W.S. v. POLAND
Inadmissible
Matti Pellonpää
The applicant is a Polish national, born in 1941 and living in Nysa. . A. 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.