeals Commission (Steuerrekurskommission) of the Canton of Obwalden which then fixed an oral hearing for 19 February 1987.   At short notice the hearing was postponed to 23 February 1987.   At this hearing the applicant was prevented from attending, though his lawyer was present.   The hearing was not public, and the applicant's lawyer did not ask for it to be conducted in public.   23.    On 23 February 1987 the Cantonal Tax Appeals Commission dismissed the applicant's complaint.   24.    On 23 April 1987 the applicant filed an administrative law appeal (Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht). Therein he complained, inter alia, that he had not been able personally to participate in the proceedings, in particular at the oral hearing of 23 February 1987.   25.    On 8 July 1988 the Federal Court upheld the administrative law appeal and referred the case back to the Tax Appeals Commission with the directive that it should question the applicant personally and determine the supplementary tax and the fine for the years 1980 until 1982.   As to the applicant's absence at the hearing on 23 February 1987, the Federal Court found that he could not be blamed for this as the hearing had been fixed at short notice.   26.    Proceedings were then resumed before the Cantonal Tax Appeals Commission.   On 25 April 1989 the Cantonal Tax Appeals Commission conducted a hearing.   The applicant was questioned as to his personal circumstances with a view to fixing the fine for the tax evasion in 1980, and as to the facts of the case concerning the alleged tax evasion in 1981/1982.   The hearing was not public, and the applicant did not ask for it to be conducted in public.   27.    On 7 November 1989 the Cantonal Tax Appeals Commission reduced the supplementary tax imposed on the applicant to SFr 103,648.15, and the fine to SFr 109,659.10.   28.    On 9 January 1990 the applicant again filed an administrative law appeal with the Federal Court.   Therein he complained, inter alia, that he had not had a public hearing in these proceedings.   29.    On 12 June 1990 the Federal Court dismissed the administrative law appeal.   In its decision it did not refer to the applicant's complaint that he had not had a public hearing.   B.     Relevant domestic law   30.    Section 129 para. 1 (b) of the Federal Decree on the Imposition of a Direct Federal Tax (Bundesratsbeschluss über die Erhebung der direkten Bundessteuer) of 9 December 1940 provides that the offence of tax evasion "is subject to a fine of up to four times the fraudulently concealed tax amount" ("unterliegt einer Busse bis zum Vierfachen des entzogenen Steuerbetrages").   31.    Section 71 of the Federal Decree states, insofar as relevant:   <Translation>:         "Professional secrecy         1.    Members and civil servants of the authorities of the       Federation, the Cantons and the communities and members of the       Cantonal Tax Appeals Commissions responsible for the Direct       Federal Tax must observe secrecy in respect of facts of which       they learn when assessing a taxpayer and in respect of the       authorities' proceedings ...         2.    Breaches of professional secrecy ... shall be punished ..."   <Original>         "Schweigepflicht         1.    Die Mitglieder und Beamten der für die Direkte Bundessteuer       zuständigen Behörden des Bundes, der Kantone und der Gemeinden       und die Mitglieder der kantonalen Rekurskommissionen haben über       Tatsachen, die ihnen bei der Veranlagung eines Steuerpflichtigen       bekannt werden, und über die Verhandlungen in den Behörden       Stillschweigen zu beobachten ...         2.    Verletzungen der Schweigepflicht ... werden ... geahndet       ..."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   32.    The Commission has declared admissible the applicant's complaint that he did not have a public hearing.     B.     Point at issue   33.    The point at issue is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 para. 1 (Art. 6-1) of the Convention   34.    The applicant complains that he did not have a public hearing. He relies on Article 6 para. 1 (Art. 6-1) of the Convention which states, insofar as relevant:              "In the determination of ... any criminal charge       against him, everyone is entitled to a ... public hearing       ...   Judgment shall be pronounced publicly but the press       and public may be excluded from all or part of the trial in       the interest of morals, public order or national security       in a democratic society, where the interests of juveniles       or the protection of the private life of the parties so       require, or to the extent strictly necessary in the opinion       of the court in special circumstances where publicity would       prejudice the interests of justice."   35.    The Government submit with reference to Section 71 of the Federal Decree on the Imposition of a Direct Federal Tax that such cases are conducted in non-public proceedings in order to protect the private sphere of taxpayers.   Article 6 para. 1 (Art. 6-1) of the Convention has not been breached as the applicant's lawyer, who was well versed in these matters, could have asked for a public hearing but failed to do so.   36.    The applicant submits that Section 71 of the Federal Decree protects the secrecy of taxes in cases of ordinary tax assessment.   It does not protect secrecy in criminal proceedings.   Regular criminal courts have always conducted proceedings in public.   37.    The Commission observes that Article 6 para. 1 (Art. 6-1), first sentence, of the Convention sets forth the principle of the public character of proceedings, while establishing in the second sentence certain exceptions to the general rule.   38.    According to the Convention organs' case-law, the public character of the proceedings contemplated in Article 6 para. 1 (Art. 6-1) of the Convention protects litigants against the administration of justice in secret with no public scrutiny.   It is also one of the means whereby confidence in the courts, superior and inferior, can be maintained.   By rendering the administration of justice visible, publicity contributes to the aim of Article 6 para. 1 (Art. 6-1) of the Convention, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within the meaning of the Convention (see Eur. Court H.R., Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36; Pretto and others judgment of 8 December 1983, Series A no. 71, p. 11, para. 21; No. 15561/89, dec. 25.2.91, D.R. 69 p. 312).   39.    Nevertheless, while the member States of the Council of Europe all recognise the principle of such publicity, there is some diversity as to its scope and manner of implementation, as regards both the holding of hearings and the pronouncement of judgments.   40.    Thus, according to the Convention organs' case-law, provided that a public hearing has been held in first instance, the absence of a hearing before a second or third instance may be justified by the special features of the case (see Eur. Court H.R., Andersson judgment of 29 October 1991, Series A no. 212-B, p. 45, para. 27).   41.    Moreover, both in criminal and civil cases it is possible to waive a right guaranteed by the Convention.   However, insofar as the waiver is permissible, it must be established in an unequivocal manner. In the case of procedural rights, furthermore, a waiver, in order to be effective for Convention purposes, requires minimum guarantees commensurate to its importance (see Eur. Court H.R., Poitrimol judgment of 23 November 1993, Series A no. 277, p. 13 et seq., para. 31; Pfeiffer and Plankl judgment of 25 February 1992, Series A no. 227, p. 16 et seq., para. 37).   Thus, it has so far been found in civil cases that neither the letter nor the spirit of this provision prevents a person from waiving of his own free will and in an unequivocal manner, the entitlement to have his case heard in public (see Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 25, para. 59; H. v. Belgium judgment of 30 November 1987, Series A no. 127-B, p. 36, para. 54; De Moor judgment of 23 June 1994, Series A no. 292-A, p. 27, para. 60; No. 13800/88, Dec. 1.7.91, D.R. 71 p. 94).   42.    In the present case, criminal proceedings were instituted against the applicant on account of tax evasion (see above, para. 20).   A first hearing, which was not public, was held before the Cantonal Tax Appeals Commission on 23 February 1987.   The applicant's complaint about this hearing has been declared inadmissible by the Commission (see below, Appendix, p. 15 et seq.).   After the applicant's administrative appeal was upheld by the Federal Court on 8 July 1988, proceedings were resumed before the Cantonal Tax Appeals Commission.   The latter conducted on 25 April 1989 as the only instance an oral hearing which was not, however, held in public.   At this hearing, the applicant was questioned as to his personal circumstances with a view to fixing the fine for the tax evasion in 1980, and as to the facts of the case concerning the alleged tax evasion in 1981/1982 (see above, para. 26).   43.    It transpires that at the hearing of 25 April 1989 the applicant, who was assisted by a lawyer, did not ask for it to be held in public though he later complained of the lack of a public hearing in his administrative law appeal of 9 January 1990 to the Federal Court (see above, para. 28).   44.    The Commission has considered whether the applicant, by not asking for a hearing, could be considered to have waived, of his own free will and in an unequivocal manner, the entitlement to have his case heard in public before the Cantonal Tax Appeals Commission.   45.    The Commission notes the respondent Government's submission according to which the legal basis for non-public hearings in criminal tax proceedings is Section 71 of the Federal Decree on the Imposition of a Direct Federal Tax.   This provision enshrines the principle of professional secrecy in particular for members of the Cantonal Tax Appeals Commissions.   Professional secrecy covers the tax assessment of a taxpayer as well as the proceedings.   Paragraph 2 of Section 71 provides that breaches of professional secrecy shall be punished.   46.    The applicant was aware that, other than in the common cantonal law of criminal procedure, public hearings are in principle excluded in criminal tax proceedings.   Before the Commission the applicant has also argued that Section 71 of the Federal Decree does not protect secrecy in criminal proceedings and that regular criminal courts have always conducted proceedings in public.   47.    In these circumstances, the applicant could have been expected to request the Cantonal Tax Appeals Commission that the hearing of 25 April 1989 be held in public, if he attached importance to it. However, he did not do so.   Indeed, the Commission notes that already at the hearing of 23 February 1987 before the Cantonal Tax Appeals Commission the applicant's lawyer did not ask for the hearing to be held in public.   48.    It may reasonably be considered, therefore, that the applicant unequivocally waived his right to a public hearing before the Cantonal Tax Appeals Commission.         CONCLUSION   49.    The Commission concludes, by 9 votes to 4, that in the present case there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Second Chamber          President of the Second Chamber          (M.-T. SCHOEPFER)                         (H. DANELIUS)                                                           (Or. English)                   DISSENTING OPINION OF MM. J.-C. SOYER,                L. LOUCAIDES, J.-C. GEUS AND M.A. NOWICKI         Contrary to the majority of the Commission we consider that the applicant could not have waived, of his own free will and in an unequivocal manner, the entitlement to have his case heard in public before the Cantonal Tax Appeals Commission.         Thus, in view of the categoric wording of Section 71 of the Federal Decree, apparently based on the assumption that the tax secret generally requires the exclusion of the public from such proceedings, it does not appear that the applicant's request to have a public hearing would have had any reasonable prospects of success.   The applicant could not therefore have been expected to ask for an oral hearing.         It follows that the applicant did not benefit from his right to a "public hearing" within the meaning of Article 6 para. 1 of the Convention.