FOURTH SECTION

Application no. 49509/12 Robert ALASIPPOLA against Finland lodged on 16 July 2012

STATEMENT OF FACTS

The applicant, Mr Robert Alasippola , is a Finnish national who was born in 1966 and lives in Leppävesi . He is represented before the Court by Mr Markku Fredman , a lawyer practising in Helsinki .

A. The circumstances of the case

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

Taxation proceedings

The applicant ’ s business was declared bankrupt in 2003 and he was subject to a tax inspection for the years 2003 and 2004. The tax inspection report was co mpleted on 4 June 2004. At the same time , the applicant ’ s wife was also subject to a tax inspection. She has lodged a separate application with the Court (no. 39771/12 Hanna Riikka Alasippola v. Finland ).

On 3 September 2004 the tax authorities imposed additional value-added tax on the applicant a s well as tax surcharges ( veronkorotus , skatteförhöjning ) for the tax years 2001, 2002 and 2003.

On 9 September 2004 the tax authorities imposed additional income tax and tax surcharges on the applicant for the tax years 2000, 2001, 2002 and 2003. The amount of tax surcharges varied between 800 and 900 euros.

By letters dated 20 October 2004 and 1 February 2005 the applicant sought rectification from the local Tax Rectification Committee ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ), requesting it to quash the decisions of 9 September 2004.

On 21 February 2005 the Tax Rectification Committee rejected the applicant ’ s applications concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003.

The applicant appealed against both the decisions of 3 September 2004 a nd the rectification decisions of 21 February 2005 to the Hämeenlinna Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ).

On 26 June 2006 the Hämeenlinna Administrative Court rejected the applicant ’ s appeal s concerning the income tax imposed for the tax years 2000, 2001, 2002 and 2003. The applicant appealed against this decision to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltningsdomstolen ) but later withdrew his application. On 15 March 2007 the case was considered by the Supreme Administrative Court as lapsed.

On 4 October 2006 the Hämeenlinna Administrative Court rejected the applicant ’ s appeal s concerning the value-added tax imposed in respect of the tax years 2001, 2002 and 2003. It appears that no appeal was made against this decision.

Criminal proceedings

On 27 March 2009 the public prosecutor brought charges against the applicant , inter alia , f o r aggravated dishonesty by a debtor ( törkeä velallisen epärehellisyys , grovt oredlighet som gäldenär ) and aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) concerning the tax years 1999 to 2003. According to the charges, the applicant was accused of aggravated dishonesty by a debtor as , between 1999 and 2002, he had transferred income to his wife to the detriment of his creditors. He was accused of aggravated tax fraud as he had failed to declare income and, consequently, the tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes.

On 26 February 2010 the Keski-Suomi District Court ( käräjäoikeus , tingsrätten ) convicted the applicant of aggravated dishonesty by a debtor and of aggravated tax fraud, and sentenced him to a prison sentence of 1 year and 10 months. He was ordered to pay the tax authorities 135,417 euros plus interest in compensation.

By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court ( hovioikeus , hovrätten ), requesting that the District Court judgment be quashed and the charges dismissed. He referred to the ne bis in idem principle and to the Court ’ s case-law in that respect.

On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessar il y prevent the examination of the charges pressed. After having compared the charges of aggravated tax fraud to the facts on the basis of which the tax surcharges had been imposed, by the type of tax imposed and the tax year concerned, the court found that the facts on which these charges were based were substantially different from those on which the tax surcharges had been based. There was thus no impediment to examining the charges against the applicant.

By letter dated 29 December 2011 the applicant appealed to the Supreme Court ( korkein oikeus , högsta domstolen ), reiterating the grounds of appeal already presented before the Appeal Court . He emphasized that matters which had already been examined by the tax authorities could not be examined again in the criminal proceedings.

On 31 January 2012 the Supreme Court refused the applicant leave to appeal excep t in respect of count two of the charges concerning aggravated tax fraud.

On 19 December 2012 the Supreme Court dismissed the charge of aggravated tax fraud without examining the merits as far as the charge concerned income tax from the tax years 2000 to 2003, value-added tax from the tax years 2001 to 2003 and withheld taxes and social security payments from the tax years 2000 to 2003. The applicant was convicted for the remaining part of the charge of aggravated tax fraud and sentenced, together with the earlier convictions, to imprisonment for 1 year and 4 months. The court found that , when considering the ne bis in idem prohibition , the similarity of the facts should be examined by the type of tax imposed and separately for each tax year. As concerned the tax year 1999, there was no impediment to examin ing the charge as the tax inspection did not concern the tax year 1999. However, concerning the tax year 2000, th e charge could not be examined, except in respect of value-added tax, as the same matter had already been subject to an assessment by the tax authorities. In respect of the tax year 2001 the charge could not be examined at all. The same applied for the tax years 2002 and 2003. The taxation decisions had all be come final before the charge of aggravated tax fraud, which concern ed the same matter , w as pressed. Therefore, the charge could only be examined in respect of the tax year 1999 and in respect of the value ‑ added tax imposed during the tax year 2000. This judgment has been published under number KKO 2012:106 .

B. Relevant domestic law and practice

Section 57, subsection 1, of the Tax Assessment Procedure Act ( laki verotusmenettelystä , lagen om beskattningsförfarande , Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with an additional tax and a tax surcharge.

According to Chapter 29, sections 1 and 2, of the Penal Code ( rikoslaki , strafflagen , as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.

According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years.

The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia , that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be a pplied to pending cases ( lis pendens ) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter ( KKO 2013:59 ).

COMPLAINT

The applicant complains under Article 4 of Protocol No. 7 to the Convention about a violation of the ne bis in idem principle. The taxation proceedings, in which tax surcharges were imposed on him, ended with a final decision on 15 March 2007 . The criminal proceedings were initiated and concluded thereafter in the same matter.

QUESTION TO THE PARTIES

Has the applicant been tried or punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7? If so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?