Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
AS TO THE ADMISSIBILITY OF
Application No. 28332/95
by H. B.
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 14 January 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
S. TRECHSEL
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 June 1995 by
H. B. against Switzerland and registered on 28 August 1995 under file
No. 28332/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a German citizen born in 1940, is a business man
residing in Grellingen in Switzerland. Before the Commission he is
represented by Mr H.P. Derksen, a lawyer practising in Wallisellen in
Switzerland.
The applicant's previous Application No. 17951/91 was declared
admissible on 5 April 1995 insofar as it concerned his complaint under
Article 6 para. 1 of the Convention that he did not have a public
hearing in criminal proceedings concerning federal taxes. In its
Report of 18 October 1995 under Article 31 of the Convention, the
Commission (Second Chamber) found no violation of Article 6 para. 1 of
the Convention. In its resolution of 4 September 1996 the Committee
of Ministers agreed with the opinion expressed by the Commission in its
Report.
The present application concerns complaints under Article 6 of
the Convention about the unfairness of criminal tax proceedings
concerning cantonal taxes.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
Assessment of the applicant's taxes
Upon establishing his residence in the Canton of Obwalden in
1980, the applicant reached an agreement with the Obwalden Cantonal Tax
Administration (Steuerverwaltung) according to which he would pay
cantonal taxes to the amount of 35,000 Swiss Francs (CHF) per year.
In 1980, and again in 1981/82, his income was assessed as
amounting to 180,000 CHF.
In 1982 the Federal Tax Administration audited the accounts of
the C. company. It transpired that, upon instruction of the Foreign
Ministry of Poland, the C. company had commissioned Polish workers for
building sites in Libya, and that in 1980, it had paid the applicant
735,845 CHF for commission services.
On 13 July 1983, the applicant submitted a further tax
declaration, backdated to 10 April 1981, in which he referred to
certain payments of the C. company. Another tax declaration for the
years 1983/84 was submitted on 15 September 1983.
In the tax forms in use at the time in the Canton of Obwalden,
certain questions had to be answered separately for the assessment of
the cantonal and the federal taxes.
Proceedings concerning federal taxes
On 12 December 1985 criminal proceedings were instituted against
the applicant on account of evading federal taxes
(Steuerhinterziehung). The applicant was then fined 413,587 CHF. His
administrative law appeal (Verwaltungsgerichtsbeschwerde) was upheld
in last resort by the Federal Court on 8 July 1988. Proceedings were
resumed before the Cantonal Tax Appeals Commission which reduced the
fine to 109,659 CHF. The applicant's administrative law appeal was
dismissed by the Federal Court on 12 June 1990.
Imposition of fine for evasion of cantonal taxes
By letter of 16 May 1987 the Obwalden Cantonal Tax Administration
(Steuerverwaltung) informed the applicant of the institution of
criminal tax proceedings and of supplementary tax proceedings against
him relating to the years 1980-1982. The letter mentioned the amounts
received from the C. company which the applicant had not declared.
Reference was also made to the relevant provisions of the Tax Statute
(Steuergesetz) of the Canton of Obwalden. The applicant was informed
that he could file any observations before 10 June 1987.
In the subsequent proceedings, the applicant was represented by
a lawyer.
On 10 June 1987 the applicant requested the suspension
(Sistierung) of the cantonal tax proceedings in view of the federal tax
proceedings then pending. As a result, the cantonal tax proceedings
were suspended.
After the Federal Court gave its decision on 12 June 1990
concerning the federal taxes, cantonal tax proceedings were resumed on
24 July 1990 whereupon the applicant was requested to submit his
observations. Following various requests for prolongation of the time-
limit, the observations were filed on 24 October 1990.
The applicant was invited to a hearing at the Cantonal Tax
Administration on 12 December 1990. Following the applicant's request,
the hearing was postponed until 6 February 1991. At this occasion, the
applicant's lawyer was granted the possibility to file further
observations.
By letter of 15 March 1991, the lawyer stated that he would not
file any further submissions.
By order of 27 March 1992 the Cantonal Tax Administration imposed
on the applicant a supplementary tax of 189,371 CHF, a fine of
109,438 CHF and interests of 96,232 CHF. The fine was imposed for
evading cantonal and municipal taxes. The Tax Administration referred
in its decision also to the establishment of the facts in, and the
considerations of, the various decisions relating to the applicant's
federal taxes.
When determining the fine, the Cantonal Tax Administration
relied, inter alia, on S. 225 of the Tax Statute of the Canton of
Obwalden. According to this provision, in the case of tax evasion the
fine will as a rule correspond to the amount of the taxes evaded. If
culpability (Schuld) is not severe, the fine can be reduced by one
third, in the case of severe culpability it can be raised to twice the
amount. If the tax evasion is reported by the tax payer concerned
before he has knowledge of the criminal proceedings, the fine will be
reduced to one fifth of the taxes evaded.
Proceedings before the Tax Appeals Commission
On 29 April 1992 the applicant filed an appeal (Rekurs) with the
Tax Appeals Commission (Steuerrekurskommission) of the Canton of
Obwalden.
The Cantonal Tax Administration filed its submissions in reply
on 22 July 1992. A hearing was conducted on 22 April 1993 at which the
applicant and his lawyer participated. It is unclear whether the
hearing was public.
In its decision of 22 April 1993, the Tax Appeals Commission
reduced the fine to 94,685 CHF, while dismissing the remainder of the
appeal. When determining the applicant's fine, the Tax Appeals
Commission considered that a relatively long period of time had lapsed
since the applicant had committed the offence.
Proceedings before the Administrative Court
On 3 September 1993 the applicant filed an administrative law
appeal (Verwaltungsgerichtsbeschwerde), requesting the Administrative
Court (Verwaltungsgericht) of the Canton of Obwalden to annul the fine.
The Tax Appeals Commission filed its submissions in reply on
20 September 1993.
The Administrative Court conducted a hearing on 11 January 1994
at which the applicant complained, inter alia, of the lack of
independence of the members of the Tax Appeals Commission.
On 11 January 1994 the Administrative Court dismissed the
applicant's appeal. In its decision it found that according to
Article 6 para. 2 of the Convention it fell to the authorities to prove
the applicant's guilt, rather than to the applicant to prove his
innocence. The Court then assessed the applicant's various submissions
in the Administrative Court proceedings. With reference, inter alia,
to the applicant's tax declarations of 13 July and 15 September 1983,
and to bank statements in the file, the Court found that his
submissions did not appear credible. As a result, it referred to the
conclusions of the Federal Court in its judgment of 8 July 1988
concerning the federal taxes.
The Administrative Court further noted that the order of the
Cantonal Tax Administration of 27 March 1992 had confronted the
applicant with all facts leading to the applicant's culpability. He
had therefore had the opportunity to defend himself in respect of all
counts before the Tax Appeals Commission.
In respect of the applicant's complaint about the length of the
proceedings, the Court considered that the subject-matter of the case
was extremely complex, as was confirmed by the many legal statements,
the many judgments in the parallel proceedings concerning federal
taxes, and the lengthy texts of the decisions.
Insofar as the applicant complained of a breach of "ne bis idem",
the Court found that a person committing tax evasion knew that with his
faulty tax declaration he was evading both federal and cantonal taxes;
his conduct had two limbs (zweigliedrige Tathandlung), and he could
therefore be punished both according to Federal and to cantonal law.
The Court also dealt with the applicant's complaint of a breach
of "nulla poena sine lege" in that S. 225 of the Tax Statute of the
Canton of Obwalden did not mention the maximum punishment. After
analysing this provision, the Court found that it could not be said
that the person committing tax evasion could be surprised by a
punishment with which he did not reckon.
To the extent that the applicant complained that the Tax Appeals
Commission had not conducted its hearing in public, the Court noted
that in its observations of 20 September 1993 the Tax Appeals
Commission had not claimed that it had done so. It could also not be
said that the applicant had waived his right hereto. On the other
hand, the Court found that the applicant had had a public hearing
before the Administrative Court itself which in fact had unlimited
jurisdiction to examine the case.
Proceedings before the Federal Court
On 17 February 1994, the applicant filed a public law appeal
(staatsrechtliche Beschwerde) which the Federal Court dismissed on
4 January 1995, the decision being served on the applicant on 27 April
1995. Insofar as the applicant complained of a breach of "ne bis in
idem", the Court stated:
Translation
"It is true that only one tax declaration form had to be filled
in for the cantonal and the federal taxes. However, two
different taxes were at issue in respect of which two different
public entities (Gemeinwesen) - the Confederation and the Canton
- were competent. Two different tax jurisdictions were
concerned, who had to protect their different tax demands each
with a different tax penal law."
The Federal Court dismissed the applicant's complaints that the
Administrative Court had not been independent as the latter had not
limited its freedom of decision by considering the case-file concerning
the federal taxes and in particular by having regard to the decisions
of the Federal Court of 8 July 1988 and 12 June 1990. Rather,
Article 6 para. 1 of the Convention required the judge to consider all
relevant facts. This included previous proceedings if they stood in
a factual relation with the present case. In fact, the applicant's
submissions had been carefully examined by the previous instances. The
Administrative Court, for instance, had discussed the applicant's
submissions, rather than automatically taken over the Federal Court's
previous conclusions as to the facts.
The Federal Court further found that the applicant had belatedly
introduced his complaint that certain members of the Tax Appeals
Commission were not independent and impartial within the meaning of
Article 6 para. 1 of the Convention. Thus, the applicant and his
lawyer had been aware of the composition of the Tax Appeals Commission
already on 22 April 1993, though they had only challenged the members
on 11 January 1994.
The Federal Court also found that the applicant had been
sufficiently informed by letter of the Cantonal Tax Administration of
16 May 1987 as to the grounds for the criminal tax proceedings
instituted against him. Moreover, at that time the proceedings
concerning federal taxes were already pending before the Federal Court.
The Court also noted that the applicant had had sufficient
occasions orally to express himself on the facts and the evidence, for
instance on 6 February 1991 before the Cantonal Tax Administration; on
22 April 1993 before the Cantonal Tax Appeals Commission; and at the
hearing before the Administrative Court. The applicant also had the
possibility before all instances to file written submissions.
The Court further dismissed the applicant's complaint that the
proceedings had not been conducted "within a reasonable time" as
required by Article 6 para. 1 of the Convention. Thus, upon the
applicant's request, proceedings had been suspended for over three
years until 24 July 1990; in the eight months thereafter until 15 March
1991, only one set of submissions had been filed by the applicant, and
it had only been possible to question him once. To the extent that the
Tax Administration had required one year after 15 March 1991 to prepare
the order of 27 March 1992, this could be explained with the complexity
of the matter.
COMPLAINTS
1. The applicant complains that he did not have an independent and
impartial tribunal within the meaning of Article 6 para. 1 of the
Convention. Thus, after proceedings had been conducted against him
concerning federal taxes, the proceedings concerning cantonal taxes
served no further purpose (Leerlauf). This was confirmed by the
decision of the Administrative Court of the Canton of Obwalden of
11 January 1994 which frequently referred to the previous decisions of
the Federal Court of 8 July 1988 and 12 June 1990. The authorities in
the second set of proceedings were not in a position to reach a
conclusion differing from that in the first set of proceedings.
2. Under Article 6 para. 1 of the Convention the applicant also
complains that various judges of the Cantonal Tax Appeals Commission
were not independent and impartial as they had already sat in the
proceedings concerning the federal taxes.
3. The applicant complains that the proceedings in which he was
involved were not conducted "within a reasonable time" as required by
Article 6 para. 1 of the Convention.
4. Under Article 6 paras. 1, 2 and 3 of the Convention the applicant
complains of the manner in which the Administrative Court reached its
conclusions, in particular in respect of his tax declaration of 13 July
1983. He further complains that the authorities did not question him
as to the mitigating and incriminating circumstances of the charges
raised against him. It was irrelevant in this respect that he had
sufficient opportunities to express himself. It was not up to him to
do what the authorities should have done ex officio. In the present
case, the authorities never asked him about the contractual basis in
the relations between him and the C. company. In fact, the authorities
merely took over charges which had been established in separate
proceedings, and with a different burden of proof, namely of the
Federal Tax Administration. As a result, he had not been informed in
detail of the accusations against him as required by Article 6
para. 3 (a) of the Convention.
5. Under Article 7 of the Convention the applicant complains of a
breach of the principle "nulla poena sine lege". He submits that
Section 225 of the Tax Act of the Canton of Obwalden contains no upper
limit of punishment, thus permitting an unlimited fine.
6. Under Article 4 of Protocol No. 7 the applicant complains with
reference to domestic case-law and doctrinal writings of a breach of
"ne bis in idem" in that he was convicted of an offence in respect of
which he had already previously been punished. Thus, he had been
punished both for evading federal and cantonal taxes. Both sets of
proceedings concerned his income from the C. company. In both sets of
proceedings, only one tax declaration has to be filled out, and the
offence concerned the truthfulness of the declaration.
THE LAW
1. The applicant raises various complaints about the criminal
proceedings in which he was involved. He relies on Article 6 paras. 1,
2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention which state, insofar as
relevant:
"1. In the determination... of any criminal charge against
him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal..."
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
...
b. to have adequate time and facilities for the preparation of
his defence;
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him."
a) The applicant complains in two respects that he did not have an
independent and impartial tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
He submits, first, that, after the federal tax proceedings had
been conducted against him, the authorities conducting the cantonal tax
proceedings were not in a position to reach a conclusion which differed
from that in the first set of proceedings.
It is true that the Administrative Court in its decision of
11 January 1994 had regard to the findings of the Federal Court in its
judgment of 8 July 1988 concerning the applicant's federal taxes.
However, the Commission notes that that Court only did so after
examining the applicant's submissions and in particular after
considering that they were not credible as they contradicted his
previous submissions. In fact, the Court did not regard itself bound
by any previous decision. Indeed, as the Federal Court later pointed
out in its decision of 4 January 1995, the Administrative Court had
been required to consider all relevant facts, including those of
previous proceedings if they stood in a factual relation with the
present case.
As a result, there is no indication that the Administrative Court
did not have full jurisdiction to examine the case.
Second, the applicant complains that various judges of the
Cantonal Tax Appeals Commission had already sat in the federal tax
proceedings.
The Commission notes the decision of the Federal Court of
4 January 1995 according to which the applicant and his lawyer had been
aware of the composition of the Tax Appeals Commission already on
22 April 1993 when they participated at the hearing, though they only
challenged the members on 11 January 1994 in the proceedings before the
Administrative Court. The Commission need not resolve whether in this
respect the applicant could be considered as having waived his right
to an independent and impartial tribunal within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention.
Thus, the applicant was able to appeal against the decision of
the Tax Appeals Commission to the Administrative Court. In respect of
this Court, however, the Commission has just concluded that there was
no indication that it did not have full jurisdiction.
b) The applicant complains that proceedings were not conducted
"within a reasonable time" as required by Article 6 para. 1 (Art. 6-1)
of the Convention.
In the present case, the proceedings commenced on 16 May 1987
when the Obwalden Cantonal Tax Administration instituted criminal
proceedings on account of tax evasion of cantonal and municipal taxes.
The proceedings ended on 27 April 1995 when the Federal Court's
judgment of 4 January 1995 was served on the applicant.
The relevant period therefore lasted 7 years, 11 months and
11 days.
The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and having regard in particular to the
complexity of the case, the conduct of the applicant and that of the
relevant authorities (see Eur. Court HR, Mansur v. Turkey judgment of
8 June 1995, Series A no. 319-B, p. 51, para. 61).
The present case concerned the evasion of cantonal taxes. In the
Commission's opinion, the case was of a certain complexity, justifying
to some extent the length of the proceedings conducted against the
applicant.
The Commission must next examine whether the applicant
contributed to the length of the proceedings. In this respect, it
notes that on 10 June 1987 the applicant requested the suspension of
the cantonal tax proceedings. The proceedings were only resumed on
24 July 1990, i.e. after more than three years.
Moreover, after the proceedings were resumed on 24 July 1990 the
applicant filed his submissions only after various requests for
prolongation of the time-limit on 24 October 1990. Thereafter, the
applicant was invited to a hearing at the Cantonal Tax Administration
on 12 December 1990. However, he requested a prolongation of the time-
limit, and he was eventually heard on 6 February 1991.
In the Commission's opinion, to this extent the length of the
proceedings cannot be attributed to the respondent Government.
As regards the authorities' conduct, the Commission notes that,
after the applicant's lawyer stated that he would not file any further
submissions on 15 March 1991, the Cantonal Tax Administration gave its
decision within approximately one year, i.e. on 27 March 1992.
Again, after the applicant filed his appeal with the Tax Appeals
Commission on 29 April 1992, the latter gave its decision within one
year, i.e. on 22 April 1993.
After the applicant filed his appeal with the Administrative
Court on 3 September 1993, the latter gave its decision after
approximately four months on 11 January 1994.
Finally, on 17 February 1994 the applicant filed a public law
appeal which the Federal Court dismissed on 4 January 1995, the
decision being served on the applicant on 27 April 1995, i.e. after
approximately 14 months.
In the Commission's opinion, no unduly lengthy periods of
inactivity on the part of the authorities transpire.
In assessing the length of the proceedings, the Commission has
finally considered that the Tax Appeals Commission, when determining
the applicant's fine in its decision of 22 April 1993, considered that
a relatively long period of time had lapsed since the applicant had
committed the offence.
Having regard to the complexity of the case, to the fact that
some of the delays were due to adjournments requested by the applicant,
and that the length of proceedings was considered when determining his
fine, the Commission does not find an appearance of a violation of the
requirement of "reasonable time" referred to in Article 6 para. 1
(Art. 6-1) of the Convention.
c) Under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the
Convention the applicant complains of the unfairness of the
proceedings. He complains of the manner in which the Administrative
Court reached its conclusions, in particular in respect of his tax
declaration of 13 July 1983. He further complains that the authorities
did not question him as to the mitigating and incriminating
circumstances of the charges raised against him. In fact, the
authorities merely took over charges which had been established in
separate proceedings, and with a different burden of proof, namely of
the Federal Tax Administration. As a result, he had not been informed
in detail of the accusations against him as required by Article 6 para.
3 (a) (Art. 6 a) of the Convention.
The Commission recalls that it is not the Convention organs'
function to deal with errors of fact or law allegedly committed by a
national court unless they may have infringed rights and freedoms
protected by the Convention (see Eur. Court HR, Schenk v. Switzerland
judgment of 12 July 1988, Series A no. 140, p. 29, para. 43).
It is true that the applicant also complains of the unfairness
of the proceedings.
To the extent that he complains that he was not sufficiently
questioned by the courts, the Commission notes that the applicant had
sufficient occasions, at the latest in the proceedings before the
Administrative Court, to put forward any matter which he regarded
pertinent to his case.
Insofar as the applicant complains under Article 6 para. 3 (a)
(Art. 6 a) of the Convention that he was not informed in detail of
the charges raised against him, the Commission notes that the letter
of the Cantonal Tax Administration of 16 May 1987 sufficiently stated,
with reference to the relevant legal provisions, the amounts received
from the C. company which he had not declared, and the years to which
the proceedings referred to.
Insofar as the applicant complains of the manner in which the
evidence was assessed, the Commission recalls that, as a rule, it is
for the national courts to assess the evidence before them. The
Convention organs' task is to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (see Eur. Court HR, Asch v. Austria judgment of 26 April
1991, Series A no. 203, p. 10, para. 26).
In the present case, the Commission finds no indication that the
applicant, who was represented throughout the proceedings by a lawyer,
could not put forward any evidence which he regarded pertinent, or that
the proceedings were unfairly conducted in any other way.
d) It follows that in this respect the applicant's complaints are
manifestly ill-founded and must be rejected according to Article 27
para. 2 (Art. 27-2) of the Convention.
2. Under Article 7 (Art. 7) of the Convention the applicant
complains of a breach of the principle "nulla poena sine lege". He
submits that Section 225 of the Tax Act of the Canton of Obwalden
contains no upper limit of punishment, thus permitting an unlimited
fine. Article 7 para. 1 (Art. 7-1) of the Convention states:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was
committed."
According to the Convention organs' case-law, Article 7 para. 1
(Art. 7-1) of the Convention embodies the principle that only the law
can define a crime and prescribe a penalty, and the principle that the
criminal law must not be extensively construed to an accused's
detriment. From these principles, it follows that an offence must be
clearly defined by the law (see Eur. Court HR, Cantoni v. France
judgment of 15 November 1996, Reports 1996-V, No. 20, p. 1627, para.
29).
The Commission notes that according to S. 225 of the Tax Statute
of the Canton of Obwalden, the fine will as a rule correspond to the
amount of the taxes evaded. If culpability is not severe, the fine can
be reduced by one third, in the case of severe culpability it can be
raised to double the amount. If the tax evasion is reported by the tax
payer concerned before he has knowledge of the criminal proceedings,
the fine will be reduced to one fifth of the taxes evaded.
In these circumstances, it cannot be said that, contrary to the
requirements of Article 7 para. 1 (Art. 7-1) of the Convention, S. 225
of the Tax Statute permitted an unlimited punishment. This part of the
application is manifestly ill-founded according to Article 27 para. 2
(Art. 27-2) of the Convention.
3. Under Article 4 of Protocol No. 7 (P7-4) the applicant complains
of a breach of "ne bis in idem" in that he was convicted of an offence
in respect of which he had already previously been punished. Thus, he
was punished for evading both federal and cantonal taxes. However,
both sets of proceedings concerned his income from the C. company.
Article 4 of Protocol No. 7 (P7-4) to the Convention state:
"1. No one shall be liable to be tried or punished again in
criminal proceedings under the jurisdiction of the same State for
an offence for which he has already been finally acquitted or
convicted in accordance with the law and penal procedure of that
State.
2. The provisions of the preceding paragraph shall not prevent
the reopening of the case in accordance with the law and penal
procedure of the State concerned, if there is evidence of new or
newly discovered facts, or if there has been a fundamental defect
in the previous proceedings, which could affect the outcome of
the case."
The Commission recalls the Convention organs' case-law according
to which the aim of Article 4 of Protocol No. 7 (P7-4) is to prohibit
the repetition of criminal proceedings which have been concluded by a
final decision (see Eur. Court HR, Gradinger v. Austria judgment of
23 October 1995, Series A no. 328-C, p. 65, para. 53).
In the present case, criminal proceedings were instituted against
the applicant on 12 December 1985 on account of evading federal taxes.
In particular, the applicant was accused of having received payment
from the C. company. As a result, he was eventually fined 109,659 CHF.
This fine was confirmed in last resort by the Federal Court on 12 June
1990. Meanwhile, on 16 May 1987 criminal proceedings were instituted
against the applicant on account of evading cantonal and municipal
taxes in view of the payments which he had received from the
C. company. The applicant was eventually fined 94,685 CHF. This
decision was confirmed by the Federal Court on 4 January 1995.
The issue arises whether in the second proceedings the applicant
was "tried or punished again... for an offence for which (he had)
already been finally acquitted or convicted" within the meaning of
Article 4 para. 1 of Protocol No. 7 (P7 1). This provision does not
refer to "the same offence", but refers rather to trial and punishment
"again... for an offence" (see Gradinger v. Austria, Comm. Report
19.5.94, para. 75, Eur. Court HR, Series A no. 328-C, p. 77). Thus,
the Court found in the Gradinger case that "both impugned decisions
were based on the same conduct". As a result, it found in that case
a breach of Article 4 of Protocol No. 7 (P7-4) (see Eur. Court HR,
ibid. p. 66, para. 55).
In the present case, the Commission has had regard to the
decision of the Federal Court of 4 January 1995 according to which in
Switzerland two different taxes are at issue, in particular the
cantonal and the federal tax. As a result, there are two different
jurisdictions which have to protect their different tax demands each
with a different penal law.
In the Commission's opinion, therefore, it cannot be said that
the same conduct of the applicant was at issue in the different
proceedings in which he was involved. Rather, each jurisdiction
established independently the conduct on the basis of which it imposed
the taxes on the applicant. Indeed, in the tax forms in use at the
time in the Canton of Obwalden, certain questions had to be answered
separately for the assessment of the cantonal and the federal taxes.
If he only had to fill in one form for both taxes, this can be
explained with practical considerations. A confirmation herefor can
be seen in the decision of the Administrative Court of 11 January 1994
which, as the Commission has found, examined the applicant's case with
full jurisdiction and without being bound by the assessment of the
applicant's federal taxes.
As a result, it cannot be said that the applicant was "tried or
punished again... for an offence for which (he had) already been
acquitted or convicted" within the meaning of Article 4 para. 1 of
Protocol No. 7 (P7 1). It follows that the remainder of the
application is also manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber