LUNDBERG v. SWEDEN
Inadmissible
Gaukur Jörundsson;Wilhelmina Thomassen
The applicant is a Swedish national, born in 1949 and living in Vällingby. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, who is not a member of the Lutheran Church of Sweden, requested in his tax returns for the income years 1992-94 to be exempted from church tax. He claimed that the levying of church tax on a nonmember of the Church of Sweden contravened, inter alia, the Swedish Constitution and Article 9 of the Convention. He also stated that the municipality of Stockholm and not the relevant parish of the Church, Brännkyrka, was financing the construction and maintenance of burialgrounds and the maintenance of churchyards in the area where he lived. The tax authorities rejected the applicant’s request and decided to charge him approximately 425, 362 and 385 Swedish kronor (SEK) respectively for the three years in church tax, totalling SEK 1,172. This corresponded to 0.156 per cent of his taxable income for 1992 and 0.13 per cent for 1993 and 1994. The decision was taken in accordance with section 1 of the Act on Reduction of Tax Liability of Persons Not Members of the Church of Sweden (Lag om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, 1951:691; hereinafter “the Dissenter Tax Act”) which provided that, of the ordinary church tax, a non-member of the Church of Sweden should pay 30 per cent for 1992 and 25 per cent for 1993 and 1994. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm but did not request an oral hearing. On 30 December 1994 the Court rejected his appeal as far as it concerned 1993 and, on 11 September 1996, it rejected his appeal with regard to 1992 and 1994. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. Again, he did not request an oral hearing. On 14 February 1997 his appeals were rejected. On 23 April 1997 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal. In his appeal to that court he had requested an oral hearing. According to the Burial Act (Begravningslagen, 1990:1144), the parishes within the Church of Sweden are obliged to construct and maintain public burial-grounds, unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself (chapter 2, section 1). The right to be buried in a public burial-ground is not dependent on the deceased being a member of a particular religious community (chapter 2, section 4). However, the responsible organ, whether it be the local parish or the municipality, is obliged to provide for separate burial-grounds for those who are not members of any Christian community. The construction and maintenance of such burial-grounds are done in consultation with the religious communities concerned (chapter 2, section 2). Decisions taken under the Act by the parish or the municipality may be appealed against to the County Administrative Board (länsstyrelsen) (previously regulated in chapter 9 of the Act, now in chapter 11). In the municipality where the applicant was liable to pay tax the burial administration was – and still is – the responsibility of the municipality. When the responsibility for the keeping of population records was transferred from the Church of Sweden to the local tax authorities in July 1991 (see further below), it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the State archives (section 10 of the Act on Promulgation of the Population Registration Act; Lagen om införande av folkbokförings-lagen, 1991:481). It was estimated that it would take up to twenty years before all old records had been so transferred. The Church Act (Kyrkolagen, 1992:300) also specifically stipulated that a parish may, inter alia, use its financial means to acquire and maintain church buildings and other ecclesiastical property. At the material time, a church tax was collected together with the ordinary municipal tax. Chapter 21, section 1 of the Church Act referred in this respect to the provisions of the Municipal Tax Act (Kommunalskatte-lagen, 1928:370). The rate was determined by the local parish council which, under the transitional provisions of the 1974 Constitution (Regeringsformen), had a status similar to that of the municipalities, including the right of taxation. This system had a long tradition, based on the fact that the Lutheran Church of Sweden is the established church. In 1990 the rates applied by the parishes varied between 0.56 and 2.64 per cent of the taxpayer’s taxable income. The lowest rates were applied by the parishes of Stockholm where it is the municipality – and not the parishes – that has the responsibility for the burial administration (cf. Svenska kyrkans ekonomi, Statskontoret 1991:12, p. 9, a report on the economy of the Church of Sweden made by the National Agency for Administrative Development). In 1992-94, the relevant years in the present case, the rate applied in the parish of Brännkyrka, where the applicant lived, was 0.52 per cent. The Dissenter Tax Act stipulated that a person who was not a member of the Church of Sweden should pay a reduced church tax, the so-called dissenter tax. The reduction was motivated by the fact that non-members, referred to as dissenters, should pay the share of the tax that corresponded to the costs relating to the civil, i.e. non-religious, activities of the parish. The dissenter tax, like the church tax, was collected by the local tax authority and forwarded to the relevant parish. Originally, the dissenter tax amounted to 60 per cent of the ordinary church tax. In 1974 it was reduced to 30 per cent of what the members of the Church of Sweden had to pay. The rationale behind this change was that the share of the costs for the civil tasks performed by the Church – the keeping of population records and the maintenance of churchyards and public burial-grounds – amounted on average to approximately 30 per cent of the Church’s total costs (cf. Government Bill 1973:184, pp. 3-5). On 1 July 1991 the responsibility for the keeping of population records was transferred to the local tax authorities. With effect as from 1993, the dissenter tax was consequently further decreased, this time to 25 per cent of the amount paid by the members of the Church of Sweden. It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased (cf. Government Bill 1991/92:100, appendix 8, p. 141). Reference was made to the above-mentioned report on the economy of the Church of Sweden, according to which 1.25 billion SEK, or about 24 per cent of the Church’s total costs, related to the burial of the deceased. Under Chapter 42 of the Church Act the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so-called Church Fund. Poor parishes received a general equalisation subsidy which was not ear-marked for any particular purpose. They could also be granted extra subsidies for specific purposes. On 1 January 2000 the relations between the Swedish State and the Church of Sweden were changed, involving in practice a separation between the State and the Church. The Church Act and the Dissenter Tax Act were abolished. The parishes’ right of taxation, previously regulated in the Church Act and the Municipal Tax Act, was replaced with an obligation, laid down in section 7 of the new Act on the Swedish Church (Lagen om svenska kyrkan, 1998:1591), on persons belonging to the Church to pay a church fee. According to the new chapter 9 of the Burial Act, every person who is registered as resident in Sweden has to pay a burial fee to defray the costs of the burial of the deceased (section 1). The fee is based on the taxpayer’s taxable income (section 3) and is paid to the organ – parish or municipality – responsible for burials at the place where the individual is registered (section 2 § 1). In the municipalities where the local parishes are responsible for burials, the fee of the members of the Church of Sweden is to be included in the church fee (section 2 § 2). According to the Burial Fee Ordinance (Förordningen om begravningsavgift, 1999:729), the burial fee of non-members is fixed by the National Judicial Board for Public Lands and Funds (Kammarkollegiet) following a proposal by the Church of Sweden. The Church of Sweden and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of the Church – the National Judicial Board with the information needed to calculate and collect the fees. Under the new chapter 10 of the Burial Act, the relevant County Administrative Board supervises the parishes’ burial administration in respect of persons who are not members of the Church of Sweden. As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value, the Church of Sweden is to receive certain financial compensation from the State for the performance of this task.