VP-KULJETUS OY AND OTHERS v. FINLAND
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant company, VP-Kuljetus Oy, is a Finnish limited liability company which has its seat in Rauha. The second and third applicants, Mr Kyösti Juhani Hynninen and Mr Arto Sakari Piiparinen, are Finnish nationals who live in Ruokolahti and Helsinki respectively. The applicants are represented before the Court by Mr Kari Uoti, a lawyer practising in Helsinki. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The second and third applicants are the owners and the only board members of the applicant company. The applicant company was in the transport business in Russia. Before returning from Russia, the tanks of the company trucks were normally filled with diesel and legally imported into Finland. Such diesel was tax and customs free and there was no obligation to inform the authorities about it. However, such diesel could not be used in any other vehicles unless customs and excise duties were paid. 5. Between December 2000 and December 2006 some of the diesel brought to Finland in the applicant company’s trucks was removed from the tanks and transferred to a container situated on the company premises. From there the diesel was further transferred to other company cars, as well as to the personal cars of the second and third applicants. No customs and excise duties or other fees were paid. 6. On 15 May 2007 the Customs Office ordered the applicant company, jointly with the second and third applicants, to pay customs duties, valueadded tax and excise in the amount of 61,520.24 euros (EUR) for the years 2004, 2005 and 2006. These import taxes were levied because the diesel imported from Russia had been removed from the tanks of the trucks and transferred to a container for purposes other than the repair of the vehicles in question. Apparently this decision was not appealed against. 7. On 19 March 2008 the public prosecutor brought charges against the second and third applicants for aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the time between December 2000 and December 2006. They were accused of aggravated tax fraud because, as board members of the applicant company together with a third person and in their personal capacity, they had participated in tax evasion by transferring 234,138 litres of diesel imported from Russia to other cars without paying any import taxes, namely customs duties, value-added tax and excise. The amount of evaded taxes had totalled EUR 115,839.10. 8. On 3 October 2008 the Lappeenranta District Court (käräjäoikeus, tingsrätten) convicted the second and third applicants as charged and sentenced both of them to an 8-month suspended prison sentence. They were ordered to pay jointly to the customs authorities EUR 54,318.29 plus interest as compensation for different taxes evaded during the years 2001, 2002 and 2003. 9. By letter dated 30 October 2008 the second and third applicants appealed to the Kouvola Appeal Court (hovioikeus, hovrätten), requesting that the District Court judgment be quashed. 10. On 4 June 2009 the Kouvola Appeal Court upheld the District Court judgment. 11. By letter dated 25 June 2009 the second and third applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges be dismissed and the compensation claims be rejected. 12. By letter dated 3 July 2009 the second and third applicants referred to a recent case of the Court concerning ne bis in idem and requested the Supreme Court to take it into account as an alternative to their primary claims. 13. On 22 December 2009 the Supreme Court refused the second and third applicants leave to appeal. 14. On 5 September 2007 the Vehicle Administration (Ajoneuvohallintokeskus, Fordonsförvaltningscentralen), the current Finnish Transport Safety Agency (Liikenteen turvallisuusvirasto, Trafiksäkerhetsverket), imposed on the applicants a fuel fee (polttoainemaksu, bränsleavgift) and an additional tax (lisävero, tilläggsskatt) concerning the years from 2002 to 2006 for having used more leniently taxed diesel than diesel oil in their vehicles without giving any prior notification to the authorities. The fee and the additional tax for the applicant company amounted to EUR 1,827,570. The second applicant was ordered to pay EUR 51,381 and the third applicant EUR 99,045 respectively in fuel fees and additional tax for having used untaxed diesel in their private cars. 15. By letter dated 14 September 2007 the applicants appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that the taxes and fees should be quashed as they had no legal basis. 16. On 24 September 2007 the Vehicle Administration decided to stay the order to pay the above fuel fees and additional taxes until the Administrative Court could decide on the enforcement of the taxes in question. 17. On 16 October 2007 the Administrative Court stayed the attachment of the above fees and taxes by allowing a seizure but prohibiting their sale. This stay on enforcement was to remain in force until the final decision in the case. 18. On 2 July 2008 the Administrative Court rejected the applicants’ appeals. 19. By letter dated 30 August 2008 the applicants appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. 20. During the written phase, the Supreme Administrative Court asked the parties ex officio to comment on the Court’s recent judgment Ruotsalainen v. Finland in the context of the present case. The tax authorities affirmed in their statement of 6 May 2010 that the subject of the tax fraud proceedings and the obligation to pay fuel fees did not concern the same set of events but events which were distinct in time and place. The applicants argued in their submission of 11 September 2010 that all sanctions imposed in the case (taxes, fees, order to pay compensation and criminal sanctions) were based on the same set of facts. 21. On 16 September 2011 the Supreme Administrative Court granted the applicants leave to appeal but rejected their appeals. It thus upheld the Administrative Court’s decisions. It found that the fuel fees concerning the years 2002 and 2003 had been imposed threefold and those concerning the years 2004 to 2006 had been increased by 50%. The second and third applicants had been convicted of aggravated tax fraud for failure to pay import taxes on diesel imported between 2000 and 2006 by a judgment that had become final on 22 December 2009. As the criminal proceedings concerned failure to pay import taxes on the imported diesel and the fuel fees concerned the use of such diesel after the importation into Finland, it was not a question of the same matter. The ne bis in idem principle had thus not been violated. 22. 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 taxation 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. 23. If a more leniently taxed oil than diesel oil is used as motor fuel, prior notice of such intended use must be given and additional tax and/or a fuel fee shall be paid. According to the Fuel Fee Act (laki polttoainemaksusta, lagen om bränsleavgift, Act no. 337/1993), which was in force until 31 December 2003, the fuel fee was not collected on the fuel contained in the tank of a vehicle when the vehicle was imported. If the use of a more leniently taxed fuel than diesel oil was discovered in a vehicle during a time in respect of which no prior notification had been given, the fuel fee collected was to be three times the normal amount. The current Fuel Fee Act (Act no. 1280/2003), which entered into force on 1 January 2004, contains the same provisions except for the increased amount of the fee. The fee shall be increased by a maximum of 30% if no prior notification has been made, by a maximum of 50% if the use is repetitive and at most it can be doubled in aggravated cases.