BRUNO v. SWEDEN
Inadmissible
Gaukur Jörundsson;Wilhelmina Thomassen
The applicant is a Swedish national, born in 1946 and living in Vällingby. The respondent Government are represented by Ms E. Jagander, Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In December 1994 the tax authorities levied municipal and State tax on the applicant for the income year 1993 including, as part of the municipal income tax, a church tax to the Lutheran Church of Sweden. Not being a member of that Church, the applicant was entitled to a reduction of the church tax in accordance with section 1 of the Act on Reduction of Tax Liability of Persons Not Members of the Church of Sweden (Lag om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, 1951:691; hereinafter “the Dissenter Tax Act”). Accordingly, he was charged 625 Swedish kronor (SEK), or about 0.23 per cent of his taxable income, in church tax, which was paid to the relevant parish in Sollentuna. This amount corresponded to 25 per cent of the amount he would have had to pay had he been a member of the Church of Sweden. Upon review, the tax authorities upheld its decision on 23 March 1995. The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm, claiming that the levying of church tax on someone who is not a member of the Church of Sweden contravened, inter alia, the Swedish Constitution and Article 9 of the Convention. He requested the court to hold an oral hearing in the case. By a judgment of 19 May 1995 the court rejected the applicant's appeal and his request for an oral hearing. The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm which, on 6 November 1995, refused to hold an oral hearing and, on 22 December 1995, rejected the appeal against the tax decision, finding it to be in conformity with the Swedish Constitution and the Dissenter Tax Act. On 29 May 1996 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal. According to the Burial Act (Begravningslagen, 1990:1144), the parishes within the Church of Sweden are obliged to construct and maintain public burial-grounds, unless the Government decide in the case of a specific municipality that this task shall be performed by the municipality itself (chapter 2, section 1). The right to be buried in a public burial-ground is not dependent on the deceased being a member of a particular religious community (chapter 2, section 4). However, the responsible organ, whether it be the local parish or the municipality, is obliged to provide for separate burial-grounds for those who are not members of any Christian community. The construction and maintenance of such burial-grounds are done in consultation with the religious communities concerned (chapter 2, section 2). Decisions taken under the Act by the parish or the municipality may be appealed against to the County Administrative Board (länsstyrelsen) (previously regulated in chapter 9 of the Act, now in chapter 11). In the municipality where the applicant was liable to pay tax – as in most parts of Sweden – the burial administration remains with the local parish of the Church of Sweden. When the responsibility for the keeping of population records was transferred from the Church of Sweden to the local tax authorities in July 1991 (see further below), it was decided that the parishes should take care of population records made before that date until these old records have been transferred to the State archives (section 10 of the Act on Promulgation of the Population Registration Act; Lagen om införande av folkbokförings-lagen, 1991:481). It was estimated that it would take up to twenty years before all old records had been so transferred. The Church Act (Kyrkolagen, 1992:300) also specifically stipulated that a parish may, inter alia, use its financial means to acquire and maintain church buildings and other ecclesiastical property. At the material time, a church tax was collected together with the ordinary municipal tax. Chapter 21, section 1 of the Church Act referred in this respect to the provisions of the Municipal Tax Act (Kommunalskatte-lagen, 1928:370). The rate was determined by the local parish council which, under the transitional provisions of the 1974 Constitution (Regeringsformen), had a status similar to that of the municipalities, including the right of taxation. This system had a long tradition, based on the fact that the Lutheran Church of Sweden is the established church. In 1990 the rates applied by the parishes varied between 0.56 and 2.64 per cent of the taxpayer's taxable income. The lowest rates were applied by the parishes of Stockholm where it is the municipality – and not the parishes – that has the responsibility for the burial administration (cf. Svenska kyrkans ekonomi, Statskontoret 1991:12, p. 9, a report on the economy of the Church of Sweden made by the National Agency for Administrative Development). The Dissenter Tax Act stipulated that a person who was not a member of the Church of Sweden should pay a reduced church tax, the so-called dissenter tax. The reduction was motivated by the fact that non-members, referred to as dissenters, should pay the share of the tax that corresponded to the costs relating to the civil, i.e. non-religious, activities of the parish. The dissenter tax, like the church tax, was collected by the local tax authority and forwarded to the relevant parish. Originally, the dissenter tax amounted to 60 per cent of the ordinary church tax. In 1974 it was reduced to 30 per cent of what the members of the Church of Sweden had to pay. The rationale behind this change was that the share of the costs for the civil tasks performed by the Church – the keeping of population records and the maintenance of churchyards and public burial-grounds – amounted on average to approximately 30 per cent of the Church's total costs (cf. Government Bill 1973:184, pp. 3-5). On 1 July 1991 the responsibility for the keeping of population records was transferred to the local tax authorities. With effect as from 1993, the dissenter tax was consequently further decreased, this time to 25 per cent of the amount paid by the members of the Church of Sweden. It was considered that this percentage corresponded to the average costs of the parishes for the burial of the deceased (cf. Government Bill 1991/92:100, appendix 8, p. 141). Reference was made to the above-mentioned report on the economy of the Church of Sweden, according to which 1.25 billion SEK, or about 24 per cent of the Church's total costs, related to the burial of the deceased. Under Chapter 42 of the Church Act the tax revenue of the different parishes was to a certain extent equalised through payments to and subsidies from the so-called Church Fund. Poor parishes received a general equalisation subsidy which was not ear-marked for any particular purpose. They could also be granted extra subsidies for specific purposes. On 1 January 2000 the relations between the Swedish State and the Church of Sweden were changed, involving in practice a separation between the State and the Church. The Chuch Act and the Dissenter Tax Act were abolished. The parishes' right of taxation, previously regulated in the Church Act and the Municipal Tax Act, was replaced with an obligation, laid down in section 7 of the new Act on the Swedish Church (Lagen om svenska kyrkan, 1998:1591), on persons belonging to the Church to pay a church fee. According to the new chapter 9 of the Burial Act, every person who is registered as resident in Sweden has to pay a burial fee to defray the costs of the burial of the deceased (section 1). The fee is based on the taxpayer's taxable income (section 3) and is paid to the organ – parish or municipality – responsible for burials at the place where the individual is registered (section 2 § 1). In the municipalities where the local parishes are responsible for burials, the fee of the members of the Church of Sweden is to be included in the church fee (section 2 § 2). According to the Burial Fee Ordinance (Förordningen om begravningsavgift, 1999:729), the burial fee of non-members is fixed by the National Judicial Board for Public Lands and Funds (Kammarkollegiet) following a proposal by the Church of Sweden. The Church of Sweden and the municipalities responsible for burials are obliged to provide the tax authorities and – in the case of the Church – the National Judicial Board with the information needed to calculate and collect the fees. Under the new chapter 10 of the Burial Act, the relevant County Administrative Board supervises the parishes' burial administration in respect of persons who are not members of the Church of Sweden. As the parishes continue to be responsible for the care and maintenance of church buildings and other ecclesiastical property of historic value, the Church of Sweden is to receive certain financial compensation from the State for the performance of this task.