Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12662/87

by Riemeke VISSER

against the Netherlands

The European Commission of Human Rights sitting in private

on 2 May 1989, the following members being present:

MM. S. TRECHSEL, Acting President

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 November

1986 by R. V.against the Netherlands and registered on 23 January 1987

under file No. 12662/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1946 and presently

residing in Amsterdam.

The facts, as submitted by the applicant, may be summarised as

follows:

On 27 February 1981 the applicant placed an advertisement in a

Dutch newspaper, offering to let a flat in Israel. The applicant's

telephone number was mentioned in the advertisement.

The Inspector of Direct Taxes (Inspecteur der directe

belastingen) asked the Telephone Service the name and the address of

the person whose telephone number had been mentioned in the

advertisement.

By letter of 15 September 1982 the Inspector of Direct Taxes

asked the applicant, inter alia, for the name of the owner of the flat

and the rental value of the flat. The applicant answered that the

flat was owned by a friend.

By letter of 4 October 1982 the Inspector asked the applicant

for the name and the address of the friend for whom she had placed the

advertisement. The applicant answered that she did not consider

herself obliged to give information concerning the levying of taxes on

third parties.

Apparently, the applicant asked the Telephone Service on what

basis it gave information concerning the names and addresses of

telephone subscribers. By letter of 19 July 1983 the Telephone

Service informed the applicant that, under the General State Taxation

Act (Algemene wet inzake rijksbelastingen) it was obliged to give this

kind of information if this might be necessary for the establishment

of facts that might influence the levying of tax on third parties.

By letter of 16 March 1983 the Inspector of Direct Taxes

imposed upon the applicant an additional tax assessment to the amount

of 867 DFL with an increase of 433 DFL. By letter of the same date

the Inspector of Direct Taxes imposed upon the applicant an additional

social security contribution assessment of 1117 DFL with an increase

of 558 DFL.

In April 1983 the applicant appealed to the Court of Appeal

(Gerechtshof) of Amsterdam against the additional tax assessment.

In its decision of 14 June 1985 the Court of Appeal rejected

the appeal.

The applicant appealed to the Supreme Court (Hoge Raad). She

alleged, inter alia, that Article 8 of the Convention had been

violated since her right to respect for her private life could only be

interfered with if this would be in accordance with the law and

necessary for the economic well-being of the country. Since under an

agreement between the Netherlands and Israel for the avoidance of

double taxation, income from real estate can be taxed in the State in

which the real estate is situated, Article 8 para. 2 of the Convention

was not applicable in this case, according to the applicant.

In its decision of 28 May 1986 the Supreme Court rejected the

appeal. As regards Article 8 of the Convention it held that, even

assuming that an obligation to give information that may be relevant

for a tax assessment to the Inspector of Taxes amounts to an

interference with the right to respect for private life, this

limitation can be considered to be necessary in a democratic society

in the interest of the economic well-being of the country, since a

so-called progression reservation is embodied in the agreement with

Israel.

COMPLAINTS

The applicant complains that the Tax Authorities asked the

Telephone Service for her name and address and that this information

was given. She considers this to be a violation of her right to

respect for her private life. She invokes Article 12 of the

Convention.

The applicant furthermore complains that tax law is used to

impose criminal penalties and that the applicant is not afforded the

safeguards contained in Article 6 of the Convention.

THE LAW

1. The applicant has complained that her right to privacy has

been interfered with because the Telephone Service gave her name and

address to the Tax Authorities. She has invoked Article 12 (Art. 12)

of the Convention.

Since the applicant complains that her right to respect for

her private life has been violated, which right is embodied in Article

8 (Art. 8) of the Convention, the Commission will examine her

complaint under Article 8 (Art. 8) of the Convention.

The Commission considers that, even if the fact that the

Telephone Service informed the Tax Authorities at their request of the

applicant's name and address constitutes an interference with her

right to respect for her private life under Article 8 para. 1

(Art. 8-1)of the Convention, the interference was justified under

Article 8 para. 2 (Art. 8-2).

The Commission notes that under the General State Taxation Act

the Telephone Service is obliged to permit their records to be

inspected by the Tax Authorities, if this inspection is necessary to

facilitate the levying of tax on third parties. In the present case,

the interference was, therefore, in accordance with law.

Secondly, as regards the objective concerned, the purpose of

the provision mentioned above is precision in the collection of taxes

and the prevention of fraud and tax evasion. The interference may,

therefore, be considered to pursue a legitimate aim, namely, the

economic well-being of the country.

Thirdly, the Commission is satisfied that the interference

with the applicant's right to respect for her private life is in

proportion to the pursued objective. In this respect the applicant

has not shown that there were other, less far-reaching means available

to the Tax Authorities to reach the objective concerned. The

interference in the present case was therefore necessary in a

democratic society for the achievement of the above aim.

It follows that, even assuming that the applicant has

exhausted domestic remedies, this part of the application must be

rejected as being manifestly ill-founded within the meaning of Article

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

2. The applicant has complained that tax law is used to

impose criminal penalties and that the applicant is not afforded the

safeguards contained in Article 6 (Art. 6) of the Convention.

a) To the extent to which the applicant complains that, in

effect, she was charged with and convicted of a criminal offence,

viz. a refusal to give information to the Tax Authorities, without

having had the benefit of the legal safeguards under penal law, the

Commission notes that the additional tax assessment was imposed upon

her because the Tax Authorities were of the opinion that she had

derived an additional income from letting a flat in Israel and not

that she had committed a criminal offence by not revealing the name of

the owner of the said flat.

It follows that this aspect of the complaint must be declared

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

b) To the extent to which the applicant complains that her tax

assessment was increased in a manner which amounted to a criminal penalty

and that she lacked the guarantees under Article 6 (Art. 6) of the

Convention, the Commission considers that it is not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of this provision as, under Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted according to the generally

recognised rules of international law.

The Commission notes that, in the present case, the applicant,

in the proceedings concerning the additional tax assessment, did not

raise, either in form or in substance, the complaint that she lacked

the guarantees under Article 6 (Art. 6) of the Convention in respect

of the increase in her tax assessment. Moreover, an examination of

the case does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from raising her complaint in

the proceedings referred to.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this complaint

must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission,

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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R.V. v. NETHERLANDS

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