EHRM, 25-11-2014, nr. 51269/07

Assuming Article 6 was applicable, the Government maintained that the obligation under Article 6 § 1 to hold a public hearing was not an absolute one. A hearing in the present case was not necessary, since the impugned conduct did not constitute a serious offence falling under the narrower scope of criminal law. Moreover, the case raised no questions of fact or law which could not be resolved by written submissions, thus the holding of a hearing would have not added any new element to the applicant's defence. Furthermore, the Supreme Court's decision was only dealing with questions of law, and not with the establishment of facts.

Finally, the Government stressed that the applicant had not requested a hearing, although she could have obtained one under the law (see paragraph 11 above). She had had a lawyer, as mandatory under the Code of Civil Procedure, and that lawyer should have been aware of the rules governing the Supreme Court's procedure, including the possibility that it might change the previous decision to the applicant's detriment. It would have been only normal as a precaution to ask for a hearing, in order to secure the possibility to make oral representations in an attempt to pre-empt any such possibility.

The applicant pointed out that her case would have required benefiting from the criminal-head procedural guarantees of Article 6 of the Convention. By qualifying her case as an administrative dispute, the authorities deprived her of the fair trial rights applicable to criminal proceedings.

Moreover, she submitted that the Supreme Court had proceeded unlawfully when reassessing the key evidence in the matter; and the right course of action would have been to remit the case to the lower-instance court, if it considered that more or other evidence was necessary. Prior to the Supreme Court's decision, she had had no opportunity to find out that there was a risk of the Supreme Court's ignoring her father's testimony, that there was a risk of its reassessing the evidence, or that consequently there was a need to request an oral hearing.

The Court recalls that an oral and public hearing constitutes a fundamental principle in Article 6 § 1 (see, among many authorities, Malofeyeva v. Russia, no. 36673/04, § 105, 30 May 2013). It is an important element of the fairness of the criminal proceedings, though not the only one. The Court's primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010).

The Court agrees with the Government in that the obligation to hold a hearing is not absolute. There may be proceedings in which an oral hearing may not be required, for example where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties' submissions and other written materials (see Döry v. Sweden, no. 28394/95, § 37, 12 November 2002).

It has further acknowledged that the national authorities may have regard to the demands of efficiency and economy and found that the systematic holding of hearings could ultimately prevent compliance with the reasonable time requirement of Article 6 § 1 (see Fredin v. Sweden (no. 2), 23 February 1994, §§ 21–22, Series A no. 283-A). It is also true that in the Jussila case the Court reasoned that tax surcharges differed from the hard core of criminal law; consequently, the criminal-head guarantees would not necessarily apply with their full stringency (see Jussila, § 43, cited above). In that case it was found that an oral hearing had been unnecessary since the applicant had been given ample opportunity to put forward his case in writing, comment on the submissions of the tax authorities, and any issues of fact and law could have been adequately addressed in writing (see Jussila, § 47, cited above).

Furthermore, it is also to be recalled in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court's only concern is to examine whether the proceedings have been conducted fairly (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011). The Court's task under the Convention is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000-VIII). All relevant information, particularly regarding the purported suspicions about the applicant's previous conduct, should be put openly before the trial court or tested in an adversarial manner (see Malininas v. Lithuania, no. 10071/04, § 36, 1 July 2008).

In the present case, the Court notes at the outset that a public hearing was held by the first-instance court. This court heard the applicant's witness, that is, her father (compare and contrast Jussila, cited above). In this regard it remains to be examined whether a departure from the principle of oral hearing in the proceedings before the Supreme Court could, in the circumstances of the case, be justified (see, mutatis mutandis, Suuripää v. Finland, no. 43151/02, § 42, 12 January 2010).

The Court reiterates at this juncture that where domestic law provides for a right of appeal, the appeal proceedings will be treated as an extension of the trial process and accordingly will be subject to the guarantees contained in Article 6 (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11; and Gurov v. Moldova, no. 36455/02, § 33, 11 July 2006).

However, even where the court of appeal has jurisdiction to review the case both as to facts and as to law, Article 6 does not always require a right to a public hearing, still less a right to appear in person (see Fejde v. Sweden, 29 October 1991, § 31, Series A no. 212-C).

In order to decide whether there should be a hearing, regard must be had, among other considerations, to the specific features of the proceedings in question and to the manner in which the applicant's interests were actually presented and protected before the higher-instance court, particularly in the light of the nature of the issues to be decided by it (see Helmers v. Sweden, 29 October 1991, §§ 31–32, Series A no. 212-A) and of their importance to the applicant (see Hermi v. Italy [GC], no. 18114/02, § 62, ECHR 2006-XII). In circumstances where the higher-instance court's judgment is based on an overall assessment of the evidence, altering the applicant's acquittal (which had taken place after a full hearing and receipt of evidence before the lower-instance court), fairness requires that the applicant be secured an opportunity to contest the charge (see Laaksonen v. Finland, no. 70216/01, § 32, 12 April 2007) and give evidence in person (see Suuripää, cited above, § 47). Moreover, the fact that an appellate court overturns an acquittal of a first-instance court without hearing the applicant in person does not of itself infringe Article 6 § 1 of the Convention (see Botten v. Norway, 19 February 1996, § 48, Reports of Judgments and Decisions 1996-I). Regard must be had in assessing these questions to, inter alia, the special features of the proceedings involved and the manner in which the defence's interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the applicant (see Kremzow v. Austria, 21 September 1993, §§ 58–59, Series A no. 268-B; and Belziuk v. Poland, 25 March 1998, § 37, Reports 1998-II).

The Court observes that the applicant did not ask for a hearing to be held. The question therefore arises whether she should be regarded as having waived her right to a hearing (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, § 58, ECHR 2000-XII).

As appears from the decision of the Supreme Court, it did not examine whether the circumstances of the case, in particular the new assessment of the evidence, necessitated a hearing, and the applicant was not aware of the fact that the review of her case would entail that reassessment. In these circumstances, the Court cannot attach decisive importance to the applicant's not requesting a hearing, but has to proceed to an independent evaluation of the question of overall fairness of the proceedings, having the requirements of Article 6 as the point of reference. As it has been pointed out above, the Court has to examine whether a departure from the principle that there should be such a hearing could, in the circumstances of the case, be justified at the appeal stage by the special features of the domestic proceedings viewed as a whole. In order to decide on this question, regard must be had to the nature of the national appeal and revision system, to the scope of the Supreme Court's powers and to the manner in which the applicants' interests were actually presented and protected before the Supreme Court particularly in the light of the nature of the issues to be decided by them (see, mutatis mutandis, Ekbatani v. Sweden, 26 May 1988, § 28, Series A no. 34; and Keskinen and Veljekset Keskinen Oy v. Finland, no. 34721/09, § 36, 5 June 2012).

The Court observes that in the present case the decision of the Supreme Court, ordering the applicant to pay a large amount of tax surcharges, was essentially based on the reassessment of the probative value attributed to the testimony of her father. The Supreme Court held that the explanation given by him as to the origin of the applicant's revenue was implausible and insufficient; and therefore the applicant had failed to provide credible evidence for the difference between her revenue stated in her tax return and the taxable amount estimated by the tax authorities (see paragraph 10 above).

For the Court, the issue of plausibility of the father's testimony was a question which would have justified the Supreme Court's benefiting, in contradictory procedure, from the personal impression obtainable from that witness and from the oral explanations obtainable from the applicant and/or the witness at a hearing — even if the applicant had presented her relevant arguments in a memorandum to the Supreme Court. It is true that the Supreme Court's main reason to reject that evidence was the absence of any other, documentary evidence, customary in similar transactions. However, the Court considers that — since it appears from the information available to it that there are no formal rules of evidence at play in this case and the courts were at liberty to accept any form of evidence — the hearing in person of the applicant and, potentially, her father would have been desirable, as a matter of fair trial, so as to enable the defence to exercise its rights to the fullest.

The Court considers that in case of reversal of the burden of proof (see paragraph 10 above) the fairness of the procedure requires particular care in allowing the charged person to be tested in an adversarial manner, which in the particular case was guaranteed only in written procedure (compare and contrast Dallos v. Hungary, no. 29082/95, § 52, ECHR 2001-II).

This is so in particular because the review apparently addressed not only issues of law but also important factual questions and extended to the assessment of whether the evidence had been correctly assessed by the lower-instance court, and this without giving the applicant a reasonable opportunity to present in person her arguments concerning this aspect, apparently of crucial importance for the outcome of the case. The Court further observes that the proceedings before the Supreme Court were at the final instance for determining the merits of the ‘criminal charges’ brought against the applicant and no further remedy lay against its decision. Without questioning the Supreme Court's conclusion that the evidence had been erroneously assessed by the lower-instance court and correctly by the tax authorities, the Court considers that Article 6 § 1 required an oral hearing before a tribunal, taking into account what was at stake for the applicant.

In conclusion, the Court is of the opinion that in a procedure, of a character tantamount to criminal prosecution, where there is a statutory reversal of the burden of proof to the detriment of the applicant and where an unforeseeable reassessment of the relevance of certain factual elements takes place, the decision on the merits of the case without holding an oral hearing falls short of the requirements of a fair trial (see paragraph 26 above). Indeed, the circumstances of the present case bear a remarkable resemblance to those in Suuripää (cited above, § 44) in which the Court found a violation of Article 6 § 1, although in a purely criminal, rather than tax, context (see also, mutatis mutandis, Sigurþór Arnarsson v. Iceland, no. 44671/98, § 36, 15 July 2003; and Igual Coll v. Spain, no. 37496/04, § 37, 10 March 2009.)

Consequently, the Court holds that there has been a breach of Article 6 § 1.