CASE OF NYKÄNEN 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 - Conviction;Criminal offence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1972 and lives in Espoo. 6. The tax inspector conducted a tax inspection in a company in 2005. 7. On 28 November 2005 the tax authorities considered that the applicant had received 33,000 euros (EUR) as disguised dividends from that company during the tax year 2003. An additional tax and a tax surcharge (veronkorotus, skatteförhöjning) of EUR 1,700 were imposed. 8. The applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 25 January 2006 the Tax Rectification Committee rejected the applicant’s application. It found that the applicant had given incomplete information to taxation authorities and tax had therefore been incompletely or partially levied. Therefore the additional tax and the tax surcharges imposed on him were not considered to be too high. 10. The applicant appealed to the Kuopio Administrative Court (hallinto-oikeus, förvaltningsdomstolen). 11. On 29 May 2008 the Kuopio Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee. 12. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). 13. On 1 April 2009 the Supreme Administrative Court refused the applicant leave to appeal. 14. On 19 August 2008 the public prosecutor brought charges against the applicant of, inter alia, tax fraud (veropetos, skattebedrägeri) concerning the tax year 2003. According to the charges, the applicant was accused of tax fraud as he had under-declared his income. The undeclared income amounted to EUR 33,000 for the tax year 2003 and, consequently, the tax imposed in 2003 had been EUR 12,420 too low. 15. On 13 February 2009 the Tuusula District Court (käräjäoikeus, tingsrätten) convicted the applicant of tax fraud and imposed a suspended prison sentence of 8 months. He was also ordered to pay to the tax authority EUR 9,500 plus interest. The court found that the amount of disguised dividends was EUR 26,882.90 and that the tax due amounted to EUR 9,500. 16. By letter dated 26 April 2010 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed. 17. On 25 March 2010 the Helsinki Appeal Court convicted the applicant as charged and sentenced him to 10 months in prison. It ordered the applicant to pay the tax authorities EUR 12,420 plus interest. The court found that, contrary to the opinion of the District Court, the value-added tax was to be included in the amount of disguised dividends. The correct amount of disguised dividends was thus EUR 33,000 and the tax evaded amounted to EUR 12,420. 18. By letter dated 24 May 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges and the compensation claim be dismissed without examining the merits or alternatively that they be rejected. He claimed, by referring to Article 4 of Protocol No. 7 to the Convention and to the Court’s case-law, that the ne bis in idem principle had been violated as tax surcharges had already been imposed for the same acts by a decision which had become final. 19. On 1 September 2010 the Supreme Court refused the applicant leave to appeal.