SECOND SECTION

DECISION

Application no. 55050/16 Pavel Vladimirovic RINAS against Finland

The European Court of Human Rights (Second Section), sitting on 18 May 2021 as a Committee composed of:

Valeriu Griţco , President, Branko Lubarda , Pauliine Koskelo, judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 6 September 2016,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Pavel Vladimirovic Rinas , is a Russian national, who was born in 1960 and lives in Vantaa. He was represented before the Court by Mr Seppo Jääskeläinen , a lawyer practising in Fuengirola.

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

3 . Tax surcharges ( veronkorotus , skatteförhöjning ) were imposed on the applicant in administrative law proceedings which ended with a final decision rendered by the Supreme Administrative Court ( korkein hallinto ‑ oikeus , högsta förvaltningsdomstolen ) on 13 September 2012.

4 . At the same time, and on the basis of the same acts, the applicant was convicted of aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) in criminal proceedings which ended with a final judgment rendered by the Supreme Court ( korkein oikeus , högsta domstolen ) on 31 May 2012.

5 . By letter dated 8 March 2013 the applicant sought the reopening of the administrative law proceedings, complaining that he had been a victim of double jeopardy when he had been convicted twice in the same matter and that there had been a lack of a fair trial since no oral hearing had been held. He also complained that he had been discriminated against on two separate grounds, in violation of Article 14 of the Convention.

6 . At the same time, on 5 March 2013, the applicant lodged an application with the Court alleging , in particular, that the ne bis in idem principle had been violated in his case. On 27 January 2015 the Court found a violation of the ne bis in idem principle under Article 4 of Protocol No. 7 to the Convention in the applicant ’ s case (see Rinas v. Finland , no. 17039/13, 27 January 2015).

7 . On 30 April 2015 the Supreme Court refused the applicant ’ s request to reopen the criminal proceedings concluded by a final judgment on 31 May 2012.

8 . After the Court had rendered its judgment, the written procedure in the Supreme Administrative Court was continued. The applicant submitted the Court ’ s judgment to the Supreme Administrative Court and pointed out that the Court had found a violation of Article 4 of Protocol No. 7 to the Convention in his case. He thus submitted that he had a right to receive compensation from the State in this matter and requested that the decisions rendered by the Administrative Court on 8 April 2011 and the Supreme Administrative Court on 13 September 2012 be annulled.

9 . On 23 March 2016 the applicant ’ s request for reopening was refused, by three votes to two, by the Supreme Administrative Court. The majority of the composition found that the reopening could not be allowed on the basis of the changed case-law since, at the time of the ordinary administrative law proceedings, the impugned decisions had lawfully been made in accordance with the case-law at that time. Due to the equal treatment of applicants, the sole fact that an applicant had lodged a complaint with the Court could not be interpreted as being relevant when considering whether or not to grant reopening.

10 . The dissenting judges found that already in 2010 the domestic courts could have reached the conclusion that a double jeopardy situation was at stake in the present case. After the criminal proceedings had ended on 31 May 2012, the Supreme Administrative Court should have granted the applicant leave to appeal and should have withdrawn any tax surcharges imposed on him. A failure to do so constituted a procedural error. The fact that the applicant had continued the proceedings before the Court, and had obtained a judgment in his favour, could not be regarded as a violation of equal treatment vis-à-vis those who never brought their cases to the Court. Article 46 of the Convention imposed on the Contracting States a duty to abide by the final judgments of the Court, to which they were parties. The most natural execution of the Court ’ s judgment in the applicant ’ s case would have therefore been the full withdrawal of the tax surcharges imposed on him. Therefore, the dissenting judges would have agreed to reopen the proceedings and to annul the earlier administrative law decisions.

11 . Section 63, subsection 1, of the Administrative Judicial Procedure Act ( hallintolainkäyttölaki , förvaltningsprocesslagen , Act no. 586/1996) which was in force at the time of the facts of the case (in force until 31 December 2019), provided that:

“A decision may be annulled:

1) if a procedural error which may have had a relevant effect on the decision has been committed;

2) if the decision is based on manifestly erroneous application of the law or on an error which may have had an essential effect on the decision; or

3) if new evidence which could have had a relevant effect on the decision appears and it is not the fault of the applicant that the evidence was not presented in time.”

COMPLAINTS

12 . The applicant complained under Article 6 of the Convention of the lack of a fair trial and the lack of access to a court as the Supreme Administrative Court had refused to reopen the case although the Court had found a violation of Article 4 of Protocol No. 7 to the Convention in his case. Since his request for reopening was refused, the applicant was not even able to bring an action for damages. There was a causal link between the damage suffered and the refused annulment: the Court had rejected the applicant ’ s claims for pecuniary damage on the grounds that the domestic system provided a possibility to obtain redress since the applicant could, as pointed out by the Government, seek annulment of the tax surcharge decisions before the Supreme Administrative Court.

THE LAW

13 . The applicant complained under Article 6 of the Convention of the lack of a fair trial and the lack of access to a court as the Supreme Administrative Court had refused to reopen his case.

14 . Article 6 of the Convention reads for relevant parts as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

15 . The Court reiterates that, according to its case-law, Article 6 § 1 is not normally applicable to proceedings following a request for reopening, unless the nature, scope and specific features of such proceedings in a given case and in the particular legal system bring those proceedings within the ambit of Article 6 § 1 (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 50, ECHR 2015). The Court has, however, held that “the scope and nature of the ‘ examination ’ actually carried out” may in certain circumstances lead the Court to conclude that such proceedings were decisive for the determination of civil rights and obligations, or of a criminal charge, and thus render Article 6 § 1 applicable (see Bochan , cited above, §§ 54 and 56; Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12 , §§ 70 and 72, 11 July 2017; and Yaremenko v. Ukraine (no. 2) , no. 66338/09 , § 56, 30 April 2015).

16 . The Court notes that there is a difference between the scope of review exercised by the courts when deciding whether reopening may be granted, and the scope of review exercised when deciding anew the case on the merits. Specifically, when examining whether to allow or not a reopening, the courts are required to examine whether the conditions for reopening as defined under domestic law are met. In that context, their task is to assess whether, in the specific circumstances, reopening is permitted according to that law. This assessment of the scope of reopening is distinct from the determination of a criminal charge, or of civil rights and obligations within the meaning of Article 6 § 1.

17 . Therefore, the fact that the Supreme Administrative Court, when deciding on the applicant ’ s request for reopening, may have expressed its view on an issue concerning the merits is not in itself sufficient for the Court to conclude that the proceedings following the applicant ’ s request for reopening were decisive for the determination of his civil rights and obligations or of any criminal charge against him, and that Article 6 § 1 were therefore applicable (see, mutatis mutandis, Trivkanovi ć v. Croatia (no. 2) , no. 54916/16, § 57, 21 January 2021).

18 . In the present case, the Supreme Administrative Court was called upon to consider whether, in the circumstances pertaining to the request, reopening was applicable under the domestic provisions concerning this remedy, and did not examine the case any further than was necessary in order for it to decide that issue. These proceedings were thus not comparable to those prevailing in the case of Moreira Ferreira (cited above) . Therefore, the nature, scope and specific features of the proceedings before the Supreme Administrative Court were not such as to bring those proceedings within the ambit of Article 6 § 1 of the Convention.

19 . It thus follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

20 . The applicant also complained that since his request for reopening was refused, he was not even able to bring an action for damages and had therefore no access to a court under Article 6.

21 . The Court notes that the applicant did not even try to lodge a compensation action with the District Court. There is no indication that that remedy was not effective. The applicant thus failed to exhaust the effective domestic remedies.

22 . It thus follows that this complaint must be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021 .

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Hasan Bakırcı Valeriu Griţco Deputy Registrar President