FOURTH SECTION

Application no. 37394/11 Kaj -Erik Torsten GLANTZ against Finland lodged on 13 June 2011

STATEMENT OF FACTS

The applicant, Mr Kaj -Erik Torsten Glantz , is a Finnish national, who was born in 1957 and lives in Klaukkala . He is represented before the Court by Mr Pekka Pinomaa , 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 tax inspector conducted a tax inspection in the applicant ’ s attorney ’ s office in 2006.

On 18 and 19 December 2006 the tax authorities considered that the applicant had received disguised dividends from his company during the tax years 2000 to 2004. The amounts of the disguised dividends were the following: 107,152 euros , 1,673 euros , 48,711 euros , 32,759 euros , and 18,842 euros . Additional taxes and tax surcharges ( veronkorotus , skatteförhöjning ) were imposed in the amount of 5,300 euros , 84.09 euros , 2,400 euros , 1,600 euros and 900 euros respectively.

By letter dated 9 March 2007 the applicant sought rectification from the local Tax Rectification Committee ( verotuksen oikaisulautakunta , prövningsnämnden i beskattningsärenden ).

On 30 May 2007 the Tax Rectification Committee rejected the applicant ’ s applications.

By letter dated 11 June 2007 the applicant appealed to the Helsinki Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ).

On 22 December 2008 the Helsinki Administrative Court rejected the applicant ’ s appeal.

By letter dated 27 February 2009 the applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus , högsta förvaltnings-domstolen ).

On 11 January 2010 the Supreme Administrative Court refused the applicant leave to appeal.

Criminal proceedings

On 15 December 2008 the public prosecutor brought charges against the applicant on, inter alia , five counts of embezzlement and two counts of aggravated tax fraud ( törkeä veropetos , grovt skattebedrägeri ) concerning the tax years 1997 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as, in his personal capacity, he had under-declared his income. The undeclared income amounted in total to 500,895 euros and, consequently, the tax imposed had been 263,711.68 euros too low.

On 6 November 2009 the Helsinki District Court ( käräjäoikeus , tingsrätten ) convicted the applicant, inter alia , on four counts of embezzlement and two counts of aggravated tax fraud and sentenced him to a prison sentence of 2 years and 8 months. He was also ordered to pay the taxation authority 214,168.38 euros plus interest.

By letter dated 25 January 2010 the applicant appealed to the Helsinki Appeal Court ( hovioikeus , hovrätten ), requesting that the charges be dismissed. He claimed, inter alia , that one of the embezzlement charges was statute-barred.

On 23 December 2010 the Helsinki Appeal Court , after having held an oral hearing on 28 and 29 October 2010, convicted the applicant as charged and sentenced him to a prison sentence of 2 years and 8 months. It upheld the District Court ’ s judgment in respect of the compensation award. The court found that one of the embezzlement charges was not statute-barred. As concerned the aggravated tax fraud in the applicant ’ s personal taxation, the court noted that the applicant had been imposed tax surcharges and that the taxation proceedings had become final on 11 January 2010. As the charges had been brought on 20 August 2009, that was, before the taxation proceedings had became final, there were no obstacles for examining the charge concerning aggravated tax fraud.

By letter dated 21 February 2011 the applicant appealed to the Supreme Court ( korkein oikeus , högsta domstolen ), requesting that the charges be dismissed. He claimed that there had been a lack of a fair trial and a violation of the legality principle in respect of the embezzlement charges as he had been convicted of something other than the charges against him and the conviction had been based on a wrong Penal Code provision. Also one of the changes had been statute-barred. As concerned the tax fraud charges, he claimed that the ne bis in idem principle had been violated when he was convicted of aggravated tax fraud in respect of his personal taxation. That principle and the legality principle had also been violated when he was convicted of aggravated tax fraud and bookkeeping crime as a representative of the company as the undeclared income was the same as in his personal taxation. He also claimed that there had been a lack of a fair trial before the Appeal Court as he was not allowed to obtain detailed information about the charges and to put questions to one of the witnesses.

On 18 May 2011 the Supreme Court refused the applicant leave to appeal.

Extraordinary proceedings

By letter dated 6 June 2011 the applicant lodged an application for an extraordinary appeal with the Supreme Court, requesting, inter alia , that the execution of the prison sentence be stayed. He repeated this request on 10 July 2011, and on 24 and 29 August 2011.

On 15 June, and 17, 25 and 30 August 2011 the Supreme Court did not grant a stay on execution.

On 31 August 2011 the applicant started serving his sentence.

On 12 December 2011 the Supreme Court refused the applicant ’ s application for the reopening of the case.

By letter dated 16 December 2011 the applicant lodged a new extraordinary appeal with the Supreme Court concerning its decision of 12 December 2011. He referred, inter alia , to Article 6 of the Convention and a lack of a fair trial.

The case is apparently still pending before the Supreme Court.

Complaints to the Chancellor of Justice

By letters dated 24 and 29 August 2011 and 7 February 2012 the applicant lodged a complaint with the Chancellor of Justice ( oikeuskansleri , justitiekanslern ), asking him to examine whether the Supreme Court justices had acted in accordance with the law and their duties when rendering the decision of 12 December 2011.

On 20 March 2012 the Chancellor of Justice informed the applicant that he was not going to investigate the matter as it was still pending before the Supreme Court. However, he indicated that the general interpretation was that the duty to give reasons did not apply to decisions concerning leave to appeal or extraordinary remedies.

By letter dated 14 May 2012 the applicant asked the Chancellor of Justice to re-examine the matter and to take action in order to have the Supreme Court decision of 12 December 2011 re-opened.

The case is apparently still pending before the Chancellor of Justice.

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 tax authorities and tax has therefore been incompletely or partially levied, the tax payer 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.

The Supreme Court has taken a stand on the ne bis in idem principle in its recent 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 accorded to pending cases ( lis pendens ) crossing from administrative proceedings to criminal proceedings or vice versa.

COMPLAINTS

The applicant complains under Articles 6 §§ 1 and 3 and 7 of the Convention about a lack of a fair trial and a violation of the legality principle in respect of the embezzlement charges. He claims that he was convicted of something other than the charges against him and that the conviction was based on a wrong Penal Code provision. Also one of the changes was already statute-barred.

He complains under Article 4 of Protocol No. 7 to the Convention that the ne bis in idem principle was violated in his case when he was convicted in his personal capacity of aggravated tax fraud. He was charged and convicted of the same acts which had already been subject to taxation proceedings in which tax surcharges were imposed. The taxation proceedings became final on 11 January 2010 and the criminal proceedings on 18 May 2011.

The applicant complains that, as far as he was convicted of aggravated tax fraud and bookkeeping crime as a representative of the company, Article 7 and Article 4 of Protocol No. 7 were violated. The undeclared income was the same as in his personal taxation, and the failure to declare such income was not criminalised.

Finally, he complains about the proceedings before the Appeal Court during which there was a failure to provide detailed information about the charges, an impossibility to question one of the witnesses, a failure to record his statement correctly, and a failure to reason the judgment adequately.

In his letter dated 16 January 2012 the applicant further complains under Article 6 of the Convention about the lack of reasoning in the Supreme Court ’ s decision of 12 December 2011 concerning the extraordinary appeal.

QUESTION TO THE PARTIES

As far as the applicant ’ s personal taxation and the aggravated tax fraud charge are concerned, has he 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?