AS TO THE ADMISSIBILITY OF

                  Application No. 11464/85
                  by M.S.
                  against Sweden


        The European Commission of Human Rights sitting in private
on 12 May 1987, the following members being present:


              MM. C. A. NØRGAARD, President
                  J. A. FROWEIN
                  M. A. TRIANTAFYLLIDES
                  G. JÖRUNDSSON
                  S. TRECHSEL
                  B. KIERNAN
                  A. S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J. C. SOYER
                  H. G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  H. VANDENBERGHE
             Mrs.  G. H. THUNE
             Sir  Basil HALL
             Mr.  F. MARTINEZ

              Mr.  H. C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 21 February 1985
by M.S. against Sweden and registered on 22 March 1985
under file N° 11464/85;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent
Government on 29 January 1986 and the observations in reply submitted
by the applicant on 24 April 1986 as well as the submissions of the
parties at the hearing held on 12 May 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be
summarised as follows.

        The applicant is a Swedish citizen, born in 1929 and resident
in Rome.  He is represented before the Commission by Mr.  Carl Göran
Risberg, a lawyer practising in Stockholm.

A.      The particular circumstances of the case

        On 4 December 1973 the applicant received a letter from the
National Tax Board (riksskatteverket) requesting him to explain why an
aggregate amount of 611,827 Swedish crowns (SEK) paid to a certain
company had not been reported by the applicant in his annual tax
returns for the income years 1969, 1970 and 1972 (which is equal to
the "taxation years" 1970, 1971 and 1973).

        The applicant replied that he was not the owner of the
company in question, that he was a salaried employee of that company in
its function as his manager according to a long term contract in
compliance with long established practice in the show business and
that the salary he had received from the company had been properly
declared in his annual tax declarations.

        On 30 April 1975 the Regional Tax Court (länsskatterätten) of
Stockholm decided to impose on the applicant additional taxation
(eftertaxering) in the amount of 206,950 SEK for the taxation year 1970,
157,769 SEK for 1971 and 247,108 SEK for 1973.  The amounts had been
paid by the companies Swedish Film Industry (Svensk Filmindustri) and
SF Production AB to the company in question.  The Regional Tax Court
considered that the amounts were taxable income for the applicant.

        On 23 April 1979 the Administrative Court of Appeal
(kammarrätten) of Stockholm confirmed the decision of the Regional Tax
Court, and on 8 October 1980 the Supreme Administrative Court
(regeringsrätten) refused to grant leave to appeal.

        On 16 November 1978 the Regional Tax Court of Stockholm
decided to impose additional taxation on the applicant in the amount
of 156,352 SEK for the taxation year 1974, 175,976 SEK for 1975 and
14,019 SEK for 1976 for reasons similar to those referred to above in
the decision of 30 April 1975, namely that the amounts in question
were taxable income for the applicant, notwithstanding the contract
between him and the company in its function as his manager.  In
addition to imposing additional taxation, the Regional Tax Court
imposed a special charge (tax supplement) (särskild avgift
(skattetillägg)) which amounted to 50 % of the tax imposed as a result
of the additional taxation.  The total amount of the special charge
(tax supplement) for the three years amounted to 120,399 SEK.   The
proceedings before the Regional Tax Court were conducted entirely in
writing, no oral hearing having been required by the applicant.

        The applicant appealed to the Administrative Court of Appeal
of Stockholm.  In his written submissions to the Court the applicant
explained the factual circumstances concerning his income and set out
his arguments as to whether or not an additional taxation should be
imposed.  Likewise he argued that the circumstances in his case did
not allow for the imposition of the special charge (tax supplement).
Finally the applicant requested that an oral hearing be held before the
Court.  He did not, however, specify any reasons for this request.

        In a decision of 24 November 1981 the Administrative Court of
Appeal rejected the request for an oral hearing.  In the decision the
Court stated as follows:

        " ... (The applicant) has not previously requested a hearing
        before the Regional Tax Court or the Administrative Court of
        Appeal, neither in the cases relating to the taxation years 1970,
        1971 and 1973 nor in the present case.  Moreover, (the
        applicant) has not alleged that the facts as submitted in
        the case are incomplete.

        The Administrative Court of Appeal attaches particular
        importance to the fact that the question whether (the
        applicant) is liable to pay tax on the amounts transmitted
        to the company ... has been dealt with in a particularly
        thorough manner in the previous as well as the present
        case.  The Administrative Court of Appeal finds that
        an oral hearing is unnecessary and that there are special
        reasons militating against it."

        No separate appeal lay against the decision of the
Administrative Court of Appeal in this respect.

        On 15 February 1982 the Administrative Court of Appeal
confirmed the decision of the Regional Tax Court of 16 November 1978.
In its judgment the Court stated, as regards the special charge (tax
supplement):

        "Furthermore the Court finds that the Regional Tax
Court had good reasons to impose the special charge (tax
supplement) on the applicant.  Such reasons or circumstances
as could warrant the remission of this special charge
(tax supplement) are not at hand."

         On 22 April 1982 the applicant asked for leave to appeal
against this decision to the Supreme Administrative Court (regerings-
rätten).  He maintained that he was not liable to pay any additional
tax and furthermore he argued that the refusal to hold an oral hearing
was a procedural error.  He requested that the case be referred back
to the Administrative Court of Appeal where an oral hearing should
take place so that oral evidence could be produced.  The applicant
also asked for an oral hearing before the Supreme Administrative
Court.  The applicant developed his arguments further in his
submissions dated 23 June and 6 July 1982 in which he also referred to
Article 6 of the Convention in respect of the Administrative Court of
Appeal's refusal to hold an oral hearing.


        On 31 August 1984 the Supreme Administrative Court decided not
to grant leave to appeal.


B.      Relevant domestic law and practice

        The procedural network governing the levying of income taxes
is compiled in the 1956 Act on Taxation (taxeringslag 1956:623).  This
Act governs the procedure by which the tax authorities assess the
taxable income, and it also contains provisions regarding the
obligations of the taxpayer with respect to this procedure as well as
certain sanctions which may be imposed upon him in case he fails to
fulfil these obligations.

        Sections 22-36 of the Act contain provisions concerning the
obligation of the taxpayer to submit to the tax authorities
information for the purpose of guiding them in their assessment of his
taxable income.  The income tax return, submitted by the taxpayer, is
subsequently reviewed by a Local Tax Assessment Board (lokal
taxeringsnämnd) for the purpose of assessment.

        Under Section 114 of the Act, an additional assessment
(eftertaxering) may be made in case the taxpayer has made an incorrect
statement on a matter relevant to the assessment of his taxable
income.  An additional assessment must not be made by the Local Tax
Assessment Board, but by an administrative court of first instance
(länsrätt or previously länsskatterätt) upon the application by a Tax
Superintendent (taxeringsintendent) or, as regards municipal income
taxes as opposed to state income tax, the local municipality.  The
decision on such an application is taken only upon the completion of
proceedings before the court in which the taxpayer is given the
opportunity to argue his case on an equal footing with the Tax
Superintendent or the municipality.

        Sections 116 a - 116 t of the Act provide for various
administrative sanctions in the form of "special charges" that may be
imposed upon the taxpayer in case he fails to file his return or files
it later than provided for, and in case he makes incorrect statements
on a matter relevant to the assessment of his taxable income.

        Section 116 a provides inter alia that a special charge (tax
supplement) shall be imposed on a taxpayer if he, in the fulfilment of
his obligation to submit information required for the assessment, has
made a statement that is found to be incorrect.  The tax supplement
amounts to 40 percent - at the time it was imposed on the applicant 50
percent - of that part of his income taxes that would not have been
imposed in case the taxes had been determined on the basis of the
incorrect statement.  Under Section 116 h, the taxpayer may be
relieved from the special charge if his submission of the incorrect
statement is due to circumstances such as his age, illness or lack of
experience or any comparable reason which could make his act or
omission excusable.  The taxpayer may also, under the same section, be
relieved on the ground that his failure is found to be excusable in
view of circumstances related to the incorrect statement as such.

        The question whether a special charge (tax supplement) should
be imposed on a taxpayer is normally determined by a Local Tax Office
(lokal skattemyndighet).  However, in case the question of the special
charge (tax supplement) is raised as a result of an additional
assessment, the question cannot be decided by the Local Tax Office,
but has to be brought before an administrative court of first instance
by a Tax Superintendent.  This claim has to be brought simultaneously
with the claim for additional assessment.  The decision of the court
is taken only upon the completion of proceedings in which the taxpayer
is given the opportunity to argue his case on an equal footing with
the Tax Superintendent.

        The failure of a taxpayer to abide by the stipulations set
forth in the Act for the purpose of aiding the tax authorities in
correctly determining his income taxes, may also subject him to a
criminal charge.  Provisions to this effect are laid down in Sections
119 - 121 of the Act and also in the 1971 Act on Tax Offences
(skattebrottslag 1971:69).  A charge under these provisions is brought
in accordance with the rules governing criminal charges in general.

        A decision taken by an administrative court of first instance
regarding an additional assessment or the imposition of a special
charge (tax supplement) may be appealed to an Administrative Court of
Appeal (kammarrätt).  Subject to certain statutory restrictions, a
judgment of the Court of Appeal may ultimately be brought before the
Supreme Administrative Court (regeringsrätten).

        The procedural rules for these administrative courts appear in
the 1971 Act on Administrative Court Procedure (förvaltningsprocesslag
1971:291).  As a general rule, laid down in Section 9, first paragraph
of the Act, the proceedings should be in writing.  However, according
to the second paragraph of the same section, an oral hearing may be
held regarding a particular issue if this would be advantageous to the
examination or further a speedy determination of the case.  Moreover,
under the third paragraph of the same section, such a hearing shall be
held in the court of first instance and the Court of Appeal when
requested by a private party, provided that the hearing is not
unnecessary and that there are no particular reasons against holding
an oral hearing.

COMPLAINTS

        The applicant complains that a "tax penalty" amounting to
120,399 SEK has been imposed upon him without a fair and public
hearing as guaranteed by Article 6 of the Convention.

        The applicant also complains of a violation of Article 13 of
the Convention in that he had no separate effective remedy against the
refusal of the Administrative Court of Appeal to have an oral hearing,
or against that Court's judgment of 15 February 1982.

        In his letter of 27 November 1985 the applicant finally
complains that, insofar as the "tax penalty" concerns the determination
of a criminal charge, Article 6 para. 2 has been violated since the
"accused" has to prove his innocence or particular circumstances in
order to avoid the penalty.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 21 February 1985 and
registered on 22 March 1985.

        After a preliminary examination by the Rapporteur, the
Commission decided on 9 October 1985 to bring the application to the
notice of the respondent Government and invite them to submit written
observations on its admissibility and merits.

        After an extension of the time-limit the Government's
observations were submitted on 29 January 1986.

        After an extension of the time-limit the applicant's
observations in reply were submitted on 24 April 1986.

        On 16 October 1986 the Commission decided to invite the
parties to appear before it at a hearing on the admissibility and
merits of the application.

        At the hearing, which was held on 12 May 1987, the parties
were represented as follows:

The Government

Mr.  Hans Corell         Ministry of Foreign Affairs, agent
Mrs.  Lena Moore         Ministry of Justice, adviser
Mr.  Håkan Berglin       Ministry of Foreign Affairs, adviser
Mr.  Nils Dexe           Ministry of Finance, adviser

The applicant

Mr.  Carl G. Risberg     Counsel for the applicant
Prof.  Lars Hjerner      adviser
Miss Ulrika Sundberg    adviser



SUBMISSIONS OF THE PARTIES

The Government

        The Government contend that the present case does not involve
the applicant's civil rights and obligations.  The proceedings
complained of concerned the imposition of taxes and tax supplements.
Even though the concept of civil rights and obligations has to be
viewed as an autonomous concept which must be interpreted
independently of the distinction in Swedish law between civil and
public law, there would appear to be no doubt that, as regards
proceedings concerning taxes as such, the public law character of the
obligation is so predominant as to exclude the application of
Article 6.

        An issue is whether the tax supplement imposed on the
applicant should be considered as a form of tax or, if not, whether
the reasons for holding that Article 6 is not applicable to
proceedings concerning the imposition of taxes are equally relevant to
proceedings concerning the tax supplement.  At least the latter
question has to be answered in the affirmative.  Thus, the most
significant prerequisite for imposing the tax supplement is that the
taxpayer is found liable for the taxes at issue.  Furthermore, the
size of the tax supplement is directly related to the outcome of the
tax issue as such.  Consequently, as to these two questions, once the
tax issue as such is determined, no further considerations need to be
made as regards the tax supplement.  The additional prerequisite that
needs to be present before a tax supplement could be imposed, i.e.
that the taxpayer has made an incorrect statement, is to be determined
solely on objective grounds and, furthermore, on the basis of
statements made by the taxpayer in the fulfilment of his obligation to
submit correct information necessary for the assessment of the taxes
as such.

        The criteria for imposing a tax supplement are thus the same
as those needed for an additional assessment and there is consequently
hardly reason for viewing the tax supplement issue as something else
than a strictly fiscal matter.  Obviously, a provision providing for
some form of economic hardships for those who fail to fulfil such an
obligation has to be viewed as a quite natural part of the complex of
administrative rules aimed at securing the payment of taxes.  In this
context attention is drawn to Article 1 para. 2 of Protocol No. 1 to
the Convention in which a State's right to enforce such laws as it
deems necessary to secure the payment of taxes is made explicit.

        The contention that the case involves the determination of a
criminal charge is also rejected.  In cases concerning tax matters the
Commission has frequently observed that such proceedings do not
involve the determination of a criminal charge within the meaning of
Article 6 of the Convention.  The close relationship between the taxes
as such and the tax supplement strongly urges that, for the present
purpose, no other considerations be made with regard to the latter.

        Furthermore, the very same failure of the taxpayer to submit
correct information to the tax authorities may also constitute a
criminal offence, namely if the failure is the result of criminal
intent or, as the case may be, a certain degree of negligence on the
part of the taxpayer.  In such a case, the pre-trial investigation,
the prosecution and the trial are carried out by the bodies concerned
with and under the procedural framework governing criminal charges in
general.  It is in this context of no relevance whether or not the tax
supplement has been imposed upon the taxpayer, and the imposition of
the tax supplement does not exclude the possibility of a criminal
charge on the basis of the very same material facts.

        Moreover, in the case law of the Commission, the applicability
of Article 6 to proceedings allegedly relating to a criminal charge
has frequently been viewed in light of the criteria laid down by the
European Court of Human Rights in the Engel case (Eur.  Court H.R.,
Engel and others judgment of 8 June 1976, Series A No. 22).  The Court
held that the question of the applicability of Article 6 was to be
determined in view of, firstly, whether or not under the legal system
of the respondent State the offence charged belongs to the criminal
law sphere; secondly, the very nature of the offence as such; and
thirdly, the degree of severity of the penalty that the person
concerned risks incurring.  Considering the facts of the present case
on the basis of these criteria the conclusion is that the imposition
of the tax supplement involved in the present case does not amount to
the determination of a "criminal charge" within the meaning of
Article 6 of the Convention.

        Systematically the imposition of a tax supplement has never
been regarded in Sweden as forming part of the criminal law but of the
administrative law.  Unlike the Öztürk case (Eur.  Court H. R., Öztürk
judgment of 21 February 1984, Series A No. 73) there has accordingly
never been any "decriminalisation" of the law governing the tax
supplements.

        Furthermore, a number of other circumstances clearly
distinguish the imposition of the tax supplement from the conviction
of a criminal offence.

        Firstly, a significant rationale for subjecting certain acts
and omissions to a criminal charge is to condemn these acts and
omissions as being inconsistent with the state's notions of morality
and justice.  Inherent in this is that a violation of a penal law is
considered an offence only when committed with criminal intent or, as
the case may be, by negligence.  The imposition of a tax supplement, by
contrast, is determined exclusively on objective grounds, i.e. without
regard to any form of criminal intent or of negligence, and,
therefore, lacks the morally delicate element of condemnation inherent
in a criminal conviction (cf.  Eur.  Court H.R., Deweer judgment of
27 July 1980, Series A No. 35, Minelli judgment of 25 March 1983, Series
A No. 62 and the Öztürk judgment mentioned above).  Another difference
is that the tax fraud is investigated by the police and the
prosecutor, while the question of a tax supplement is investigated
by the tax authorities.

        Secondly, in the course of the pre-trial investigation of a
suspected criminal, as well as during the court proceedings, the
person accused is subject to a number of severe coercive measures,
including deprivation of liberty.  The legal provisions providing for
these measures are not to any extent applicable to proceedings for the
imposition of a tax supplement.

        Thirdly, as a general rule those convicted of criminal
offences are registered in a national crime register.  In addition to
the fact that even the very registration as such certainly has to be
considered as involving significant hardship for a person thus
registered, the registration should also be seen in connection with
the fact that a conviction of a criminal offence may have negative
effects of vital importance for the convicted not only in case he
would subsequently commit further offences but also in other contexts
in his daily life.  A person on whom a tax supplement is imposed is
not subject to such registration and the imposition of a tax
supplement does not entail the negative consequences related to the
conviction of a criminal offence.

        Fourthly, unlike a criminal conviction, the imposition of a
tax supplement has no effect of res judicata with respect to any
subsequent criminal charge based on the same facts.  It follows from
this that the present case is in total lack of the characteristics
which the European Court of Human Rights has found decisive when
considering an offence as being criminal in nature.

        As regards the severity of the sanction imposed, it is
observed that the Court and the Commission in this context almost
exclusively seem to have considered proceedings involving deprivation
of liberty, and that not even penalties of this severe character have
been found to necessarily require the proceedings to come within the
guarantees of Article 6.  The present case, by contrast, involves
nothing else than a purely pecuniary sanction, which unlike fines,
cannot be transformed into imprisonment under any circumstances.

        It follows from the above that the imposition of the tax
supplement does not amount to the determination of the applicant's
civil rights and obligations.  Furthermore, as set out above, the
imposition of the tax supplement lacks the characteristics generally
associated with a criminal conviction, both in respect of its
character, the procedural framework within which it is administered
and the consequences following from its imposition.  Under these
circumstances, the Government maintain that the economical
consequences alone cannot suffice to render the imposition of a tax
supplement equivalent to the determination of a "criminal charge"
within the meaning of Article 6 of the Convention.

        Assuming that Article 6 applies in the present case the
Government do not contest the allegation that the applicant was
denied oral proceedings before the courts.  For the following reasons,
however, this did not constitute a breach of Article 6 of the
Convention.

        The question whether the denial to grant the applicant an oral
hearing constitutes a violation of the Convention has to be viewed
purely in light of the facts that were presented to, or otherwise
known by, the Administrative Court of Appeal prior to the Court's
decision.  There was no indication that the applicant intended to
present oral evidence before the Court.

        The appeal was lodged with the Administrative Court of Appeal
on 12 January 1979.  The decision refusing the applicant's request for
an oral hearing was taken on 24 November 1981.  Furthermore, by that
decision the applicant was given an opportunity to submit further
written observations before 10 December 1981.  The judgment was
rendered on 15 February 1982.  At any time prior to the delivery of
the judgment, the Court would have been obliged to reconsider the
question of whether to hold an oral hearing, had the applicant so
requested.  Different considerations would then have been necessary had
the applicant indicated that he wanted to present oral evidence.
However, no such request or indication was made.  In view of this, the
Government find that the applicant was given a fair chance of
indicating his reasons for requesting an oral hearing.

        Furthermore, any possible finding indicating, in principle,
that Article 6 requires an oral hearing in review proceedings, becomes
considerably less, if at all, meritorious in a case like the present
one where the party himself voluntarily refrained from availing himself
of the opportunity to request an oral hearing, and to tender oral
evidence, before the court of first instance when this could have been
done.  This is so because, even assuming that Article 6 in part might
be construed to apply to review proceedings, it cannot be interpreted
so as to require a state to provide guarantees in review proceedings
that would allow a party to cure deficiencies in his case caused by
his own failure to properly, by using the facilities available to him,
present the case before the lower court.  In other words, all that
could possibly be required under the Convention as regards appeal
proceedings would be a fair review of the case as presented before the
lower court.

        Turning now to the question of the extent to which the rules
of Article 6 could be construed to apply to appeal proceedings even
though the right to appeal as such is not guaranteed by the
Convention, attention should be drawn to Article 2 of Protocol No. 7
to the Convention.  In this Article, which concerns criminal
proceedings, the right to appeal is guaranteed (n.b. that the Protocol
is not yet in force).  In the preparation of this Article it was
deemed necessary to make an exception from the right to a public
hearing by a higher court.  This indicates that Article 6 of the
Convention must not be construed so as to pertain fully to
proceedings in a higher instance.  From the case-law of the European
Court of Human Rights it can safely be concluded that Article 6 para.
1 does not necessarily call for an oral hearing in appeal proceedings.
Whether this would be required would depend upon the special features
of the proceedings involved (cf. for example Eur.  Court H.R., Delcourt
judgment of 17 January 1970, Series A No. 11 and the Monnell and Morris
judgment of 2 March 1987, Series A No. 115).

        A higher tribunal should of course be independent and
impartial.  Above this, however, the High Contracting Parties should
have a considerable leeway in designing the system for appeal in their
respective countries.  For various reasons it is necessary in a system
with two or more instances to rationalise the procedure in the higher
instances in order to create a well-functioning administration of the
law.  The procedure should be quick, cheap and simple, while at the
same time satisfying the demands for legal security.

        The proceedings in the Administrative Court of Appeal are
according to the main rule to be conducted in writing.  Oral
proceedings can be held under certain conditions.  The cases which the
court deals with vary considerably, and the rules of procedure make
it possible for the Court to adjust the proceedings accordingly; in
many cases there is no need for oral proceedings, while such
proceedings could sometimes be an advantage or even necessary.  The
opinion and requests from the parties are of great importance when the
Court decides on how the proceedings should be conducted.

        An important factor in this context is the Swedish principle
of general access to official documents.  According to this principle
- which is laid down in the Freedom of the Press Act forming part of
the Swedish Constitution - anybody has the right to have access to the
written submissions to Swedish courts, including the Administrative
Court of Appeal.  This means that there is a full publicity about the
proceedings even if there is no oral hearing.

        Attention is also drawn to the Commission's constant case law
concerning the interpretation of Article 6 and the concept of
"equality of arms", from which it can be deduced that such equality
is at hand if neither party is present before the court during the
proceedings.  It shows that Article 6 must not necessarily be
construed so as to guarantee to the parties the right to appear in
person before a court.

        Finally it could be questioned whether Article 6 of the
Convention calls at all for oral proceedings regardless of the character of
the issues that are presented.  The Commission has in numerous
decisions dealt with the concept of a "fair and public hearing" in a
manner that seems to indicate that all that would be required would be
that a party is provided with appropriate facilities for presenting and
arguing his case and that the opposing party is not put in a more
favourable position with regard to the possibilities of presenting his
position.  This would seem to call for a consideration of such matters
as the scope of the powers of the Court of Appeal, the nature of the
issues presented and the manner in which the applicant's interests
could be presented and protected.  It certainly goes without saying
that the circumstances in a case might be such as to call for an oral
hearing for these requirements to be fulfilled.

        However, it would seem to be equally conceivable that a party
under certain circumstances could be given a perfectly fair chance to
present his case, even though he was not afforded the opportunity of
doing so at an oral hearing (cf.  Eur.  Court H.R., Axen judgment of
8 December 1983, Series A No. 73 and Sutter judgment of 22 February
1984, Series A No. 74).

        As regards the scope of the proceedings, they did indeed
involve a full review of the case, but the power of the Administrative
Court of Appeal was not unlimited.  Thus, in the absence of an appeal
by the tax superintendent, the Court was, as a matter of law, unable
to raise the tax supplement imposed by the lower court.  Furthermore,
the calculation of the tax supplement being a matter of pure
arithmetic, the scope of the Court's powers was in fact limited to
upholding or quashing the lower court's principal decision to impose a
tax supplement.

        In the present case the character and mode of living of the
applicant were of no relevance to the formation of the Court's
opinion.  Furthermore, the facts, as presented by the applicant, were
accepted by the Court with one exception.  In his complaint to the
Commission, the applicant also admits that in the first place the
judgment of the Court was criticised "as a matter of application of
the present Swedish tax law".

        In view of this, and even assuming that the applicant's case
would fall within the scope of Article 6, and that this Article could
be construed to apply to appeal proceedings, an oral hearing in this
case given the way the case stood before the Administrative Court of
Appeal, would obviously not have served any reasonable purpose.

        Finally, as regards the applicant's complaint under Article 6
para. 2 of the Convention, the Government submit that, insofar as
Article 6 is found to be applicable, this complaint has been
introduced out of time and must be rejected for that reason.

The applicant

        When the special charge (skattetillägg) was introduced in
1971-72 incorrect statements in the income declaration were to be
punished as crimes either as fraud or as incorrect statement by gross
negligence.  In case of conviction a tax penalty could also be
imposed.  The legislator wanted, however, to punish more or less every
incorrect statement - not only those made by gross negligence.  The
ordinary courts, being bound to apply the ordinary procedural rules
and hampered thereby, were considered to lack the capacity to handle
such an increasing number of cases, and consequently in order to cope
therewith, the system of "administrative sanctions" was invented.

        The purpose to deter, repress and retaliate remained obvious,
however, and this new system was met with criticism from some circles
already at its start.  Later, in the middle of the seventies a
reappraisal was made by a governmental committee, which also proposed
some changes in the Act based on the experience up till then.

        The committee pointed out that the persons who have had to
pay special charges (skattetillägg) were not to be considered
"criminals" in the social sense.  They had, however, violated an
obligation as against the community and the means of pressure intended
to enforce such obligation had therefore entered into function.  This,
in the view of the committee, led to the result that the
tax-administrative sanctions were of a special character and to be
understood as a special kind of "social sanction" but not as a
punishment.

        From this it is reasonably clear that the function of the
special charge (skattetillägg) is the same as that of a fine, namely
to deter, to repress and, in case of failure thereof, to inflict an
economic suffering upon the wrongdoer.  The difference is that the
sanction is supposed not to be dishonouring, that the presumption of
not-guilty is eliminated and that some other procedural safeguards in
the criminal procedure are more or less abolished.

        Regarding the applicability of Article 6 of the Convention it
is acknowledged that proceedings in tax matters are not per se
governed by this provision.  However, if in the same proceedings tax
matters and criminal charges are handled by the same authority or the
same court, the fact that tax matters are involved will not exclude
the proceedings from the application of Article 6 insofar as a
criminal charge is concerned or made dependent on the outcome of the
tax dispute.  Consequently, if the special charge is considered to be
a tax in the sense of the Convention then Article 6 seems not to
apply.  It is, however, likewise clear that if the special charge is
considered to involve a criminal charge then Article 6 does apply.

        Admittedly, the Swedish Act on Taxation and the provisions on
the special charge have a public-law character - so has also any penal
code of a country - but this does not take it out of the application
of Article 6.  The special charge is officially called, at its
introduction, a system of "administrative sanctions" and the "economic
hardship" is called "avgift" (fee), because if it had been openly
called a punishment (straff) or a fine (böter), the task to impose
these sanctions could not have been entrusted to tax authorities or
tax courts but only to the ordinary courts and then the whole purpose
of the reform would have been spoiled.

        Furthermore it should be pointed out that, as indicated above,
the governmental committee which made an appraisal of the first years
of practice of the system of administrative sanctions and special
charges, in response to the critics of the system, defended it as
being "standing penalties" and compared it to the German system of
"Steuerordnungswidrigkeiten".  The committee said:

        "In this context it may be mentioned that the type of
        contraventions against which the present sanctions are
        directed, in German law is called Steuerordnungswidrigkeiten.
        Ordnungswidrigkeiten are, according to German legal
        terminology, not to be considered as criminal offences.
        Neither are sanctions against them (Verwarnung, Verwarnungsgeld
        and Geldbusse) to be considered punishment but as means
        of pressure to enforce a better state of things (ein Aufruf
        zur Ordnung)."

        The Government have in their observations, when considering
the question of a criminal charge, in particular referred to the Engel
case (Eur.  Court H.R., Engel and others judgment of 8 June 1976,
Series A No. 22).  The Öztürk case (Eur.  Court H.R., Öztürk judgment
of 21 February 1984, Series A No. 73) and the Adolf case (Eur.  Court
H.R., Adolf judgment of 26 March 1982, Series A No. 49) appear,
however, to be of more importance when considering the present case.

        Having regard to the above judgments it is clear that the
interpretation of "criminal charge" as well as "civil rights and
obligations" in the sense of the Convention is an autonomous one which
may or may not follow the characterisation made in the national legal
system.  The characterisation made under the national law seems to be
conclusive only where the national law itself qualifies the
proceedings as "criminal".

        The Court also paid attention to circumstances such as how
close the system in question comes to the ordinary criminal
proceedings.  In this context it may be pointed out that the Swedish
system, although it is called "skattetillägg" and "administrative
sanctions", nevertheless is handled by the courts, i.e. the tax
courts.  The general character of the rule and the purpose of the
special charge are both deterrent and punitive.

        A tax is imposed on income or on fortune or upon a sales price
but not because a person does not comply with a legal obligation to
present his tax return or to give any other type of information.  This
is a typical sanction, a penalty, and has nothing to do with taxes
even if it is handled by the tax authorities.  The reason for that is
to make it easy for the authorities to impose the sanction upon the
taxpayer.  Furthermore, if an incorrect statement is discovered which
would justify the imposition of a special charge and if the taxpayer
happens to die before the special charge has been imposed there will
be no special charge.  A tax is not dispensed with in relation to the
taxpayer because he dies.  If he is subject to tax, either he pays it
when he is alive or his estate pays the tax.  The comparison with
regular punishment of penalties is obvious.  There the rule is, just
as in regard to the special charge, that if the accused person or the
person upon whom the fine is imposed dies before the fine is paid, the
fine will not be executed.

        It is true that tax authorities cannot arrest a person, but
subject only to that exception they can order as fargoing coercive
measures as any prosecutor.  A tax inspector may search the tax-
payer's home and seize any documents without asking any court for
authorisation or confirmation.  Only when the tax inspector wishes to
search some other person's house he has to request the permission of
a tax court.  Furthermore, if the tax inspector refers the taxpayer's
case as a matter of fraud to a public prosecutor, the result of the
criminal investigation led by the prosecutor and of the proceedings
may likewise be used for the determination of the special charge by a
tax court.

        Regarding the severity of the sanction imposed, the Öztürk
case involved a fine of only 60 German marks and an amount of only
63.90 German marks for the interpreter's fee.  Nevertheless both the
Commission and the Court found Article 6 applicable.

        The special charge or charges amount in this case to 120,399
Swedish crowns.  At that time the maximum fine which could be imposed
in criminal proceedings was 180 "day-fines" at a maximum of 500
Swedish crowns per day or 90,000 Swedish crowns corresponding to
90 days in prison.  It is obvious from this that the special charge is
not to be compared with any petty offences.  Together with the tax it may
easily take away more than the total income.  Although there may be
valid reasons to consider some petty offences not to be covered by
Article 6 of the Convention, this cannot apply to the applicant's case
and there is therefore no reason to try to point out where for the
purpose of Article 6 of the Convention such distinctive line, if any,
should be drawn.  It should only be added that, if the special charge
would not be considered a "criminal charge", the amounts which are
claimed by the Government as "fees" are of such magnitude that the
claim must then be considered a civil "obligation" in the sense of
Article 6 of the Convention.

        Regarding the proceedings in question it is undisputed that
the applicant requested an oral hearing.  This in common language and
by necessity means that he wanted to address the Court orally.  It was
not at that time said that the applicant wanted to have some other
expert or witness examined but he reserved explicitly his right to
indicate so later, which is quite normal in Swedish proceedings.  The
Court, however, never gave him a chance thereto before its decision.
On its own motion, without awaiting any reaction on the applicant's
written request from the other party the Court already the next day
decided not to allow an oral hearing.

        The applicant did not request an oral hearing before the court
of first instance.  However, the fact that no oral hearing was
held in the first instance would speak in favour of rather than against
the need for an oral hearing in the appeal court.  The Swedish Act on
Administrative Court Procedure makes no distinction between appeal
proceedings and the proceedings in the first instance.  In both cases
oral hearings shall be held unless there are particular reasons
against it.

        Further, when the applicant's case was before the court of
first instance, the tax superintendent had requested that a special
charge should be imposed, but in an earlier decision concerning the
previous years no such request had been made and no charge had been
imposed.  In a similar case the tax court had dispensed with the
special charge referring to the complexity of the legal situation.  So
in the present case the applicant had no reason to believe that the
same court would not follow the practice introduced in his own
previous cases and in other similar cases.  It would seem that the
applicant's case in the court of first instance was the first one
where such a special charge was imposed upon an artist for income
going to a foreign company and not to himself.  This made the
applicant and his lawyer request an oral hearing in the Court of
Appeal.

        According to the established case-law of the Commission and
the Court it is clear that a State, which institutes an appeal court,
is required to ensure that persons amenable to the law shall enjoy
before that court the fundamental guarantees contained in Article 6.
The way in which this provision applies, depends, however, on the
special features of the proceedings in question.

        In some cases the Commission and/or the Court have found that
in a Supreme Court or in a Court of Cassation, where the review of the
case is limited to questions of law, oral hearings may be dispensed
with.  In the present case, however, the Court of Appeal has not been
limited by any such restrictions.  They had the full review of the case.

        In other cases the Court or the Commission has attached
importance to the fact that the charge against the accused could not
be severed by the higher court and that the higher court for its
decision did not have to make any appreciation of the personal
circumstances of the accused.  Such is not the situation in the
present case.

        Liability for taxes is admittedly a prerequisite for the
imposition of a special charge, so if there is no tax there can be no
special charge.  The reverse, however, is not correct.  Even if a
lower tax court has found the taxpayer liable for taxes following an
incorrect or incomplete statement and the taxpayer appeals only in
respect of the special charge, the higher court is not bound for the
imposition of the special charge by the findings of the lower court.
The higher court has, independently of what the lower court may have
found, to decide whether the taxpayer has made an incorrect or
incomplete statement.  If it finds that he has not done so there is no
room for a special charge.  In these circumstances an oral hearing
must be held if the applicant asks for one.  This view is supported by
the Commission in its Report in the Ekbatani case (Ekbatani v.
Sweden, Comm.  Report 7.10.86) where the Commission stated that in a
case where a power involving direct assessment of the applicant's
personality is exercised in the proceedings against the applicant, the
Convention requires that he should be allowed a public hearing and be
present at these proceedings if he so requests (para. 70 of the
Report).

        The applicant can - for the purposes of the present
proceedings - admit that a party to the Convention shall have a
considerable leeway in designing the system for appeal in its country.
Sweden has had such leeway and there is nothing wrong in the way the
Swedish legislation has been designed on that point.  The law says
explicitly that the taxpayer is entitled (as a matter of his
procedural right to a proper defence) to request an oral hearing,
including the presentation of oral evidence.  The Administrative Court
of Appeal acted wrongly when, despite the said procedural
provision, it did not allow an oral hearing.

        In cases like the present one where the outcome may depend on
the personal circumstances of the applicant or his credibility, an
oral hearing if so requested is imperative to make the proceedings
fair.  In this respect it is pointed out that it has been made obvious
not least by the way the Government have reported the contents of
Section 116 of the Act on Taxation, that the character and the
personal circumstances of the taxpayer is not without relevance to the
question whether a special charge should be imposed or not.  It is
true that in the legal text no reference is made to "negligence" or
"intent", and in the travaux préparatoires it is pretended that such
factors are not determining for the imposition of the special charge.
On the other hand it is clear that subjective elements may influence a
decision not to impose a special charge, as "lack of experience" or
other particular circumstances may make the statement or omission
"excusable".

        The objection of the Government that an oral hearing would not
have served any meaningful purpose cannot be accepted.  Oral hearings
were held in other similar cases with the result that no special
charge was imposed or that the decision of the lower court was
reversed.  As the outcome of the applicant's case depended on whether
at all he was liable for taxes on income which he had never received
but which was paid to the company of his agent and whether his failure
to report income he never received was to be considered as excusable
in the sense of Section 116 a of the Swedish Act on Taxation, it
cannot in advance be said that an oral hearing, where the applicant in
person could have explained his situation, would have been
meaningless.

        Certainly, a subjective element as the insight of the taxpayer
as to what extent he had to provide the tax authorities with
information without being particularly requested to do so, may be
relevant in this context as set out by the Government in its bill
submitted to the Parliament.  There are also ample precedents to that
end.  The reasons advanced by the Court of Appeal as to the merits of
the case are remarkably delphic.  The Court just says that considering
what has transpired in the earlier case and the present one the Court
finds the applicant liable to income tax for all sums paid out by the
film producer.  The only explanation of the outcome of the case is
that the Court did not believe the applicant when he said he had no
influence on the company belonging to his agent, or that the Court did
not know enough about the conditions of the film actor market, which
makes it a necessity, even for many actors more prominent than the
applicant was at the time, to use an agent as intermediary.

        It was also for this reason that the applicant wished to
be heard himself and to have a witness examined, a prominent man both
in the film and banking world and with a high standard of credibility.
Everyone who has been sitting in a court knows that it adds to the
credibility of written statements if the party, witness or expert may
be exposed to questions of the Court and the parties.

        Having regard to these circumstances and the possible
consequences which in the present case amounted to a special charge
totalling 120,399 Swedish crowns the applicant finds that when tax
liability is denied or when otherwise non-liability in respect of the
special charge is claimed by the taxpayer and he requests a fair and
public hearing and an opportunity to present evidence before the Tax
Court, such procedure must take place as a matter of a fair and public
hearing.

THE LAW

1.      The applicant has complained that a special charge (tax
supplement) (särskild avgift (skattetillägg)) amounting to 120,399 SEK
has been imposed upon him without a fair and public hearing and that
he had no separate effective remedy against the refusal of the
Administrative Court of Appeal to hold an oral hearing.  The applicant
considers that the imposition of the special charge (tax supplement)
concerns the determination of a criminal charge or, in the
alternative, the determination of a civil right and he has invoked
Articles 6 and 13 (Art. 6, 13) of the Convention.

        The Government have submitted that the present case neither
involves the determination of a civil right nor of a criminal charge
and, even assuming that this was the case, that all rights guaranteed
by the Convention have been secured.

        The Commission has made a preliminary examination of this
complaint and has come to the conclusion that it raises serious issues
as to the interpretation of the Convention, in particular as to the
question whether the case involves the determination of a criminal
charge within the meaning of Article 6 (Art. 6) of the Convention and,
if so, whether the applicant has been afforded the guarantees of this
provision in the relevant proceedings.  The Commission finds that
these issues can only be determined after an examination on their
merits and they must therefore be declared admissible, no other
grounds for rejecting them having been found.

2.      The applicant has furthermore complained that since he had to
prove his innocence or show that particular circumstances were present
in order to avoid the imposition of the special charge (tax supplement), his
right under Article 6 para. 2 (Art. 6-2) of the Convention to be presumed
innocent until proved guilty according to law has been breached.

        The Government have submitted that this particular complaint
has been introduced out of time.

        The Commission agrees with the Government.  It is true that
Article 6 para. 2 (Art. 6-2) secures to everyone the right to be presumed
innocent until proved guilty according to law.  However, the
Commission finds that the applicant's complaint concerning the
presumption of innocence is a separate complaint which can be
distinguished from the complaint dealt with above.

        In these circumstances the Commission recalls that Article 26 (Art. 26)
of the Convention provides that the Commission "may only deal with the matter
... within a period of six months from the date on which the final decision was
taken".  In the present case the decision of the Supreme Administrative Court,
which was the final decision regarding this matter was given on 31 August 1984
whereas this particular complaint was submitted to the Commission on 27
November 1985, that is more than six months after the date of this decision.
Furthermore, an examination of the case does not disclose the existence of any
special circumstances which might have interrupted or suspended the running of
that period.

        It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.

        For these reasons, the Commission

        DECLARES ADMISSIBLE without prejudging the merits of the
        case, the complaint concerning the imposition of the special
        charge (tax supplement) without a fair and public hearing

and

        DECLARES INADMISSIBLE the remainder of the application.



Secretary to the Commission         President of the Commission



    (H. C. KRÜGER)                       (C. A. NØRGAARD)