Facts

Parties:

  • Appellants: Public Prosecutor's Office of the Canton of Bern and Tax Administration of the Canton of Bern
  • Respondent: [X.] , represented by attorney Krishna Müller

Subject: Appeals against the decision of the Higher Court of the Canton of Bern dated 21 August 2017 regarding the dismissal of a case concerning tax fraud.

Facts:

  • The Tax Administration of the Canton of Bern found that private benefits of the sole shareholder and managing director [X.] of [A. AG] were unlawfully recorded as business expenses in the years 2004 and 2005.
  • [A. AG] was fined in a procedure for tax evasion.
  • The Public Prosecutor's Office for Economic Crimes filed a criminal complaint against [A. AG] for tax fraud and sentenced [X.] to a fine.
  • The Cantonal Economic Criminal Court dismissed the case due to violation of the prohibition of double jeopardy (ne bis in idem).
  • The Higher Court of the Canton of Bern dismissed the appeals of the Public Prosecutor's Office and the Tax Administration against this decision.

Considerations

The Federal Supreme Court first examines whether the conditions for the consolidation of the two appeal proceedings are met. It finds that the proceedings are closely related in substance and can therefore be consolidated.

With regard to the appeal of the Tax Administration of the Canton of Bern, the Federal Supreme Court finds that it is not entitled to lodge an appeal in criminal matters. Although the Tax Administration exercised its party rights in the previous instance, this does not establish an independent right of protection under Art. 81 para. 1 FSCA. The uniform enforcement of the state's claim to punishment is solely the responsibility of the Public Prosecutor's Office.

The Federal Supreme Court then addresses the question of a violation of the principle of "ne bis in idem". It finds that the tax evasion fine and the sanction for tax fraud both have a punitive character and that the tax evasion procedure is of a criminal nature. The Federal Supreme Court examines whether the conditions for a violation of the principle of "ne bis in idem" are met, in…