FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40320/98 by M.S.S. against Finland

The European Court of Human Rights (Fourth Section) , sitting on 18 January 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 May 1997 and registered on 17 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1947 and living in Malaga, Spain.

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

On 21 December 1993 the Helsinki Tax Office made a decision that the applicant was due to pay residual taxes since he had not announced certain income in the amount of FIM 100,000 in his tax returns. The applicant was also obliged to pay a 20% tax increase on the amount. The decision was based on a tax audit in a company called AT. This company had paid FIM 100,000 to the limited company F, which was owned by the limited partnership company SR. The applicant was the only active partner of SR, which owned 100% of the shares of F.

On 20 February 1994 the applicant appealed to the County Administrative Court ( lääninoikeus , länsrätten ) of Uusimaa , complaining that the decision was wrong and that he had not been informed of the legal provisions on which the decision was based. The appeal was referred to the local tax rectification board ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ) which, on 9 May 1994, rejected the appeal.

On 1 August 1994 the applicant again appealed to the County Administrative Court. On 19 January 1996 the court lowered the tax increase from 20% to 10% and upheld the remainder of the decision. The court stated that the payment of the amount of FIM 100,000 was considered to be the applicant’s personal income since he had received payment for his actions related to a sales contract concerning an airplane . The payment was considered to be the applicant’s personal income, even though he had waived his right to the amount in favour of company F. Further the court noted that, as the applicant had not announced that amount in his tax returns, the tax office had a right to order the payment of a residual tax and impose a tax increase. Finally, the court rejected, for lack of a legal basis, the applicant’s request that the taxes already paid by companies AT and F on the same ground be counted for his benefit.

On 31 December 1996 the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) refused the applicant’s request for leave to appeal.

On 29 September 1994 the Execution Office collected from the applicant FIM 62,116 as residual taxes, FIM 1,863 as a payment of back taxes, additional taxes amounting to FIM 32,178, default interest of FIM 4,347 and FIM 400 as execution fee, altogether FIM 100,904 (€ 16,970). After the decision of the County Administrative Court the applicant was refunded FIM 5,093.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he did not receive a fair trial by an independent and impartial tribunal. He also argues that the County Administrative Court imposed a tax increase which must be considered to be a punitive measure. Further, he complains that the County Administrative Court did not hold an oral hearing and that the courts did not give adequate reasons for rejecting his appeals. The applicant invokes Article 6 § 1 in this respect. The applicant also invokes Article 6 § 3 (a) and (b) in so far as the County Administrative Court allegedly did not mention the legal provisions on which its judgment was based. The applicant argues that the judgment was arbitrary. He also complains that he was denied proper conditions for preparing his defence, since he was not informed of the legal provisions on which the decision of the taxation rectification board was based. Further the applicant argues that he did not have an opportunity to examine the tax inspector or his own witnesses and that the County Administrative Court should have held an oral hearing. The applicant invokes Article 6 § 3 (d) in this respect. The applicant complains under Article 7 § 1 that he was punished by a tax increase even though he himself had not received the FIM 100,000 in question. He also contends that the tax authorities had already received tax payments based on the same ground from the payer company AT and from the limited liability company F. The applicant invokes Article 1 of Protocol No. 1 in this respect. Finally the applicant alleges a violation of Article 2 of Protocol No. 7 in that he did not get his case examined by a higher court.

THE LAW

1. In so far as as the applicant invokes Articles 6 and 7 of the Convention it is not necessary for the Court to examine the applicability of these Articles in the instant case, since the application is in any case inadmissible for the reasons set out below.

(a) As regards the applicant’s complaint that no oral hearing was held in the County Administrative Court, this Court notes, firstly, that the applicant did not request an oral hearing. Further, the reservation made by the Finnish Government in accordance with Article 64 (after the entry into force of Protocol No. 11 on 1 November 1998, Article 57) of the Convention, in respect of the right to a public hearing guaranteed by Article 6 § 1 of the Convention, read as follows at the relevant time:

“For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:

...

2. proceedings before the County Administrative Courts ... in accordance with Section 16 of the County Administrative Courts Act...”

It follows that the complaint concerning the lack of an oral hearing before the County Administrative Court is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3.

(b) In so far as the complaint regarding the allegedly defective reasoning by the County Administrative Court is concerned, the Court recalls that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. In the present case the Court notes that the County Administrative Court lowered the tax increase and gave reasons for the rejection of the rest of the appeal. The Court finds no indication that the way in which the decision of the County Administrative Court was reasoned prevented the applicant from seeking leave to appeal or otherwise constituted a violation of Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention

(c) As regards the complaint that the applicant was unable to examine witnesses in an oral hearing, the Court recalls that the applicant did not request an oral hearing for the purpose of witness examination when appealing to the County Administrative Court. Thus, the applicant has not exhausted the domestic remedies available to him according to Finnish law in conformity with Article 35 § 1 of the Convention.

(d) Concerning the other complaints made under Articles 6 and 7 of the Convention, the Court finds no appearance of a violation of these provisions. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The Court will next examine the applicant’s complaint under Article 1 of Protocol No. 1 to the Convention. According to that Article, a 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 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 applicant was obliged to pay taxes which were determined under domestic law. The Court has not found any indication that the applicant’s rights under Article 1 of Protocol No. 1 have been violated. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant finally argues that he did not get his case examined in a higher court. He invokes Article 2 of Protocol No. 7 to the Convention.

The Court notes that, even assuming that Article 7 would apply to the instant case, the applicant could seek leave to appeal to the Supreme Administrative Court. Thus the applicant had that right to have the judgment reviewed by a higher tribunal in conformity with Article 2 of Protocol No. 7 of the Convention (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, decision of 18 January 2000).

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President