FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 73053/01 by Esa JUSSILA against Finland

The European Court of Human Rights (Fourth Section), sitting on 9 November 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr R. Maruste , Mr K. Traja , Ms L. Mijović , Mr J. Šikuta , judges ,

and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 21 June 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Esa Jussila, is a Finnish national who was born in 1949 and lives in Tampere , Finland . He was represented by Mr Pirkka Lappalainen, a lawyer practicing in Tampere . The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A. The circumstances of the case

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

On 22 May 1998 the Häme Tax Office ( verotoimisto , skattebyrå ) requested the applicant to submit his observations regarding some alleged errors in his value - added tax (VAT) declarations ( arvonlisävero , mervärdes s katt ) for the fiscal years 1994 and 1995. On 9 July 1998 the Tax Office gave two decisions requiring the applicant, inter alia , to pay tax surcharges ( veronkorotus , skatteförhöjning ) amounting to 10 per cent of the increased tax liability (the additional tax surcharges levied on the applicant t otalled 1, 836 Finnish Marks (FIM), i.e. 308. 8 0 euros (EUR) ). The tax surcharges were based on the fact that the applicant ’ s VAT declarations in 1994-95 were regarded as incomplete.

The applicant appealed to the Uusimaa County Administrative Court ( lääninoikeus , länsrätten ) , which later became the Helsinki Administrative Court ( h allinto-oikeus , förvaltningsdomstolen ). The applicant requested an oral hearing and that a tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Helsinki Administrative Court took an interim decision inviting written observations from the tax inspector , to be followed by an expert statement from an expert chosen by the applicant. The tax inspector submitted to the Administrative Court a statement dated 13 February 2000 . The statement was further submitted to the applicant for his observations. On 25 April 2000 the applicant submitted his own observations on the tax inspector ’ s statement. The statement of the expert chosen by him was dated and submitted to the court on the same day.

On 13 June 2000 the Administrative Court held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing. It also rejected the applicant ’ s claims.

On 7 August 2000 t he applicant requested leave to appeal from the Supreme Administrative Court , renewing at the same time his request for an oral hearing. On 13 March 2001 the Supreme Administrative Court refused the applicant leave to appeal .

B. Relevant domestic law

Section 177 (1) of the Value-Added Tax Act ( arvonlisäverolaki , mervärdesskattelag en ; 1501/1993) provides that if a person obliged to pay taxes has failed to pay the taxes or clearly paid an insufficient amount of taxes or failed to give required information to the tax authorities, the Regional Tax Office ( verovirasto , skatteverk ) must assess the amount of unpaid taxes.

Section 179 of the Value- Added Tax Act provides that a tax assessment may be made w here a person has failed to make the required declarations or has given false information to the tax authorities. The taxpayer may be ordered to pay unpaid taxes or taxes that have been wrongly refunded to him or her .

Section 182 of the Value- Added Tax Act provides, inter alia , tha t a maximum tax surcharge of 20 % of the tax liability may be imposed if the person has failed without a justifiable reason to give a tax declaration or other document in due time or given essentially incomplete information. The tax surcharge may amount at the most to twice the amount of the tax liability if the person has failed without a justifiable reason to fulf il his or her duties fully or partially even after being expressly asked to provide information.

Section 38 (1) of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen ; 586/1996) provides that an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if a party ’ s request is ruled inadmissible or immediately dismissed or if an oral hearing would be clearly unnecessary due to the nature of the case or other circumstances.

The explanatory part of the Government Bill which introduced the Administrative Judicial Procedure Act ( HE 217/1995 ) discussed the right to an oral hearing as provided by Article 6 and the possibility of dispensing with an oral hearing in administrative proceedings when it w as clearly unnecessary, as stated in Section 38 ( 1 ) of the Act. In that connection it was noted that an oral hearing contribute d to the centralised and direct procedure , but since it did not always lend any helpful assistance it was necessary to mak e sure that the flexibility and cost - effectiveness of the administrative procedure were not prejudiced . An oral hearing is to be held when it is necessary for clarification of the issue and the hearing can be considered beneficial for the case as whole.

COMPLAINT

The applicant complain ed of the courts ’ refusals to hold an oral hearing in the taxation procedure and submitted th at he ha d not had a fair trial.

THE LAW

The applicant complain s that the taxation procedure was unfair as the courts had not h e ld an oral hearing in his case. The Court has examined this complaint under Article 6 of the Convention, which reads, in so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

A. The parties ’ submissions

1. The Government

The Government said that , under the Finnish legal system, tax surcharges were governed by administrative law. Their purpose was not primarily deterrent or punitive. This was shown, inter alia , by the fact that tax surcharges were not imposed under criminal - law provisions but in accordance with various tax laws. Moreover, they were determined by the tax authorities and the administrative courts, and they were in all respects treated differently from court-imposed sanctions. The main purpose of the surcharges was to protect the fiscal interests of the State or a community by emphasising the importance of providing the tax authorities with adequate and correct information as a basis for tax assessments. T ax surcharges were intended to have a preventive effect and we re basically fiscal in nature. M oreover, tax surcharges c ould not be commuted to a prison sentence. Last ly, the amount of the tax surcharge in the present case was low, 10 per cent, which amount ed to FIM 1,836 (EUR 308.80).

The Government emphasised the fundamental nature of the obligation on individuals and companies to pay tax. Tax matters form ed part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant. An extension of the ambit of Article 6 § 1 under its criminal heading to cover taxes m ight have far-reaching consequences for the S tate ’ s ability to collect taxes.

The Government maintain ed that the obligation under Article 6 § 1 to hold a public hearing was not an absolute one. A hearing might not be necessary on account of the exceptional circumstances of the case, for example when it raise d no questions of fact or law which c ould not be adequately resolved on the basis of the case-file and the parties ’ written observations. Besides the publicity requirement there we re other considerations, including the right to a trial within a reasonable time and the related need for an expeditious handling of the courts ’ case-load, which had to be taken into account in determining the nec essity of public hearings in proceedings subsequent to the trial at first-instance level.

The Government maintain ed that in the present case the purpose of the applicant ’ s request for an oral hearing was to challenge the reliability and accuracy of the report on the tax inspection by cross-examining the tax inspector and the expert. They note d that the Administrative Court had taken an interim measure inviting written obse rvations from the tax inspector , followed by a statement from an expert chosen by the applicant. A n oral hearing was manifestly unnecessary as the information provided by the applicant himself formed a sufficient factual basis for the consideration of the case. The issue was rather technical, being based on the report of the tax inspectors. Such a dispute could be better dealt with in writing than in oral argument. There was nothing to indicate that questions of fact or law would have emerged which could not have been adequately resolved on the basis of the case-file and the written observations by the applicant, the tax inspector and the expert. No additional information could have been gathered by hearingthe tax inspector or the expert personally , as required by the applicant . Furthermore, the applicant had been given the opportunity to put forward in writing any views which in his opinion would be decisive for the outcome of the proceedings. He also had the opportunity to comment on all the information provided by the tax inspector.

In conclusion, t he Government argued that there were circumstances whi ch justified dispensing with a hearing in the applicant ’ s case.

2. The applicant

The applicant contest ed the Government ’ s contentions. According to the applicant his case required a mandatory oral hearing both under the domestic legislation and under Article 6 of the Convention owing to his need f or legal protection and the fact that the credibility of witness statements played a significant role in the determination of the case. According to the applicant the matter did not concern EUR 308.80 only but altogether a financial liability of EUR 7,374.92. The applicant maintain ed that the lack of an oral hearing placed the burden of proof de facto on him.

B. The Court ’ s assessment

1. As regards the applicant ’ s contention that the refusal to hold an oral hearing placed the burden of proof de facto on him, the Court notes that this complaint was first introduced in the applicant ’ s letter of 9 June 2004 , i.e. more than six months after the final domestic decision was issued. It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. As to the remainder of the application , t he Court considers, in the light of the parties ’ submissions, that the remainder of the application raises serious issues of fact and law under the Convention, including the question of the applicability of Article 6 of the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares inadmissible the complaint concerning the burden of proof;

Declares the remainder of the application admissible, without prejud g ing the merits of the case.

Michael O ’B oyle Nicolas Bratza Registrar President