AS TO THE ADMISSIBILITY OF

                      Application No. 11581/85

                      by Peter DARBY

                      against Sweden

        The European Commission of Human Rights sitting in private

on 11 April 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER 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 20 November

1984 by Peter Darby against Sweden and registered on 18 June 1985

under file No. 11581/85;

        Having regard to:

    -   the Government's written observations dated 8 September 1986;

    -   the applicant's written observations in reply dated 6 October

        1986;

    -   the submissions of the parties at the hearing on 11 April 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as they appear from the parties'

submissions, may be summarised as follows:

        The applicant is a Finnish citizen of British origin, born in

1926.  He is resident on the islands of Åland, Finland since 1966.  The

applicant is a medical practitioner by profession.

        Particular circumstances

        In 1977 the applicant started to work at Gävle in Sweden as an

industrial physician to the Swedish State Railways.  He rented a flat

at Gävle, but spent the weekends with his family in Åland.  From the

end of 1981 he worked as a physician at Norrtälje, Sweden.  As from

August 1986 he has been working in Ã…land.

        As from 1977 when the applicant worked in Sweden he was taxed

in Sweden according to Swedish tax legislation.  The convention with

Finland for the avoidance of double taxation (SFS 1977:812) stated no

exemption in this case.  The applicant was granted tax deduction for

the cost of maintenance of two houses as well as for travelling

expenses to and from Åland.  As his stay in Sweden was regarded as

non-permanent he was until 1980 taxed in the Common District

(gemensamma distriktet) and his municipal tax was consequently

reduced.  The disadvantages were that the applicant was not entitled

to full social benefits, inter alia, sickness benefits and old age

pension benefits.

        Following amendments to the taxation laws in 1978 (1978:812)

which came into force on 1 January 1979, the applicant was, for tax

purposes, regarded as domiciled in Sweden and previous tax deductions

were disallowed.  As a further result the applicant's municipal tax was

no longer reduced.  He thus had to pay full municipal tax, including

church tax.  The applicant was informed by the tax authorities that he

could not claim exemption from the church tax unless he was formally

registered as resident in Sweden.  The applicant states that although

he was regarded by the tax authorities as domiciled in Sweden the

social insurance office regarded him as domiciled in Finland and he

was accordingly excluded from full social benefits.

        Subsequently the applicant obtained, on 19 February 1982, a

decision from the National Tax Board (riksskatteverket) to the effect

that if he travelled daily from Ã…land to his work in Sweden he would

be taxed as a non-resident in Sweden.  However, the applicant submits

that daily commuting to Gävle was impossible and as a result he took a

less responsible job with less pay at Norrtälje, in respect of which

daily commuting was just possible.

        As regards the taxation for the applicant's income for the

year 1979, the applicant brought an appeal through the Swedish

Administrative Courts.  Originally, he was taxed by the Tax Board

(taxeringsnämnden) as if he was a resident at Gävle.  The applicant

appealed to the Joint Municipal Tax Court (mellankommunala

skatterätten) claiming that he was not to be regarded as living in

Sweden.  In a judgment of 25 February 1982 the Joint Municipal Tax

Court rejected the applicant's appeal.

        The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Sundsvall which in a judgment of 22 October 1982

rejected the appeal.

        The applicant lodged a further appeal with the Supreme

Administrative Court (regeringsrätten) which in a decision of 15

October 1984 partly refused to grant leave to appeal and partly

refused to accept that the applicant's complaints should be examined

in the special appeals procedure provided for in the Taxation Act

(taxeringslagen).

        Parallel to the above procedure the applicant, in respect of

the income year 1979, submitted an appeal to the County Administrative

Court (länsrätten) of Gävleborg against the order to pay church tax.

In support of his appeal he invoked that he was not a member of the

Swedish Church and not a Swedish citizen, nor was he resident in

Sweden.  By a judgment of 19 May 1981 the County Administrative Court

of Gävleborg rejected the applicant's appeal stating that the Act on

Certain Reductions of the Tax Liability for a Person not belonging to

the Swedish Church (lag 1951:691 om viss lindring i skattskyldigheten

för den som icke tillhör svenska kyrkan, hereinafter referred to as

"the Dissenter Tax Act") did not apply to the applicant.

        The applicant appealed to the Administrative Court of Appeal

of Sundsvall, which in a judgment of 22 October 1982 confirmed the

judgment of the County Administrative Court.  The applicant submitted a

further appeal to the Supreme Administrative Court, which on 9 October

1984 refused to grant leave to appeal.

        The applicant has also submitted a complaint to the

Parliamentary Ombudsman (justitieombudsmannen) concerning the issue of

reduction of the obligation to pay tax for a person who does not

belong to the Swedish Church.  As a result of his investigation, the

Parliamentary Ombudsman, in a letter to the Government, proposed that

the Act should be amended to the effect that it is no longer required

that a person is registered as living in Sweden in order to obtain

reduction in the obligation to pay church tax.  From the decision of

the Parliamentary Ombudsman, dated 16 April 1982, the following

appears:  Section 1 of the Act on Certain Reductions of the Tax

Liability of a Person not belonging to the Swedish Church requires

that the tax payer at the beginning of the income year does not belong

to the Swedish Church and that he is registered as living in Sweden.

The Parliamentary Ombudsman noted that this requirement had been

questioned on several occasions, inter alia, in Parliament.  It was

further noted that this provision of the Act had consequences for

persons who moved into or out of the country.  The Ombudsman considered

that the provisions were not satisfactory but stated that it was not a

provision which was in conflict with the non-discrimination clauses

which Sweden had adopted in the double taxation agreements.  It was

not a question of discrimination based on citizenship.  But the

Parliamentary Ombudsman could understand that the applicant questioned

the regulations on this point.  The Parliamentary Ombudsman concluded

that the problem in the case was a limited question, but he considered

that it was an issue of inconsistency of a fundamental nature in the

tax legislation.  There were no objective reasons which militated in

favour of the rule in force and it was understandable if it caused

irritation.

        Relevant Swedish Legislation

        The Swedish legislation regarding the municipal income

taxation in general appears in the 1928 Municipal Tax Act

(kommunalskattelagen).  This Act has been amended several times

through the years.

        As to the liability to pay tax in Sweden Section 53

sub-section 1 of the Municipal Tax Act prescribes that a person

resident in Sweden is liable to pay tax in Sweden on all his income.

A person not resident in Sweden is liable to pay tax in Sweden on,

among other things, income derived from employment in the Swedish public

service, including a county council or a parish.

        Under Article 19 of the then applicable tax agreement with

Finland for the avoidance of double taxation, the right to tax income

derived from public service - with certain exceptions not relevant

here - falls to the State from which the remuneration is paid.

        As to the place of taxation in Sweden, Section 59

sub-sections 1 and 3 of the Municipal Tax Act prescribes, in the

wording applicable during the period in question, that income from

employment earned by an individual when resident in Sweden is taxed

in his place of domicile.  Income from employment earned by an

individual when not resident in Sweden is taxed in Stockholm for

common municipal purposes.  For this purpose a special taxation

district is established, the Common District.

        Provisions regulating which persons may be considered to be

resident in Sweden and the definition of "place of domicile" are, as

applicable to tax assessment for the tax year 1980, found in Section

68, Section 66 and sub-section 1 of the instructions to Section 66 of

the Municipal Tax Act.

        Since 1978 these provisions have been amended twice.  Before

1979 a person with temporary abode in Sweden was, as far as income

from employment was concerned, taxed in the Common District which also

meant a lower tax rate than if taxed elsewhere.  From 1979 such a

person was taxed on the same basis as a resident of Sweden and also at

the same tax rates.  From 1987 such a person is again taxed in the

Common District but not only for income from employment, but also for

income from capital (e.g. interest) or from real estate.

        A small part of the municipal taxes consists of the church

taxes, the rate of which is determined by the relevant parish council.

This system has old traditions and is based on the fact that the

Lutheran Church of Sweden is what is commonly described as a "State

Church"; its parishes have municipal status according to the

Constitution including the right of taxation.  Since the population

records (folkbokföringen) were introduced in the sixteenth century

they have been administered by the parishes.  The parishes are also

entrusted with the administration and upkeep of churchyards and other

public burial-grounds, not only for church members but for the whole

population.

        Under the 1951 Dissenter Tax Act the church tax may be

reduced.  Section 1 of the Act reads as follows:

        "Pursuant to the Act (1961:436) concerning parish councils,

        such church tax as is debited according to the decision of a

        vestry or is otherwise debited according to the same

        provisions as apply to the debiting of municipal tax, shall

        be levied on a person who was not a member of the Church of

        Sweden at the beginning of the income year and who is

        registered in this country for the income year, at only

        thirty per cent of the determined amount."

        In order to benefit from the tax reduction it is thus required

that the person liable to tax was not a member of the Church of Sweden

at the beginning of the income year and that he was registered in

Sweden for the income year.  This means that the Dissenter Tax Act does

not apply to those who are taxed in the Common District.  According to

the travaux préparatoires of the Act the reasons for this were that

the demand for reduction could not be argued with the same force in

regard to persons who are not resident in Sweden as to those who are,

and that the procedure would be greatly complicated if tax reduction

was to apply to such persons.

        The part of the church tax that remains after reduction

relates to the costs which the parishes bear for keeping the

population records and administering the burial-grounds and which

are evaluated at 30 per cent in average of the total parish budget.

        As from 1 January 1987, Section 1 of the Disenter Tax Act has

been amended to the effect that it is no longer required that the

individual is registered as living in Sweden in order to benefit from

the reduction of the church tax.

        In the case of tax assessment for common municipal purposes,

the tax amounts to 10 per cent pursuant to the Act Concerning Tax for

Common Municipal Purposes (lagen om skatt för gemensant kommunalt

ändamål).  This tax is not divided into municipal tax, county tax and

church tax but is used for levelling out the burden of taxation

between different municipalities or other administrative entities.

        A Swedish child born by parents who are members of the Church

of Sweden is registered as a member unless the parents wish otherwise.

As soon as a person has come of age he can choose whether he wants to

remain a member or not.  In case he does not, he simply has to announce

his resignation to the parish of which he is a member.  A person who

is not a member can apply for membership.

        Section 6 para. 1 of the Freedom of Religion Act

(religionsfrihetslagen) provides that only a Swedish citizen or a

person domiciled in Sweden may be a member of the Church of Sweden.

        In order to inform people how different tax provisions are to

be interpreted in special cases the National Tax Board can give so

called Advance Rulings (förhandsbesked).  Such rulings must be followed

by the taxation authorities and the tax courts.

COMPLAINTS

1.      The applicant alleges that Article 9 of the Convention has been

violated, since the Swedish tax authorities have enrolled him as a

member of the Swedish State church and forced him to pay church tax.

The applicant's only way of obtaining exemption from part of the

church tax is to become a resident in Sweden and to apply for

exemption from the church tax.  The applicant considers that this is a

complete disregard of his individual civil rights.

2.      The applicant also alleges a violation of Article 6 para. 1 of

the Convention.  He states that the Swedish courts have regarded him as

domiciled in Sweden despite the rules and provisions of the Convention

for the avoidance of double taxation in Sweden and Finland and

contrary to other court decisions.  The applicant submits that his

civil rights have been encroached upon by the Swedish State which

regards him as domiciled in Sweden for one purpose and yet domiciled

abroad for another.

3.      The applicant contends that he has been discriminated against

as a Finnish citizen domiciled in Ã…land and working in Sweden.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced with the Commission on 20

November 1984 and registered on 18 June 1985.

        On 5 May 1986 the Commission decided to communicate the

application to the Government for written observations on the

admissibility and merits of the application.

        The Government's observations were received by letter dated

8 September 1986 and the applicant's observations in reply were dated

6 October 1986.

        On 7 October 1987 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

        At the hearing, which was held on 11 April 1988, the Government

were represented by their Agent, Mr.  Hans Corell, Ambassador, Under-

Secretary for Legal and Consular Affairs at the Ministry for Foreign

Affairs and, as advisers, Mrs.  Christina Westerling, Legal Adviser at

the Ministry of Finance and Mr.  Carl-Henrik Ehrenkrona, Legal Adviser

at the Ministry for Foreign Affairs.  The applicant presented his case

himself.

SUBMISSIONS OF THE PARTIES

A.      The Government

1.      The Admissibility

        The Government raise no objection under Article 26 of the

Convention.

        With regard to the applicant's allegation that Article 9 of

the Convention has been violated, since he has been registered as a

member of the Swedish Church and forced to pay church tax, the

Government submit that he has not been registered as a member of the

Swedish Church.  In this respect his complaint should be rejected as

being manifestly ill-founded.

        The applicant has also alleged a breach of Article 9 since he

has no possibility to obtain exemption from part of the church tax

except by becoming a resident in Sweden and then applying for such an

exemption.  However, such consequences of the Swedish tax legislation

cannot be considered to be in conflict with Article 9.  With reference

to what is said below on the merits, this complaint should be rejected

as being incompatible ratione materiae with the Convention for falling

outside the scope of the Convention or, alternatively, as being

manifestly ill-founded.

        As regards Article 1 of Protocol No. 1 to the Convention and

Article 6 of the Convention the Government submit, with reference to

what is said below on the merits, that the complaint should be

rejected as being incompatible ratione materiae with the Convention

(only Article 6) or as being manifestly ill-founded.

        In the Government's view, the case concerns the tax which the

applicant paid on his income during 1979, i.e. the tax that was

decided in the tax year of 1980.  According to information provided by

the local tax authorities the applicant's municipal tax for that year

was 40,192 SEK.  This amount includes church tax in the amount of 1,336

SEK.  If the Dissenter Tax Act had been applicable in the applicant's

case, the church tax would have been 30% of this amount, that is 401

SEK.  Consequently, the reduction which the applicant could have been

entitled to in 1980 would amount to 935 SEK.

        The Government are aware of the fact that there is no Article

in the Convention prescribing that the Commission should not examine

cases which for different reasons could be regarded as being of minor

importance.  However, in the Government's opinion, it is important

that the Commission looks not only to questions of principle.  Such

questions can always be put, also with reference to facts of a very

minor, not to say minuscule nature.  But the Commission must also look

to the reality behind an application.  The question must be asked:  to

what extent has the applicant been affected?

        If a violation were found in the present case such a violation

would be constituted by the fact that the applicant was due to pay

church tax of 1,336 SEK instead of 401 SEK.  In principle the

obligation to pay church tax and the exemption therefrom could touch

the ambits of Articles 9 and 14.  However, it is not probable that it

was such questions with which the authors of the Convention were

concerned when Articles 9 and 14 were drafted.  In the Government's

view, it is obvious that there were problems of a totally different

nature which the authors of the Convention had in mind and which the

States envisaged when acceding to the Convention.  It must be

remembered that the applicant had several complaints about his tax

situation before the Swedish authorities.  Only one issue remains

before the Commission, namely the question of the church tax, which -

in regard to the other issues involved - seems more or less a coincidence.

2.      Article 9 of the Convention

        The Government submit that Article 9 protects everyone's right

to freedom of religion.  It is obvious that Article 9 primarily

prohibits legislation that does not allow certain religions or

prevents people from exercising their religion, either directly by

prohibitions or by making it difficult for people to manifest

their religion by other means.  The Article also protects people

from being forced to take part in religious activities which are

incompatible with their own beliefs.

        However, from the facts of the case it clearly appears that

the applicant has not been forced to take part in any activities or

practices under the auspices of the Church of Sweden.  What the

Commission has to deal with in this case is only the question whether

the Convention prohibits a State from contributing to religious

activities or from giving support to religious associations with tax

revenues if the State does not see to it that every citizen who so

wishes can be exempted from the obligation to pay taxes for such

purposes.

        It is not unusual that Member States contribute to the funding

of different religious associations or churches with tax revenues.

This is also the case in Sweden.  General tax revenues are used for

State contributions to several religious associations and churches not

connected with the State Church, for example the Pentecostal Movement,

the Roman Catholic Church, the Methodist Church as well as Moslem

groups and Jewish congregations.  The tax revenues for the support of

the Church of Sweden, however, arise from the special church tax

decided by every parish.  The Dissenter Tax Act provides that persons

who do not belong to the Church of Sweden are granted a reduction of

that tax and thus do not contribute to the costs of the religious

activities of that church.  Since there is no corresponding

legislation applicable to national taxes or local taxes in general,

every taxpayer contributes to religious activities of the free

denominations in Sweden.

        The Government contend that a Member State is free to

contribute to religious associations, churches, State churches or

others, as well as to other associations it finds worth supporting.  It

is then indifferent whether the tax revenues disposed arise from

general taxes such as national taxes or local taxes or from special

taxes like the Swedish Church tax.  The Government are therefore of the

opinion that there is no right under the Convention for the individual

to be exempted from the obligation to pay taxes used for purposes now

mentioned.  Contributions to the State Church - apart from those

contributions that cover activities which in many other countries are

managed by ordinary administrative authorities - can very well be

looked upon as contributions to cultural activities in general.  A

High Contracting Party to the Convention may support many different

11581/85

cultural activities which certain persons may regard as incompatible

with their conscience or religious beliefs.  The Government are

convinced that Article 9 was never meant to limit the possibilities

for the Contracting Parties to support such activities.

        The Government admit that the Dissenter Tax Act makes

exemptions for persons who do not belong to the Church of Sweden and

that the ratio legis for these provisions is that non-members should

not be obliged to contribute to its religious activities - at least

not to the same extent as members of this church.  But this is one

thing.  When it comes to the construction of Article 9 of the

Convention it must be concluded that the complaint that the applicant

was not exempted from the obligation to pay church tax falls outside

the ambit of this Article.

        In case the Commission comes to the conclusion that the

complaint falls within the scope of Article 9, the second paragraph of

Article 9 must then be examined.  The rights guaranteed shall be

subject only to "such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public safety,

for the protection of public order, health or morals, or for the

protection of the rights and freedoms of others".

        The Government do not argue that any of these interests can be

invoked in the present case.  However, in line with its argumentation

above the Government contest that the effects of the Swedish tax

legislation in the present case can constitute a limitation within the

meaning of Article 9 para. 2.  In case the Commission does not share

this view, the Government submit that there must at least be some

level as to the effects of such limitations.  Consideration must also

be given to the circumstances in the particular case as well as to the

intention behind the applicable legislation.

        The right to be exempted from church tax goes back to a

legislation adopted in 1908.  At that time only those belonging

to religious associations other than the Church of Sweden, and which

were recognised by the Swedish State, were entitled to a reduction of

church tax.  In those days it was considered to be an obligation under

the Constitution then in force to maintain and support the Lutheran

Church of Sweden.  The reasons for exempting persons from church tax

were that due respect should be paid to the fact that these persons

often had to pay tax to their own congregation or church.  Account was

taken also of the fact that there could be a risk that people left the

church only to achieve reduction of the church tax, especially when

considerable expenditures could be expected.

        The Dissenter Tax Act of 1951, which is still in force

although amended in certain parts, was based on the fact that the

principle of freedom of religion led to all persons who had left the

Church of Sweden and joined another religious association being

exempted from contributions to the religious activities of the

Church.  However, the question whether a person who had chosen to

leave the Church without joining another religious association should

be entitled to tax reduction, was given careful consideration when the

Act of  1951 was deliberated.  It was not evident that the legislation

should embrace also these persons.  Among the reasons which were

invoked for the solution finally chosen were not only the respect for

11581/85

the individual's beliefs but also the fact that if church tax was paid

by persons who were not members of the Church this would place the

Church of Sweden in a more favourable position than other churches or

religious associations.  Still it was considered important that the

provisions were drafted in such a way so as not to encourage people to

leave the Church of Sweden only in order to obtain a reduction of tax.

        The reasons for connecting the right of being exempted from

church tax to registration in the country were mainly of a practical

nature.  The system had to be as simple as possible.  In the

Government Bill (1951:175, p. 144) in which this legislation was

proposed to Parliament, the following was stated as to this question:

        "The right to a reduction of the liability to pay tax should

        not apply to persons who are not resident here.  The demand

        for exemption could not be argued with the same force in this

        case and in addition hereto, the procedure would become more

        complex if the reduction would apply also to such persons."

        The practical problem that arose was how the tax authorities

could obtain information regarding those who were not members of the

Church of Sweden without imposing on them an obligation to inform the

authorities themselves.  This problem was solved in such a way that

the parishes, which administer the population records and also have

access to the information regarding membership to the Church, should

inform the tax authorities in this regard.

        For that reason those who were not registered as resident in

Sweden according to the population records, fell outside the system.

If they were to enjoy the right of being exempted from church tax it

would mean that they had to apply for it themselves and every such

application had to be examined individually.  Such a system would have

been very difficult to administer in those days before the taxation

control system had been computerised.

        There seem to be no other reasons for the requirement that a

person had to be registered as resident in Sweden in order to be

entitled to reduction of church tax.  It appears that the preparatory

works to the legislation are concerned to a considerable extent with

the apparently difficult question of how to administer the exemption

within the existing system for the tax administration.

        As far as the circumstances are concerned, consideration must

be given to the fact that the complaint is based on the Swedish tax

legislation and its application in a very special case.  Tax

legislation is often of a complex nature and must be applied to a

great variety of situations.  It goes without saying that the

application of tax legislation in cases where the taxpayer lives in

one country and works in another adds to the complexity and may also

reveal inadvertencies in the legislation.  One must also bear in mind

that the applicant has subjected himself to the legislation in

question by chosing to take employment in Sweden.

11581/85

        Even if the consequences can be open to discussion it is

nevertheless too far-fetched to argue that they come to such a level

as to amount to a "limitation" within the meaning of Article 9 para. 2

of the Convention.

3.      Article 1 of Protocol No. 1

        The Government admit that the aplicant's complaint falls

within the ambits of Article 1 of the Protocol No. 1 since this

Article is applicable to tax legislation in general.  However, the

Government maintain that there has been no violation of the said

provision.  The church tax is decided upon in the same way, and after

the same assessment of the taxable income, as for other taxes.  The

purposes of the church tax are laid down in the legislation and fall

clearly within the wide margin of appreciation that the Strasbourg

case-law in connection with Article 1 of Protocol No. 1 affords to the

Contracting Parties.  It follows that this complaint is manifestly

ill-founded.

4.      Article 14 of the Convention

        The Government admit that the applicant was treated

differently from persons who were registered as living in Sweden as

regards the possibility to obtain exemption from part of the church

tax.  However this distinction - even if questioned - must be

considered reasonable and objective and thus justified under the terms

of Article 14 of the Convention.  The Government stress that the

requirement of residence in Sweden, in order to qualify for tax

reduction in accordance with the Dissenter Tax Act, applies to Swedish

citizens and foreigners alike.

        The Government submit that the distinction had a legitimate

aim when seen in the light of the practical consideration described

above.  The justification was entirely practical and based on

administrative considerations.

        The Government maintain that there was a reasonable

proportionality with regard to the effects on the applicant in this

case.  When examining the question of a reasonable proportionality,

each case must be examined on its merits with regard to the effects of

the distinction in treatment.

        The financial effect on the applicant due to the fact that he

was not exempted from church tax in 1980 was that he was obliged to

pay 1,336 SEK in church tax instead of 401 SEK.  Such an effect cannot

be regarded as disproportionate to the aim which was to provide a rule

which would be easier to apply.

        It could be argued that if the difference in tax had been

greater, due to the amount of the total tax, another view could be

taken.  But that is to be decided in a case where such a situation is

at hand.  In this case the effect on the applicant amounts to less

than one thousand Swedish Crowns.  To this should be added that the

applicant belonged to a group of people with a tax situation which

differed from the ordinary taxpayer anyway, since he was residing

abroad and thus was subject to other differences as well in regard to

other rights and obligations.

11581/85

5.      Article 6 of the Convention

        Article 6 guarantees that everyone is entitled to a fair and

public hearing by an independent and impartial tribunal in the

determination of his civil rights and obligations.  However, the

matters dealt with by the courts in this case do not concern the

applicant's civil rights and obligations but his obligations under

public law (tax legislation).  Secondly, the subject matter was dealt

with by tribunals which meet the requirements laid down in Article 6.

Thirdly, the said Article does not contain any rules as to the

assessment of facts and law which the court in question has to make.

The Government submit that the complaint under Article 6 should be

rejected as being incompatible ratione materiae with the Convention

for falling outside the scope of the Convention or for being

manifestly ill-founded.

6.      Conclusions

        The Government conclude

-  concerning the admissibility

that the complaint under Article 6 para. 1 and Article 9 should be

declared inadmissible for falling outside the scope of the Convention,

alternatively and also in regard to Article 14 of the Convention and

Article 1 of Protocol No. 1 for being manifestly ill-founded, and

-  concerning the merits

that there has been no violation of the Convention.

B.      The applicant

1.      The Facts

        From 1 October 1977 until 18 August 1986 the applicant was

employed as a public servant in Sweden.  He was domiciled in Åland,

and according to the terms and definitions in the tax agreement

between Sweden and Finland he should have been regarded as non-resident

in Sweden for tax purposes during the whole of this time.  In fact he

was regarded as non-resident in Sweden during 1977 and 1978, and also

from November 1981 until August 1986.  From January 1979 until

November 1981 he was taxed as if he had been resident in Sweden.  From

November 1981 until 18 August 1986 he was again regarded as non-resident

in Sweden provided that he travelled daily from Ã…land to Sweden and

did not spend the night in Sweden.

        The interpretation of the municipal taxation law, which came

into force in January 1980, resulted in economic disaster for the

applicant.  It was not only the church tax he had to pay.  He also had

to pay an extra 20% in municipal tax and also lost tax deductions for

the extra cost of living in a foreign country and for maintaining two

homes.

        It is true that the applicant could choose to work in Sweden,

but when the rules of the game are changed the situation changes.  The

applicant was not able to obtain employment immediately in Åland.  It

took over 4 1/2 years.  The consequence was that the applicant had to

change job, take a less responsible job, and for 4 1/2 years commute

daily.

        The applicant submits that it was extraordinary that he could

work for 2 years in Sweden and be treated as if he were non-resident

and then for these 2 years be regarded as being resident in Sweden,

and then during the time when he travelled backwards and forwards

every day (4 1/2 years) he was regarded as not resident in Sweden

again and entitled to the tax relief that he had before.  There were

also disadvantages in this situation in that he did not obtain the

social benefits of a Swedish resident.  He was not entitled to the full

medical benefits and not entitled to the full pension that a Swedish

citizen has.

        The rules of church tax were so absurd when applied to him

that it must have been obvious that there was a gross misinterpretation

of this municipal law.

        According to the convention on double taxation the State tax

on the applicant's income for 1977 and 1978 as a public servant was

paid in Sweden.  Also according to the terms of the convention his

municipal tax was paid in the Common District in Stockholm since he

was non-resident in Sweden.  Tax deductions were allowed for the extra

costs of maintaining two establishments.  These costs consisted of

rent, heating and lighting for his apartment plus a deduction of 30

crowns daily each day that he was in Sweden.  He was also allowed tax

deductions for the cost of travelling home to Ã…land each weekend.

These allowances were cancelled as a consequence of the decision that

he was to be considered as domiciled in Sweden.  The only tax

deduction which remained was the cost of a journey home to Ã…land every

second weekend.

        The applicant protested against being obliged to pay church

tax because this was one of the negative consequences of the decision

that he was a resident of Sweden.  He felt that a decision which

regarded him as a resident of Sweden and yet not a resident of Sweden

at one and the same time could not be correct.

        According to Swedish law one has to be a Swedish citizen in

order to qualify for a Swedish old age pension.  According to the

Inter-Nordic Convention, Finnish citizens have the right to a Swedish

old age pension if they have had unbroken residence in Sweden for at

least three years immediately preceding the application for a pension.

2.      Article 9 of the Convention

        According to Section 6 of the Freedom of Religion Act,

only Swedish citizens or foreigners domiciled in Sweden may be

members of the Swedish Church.  Those who do not belong to the Swedish

Church but who are registered as resident in Sweden, may apply for

exemption from church tax under the Dissenter Tax Act.  Section 4 of

the Freedom of Religion Act provides that nobody is obliged to belong

to a religious faith.  Section 11 states that members of the Church

must inform the pastor personally that they wish to resign or they must

inform him in writing in a document which requires 2 witnesses.

        The applicant was misinformed by the local tax officials,

since not being a Swedish citizen and not being resident in Sweden he

was prohibited by law from being a member of the Swedish Church.  Had

he been resident in Sweden he could have applied for exemption from

that part of the church tax which is used for financing the religious

activities of the Church.

        The object of the Dissenter Tax Act is to allow persons of

other religious denominations to abstain from contributing to the

economy of a religion whose moral and ethical principles are quite

different from their own.  A Jehovah's Witness, or a Moslem, or a

Hindu, would be as outraged and insulted if they were forced to

contribute in any way to the maintenance of a different faith.

        Freedom of religion exists in a country which respects the

acts and customs of all religions.  To place the corpse of a Hindu or

Moslem in a room decorated with Christian symbols would be insulting,

and if no choice were given to the relatives this would in the

applicant's opinion be a lack of religious freedom.  Deliberately

asking a Hindu to eat beef or a Moslem to partake of a meal consisting

of pork would be bad manners, but to insist that they eat food which

is prohibited by their religion would be to deny them freedom of

religion.  A Hindu would certainly not take kindly to being forced to

contribute to the maintenance of burial grounds since burial is

contrary to their religion.

        It is not a valid argument to say that because he is not asked

to perform the task of the executioner he can have no possible grounds

for objecting to capital punishment.  This is precisely the argument

which the Government use when they state that the applicant has not

been forced to take part in any activities or practices under the

auspices of the Church of Sweden.

        Freedom of religion is not confined to being allowed the

freedom to congregate and worship according to one's own religion.

Nor is it confined to the absence of compulsion to take part in a

religious ceremony.  There can be no dispute about the fact that

Galileo was subject to religious persecution when he was made to

recant his statement that the earth was not at the centre of the

universe.  Galileo was left in peace after his recantation.

        The applicant was obliged to give economic support to the

Church of Sweden and denied the opportunity to withdraw this support.

The Government agree that it is wrong for persons not belonging to the

Swedish Church to be obliged to contribute to the religious activities

of the church.  By deeming that he was domiciled in Sweden the

applicant was obliged to pay municipal tax in the municipality in

which he first earned money.  By ruling that he was also domiciled

abroad he was refused the right to claim exemption from this tax.  The

assertion that the Swedish State contributes to the activities of many

different religious denominations gives a false impression.  The money

contributed by the State is payment for the costs of maintaining a

register of that part of the population which does not adhere to the

civil register.  In Sweden certificates of birth and place of

residence are required for a multitude of purposes and this part of

the Church's activity is subsidised by the State.

        Every citizen has a duty to pay tax but he has no obligation

to pay more tax than is necessary.  Payment of church tax was but one

of the negative effects which followed the decision that the

applicant was a resident of Sweden.

        The applicant points out that the legislation concerning

municipal tax was changed two years after he started working in

Sweden.  The real point is that this legislation should not have been

applied to him as a non-resident of Sweden.

        The decision that he was no longer to be regarded as

non-resident in Sweden and thus no longer entitled to tax deductions

for the costs of maintaining an apartment in Sweden meant that it was

economically impossible for him to continue working in a pleasant,

interesting and well paid job at Gävle.  He was obliged to take a less

well paid job at Norrtälje to which he could travel daily from Åland.

He was obliged to travel to work each day from Ã…land to Sweden for

some four and a half years, until he could find work on Ã…land again.

The winter time-table of the ferries between Ã…land and Sweden made it

impossible to spend more than four hours each night in his bed.  The

observation that he chose to take employment in Sweden is true.

However, comparable employment in Ã…land did not exist at the time.

Once having gone to Sweden he was obliged to wait for a vacant post

before he could return.

3.      Article 14 of the Convention

        The applicant submits that the Government do not explain why

it was right and just to force him, as a non-resident, to pay the

church tax.  They have stated that it was inconvenient to change the

legislation, but today they have done so.  Moreover, the tax

regulations have been changed back to what they were previously.

        In the applicant's view the real reason for the insistence

that he should pay church tax was that the tax authorities were

determined that he should be regarded as resident in Sweden for tax

purposes and therefore liable to pay higher municipal tax and also be

ineligible to claim tax allowances for the expenses of maintaining two

homes.

        Residents of Sweden have the opportunity to abstain from

paying church tax.  Immigrants to Sweden are obliged to pay church tax

on at least one occasion because the tax authorities have decided that

an application for exemption must be made before the 1st of January

preceding the year of taxation.

        For the applicant it was impossible to claim tax exemption

from church tax unless he officially registered himself as a resident

of Sweden.  Only then could he apply for exemption.  This would have

meant losing his voting rights as a resident of Ã…land; losing rights

to purchase land and property; losing rights to purchase certain

shares; losing his right to hold any public appointment or to engage

in official politics in Finland; and also losing his hunting and

fishing rights.

4.      Article 6 of the Convention

        The civil rights are dependent upon the applicant's place of

domicile.  For example he was obliged to be resident in Åland for

five years before he could apply for Finnish citizenship.  Without

Finnish citizenship he could not be registered in Finland as a

physician and was thus previously debarred from holding a permanent

public appointment as a physician.  Without his Åland citizenship he

was not allowed to own land or property on Ã…land.

        The applicant's objection is that his place of domicile has

been decided by the tax authorities and the courts according to a

provision in the Swedish municipal tax legislation and not by the

Swedish law as a whole.  Had it been accepted that he had been

domiciled in Ã…land during the whole time that he had been employed in

Sweden none of this trouble would have arisen.

THE LAW

1.      The applicant complains that he has been obliged to pay church

tax in Sweden.  He submits that this obligation violates Article 9

(Art.9) of the Convention.  He also complains that he has been

discriminated against since he would have been entitled to a reduction

of the church tax had he been resident in Sweden.

        The Commission has examined the latter complaint under Article

14 (Art. 14) of the Convention in conjunction with Article 9 (Art. 9)

of the Convention as well as under Article 14 (Art. 14) of the

Convention in conjunction with Article 1 of Protocol No. 1 (P1-1) to

the Convention.

        Article 9 (Art. 9) of the Convention reads:

        "1.  Everyone has the right to freedom of thought,

        conscience and religion;  this right includes freedom to

        change his religion or belief and freedom, either alone

        or in community with others and in public or private, to

        manifest his religion or belief, in worship, teaching,

        practice and observance.

        2.  Freedom to manifest one's religion or beliefs shall be

        subject only to such limitations as are prescribed by law

        and are necessary in a democratic society in the interests

        of public safety, for the protection of public order, health

        or morals, or for the protection of the rights and freedoms

        of others."

        Article 14 (Art. 14) of the Convention reads:

        "The enjoyment of the rights and freedoms set forth in this

        Convention shall be secured without discrimination on any

        ground such as sex, race, colour, language, religion,

        political or other opinion, national or social origin,

        association with a national minority, property, birth or

        other status."

        Article 1 of Protocol No. 1 (P1-1) to the Convention reads:

        "Every natural or legal person is entitled to the peaceful

        enjoyment of his possessions.  No one shall be deprived of

        his possessions except in the public interest and subject to

        the conditions provided for by law and by the general

        principles of international law.

        The preceding provisions shall not, however, in any way

        impair the right of a State to enforce such laws as it deems

        necessary to control the use of property in accordance with

        the general interest or to secure the payment of taxes or

        other contributions or penalties."

        The Government submit that the applicant's complaints are

inadmissible, either for being incompatible ratione materiae with the

provisions of the Convention or for being manifestly ill-founded

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

        They argue that the Commission should examine to what extent

the applicant has been affected by the church tax complained of.  The

reduction claimed by him amounts to less than 1,000 SEK for 1980.  The

applicant had several complaints about his taxation before the Swedish

authorities, but only the issue of the church tax remains before the

Commission.  It is unlikely that the authors of the Convention had

such a situation in mind when drafting Articles 9 and 14 (Art. 9, 14) .

        The Commission has examined this argument in particular under

Article 25 (Art. 25) of the Convention which authorises it to receive

applications from persons "claiming to be the victim of a violation"

of the Convention.  It finds, however, that it is not empowered under

this clause or any other provision of the Convention to reject an

application on the ground that the claim is of minor importance or

that the consequences of a possible violation are insignificant.  This

is also admitted by the Government.  It follows that it is not

necessary in the present case to determine as an issue of

admissibility whether the claim is in fact of "minor importance".

        The Commission has further examined whether the applicant is

nevertheless precluded from bringing this application on the ground

that he has no valid legal interest or that there is no need for legal

protection (cf.  Nos. 7289/75 and 7349/76, Dec. 14.7.77,  D.R. 9 pp. 57

and 73, and No. 11394/85, Dec. 5.3.86, to be published in D.R.).  It

here notes that the legislation complained of has in the meanwhile

been amended.  However, this did not retroactively affect the

taxation of the applicant in 1980.

        The Commission concludes that the application cannot be

declared inadmisible on the ground that the applicant cannot claim

to be a "victim" in the sense of Article 25 (Art. 25) of the Convention.

        The applicant submits that he has been "enrolled as a member

of the Swedish State Church" by the tax authorities.  The Commission

finds it established that the applicant has not been registered as a

member of the Church of Sweden.  In this respect his complaint is

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

(Art. 27-2) of the Convention.

        However, as a result of his obligation to pay taxes in Sweden

in the same way as a person domiciled in Sweden, the applicant has

also been obliged to pay full church tax.  The church tax is a small

part of the municipal taxes and forms part of the general taxes.  The

rate of the church tax is determined by the relevant parish council.

The applicant has been refused reduction of the church tax under the

Dissenter Tax Act.

        The Commission considers that an issue arises as to whether

the applicant's obligation to pay, contrary to his wishes, church tax

to the Church of Sweden is in conformity with his right to freedom of

religion as protected by Article 9 para. 1 (Art. 9-1) of the

Convention.  Further issues arise under Article 14 (Art. 14) read in

conjunction with Article 9 (Art. 9) of the Convention and with Article

1 of Protocol No. 1 (P1-1) to the Convention respectively as to

whether the difference in treatment between residents and

non-residents, in relation to the payment of the church tax, has an

objective and reasonable justification.

        After a preliminary examination of these issues in the light

of the parties' submissions, the Commission considers that these

issues raise questions of fact and law which are of such a complex

nature that their determination requires an examination of the merits.

These complaints cannot therefore be declared inadmissible as being

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

(Art. 27-2) of the Convention, but must be declared admissible, no

other ground for declaring them inadmissible having been established.

2.      The applicant also invokes Article 6 para. 1 (Art. 6-1) of the

Convention, which in its first sentence provides:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law."

        As regards the proceedings brought by the applicant concerning

the exemption from the church tax, the Commission can leave open the

question whether Article 6 para. 1 (Art. 6-1) of the Convention

applied to those proceedings.  In any event, the Commission finds that

the facts of the case and the applicant's submissions disclose no

appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

        It follows that, in this respect, the application is

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

(Art. 27-2) of the Convention.

3.      Finally, with regard to the applicant's remaining complaints

concerning his taxation in general, the Commission has examined these

complaints under Article 1 of Protocol No. 1 (P1-1) to the Convention,

both taken alone and in conjunction with Article 14 (P1-1+Art 14) of

the Convention. However, from the applicant's submissions there is no

appearance of any possible violation of these provisions in that

respect.

        It follows that in this regard the application is manifestly

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

Convention.

        It is true that the applicant has also invoked Article 6 (Art.

6) of the Convention in regard to the procedure regarding his taxation

in general, notably that the different decisions of the Swedish courts

are not logical and that the agreement between Finland and Sweden for

the avoidance of double taxation has been incorrectly applied.  In

this respect, the Commission recalls that, according to its case-law,

Article 6 para. 1 (Art. 6-1) does not apply to proceedings relating to

tax assessments (see inter alia No. 9908/82, Dec. 4.5.83, D.R. 32, p.

266).

        Consequently, insofar as the applicant complains of the

proceedings concerning his taxation, this complaint, insofar as it has

not been dealt with above under 2, is incompatible ratione materiae

with the provisions of the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

        For these reasons, the Commission

        DECLARES ADMISSIBLE, without prejudging the merits of the

        case, the applicant's complaint that he was obliged to pay

        church tax;

        DECLARES INADMISSIBLE the remainder of the application.

   Secretary to the Commission          President of the Commission

           (H.C. KRÜGER)                       (C.A. NØRGAARD)