19189/91

 AS TO THE ADMISSIBILITY OF Application No. 19189/91 by A.K. against Switzerland The European Commission of Human Rights (First Chamber) sitting in private on 13 October 1993, the following members being present: MM. A. WEITZEL, President S. TRECHSEL C.L. ROZAKIS F. ERMACORA E. BUSUTTIL A.S. GÖZÜBÜYÜK Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER G.B. REFFI B. CONFORTI N. BRATZA 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 17 October 1991 by A.K. against Switzerland and registered on 12 December 1991 under file No. 19189/91; 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 facts of the case, as submitted by the applicant, may be summarised as follows: The applicant is a retired Swiss citizen born in 1925. Before the Commission he is represented by Mr. M. Ziegler, a lawyer practising at Lachen in Switzerland. Particular circumstances of the case From November 1983 until June 1984 the applicant paid the salaries of the K. company of which he was the board president. Thereby he deducted from the salary contributions for the Old Age and Survivors' Insurance (Alters- und Hinterlassenenversicherung). However, even after various admonitions the applicant did not transfer the amounts deducted to the compensation office. Charges were then brought against the applicant on the grounds of Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act (Bundesgesetz über die Alters- und Hinterlassenenversicherung; see below, Relevant domestic law and practice). On 13 February 1989 the March District Court (Bezirksgericht) convicted the applicant of the offence of alienating contributions of employees within the meaning of Section 87 para. 3. The applicant was sentenced to a fine of 200 SFr. Upon appeal, the Cantonal Court of the Canton of Schwyz on 18 January 1990 raised the fine to 500 SFr. The applicant filed a plea of nullity (Nichtigkeitsbeschwerde) with the Federal Court in which he complained inter alia that contrary to Section 37 para. 2 of the Ordinance (Verordnung) on the Old Age and Survivors' Insurance (see below, Relevant domestic law and practice) the admonitions which he had received had not indicated the penal consequences if the amounts due were not transferred. The applicant also stated that when he had been admonished as employer to pay the amounts due on 28 September and 11 December 1984 he did not have any means at his disposal to pay the amounts due. On 10 April 1991 the Federal Court dismissed the applicant's plea of nullity, the decision being served on 26 April 1991. In its decision the Federal Court first dealt with the applicant's complaint that the admonitions had not indicated the penal consequences. The Court found that an indication concerning criminal liability was only necessary if the law required it; however, no necessity for such an indication transpired from the Federal Old Age and Survivors' Insurance Act. The Federal Court then dealt with the conditions for the applicant's conviction. The Court considered that it could no longer maintain its earlier case-law concerning Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act according to which it was irrelevant whether the employer actually had the means at his disposal to pay the amounts due (see below, Relevant domestic law and practice). The Court noted here inter alia that Section 87 para. 3, rather than referring to a failure to pay, employed the formulation "alienates (the amounts) from the foreseen purpose". Thus, in the Court's view the mere failure to pay could not constitute an alienation within the meaning of Section 87 para. 3, as long as the employer had the means to pay the amounts; rather, an alienation within the meaning of this provision required, in addition, that the employer used the required means for other purposes. The Court continued:

"The basic consideration underlying Section 87 para. 3 of the Old Age and Survivors' Insurance Act is the obligation to maintain the assets. It does not concern actual embezzlement. There are different moments in time when the amount is deducted from the salary and when there is a duty to pay; hence, the employer must be permitted to deal with the assets in such a way that from an objective point of view it can be assumed that he can comply with the duty to pay at the last possible moment; thus, compliance with the duty to pay is even then still possible if one assumes that with reasonable management the necessary credits thereto would be granted at this moment".

"Der Grundgedanke von Art. 87 Abs. 3 AHVG ist eine Substraterhaltungspflicht. Da es sich jedoch nicht um einen eigentlichen Veruntreuungstatbestand handelt, sondern der Zeitpunkt des Lohnabzugs und der Zeitpunkt der Zahlungspflicht auseinanderfallen, muss es dem Arbeitgeber erlaubt sein, mit dem Substrat so zu wirtschaften, dass bei objektiver Betrachtungsweise davon ausgegangen werden kann, dass er seiner Zahlungspflicht im letztmöglichen Zeitpunkt werde nachkommen können, denn die Erfüllung der Zahlungspflicht ist ja auch dann noch möglich, wenn man annehmen darf, bei vernünftigem Wirtschaften würden auf diesen Zeitpunkt die dafür erforderlichen Kredite gewährt". The Court noted that in June 1984 he had had 45,552 SFr at his disposal to pay the amounts due. The judgment continues:

"It follows that at least at the end of June 1984 the applicant had the means to pay the amounts of employees deducted in the period of January - June 1984. By disposing otherwise of the amounts concerned rather than transferring them to the compensation office the applicant fulfilled the requirements of the offence at least in respect of the contributions of the employees for the months January - June; contrary to the applicant's view, it does not depend on whether he disposed of the necessary means at the moment when the relevant admonitions were issued (28 September and 11 December)".

"Daraus ergibt sich, dass der Beschwerdeführer jedenfalls per Ende Juni 1984 über die Mittel zur Bezahlung der in der Zeit vom Januar - Juni 1984 abgezogenen Arbeitnehmerbeiträge verfügte. Indem er die entsprechenden Beträge nicht an die Ausgleichskasse weiterleitete, sondern anderweitig darüber verfügte, erfüllte er den Tatbestand jedenfalls in bezug auf die Arbeitnehmerbeiträge der Monate Januar - Juni; denn entgegen der Auffassung des Beschwerdeführers kommt es nicht darauf an, ob er zum Zeitpunkt der massgeblichen Mahnungen (28. September und 11. Dezember) über die entsprechenden Mittel verfügte". Relevant domestic law and practice Under the Federal Old Age and Survivors' Insurance Act (Bundesge- setz über die Alters- und Hinterlassenenversicherung) the employer who deducts amounts from the employee's salary for the purpose of the old age and survivors' insurance must transfer the amounts to the Compensation Office (Ausgleichskasse). If the employer does not pay the amounts within a particular time-limit, an admonition is issued and a new time-limit is set. Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act envisages a punishment of imprisonment or a fine if a person "as an employer deducts from an employee amounts from the salary, yet alienates them from the foreseen purpose" ("wer als Arbeitgeber einem Arbeitnehmer Beiträge vom Lohn abzieht, sie indessen dem vorgesehenen Zwecke entfremdet"). Section 37 para. 2 of the Ordinance (Verordnung) on the Old Age and Survivors' Insurance provides that, if the employer does not duly pay the amounts, an admonition will be served which must also contain an indication as to the consequences if the admonition is disregarded. According to the Federal Court's earlier case-law, the employer met the objective conditions of Section 87 para. 3, and therefore became punishable, if the amounts which he had actually deducted from the salary of the employee were not transferred to the compensation office within the time-limit stated in the admonition. According to this case-law it was irrelevant whether the employer actually had the means at his disposal to transfer the amounts, and whether third persons could put these amounts at the employer's disposal (see Arrêts du Tribunal Fédéral 107 IV 205). COMPLAINTS 1. The applicant complains under Article 7 para. 1 of the Convention that in the admonitions issued there was no indication as to the penal consequences if he failed to pay. The applicant refers here to Section 37 para. 2 of the Ordinance on the Old Age and Survivors' Insurance. It is in the applicant's opinion incomprehensible that, according to the Federal Court, such an indication must be given only for purposes of the execution of the amounts due (Betreibungsfolgen) and not in respect of criminal offences. Also under Article 7 para. 1 of the Convention the applicant complains that neither Section 87 para. 3 of the Old Age and Survivors' Insurance Act nor the subsequent interpretation by the Federal Court make it clear which conduct is punishable. The applicant queries whether it should merely be the failure to pay the amount, or whether it is sufficient if the employer at any time disposes of the amounts due. It is in particular unclear at what moment the employer must dispose of the amounts due. 2. The applicant complains that the Federal Court gave Section 87 para. 3 of the Old Age and Survivors' Insurance Act a completely new meaning. Originally the mere failure to pay was punished; according to the new case-law an alienation occurs if the assets are used for other purposes. The applicant submits that he could not expect such a change of case-law. His defence had concentrated on the moment of the failure to pay; it had been irrelevant, if earlier on the employer had in fact disposed of certain amounts. Thus, the applicant was confronted with an accusation of which he had previously not been informed. In such circumstances he should have had the opportunity before the Federal Court to defend himself. In respect of this complaint the applicant relies on Article 6 paras. 1 and 3 (b) of the Convention. THE LAW 1. The applicant complains that Section 87 of the Old Age and Survivors' Insurance Act does not make it clear which conduct is punishable and that in the admonitions issued there was no indication as to the penal consequences if he failed to pay. The applicant relies on Article 7 para. 1 (Art. 7-1) of the Convention which 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." The Commission has first examined the applicant's complaint that Section 87 para. 3 of the Old Age and Survivors' Insurance Act does not make it clear which conduct is punishable. The Commission recalls that Article 7 para. 1 (Art. 7-1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, 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, for instance by analogy. It follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision what acts and omissions will make him liable (see Eur. Court H.R., Kokkinakis judgment of 25 May 1993, Series A no. 260 A, para. 52). Furthermore, a broad interpretation of a criminal statute resulting in a change of case-law may raise an issue under Article 7 para. 1 (Art. 7-1) of the Convention. It is not acceptable that by means of interpretation an act which up to then had not been punishable is made a criminal offence or that the definition of existing offences is extended in such a way as to include facts which have so far not constituted a criminal offence. On the other hand, domestic courts may clarify an offence or adapt the requirements to new circumstances reasonably covered by the original concept of the offence (see No. 10505/83, dec. 4.3.85, D.R. 41 p. 178, at p. 185). In the present case Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act envisages a punishment of imprisonment or a fine if a person "as an employer deducts from an employee amounts from the salary, yet alienates them from the foreseen purpose". The wording of this provision thus clearly states which acts and omissions are liable. In its decision of 10 April 1991 the Federal Court found that it no longer sufficed under Section 87 para. 3 that the amounts were not paid; it was necessary, in addition, that the employer had used the amounts for other purposes. Moreover, as regards the moment when the amounts had to be paid, the Federal Court found that the employer had to be permitted to deal with the assets in such a way that he could comply with "the duty to pay at the last possible moment". Thus, rather than making facts punishable which had so far not constituted a criminal offence, the Federal Court clarified the offence which, in the Commission's opinion, remains reasonably covered by the original concept of the offence. The applicant further complains that in the admonitions issued there was no indication as to the penal consequences if he failed to pay. Assuming that this complaint raises an issue under Article 7 para. 1 (Art. 7-1) of the Convention, the Commission notes that according to the Federal Court's decision of 10 April 1991 an indication concerning criminal liability is only necessary if required by Swiss law; however, no necessity for such an indication transpired from the Federal Old Age and Survivors' Insurance Act. In any event, the Commission considers that the applicant as an employer had a particular knowledge of the Federal Old Age and Survivors' Insurance Act. Thus, he would have reasonably been informed of the penal consequences of the failure as an employer to pay the amounts due. This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant further complains that the Federal Court gave Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act a completely new meaning. Originally the mere failure to pay was punished; according to the new case-law an alienation occurs if the assets are used for other purposes. As he could not expect such a change of case-law he should have had the opportunity before the Federal Court to defend himself. The applicant relies on Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) 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 ... ... 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 ..." It is true that, as the applicant submits, the Federal Court in its decision of 10 April 1991 found that in order to be punished under Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act it no longer sufficed if the amounts were not paid; it was necessary, in addition, that the employer had used the amounts for other purposes. However, the Commission need not examine whether Article 6 paras. 1 and 3 (b) (Art. 6-1, 6-3-b) enshrine in principle the right to be granted an opportunity to comment in court proceedings on a possible change of case-law, since this part of the application is in any event inadmissible for the following reason. The Commission notes that the applicant was charged with a breach of Section 87 para. 3, namely that as an employer he had deducted amounts from the salaries of the employees; and that he had alienated these amounts from the foreseen purpose. In various admonitions the applicant had been set time-limits to pay the amounts due. In respect of this accusation the applicant was able fully to prepare his defence before the Swiss courts. He was free to explain inter alia the reasons why he had not paid in the amounts due. He was moreover free to do so in respect of any moment after the amounts had been deducted from the employees' salaries, and until the last possible moment set in the time-limit for payment. Thus, the applicant's defence was able to cover all issues relating to the amounts concerned during the entire period of time when they were due. The applicant has not shown in what respect this possible scope and depth of the defence available to him nevertheless proved to be insufficient in view of the clarification of the Federal Court of Section 87 para. 3 of the Federal Old Age and Survivors' Insurance Act. It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)