Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12670/87

by H.

against Sweden

The European Commission of Human Rights sitting in private

on 10 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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. 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 12 September

1986 by H. against Sweden and registered on 12 January

1987 under file N° 12670/87;

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

summarised as follows.

The applicant is a Swedish citizen, born in 1929. He is a

forester and resides at B., Sweden.

In the years 1973 to 1977 the applicant worked in the Federal

Republic of Germany in the forestry business. He did not report his

income from this in his annual tax returns in Sweden being of the

opinion that it was unnecessary since he considered himself subject to

taxation only in the Federal Republic of Germany. It appears,

however, that the Swedish taxation authorities considered the

applicant under the obligation to pay income tax in Sweden and

accordingly proceedings were instituted against the applicant for the

income years 1973-77 which under Swedish taxation law correspond to

the taxation years 1974-78.

The case was heard by the Regional Administrative Court

(länsrätten) of Älvsborg County where the applicant, represented by a

lawyer, had the opportunity to present his case. After having heard

the parties' submissions and after an evaluation of the written

evidence obtained, the Regional Administrative Court in its judgment

of 29 November 1982 found that the applicant, during the taxation

years 1974-78, had had a taxable income of approximately 2,054,000

Swedish crowns. It was accordingly decided to impose additional

taxation on the applicant for this amount. In addition to imposing

additional taxation, the Regional Administrative Court imposed a

special charge (tax supplement) which amounted to 40% of the tax

imposed as a result of the additional taxation concerning the years

1974-77 and 50% of the tax imposed for the year 1978.

The applicant appealed to the Administrative Court of Appeal

(kammarrätten) of Gothenburg. In his written submissions to the

court the applicant explained the factual circumstances concerning his

income and set out his arguments as to why additional taxation should

not be imposed. He also maintained that the circumstances in his case

did not allow for the imposition of the special charge (tax supplement).

Finally the applicant requested that an oral hearing be held before

the court.

The tax inspector also appealed to the Administrative Court of

Appeal. He requested a further increase of the taxation and for the

special charge (tax supplement) to be imposed also on the increased

amount.

In its judgment of 30 December 1983 the Administrative Court

of Appeal rejected the request for an oral hearing stating that this

appeared to be unnecessary since the file of the case was complete.

No separate appeal lay against the decision of the Administrative

Court of Appeal in this respect.

In its judgment the Administrative Court of Appeal furthermore

confirmed the decision of the Regional Administrative Court of

29 November 1982 in large parts but increased the income on which to

impose additional taxation for the taxation year 1975 by 175,000

Swedish crowns. The Court also ordered that a special charge (tax

supplement) should be imposed on the additional tax. As regards the

imposition of the special charge (tax supplement) the court further

stated:

"There is no reason to remit the tax supplement.

In this respect the court notes in particular that

(the applicant) did not report to the Swedish tax

authorities that he had conducted an extensive business.

He furthermore reported to the German tax authorities that

his activities had no permanent place of business in the

Federal Republic of Germany. (The applicant) has

accordingly obviously speculated in avoiding taxation in

both Sweden and the Federal Republic of Germany."

It appears that the applicant subsequently asked for and

was granted leave to appeal against this judgment to the Supreme

Administrative Court (regeringsrätten). In his written submissions to

the Court the applicant maintained that the judgment of the

Administrative Court of Appeal was wrong and that the Court of Appeal

had misinterpreted the applicable legislation. He accordingly asked

the Supreme Administrative Court to quash the decision of the lower

court and to find in his favour.

In its judgment of 6 May 1986 the Supreme Administrative Court

upheld the judgment of the Administrative Court of Appeal. It

examined in particular the question whether the applicant had had a

permanent place of business in Germany in accordance with the terms of

the Swedish-German double taxation agreement, but found that this had

not been the case. The Court concluded as follows:

"As stated by the Administrative Court of Appeal (the

applicant) has submitted incorrect information by omitting

to report his activities in the Federal Republic of Germany

in his tax returns. The conditions for imposing additional

taxation and a tax supplement therefore exist. The

examination does not show that the amount of additional

taxation has been set too high. Reasons to remit the tax

supplement are not at hand."

COMPLAINTS

The applicant complains that the Supreme Administrative Court

has passed a judgment whereby he must pay taxes in Sweden although he

did not work in Sweden at all. He also complains that the Swedish

courts failed to take the double taxation agreement between Sweden and

the Federal Republic of Germany into consideration.

The applicant furthermore complains that there was no hearing

at all in the Supreme Administrative Court and that the judgment was

not impartial.

The applicant invokes Article 6 para. 1 of the Convention.

THE LAW

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

in Sweden although he had not worked there, and he considers this

taxation to be contrary to the applicable double taxation agreement

between Sweden and the Federal Republic of Germany.

The Commission has examined this complaint on the basis of

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

follows:

"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 Commission notes that the second paragraph of that Article

expressly reserves the right of States to enforce laws to secure the

payment of taxes. Moreover, it is not the task of the Commission to

determine whether a double taxation agreement has been correctly

applied, but merely to ensure that the applicant's rights under the

Convention and Protocol No. 1 (P1-1) have been respected. In this regard,

the Commission finds no appearance that the taxation violated the

applicant's right to respect for his property as guaranteed by

Article 1 of Protocol No. 1 (P1-1).

Consequently, this part of the application is manifestly

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

the Convention.

2. The applicant further complains that there was no hearing in

the Supreme Administrative Court and that the judgment was not

impartial. In this respect, he invokes Article 6 para. 1 (Art. 6-1)

of the Convention which reads as follows:

"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.

Judgment shall be pronounced publicly but the press and

public may be excluded from all or part of the trial in

the interests of morals, public order or national security

in a democratic society, where the interests of juveniles

or the protection of the private life of the parties so

require, or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The Commission first notes that the proceedings concerned both

the applicant's taxation and the imposition on the applicant of a

special charge (tax supplement) as a consequence of his omission to

report certain income in his tax returns.

While the Commission has constantly considered Article 6 para. 1

(Art. 6-1) of the Convention not to be applicable to proceedings

regarding tax assessments (see e.g. No. 9908/82, Dec. 4.5.83, D.R. 32

p. 266), it has not excluded the possibility that proceedings

regarding the imposition of a special charge (tax supplement)

according to Swedish law concern the determination of a criminal

charge in the meaning of Article 6 para. 1 (Art. 6-1) (see No.

11464/85, Dec. 12.5.87, to be published in D.R.).

However, it is not necessary in the present case to take a

position on the applicability of Article 6 para. 1 (Art. 6-1), since

this part of the application is in any event inadmissible for the

following reasons.

The Commission notes that the applicant had a hearing before

the Regional Administrative Court. It further appears that he

requested a hearing before the Administrative Court of Appeal, but

that this request was refused on the ground that a hearing appeared to

the Court to be unnecessary. However, the applicant has not

complained to the Commission of the refusal of that Court to grant him

a hearing, and the Commission finds no reason, therefore, to examine

whether or not that refusal was in conformity with Article 6 para. 1

(Art. 6-1).

The Commission recalls that the European Court of Human Rights

has considered an oral hearing not to be necessary in a court of

cassation whose task is limited to an examination of whether the law

has been correctly applied (Eur. Court H.R., Axen judgment of

8 December 1983, Series A no. 72, Sutter judgment of 22 February 1984,

Series A no. 74).

In the present case, the Commission notes that the Supreme

Administrative Court was the third degree of jurisdiction whose

examination followed upon the judgments given previously by the

Regional Administrative Court and the Administrative Court of Appeal.

The task of the Supreme Administrative Court in the Swedish legal

system is essentially to develop the case-law in administrative

matters under its jurisdiction. An appeal to the Supreme

Administrative Court can, with few exceptions, only be examined on its

merits after leave to appeal has been granted, and such leave shall

only be granted if it is important for the development of the case-law

that the case is examined by the Supreme Administrative Court, or if

there are special reasons such as the existence of a ground for

re-opening of proceedings or of a serious error in the judgment of the

Administrative Court of Appeal. Where leave to appeal is granted, new

evidence shall normally not be admitted before the Supreme

Administrative Court.

The Commission further notes that the main question which the

Supreme Administrative Court had to consider in the present case was

whether the applicant had had a permanent place of business in Germany

in the meaning of the Swedish-German double taxation agreement, which

essentially was a question of legal qualification. It is also clear

that, since only the applicant had appealed, there was no question of

the Supreme Administrative Court giving a judgment more unfavourable

to the applicant than that of the Administrative Court of Appeal.

In these circumstances, the Commission considers that the

guarantees in Article 6 para. 1 (Art. 6-1) did not require an oral

hearing to be held also in the Supreme Administrative Court.

The Commission further notes that the applicant's allegation

of lack of impartiality is entirely unsubstantiated.

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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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H. v. SWEDEN

H. v. SWEDEN