Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25994/94

by Josef JUPIN

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 15 May 1996, the following members being present:

Mrs. G.H. THUNE, Acting President

MM. H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, 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 2 September 1994

by Josef Jupin against Sweden and registered on 19 December 1994 under

file No. 25994/94;

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 applicant, a Swedish citizen born in 1934 and residing in

Uppsala, is a businessman.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

Early retirement pension

In May 1990, the applicant applied to the Social Insurance Office

(Försäkringskassan) for an early retirement pension.

After having investigated the matter, the Office, by decision of

3 April 1991, rejected the application as the available medical

evidence failed to show that the applicant was entitled to such a

pension.

On 12 June 1991 the Office's decision was upheld on appeal by the

Social Insurance Court for Central Sweden (Försäkringsrätten för

Mellansverige). On 9 September 1993 the Supreme Social Insurance Court

(Försäkringsöverdomstolen) refused the applicant leave to appeal.

Fixing of taxable income and imposition of tax supplement

In 1988, the Local Tax Assessment Board (Taxeringsnämnden) fixed

the applicant's taxable income at 8,200 SEK for the income year 1987.

Save for a miscalculation, it was fixed in accordance with the

information supplied by the applicant in his annual tax return.

After a tax audit of the applicant's companies, the County Tax

Authority (Länsskattemyndigheten) of the County of Uppsala, on

28 June 1989, appealed to the County Administrative Court (Länsrätten)

of the County of Uppsala to have the applicant's taxable income raised.

The Authority further claimed that a tax supplement (skattetillägg)

should be imposed on the applicant.

By judgment of 3 December 1992, the County Administrative Court

raised the applicant's taxable income to 87,300 SEK. The Court found

that the applicant should be taxed, inter alia, for a swimming pool

which had been constructed at the applicant's summer house and for

certain purchases of private items, all of which had been entered in

the books of one of the companies as deductions to set off its profits.

As the raised taxable income, in its entirety, was considered to be

related to incorrect information supplied by the applicant in his tax

return, the Court further decided, under Sections 116 a and 116 b of

the Taxation Act (Taxeringslagen, 1956:623), to impose a tax supplement

equivalent to 40 per cent of the tax levied on 79,100 SEK, i.e. on the

amount by which the taxable income was raised.

The applicant appealed to the Administrative Court of Appeal

(Kammarrätten) in Stockholm, claiming that his taxable income should

be fixed in accordance with the decision of the Local Tax Assessment

Board. He did not refer to the tax supplement. Section 116 p of the

Taxation Act provides, however, that if there are reasons to reduce the

taxable income fixed by an appealed decision, the courts examining the

appeal shall ex officio make a corresponding correction of the tax

supplement imposed. On 2 May 1994 the appellate court, agreeing with

the County Administrative Court's assessments, upheld its judgment.

On 7 March 1995 the Supreme Administrative Court (Regerings-

rätten) refused the applicant leave to appeal.

Property taxation

In 1990, the Local Property Tax Assessment Board (Fastighets-

taxeringsnämnden) fixed the rates (taxeringsvärde) for the applicant's

two properties, the above-mentioned summer house and a permanent home,

which was registered on the applicant's wife.

On 1 November 1993 the County Administrative Court rejected the

appeals made against the Board's decisions by the applicant and his

wife. Their further appeals were rejected by the Administrative Court

of Appeal on 30 March 1994 (the summer house) and 21 December 1994 (the

permanent home).

The applicant and his wife thereafter appealed to the Supreme

Administrative Court. The appeals were, in accordance with the

applicable rules, sent to the Administrative Court of Appeal.

With respect to the case concerning the summer house, the

Administrative Court of Appeal, by decision of 8 July 1994, dismissed

the appeal for having been lodged out of time, i.e. more than two

months after the serving of its judgment. The applicant appealed

against this decision, claiming that he had received the judgment only

a few days before he had appealed against it. However, the decision was

upheld by the Supreme Administrative Court on 22 March 1995.

As regards the case concerning the permanent home, leave to

appeal was refused by the Supreme Administrative Court on 2 March 1995.

COMPLAINTS

The applicant claims that the decisions taken in the various

cases were wrong. In addition, he complains that his application for

an early retirement pension was rejected without any medical

examination or court hearing. He further contends that his appeal

against the Administrative Court of Appeal's judgment of 30 March 1994

should not have been dismissed as he allegedly received the judgment

only a few days before lodging the appeal. Finally, he complains of the

length of the proceedings in the case concerning income tax and tax

supplement. He invokes Articles 2, 3, 4, 6, 7, 8 and 10 of the

Convention.

THE LAW

1. The applicant complains of the decisions to reject his

application for an early retirement pension. In particular, he alleges

that the decisions were wrong and that there should have been a medical

examination and a court hearing before the decisions were taken. The

Commission, however, is not required to decide whether or not the facts

alleged by the applicant disclose any appearance of a violation of the

Articles invoked as, under Article 26 (Art. 26) of the Convention, it

"may only deal with the matter ... within a period of six months from

the date on which the final decision was taken". The Commission recalls

that the final decision regarding the pension was taken by the Supreme

Social Insurance Court on 9 September 1993. The present application was

introduced on 2 September 1994, which is more than six months after

this decision.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant further claims that the decisions concerning the

rating of the two properties, including the decision to dismiss his

appeal against the Administrative Court of Appeal's judgment of

30 March 1994, were wrong.

The Commission recalls its established case-law according to

which Article 6 (Art. 6) is not applicable to proceedings regarding

taxation (cf., e.g., No. 11189/84, Dec. 11.12.86, D.R. 50 p. 121, and

No. 13013/87, Dec. 14.12.88, D.R. 58 p. 163).

It follows that this part of the application is incompatible

ratione materiae with Article 6 (Art. 6) of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

It is true that the applicant also invokes Articles 2, 3, 4, 7,

8 and 10 (Art. 2, 3, 4, 7, 8, 10) of the Convention. However, the

Commission finds that an examination of this complaint as it has been

submitted does not disclose any appearance of a violation of the rights

and freedoms of the Convention and in particular of the Articles

invoked.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant complains of the decisions relating to the

fixing of his taxable income and the imposition of a tax supplement.

In particular, he claims that the decisions were wrong and that the

relevant proceedings were not concluded within a reasonable time.

As far as the applicant alleges that the courts' decisions were

wrong, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties to the Convention. In

particular, it is not competent to deal with a complaint concerning

errors of law and fact allegedly committed by domestic courts, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention

or its Protocols. The Commission refers, on this point, to the

established case-law of the Commission and the European Court of Human

Rights (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88, and

Eur. Court H.R., Klaas v. Germany judgment of 22 September 1993, Series

A no. 269, p. 17, para. 29).

The Commission finds that an examination of the applicant's

submissions in respect of the complaint that the decisions in question

were wrong does not disclose any appearance of a violation of the above

rights and freedoms and in particular of the Articles invoked. It

follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

The applicant, however, further contends that the proceedings in

the case were not concluded within a reasonable time. The Commission

considers that this complaint raises the issue whether the case in

question, in so far as it concerned the imposition of a tax supplement,

involved a determination of a criminal charge within the meaning of

Article 6 (Art. 6) of the Convention and, if so, whether the applicant

was afforded the guarantees of this provision in the relevant

proceedings (cf. No. 11464/85, von Sydow v. Sweden, Dec. 12.5.87, D.R.

53 p. 85, and Eur. Court H.R., Bendenoun v. France judgment of 24

February 1994, Series A no. 284).

The Commission finds that it cannot, on the basis of the file,

determine the admissibility of this complaint and that it is therefore

necessary, in accordance with Rule 48 para. 2 (b) of the Rules of

Procedure, to give notice of this complaint to the respondent

Government and to invite the Government to submit written observations

on the admissibility and merits thereof.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaint

that the case in which a tax supplement was imposed on him was

not determined within a reasonable time;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to Acting President

the Second Chamber of the Second Chamber

(M.-T. SCHOEPFER) (G.H. THUNE)

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JUPIN v. SWEDEN

JUPIN v. SWEDEN

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