CASE OF PIRTTIMÄKI v. FINLAND
No violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1955 and lives in Jyväskylä. 6. The applicant owned shares in a limited liability company. In 2001 and 2002 a tax inspection was conducted in the company for the tax years 1996 to 2001. The tax inspectors found that the company was not owned by four different English companies but in reality the applicant and three other Finnish persons owned it, with equal shares. 7. On 26 February 2003 additional taxes and tax surcharges (veronkorotus, skatteförhöjning) were imposed on the company for the tax years 1997 to 1999 and 2001. 8. The company sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 16 March 2005 the Tax Rectification Committee partly accepted, partly rejected the company’s applications. 10. The applicant, in the name of the company, appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), claiming that he owned the whole company through four English companies. 11. On 28 February 2007 the Helsinki Administrative Court rejected the company’s appeal and upheld the taxation decisions. It found that there was no proof that the English companies had in fact been sold to the applicant but, on the contrary, the case documents showed that in reality all four Finnish persons behind the English companies had equally exercised their powers in the company. 12. On 10 August 2009 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) refused the company leave to appeal. 13. In connection with the company taxation, additional taxes and tax surcharges were also imposed on the applicant as he had received disguised dividends from the company. He was to pay 8,500 Finnish marks (FIM) in tax surcharges for the tax year 1997 (1,429.60 euros, EUR), FIM 5,000 for the tax year 1998 (EUR 1,021.43), FIM 6,000 for the tax year 1999 (EUR 1,211.64) and FIM 10,000 for the tax year 2001 (EUR 1,904.50). 14. The applicant sought rectification from two local Tax Rectification Committees. 15. On 25 April 2005 the Sisä-Suomi Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1998, 1999 and 2001. 16. On 31 May 2005 the Kaakkois-Suomi Tax Rectification Committee rejected the applicant’s application in respect of the tax year 1997. 17. The applicant appealed to the Administrative Court, claiming that there was no reason to impose additional taxes and tax surcharges as he was the only shareholder in the company. 18. On 16 April 2007 the Hämeenlinna Administrative Court rejected the applicant’s appeal against the decisions concerning the tax years 1998, 1999 and 2001. It found that in reality the company was owned by four Finnish persons with equal shares and therefore the taxation decisions were not incorrect. 19. On 30 December 2008 the Kouvola Administrative Court rejected the applicant’s appeal against the decision concerning the tax year 1997. It found, like the other courts, that the applicant could not be regarded as the sole owner of the company. 20. On 10 August 2009 the Supreme Administrative Court refused the applicant leave to appeal against any of the above-mentioned tax decisions. 21. On 7 March 2002, on the basis of the tax inspection, the tax authorities requested the police to investigate the matter. The applicant was arrested on 4 June 2002 and his office was searched the same day. He was questioned by the police for the first time on 5 June 2002 and was released thereafter. The pre-trial investigation was concluded on 29 December 2006. 22. On 11 July 2008 the public prosecutor pressed charges against the applicant. The applicant was accused, on the company’s count, of an accounting offence (kirjanpitorikos, bokföringsbrott) for having introduced incorrect and misleading information in the company bookkeeping between 1997 and 2001, and of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) for having given incorrect information to the tax authorities between 1998 and 2002. As a result, the company had evaded EUR 59,335.69 in taxes. 23. On 30 September 2009 the Kotka District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and sentenced him to a one year suspended sentence. As to the length of the proceedings, the court noted that the proceedings had lasted by then 7 years and 4 months. The proceedings had been unusually long and the length was not attributable to the applicant. The proper sentence for the applicant would have been imprisonment for one year but due to the excessive length it was turned into a suspended sentence. 24. The applicant appealed to the Appeal Court (hovioikeus, hovrätten), requesting that the charges be dropped as he had already been convicted in the matter: tax surcharges had been imposed on him and a final decision delivered. 25. On 2 July 2010 the Kouvola Appeal Court upheld the District Court’s judgment. As to ne bis in idem, the court found that the decisions containing tax surcharges had become final on 10 August 2009. As the charges had been pressed before that, on 11 July 2008, there was no impediment to the examination of the case as the charges had been brought before the administrative proceedings became final. As to the merits, the court found that the applicant’s true position in the company had been concealed in order to avoid his responsibilities and that in reality he had been as much involved as the other shareholders. He could thus be held responsible for the company’s bookkeeping as well as the incorrect information given to the tax authorities. 26. By letter dated 30 August 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court and claiming in particular that he had been convicted twice in the same matter. He also pointed out that the proceedings had already lasted for more than 8 years. 27. On 14 December 2010 the Supreme Court refused the applicant leave to appeal.