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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,1 the 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   October 2002 the Administrative Court dismissed his appeal, upholding the fines   imposed on him for refusing to produce certain items of information.   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.   This press release is a document produced by the Registry. It does not bind the Court.   Decisions, judgments and further information about the Court can be found on   www.echr.coe.int. To receive the Court’s press releases, please subscribe to the Court’s   RSS feeds.   Dowsett v. the United Kingdom, judgment of 24.6.2003.   Press contacts   [email protected]e.int | tel: +33 3 90 21 42 08   Céline Menu-Lange (tel: + 33 3 90 21 58 77)   Tracey Turner-Tretz (tel: + 33 3 88 41 35 30)   Kristina Pencheva-Malinowski (tel: + 33 3 88 41 35 70)   Nina Salomon (tel: + 33 3 90 21 49 79)   Denis Lambert (tel: + 33 3 90 21 41 09)   The European Court of Human Rights was set up in Strasbourg by the Council of   Europe Member States in 1959 to deal with alleged violations of the 1950 European   Convention on Human Rights.   4