issued by the Registrar of the Court

ECHR 142 (2012)

05.04.2012

The right not to incriminate oneself and the right of access to

evidence held by the prosecuting authorities were not

respected in a tax case

In today’s Chamber judgment in the case of Chambaz v. Switzerland (application

no. 11663/04), which is not final,¹the European Court of Human Rights held, by a

majority, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on

Human Rights as regards Mr Chambaz’s right not to incriminate himself;

a violation of Article 6 § 1 (right to a fair trial) as regards the principle of equality

of arms.

The case concerned tax proceedings in the Swiss courts against Mr Chambaz, in which

he was fined several hundred thousand euros for refusing to produce all the documents

requested in relation to his business dealings with a company and banks.

Principal facts

The applicant, Yves Chambaz, is a Swiss national who was born in 1954 and currently

lives in Bermuda. He has been the subject of several sets of proceedings for tax evasion,

also involving a number of companies to which he was connected.

In 1991 the Aubonne district taxation and revenue commission assessed the applicant’s

taxable income for the 1989-1990 tax year, finding that he had not declared all of his

income because the growth of his assets was disproportionate to his stated income. The

applicant challenged that decision. During the examination of his objection, he was

asked for various items of information, which he refused to furnish. Complaints by the

applicant in relation to both direct federal tax and cantonal and municipal tax were

dismissed in decisions of 17 and 29 August 1994. At the same time, he was ordered to

pay two fines of 2,000 and 3,000 Swiss francs (CHF – approximately 1,440 and 2,159

euros (EUR) respectively), for refusing to produce all the documents requested in

relation to his business dealings with a company and with the banks holding its assets.

The applicant appealed to the Administrative Court of the Canton of Vaud.

While the proceedings in the Administrative Court were pending, the federal tax

authorities opened an investigation in respect of Mr Chambaz for tax evasion. The

applicant asked to consult the file on the investigation in order to be able to defend

himself in the proceedings before the Administrative Court. His request was refused on

the ground that the permission of certain companies was required. In a judgment of

21 October 2002 the Administrative Court dismissed his appeal, upholding the fines

imposed on him for refusing to produce certain items of information.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

The applicant subsequently appealed to the Federal Court. In support of his appeal he

alleged several violations of his right to a fair trial, arguing in particular that the

requirement to produce the information in question amounted to forcing him to

incriminate himself in relation to the matters forming the subject of the tax evasion

investigation. He further submitted that the simultaneous conduct of the two sets of

proceedings was in breach of the presumption of innocence and that the refusal to give

him access to the file contravened the principle of equality of arms. On 2 October 2003

the Federal Court upheld the Administrative Court’s judgment. It held that the

proceedings had not been criminal in nature since their purpose had been to determine

Mr Chambaz’s tax obligations and he could not therefore rely either on his right not to

incriminate himself or on his right to be presumed innocent. As regards the refusal to

allow him to consult all the documents in the federal tax authorities’ possession, the

Federal Court observed that the applicant had had access to all the relevant documents

that had been produced before the Administrative Court.

The tax evasion investigation, which had continued while the proceedings were pending

before the Administrative Court and the Federal Court, was completed in 2006. The

cantonal tax authorities eventually ordered the applicant to pay CHF 2,318,458

(approximately EUR 1,545,638) in tax arrears – a sum that was subsequently reduced

–and fined him CHF 1,304,000 (approximately EUR 869,333) for tax evasion.

Complaints, procedure and composition of the Court

Relying on Article 6 § 1 (right to a fair trial), Mr Chambaz alleged a violation of his right

not to incriminate himself. Under the same provision, he also complained about the

refusal to allow him to consult all the information in the federal tax authorities’

possession. He further alleged a violation of Article 6 § 2 (presumption of innocence).

The application was lodged with the European Court of Human Rights on 26 March 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Dean Spielmann (Luxembourg), President,

Elisabet Fura (Sweden),

Boštjan M. Zupančič (Slovenia),

Ann Power-Forde (Ireland),

Angelika Nußberger (Germany),

Helen Keller (Switzerland),

André Potocki (France), Judges,

and also Claudia Westerdiek, Section Registrar.

Decision of the Court

Article 6 § 1 – right not to incriminate oneself

Although they were not specifically mentioned in Article 6 of the Convention, the right to

remain silent and the right not to incriminate oneself were generally recognised

international standards which lay at the heart of the notion of a fair trial.

The Court observed that by fining Mr Chambaz for refusing to produce all the items

requested, the authorities had put him under pressure to furnish documents which would

have provided information on his income and assets for tax assessment purposes. By

upholding the fines while an investigation was ongoing into alleged tax evasion

concerning matters linked to those in respect of which the applicant had exercised his

right to remain silent, the Swiss courts had obliged him to incriminate himself.

The Court therefore held that there had been a violation of Article 6 § 1.

Article 6 § 1 – equality of arms

The Court reiterated that the only permissible restrictions on access to all evidence in the

prosecuting authorities’ possession had to be justified by the protection of vital national

interests or the preservation of the fundamental rights of others². The Court had

previously held that, in tax proceedings of a criminal nature before the administrative

courts, it did not rule out that the tax authorities might be required to supply a litigant

with certain documents even if they had not been specifically relied on in the case

against him or her. Although it was not for the Court but for the domestic courts to

assess the relevance of proposed evidence, proper reasons nevertheless had to be given

for rejecting evidence.

The restrictions imposed in Mr Chambaz’s case had not pursued the aims of protecting

vital national interests or preserving the fundamental rights of others since he had been

refused access to the documents on account of his “attitude”, in particular his lack of

explanations. The Court further noted that the defects in the first-instance proceedings

had not been redressed by Federal Court, which had not conducted its own examination

of the matter.

The Court concluded that the right to equality of arms had not been respected, in breach

of Article 6 § 1.

Article 6 § 2

The authorities conducting the tax proceedings had never expressed a position on the

issue of the applicant’s guilt. The fact that he had been convicted of tax evasion after the

tax proceedings had been completed was not in itself decisive, since Article 6 § 2 did not

go so far as to require member States to conduct different sets of proceedings in a

particular order.

The Court therefore dismissed this complaint as being manifestly ill-founded.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that Switzerland

was to pay the applicant EUR 3,599 in respect of pecuniary damage and EUR 7,198 in

respect of costs and expenses.

Separate opinions

Judges Zupančič and Power-Forde expressed dissenting opinions. These opinions are

annexed to the judgment.

The judgment is available only in French.

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Dowsett v. the United Kingdom, judgment of 24.6.2003.