SIMONJAN-HEIKINHEIMO v. FINLAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Ms Loretta Simonjan-Heikinheimo, is a Finnish national who was born in 1951 and lives in Vantaa, Finland. She was represented before the Court by Ms S. Rautio, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties and as they appear from the documents on the file, may be summarised as follows. The applicant moved to Russia in 1991. She returned to live in Finland in 1994, bringing with her a Mercedes-Benz 600 SE, which was cleared through customs on 26 July 1994. The car was brought into Finland tax free, because the applicant completed a declaration to the effect that she had lived abroad for over a year and that, during this time, she had spent less than 72 days in Finland. On 4 May 1995, the applicant was questioned by the police on suspicion of aggravated tax fraud. On the same day, customs officials temporarily confiscated her car as security. On 13 June 1995, the Lahti District Court, in connection with the criminal proceedings, ordered that it be kept until further notice. On 10 October 1995, the Lahti City Customs Office (tullikamari, tullkammaren) reassessed the circumstances and levied a duty on the car, ordering the applicant to pay customs duty, car tax, value-added tax, and a surcharge on these amounts, to a total of FIM 920,662 (EUR 154,844). It noted that the applicant had not been in possession of the car abroad for the required period of one year. Also, she had not limited her stays in Finland to the 72 days allowed during the year before the move, but had stayed in Finland for a total of 117 days. She had informed the customs authorities that she had spent 70 days in Finland. The customs office noted that practice regarding the number of days allowed was flexible. However, by law, attention had to be paid to the length of and reason for the stays. Holidays and stays in order to prepare for the move were acceptable, but the applicant had also stayed in Finland for her work for several days at a time, which could not be regarded as an acceptable reason. On 27 September 1996, the Uusimaa County Administrative Court (lääninoikeus, länsrätten), on an appeal by the applicant, upheld the decision, but reduced the amount payable On 23 June 1997, again on an appeal by the applicant, the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) quashed the previous decisions. It noted that the applicant had lived in Russia from 1991 until her move to Finland on 26 July 1994 and that there had been an acceptable reason for her stays in Finland. Meanwhile, the public prosecutor had brought charges against the applicant for aggravated tax fraud. On 14 August 1997, the District Court (käräjäoikeus, tingsrätten) discontinued the confiscation measure and the car was subsequently returned to the applicant. On 21 August 1997, due to the Supreme Administrative Court’s decision, the District Court rejected the charge for aggravated tax fraud. On 16 August 1999 the applicant instituted proceedings against the State. Relying on the Tort Liability Act and the Execution Act and alleging that the customs office’s decision, and as a consequence the confiscation, had been erroneous since they were based on a wrong interpretation of the law, she claimed compensation for various items such as loss of the use of the car, repair costs, depreciation, expenses and so on to a total of some FIM 533,000 (EUR 89,644). On 14 April 2000, the Lahti District Court, under Chapter 3, section 2, of the Tort Liability Act, ordered the State to pay the applicant a total of FIM 302,089 (EUR 50,808) on the ground that the customs office had failed to observe due thoroughness in examining a case which involved such a large amount of money and was consequently of great importance to the applicant. On 20 December 2001, the Kouvola Court of Appeal (hovioikeus, hovrätten) quashed the District Court’s decision, exonerating the State from any liability. Contrary to the District Court, it held that the actions of the customs authorities had met the reasonable requirements set and therefore the State was not responsible under the Tort Liability Act for the damage alleged. As to the Execution Act, it found that the applicant had introduced her claims after the statute of limitations had expired and thus too late. On 27 August 2002, the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. Chapter 3, section 2, of the Tort Liability Act (vahingonkorvauslaki; skadeståndslagen, Act no. 412/1973) provides that a public corporation is vicariously liable for damages for injury or damage caused through an error or negligence in the exercise of public authority. The same liability also applies to other corporations performing a public task under an Act, a Decree or an authorisation given in an Act. However, the liability of the corporation arises only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements set. Article 15 of the Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that the property of everyone is protected. Provisions on the expropriation of property, for public needs and in consideration of full compensation, are laid down by an Act. Article 118(3) provides that everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task has the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation, official or other person in charge of a public task be held liable for damages, as provided in more detail by an Act. In a Supreme Court precedent (no. 2002:78) it was held that Chapter 3, section 2(1), of the Tort Liability Act does not give rise to liability for damages on the sole ground that a decision based on a judicial assessment is subsequently overturned as erroneous following reassessment by an appellate body. In order for a judicial assessment to be considered so wrong as to give rise to liability for damages, regard must be had to various factors, in particular to the nature of the legal provisions, the application of which is the subject of the case. The clarity and unambiguous nature of the provisions is to be assessed, as are the complexity of the case and whether the case leaves room for discretion. Section 14 of the Customs Tax Act (tulliverolaki, tullskattelagen; Act no. 575/1978 in force at the relevant time) provided that the private property of a person immigrating to Finland was exempt from duty on the condition that the immigrant had, immediately before the immigration, stayed abroad for at least one year continuously. In addition it was required, inter alia, that an imported vehicle had been in the ownership, or in the possession leading to ownership, of the immigrant or his or her spouse or in the immigrant’s use abroad for at least one year prior to the immigration. Exemption from duty was granted when the immigrant had, prior to the immigration, stayed temporarily in Finland in order to look for work or a dwelling or for a reason which, considering his or her circumstances, was deemed compelling, or because of an ordinary holiday or comparable short stay. When applying this provision, the authorities paid attention to both the duration of the immigrant’s stays and their reason. Although the provision did not explicitly provide for a maximum duration of temporary stays, the authorities took account of the so-called “72 days rule” applied in cases of income taxation. Although the wording of the provision did not permit actual work-related visits, short working visits were permitted in practice and were not as such deemed to interrupt the stay abroad. Section 35 of the Customs Act (tullilaki, tullagen; Act no. 1165/1987) provides that if customs duties have not been paid or have been paid only in part because the declarant has entirely or in part failed to comply with the obligation to declare goods, or has intentionally or unintentionally provided a defective, misleading or false customs declaration or other information or documents for customs taxation, or if too much duty has been repaid for a similar reason, the relevant customs office shall charge the duty not paid or the duty repaid in excess for the aforementioned reasons (post-clearance duty). Chapter 3, section 14, of the Execution Act (ulosottolaki; utsökningslagen; Act no. 389/1973 in force at the material time) provided that when a judgment was reversed, the applicant had to cover all damage caused by the implementation of, inter alia, a confiscation. Chapter 3, section 37, provided that any request for compensation for costs and damage caused by a reversed implementation must be brought within one year of the date on which the judgment on the matter to which the implementation related gained legal force and the implementation was completed or reversed.