FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37607/97

by W. S.

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 January 1997 by W. S.  against Poland and registered on 2 September 1997 under file no. 37607/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1941 and living in Nysa . .

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

A. Particular circumstances of the case

By a decision of 14 June 1996 the Treasury Office ( Urząd Skarbowy ) in Nysa found the applicant guilty of a tax offence punishable under Article 104 of the Fiscal Criminal Act committed in that she had made bookkeeping errors in the bookkeeping of a shop owned and run by her client, and imposed on her a pecuniary penalty of 300 PLZ, or thirty days of imprisonment in default. She was also found guilty of another offence punishable under Article 94 § 4 of the said Act, committed in that she had incorrectly calculated value of a certain tax subject to deduction from Value Added Tax (VAT), which resulted in a reduction of the taxes paid to the Treasury by a sum of 65.24 PLZ For this offence, the Office imposed on her a pecuniary penalty of 100 PLZ, with ten days’ imprisonment in default.

The applicant lodged an appeal against this decision with the Opole Treasury Chamber ( Izba Skarbowa ), arguing that the first-instance authority had breached a fundamental principle of tax law which provided that only the taxpayer, and not persons keeping books for him or her, was liable under the provisions of the Fiscal Offences Act. She further submitted that in fact her calculation of the taxes had been correct.

On 29 August 1996 the Opole Treasury Chamber amended in part the decision under appeal by changing the legal qualification of the offence qualified by the lower administrative authority under Article 94 § 3 into an offence against Article 99 § 3, and upheld the decision in its remainder. The Chamber considered that the principle referred to by the applicant in her appeal, i.e. the principle of an exclusive responsibility of a taxpayer towards the State for his or her taxes, was applicable only on the ground of tax law. However, this principle did not apply to the criminal liability as laid down in the Fiscal Criminal Act. Consequently, it was not excluded that an offence punishable under that Act could be committed not only by a taxpayer himself, but also by any person keeping books for the taxpayer on the basis of a contract.

On 19 September 1996 the applicant complained to the Minister of Finance about the decisions in her case, contending that they were unlawful. This complaint remained unanswered.

B. Relevant domestic law

             Book One of the Fiscal Criminal Act ( Ustawa karna skarbowa ) is entitled “Fiscal Crimes and Offences”. Book One is divided into two Parts, General Provisions and Specific Provisions, the latter specifying acts punishable under the Act and setting out penalties imposable on perpetrators. Part One is divided in two Chapters, the first Chapter pertaining to fiscal crimes and the second one to fiscal offences.

             Under Article 1 of the Fiscal Criminal Act, a wrongful act punishable under the provisions of the said Act by imprisonment, limitation of liberty or a fine constitutes a fiscal crime. A fine cannot be lower than 200 PLZ and cannot exceed 5,000,000 PLZ. Article 13 provides for additional sanctions for fiscal crimes such as: deprivation of civil rights, prohibition to exercise certain activities, confiscation of an object, and publication of the court judgment by which the offender was convicted.

             Under Article 35 of the Fiscal Criminal Act, a wrongful act punishable under the provisions of the said Act by the imposition of a pecuniary penalty constitutes a fiscal offence. According to Article 41 of the Act, a pecuniary penalty can reach from 20 PLZ to 1,000 PLZ. Under Article 43, the additional sanction of confiscation of an object can be imposed if the Act expressly  provides therefor.

             Under Article 36 of the Act, certain provisions of the Criminal Code, defining certain general notions of criminal responsibility, are applicable in the proceedings concerning fiscal offences. The provisions in question concern, inter alia , the definition of a punishable act, the prohibition of retroactivity, the definition of intentional and non-intentional offence, the age limit for liability, the attempted offence, the aiding and abetting, the circumstances justifying the exclusion of criminal liability, and the principles governing the determination of criminal sanctions.

             Pursuant to Article 122, the courts are competent to entertain cases concerning responsibility for the commission of fiscal crimes punishable by imprisonment or limitation of liberty. Under Article 123 of the Act, cases concerning fiscal crimes in which only fines can be imposed, and cases concerning fiscal offences, are examined by fiscal administrative boards.

             Article 206 of the Act states that decisions given in the proceedings concerning fiscal crimes and offences can be appealed against if the law so provides. The remedies are the following: an appeal, a demand that the case be examined by a court, and an appeal against  interlocutory decisions.

             Under Article 208 § 1 of the Act, in cases concerning fiscal crimes, a party to the proceedings is entitled either to lodge an appeal against a first-instance decision of an administrative authority with a higher administrative authority, or to demand that the case be examined by a court. An option to use one remedy bars the use of the other. In the proceedings concerning fiscal offences, only an appeal to a higher administrative authority can be lodged.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings before the fiscal administrative authorities did not comply with the requirements of this provision in that no appeal to a court lay against the decision of the Treasury Chamber and that, consequently, she did not have access to a court competent to review her conviction.

THE LAW

The applicant complains under Article 6 of the Convention that the proceedings before the fiscal authorities did not comply with the requirements of this provision in that she did not have access to a court competent to review her conviction by an administrative authority.

Article 6 of the Convention, in so far as relevant, reads:

“In the determination 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 ...”

The Court must first ascertain whether Article 6 of the Convention is applicable to the proceedings in question. It must therefore be examined whether the proceedings concerned were of a criminal nature.

The Court recalls that in order to determine whether an offence qualifies as “criminal” for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States (see the Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1830, § 32; the Kadubec v. Slovakia judgment of 2 September 1998, Reports 1998-VI, p. 2529, § 50). It is in the light of these criteria that it must be considered whether the penalties in question attracted the guarantees of Article 6 of the Convention, including access to court.

As to the first of these criteria, the Court considers that the Fiscal Criminal Act should clearly be regarded as belonging to criminal law. This is indicated, first, by the very name of the domestic legislation under which the applicant’s offence was punishable. Moreover, under Article 36 of the Act, certain provisions of the Criminal Code, laying down certain general notions of criminal responsibility, are applicable in the proceedings concerning fiscal offences.  However, this factor is of relative weight and serves only as a starting-point (see the Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, p. 17, § 31).

It is therefore necessary to examine the offence in question in the light of the second and third criteria mentioned above. In this respect, the Court recalls that these criteria are alternative and not cumulative: for Article 6 to apply by virtue of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see, inter alia , the Lutz v. Germany judgment of 25 August 1987, Series A no. 123, p. 23, § 55). This does not exclude that a cumulative approach may be adopted where the separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” (see, among other authorities, the above-mentioned Garyfallou AEBE judgment, p. 1830, § 33; and the Bendenoun v. France judgment of 24 February 1994, Series A no. 284, p. 20, § 47).

In respect of the second criterion, the nature of the offence, the Court observes that the substantive provisions of Fiscal Criminal Act concerning liability for fiscal crimes and offences are of a general application to all citizens and not only to a given group possessing a special status. In the present case, this was also borne out by the decision of the Opole Treasury Chamber of 29 August 1996, which stated that the offence concerned in the present case could be committed not only by the taxpayer, but also by any person keeping books for him or her. Moreover, the Court notes that under Article 1 of the Fiscal Criminal Act there is a clear division between fiscal crimes and fiscal offences. The first category is punishable by imprisonment, limitation of liberty or a fine, whereas only a pecuniary penalty can be imposed in respect of acts qualified as offences. The offences of which the applicant was convicted belonged to the category of fiscal offences within the meaning of Article 35 of the Act, and only a pecuniary penalty could be imposed on her.

The offences in the present case consisted of making erroneous entries in the books of the applicant’s client. They are offences of a technical and not of a criminal character. It should further be noted that the applicant is an accountant and  tax counsel. It is not in her interest to make any errors in bookkeeping as this entails for her a risk of losing clients. Thus it is inconceivable that she acted with any criminal intent punishable under criminal tax law, i.e. to diminish the sums to be paid in taxes.  Regard must also be had to the fact that the sum of the tax, which was not paid as a result of her error, i.e. 65.25 Polish zlotys , was very small.

In the last analysis, in the assessment of the character of the offence concerned in the present case, it is of relevance to note the division of acts punishable under the provisions of the Fiscal Criminal Act into two distinct categories of crimes and offences. This division mirrors the division of punishable acts applied in the context of Polish general criminal law.  The Criminal Code sets down the rules of criminal responsibility in respect of acts qualified as offences. The authorities competent to entertain cases in which criminal responsibility for offences is examined are the courts. On the other hand, the responsibility for acts qualified as offences is laid down in a separate Code of Regulatory Offences, which provides for another type of proceedings, conducted by the Regulatory Offences Boards, organs which belong to the executive branch of the government and do not offer guarantees of judicial procedure.

A third criterion to be taken into consideration is the severity of the penalty imposable and imposed. The Court first notes that the offences concerned in the present case were not punishable by imprisonment. It further observes that these offences carried the risk of a pecuniary penalty set out in Article 41 of the Fiscal Criminal Act. This penalty could vary from 20 to 1,000 Polish zlotys . It is true that the two penalties imposed on the applicant had a punitive character, which is customarily the distinguishing feature of criminal penalties. However, the applicant was ordered to pay penalties in sum of 400 Polish zlotys , and the penalties imposable for the offences in question could have reached 1000 Polish zlotys . In the Court’s view both the imposed and imposable sanctions were not sufficiently severe to conclude that they could be characterised as criminal. This conclusion is further reinforced by a comparison between the sums which, pursuant to Article 10 of the Fiscal Criminal Code, may be imposable as fines, ranging from 200 Polish zlotys to 5,000,000 Polish zlotys , and the much smaller amounts, from 20 to 1,000 Polish zlotys , to be paid as pecuniary penalties.

Having regard to the foregoing, the Court considers that the applicant was not charged with a criminal offence. Consequently, the proceedings against her did not involve the determination of a criminal charge against her within the meaning of Article 6 of the Convention. It follows that the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President