CASE OF ÖSTERLUND v. FINLAND
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)
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1962 and lives in Karjaa. 6. In 2004 and 2005 the applicant’s two companies were subject to a tax inspection. The tax inspection was concluded with a final report on 20 December 2005. 7. On 25 August and 12 September 2006 the tax authorities imposed on the applicant additional taxes as well as tax surcharges (veronkorotus, skatteförhöjning) for the tax years 2000 to 2003 as he had, inter alia, received disguised dividends from the companies. The amount of tax surcharges varied between 240 and 5,000 euros (EUR). 8. By letter dated 16 September 2008 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 25 August and 12 September 2006 concerning the tax years 2002 to 2003. 9. By letter dated 16 September 2008 the applicant lodged a material appeal (perustevalitus, grundbesvär) with the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen) in respect of the tax years 2000 and 2001. 10. On 24 February 2010 the Tax Rectification Committee rejected the applicant’s applications for rectification concerning the tax years 2002 and 2003. 11. By letter dated 12 April 2010 the applicant appealed against the rectification decisions of 24 February 2010 to the Helsinki Administrative Court, requesting that the taxation decisions concerning the tax years 2002 and 2003 be quashed and the tax surcharges be withdrawn. He referred to the ne bis in idem principle and claimed that the taxation decisions violated that principle. 12. On 5 April 2011 the Helsinki Administrative Court cancelled some of the tax surcharges in respect of tax years 2001 to 2003 and quashed the relevant tax decisions. For the rest, it rejected the applicant’s appeals. The court found that there was no impediment to imposing taxes on disguised dividends even if there was already a final criminal judgment in this respect, because imposing taxes on disguised dividends was not considered criminal. There could thus be no question of double jeopardy in this respect. The taxation decisions for the tax years 2002 and 2003 were thus upheld. As far as the tax surcharges and the right to impose additional taxes were concerned, the court found that the tax surcharges and the charges on tax fraud concerned the same matter. The tax surcharges thus related to acts in respect of which the applicant had already been convicted or acquitted. As both matters were pending simultaneously and not consecutively, there was no impediment to continuing the taxation proceedings. Even if the criminal proceedings became final while the taxation proceedings were still pending, this did not prevent the continuation of the taxation proceedings. There was thus no reason to change the tax surcharges as far as the corresponding criminal charges had been dismissed, namely, in respect of the disguised dividends received during the tax years 2002 and 2003. As far as the proceedings led to both criminal conviction and imposition of tax surcharges, the situation was contrary to Article 4 of Protocol No. 7 to the Convention and the tax surcharges were therefore cancelled in respect of tax years 2001 to 2003. The decision was not unanimous. 13. By letter dated 13 June 2011, the applicant appealed against the Administrative Court decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. He argued that his acquittal prevented the further examination of the same matter in taxation proceedings. 14. On 23 January 2013 the Supreme Administrative Court refused the applicant leave to appeal but granted the Tax Ombudsman (veroasiamies, skatteombudet) leave to appeal. It quashed the Administrative Court’s decision regarding cancellation of the tax surcharges and upheld the lower court’s decisions. The court found that it had, in its decision of 20 April 2011, examined the scope of the ne bis in idem principle and the Court’s case-law in this respect. In the present case the charges and the tax surcharges concerned essentially the same matter. However, the ne bis in idem principle was applicable only when the first set of proceedings had become final before the second set of proceedings started. In the present case the proceedings had been simultaneous. Tax surcharges could thus be imposed on the applicant even if the criminal proceedings against him had already become final. The Administrative Court’s decision thus needed to be quashed. 15. On 25 April 2007 the public prosecutor brought charges against the applicant, inter alia, for aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 2001 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as he had avoided taxes. The tax authorities joined the charges and presented a compensation claim totalling EUR 150,508.52 plus interest, which was the amount of avoided taxes. 16. On 20 March 2008 the Raasepori District Court (käräjäoikeus, tingsrätten) convicted the applicant of aggravated tax fraud, and sentenced him to a suspended prison sentence of 7 months. He was ordered to pay the tax authorities EUR 89,113.80 plus interest in compensation for the avoided taxes. The court found that the applicant had avoided taxes during the tax years 2001 to 2003 but dismissed the charges as far as they concerned the disguised dividends, for lack of proof. 17. By letter dated 14 August 2009 the applicant appealed to the Turku Appeal Court (hovioikeus, hovrätten), requesting that the charges of aggravated tax fraud be dismissed as tax surcharges had already been imposed in the matter. 18. On 15 April 2009 the Turku Appeal Court upheld the District Court judgment. It found that possible tax surcharges imposed on the applicant did not prevent him from being convicted of tax fraud and sentenced. 19. On an unspecified date the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. 20. On an unspecified date, the Supreme Court granted the applicant leave to appeal. 21. On 19 November 2010 the Supreme Court upheld the Appeal Court judgment. It found that the charges of aggravated tax fraud undisputedly concerned the same failure to declare income for which tax surcharges had been imposed for the tax years 2001 to 2003. The court found that the fact that taxation proceedings became final while criminal proceedings were still pending did not prevent the examination of the charges being continued. In the present case, the charges had been brought before the time-limit for lodging an application for rectification had run out. The tax surcharges in respect of the tax years 2001 to 2003 were thus all still pending before the Administrative Court. As the charges had been brought while the taxation proceedings had not yet become final, there was no impediment to examining the charges of aggravated tax fraud. This judgment was published (KKO 2010:82).