CASE OF KIIVERI 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;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
5. The applicant was born in 1960 and lives in Tampere. 6. The applicant owns 90% of the shares in a limited liability company which is active in the construction and decoration business. The applicant is the managing director and a member of the board of directors of the company. 7. In 2005 the tax authorities carried out a tax inspection of the company and concluded that it had failed to declare and pay a considerable amount of taxes and that it had, inter alia, paid salaries off the books and undertaken other fraudulent activity. 8. On 8 September 2008 the tax authorities imposed additional income tax and also tax surcharges (veronkorotus, skatteförhöjning) both on the company and on the applicant for the tax years 2002, 2003, 2005 and 2006. The applicant apparently did not appeal against those decisions and the bailiff seized the imposed sums. The period set for appeal in tax matters is five years counted from the beginning of the calendar year following the year when the initial taxation decision was taken. Therefore the taxation concerning the tax years 2002, 2003 and 2005 became final on 31 December 2008, 31 December 2009, and 31 December 2011 respectively. The period for appeal for the tax year 2006 elapsed on 31 December 2012. 9. In June 2007 the police started a criminal investigation into the applicant’s activities. On 6 March 2009 the prosecutor brought charges against the applicant for accounting offence (kirjanpitorikos, bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) on two counts. The first count concerned the tax years from 2000 to 2006 and the applicant’s activities as the managing director and a member of the board of directors of the company. The applicant was accused of aggravated tax fraud as he had deducted fabricated receipts, failed to declare the company’s real income, paid salaries off the books and, consequently, the tax imposed on the company had been too low. The second count concerned the tax years from 2000 to 2003 and from 2005 to 2006. The applicant was accused of aggravated tax fraud as he had failed to declare his own income and, consequently, the tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes. 10. On 9 September 2009 the District Court of Tampere (käräjäoikeus, tingsrätten) convicted the applicant of two counts of aggravated tax fraud as charged and of accounting offence. He was sentenced to imprisonment for three years and ordered to pay the tax authorities 685,080.66 euros (EUR) plus interest as compensation. It was noted that the sums already seized from the applicant in the administrative proceedings could be deducted from the compensation. In addition, he was banned from undertaking business activities for six years. 11. By letter dated 9 October 2009 the applicant appealed to the Court of Appeal of Turku (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charges dismissed. He relied also on the principle of ne bis in idem and the Court’s case-law in that respect. 12. On 15 September 2010 the Court of Appeal, after having held an oral hearing, upheld the judgment for the most part, but considered in part that the accounting offence was aggravated and ordered the applicant to pay EUR 20,000 more compensation to the State. The court considered that, as long as the time-limit for appeal had not elapsed with regard to the tax years 2003, 2005 and 2006 at the moment of bringing the charges against the applicant in 2009, there was no issue of ne bis in idem. Furthermore, it considered that, as concerned the tax year 2002, the time-limit for appeal had elapsed on 31 December 2008 and thus the taxation had become final before the charges were brought against the applicant. However, as there still existed another kind of tax appeal which the applicant could have used, the Court of Appeal finally considered that the ne bis in idem principle did not prevent the examination of the charges against the applicant also concerning the tax year 2002. 13. By letter dated 12 October 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. He also requested an interim order staying the execution of the lower court’s judgment. 14. On 27 February 2012 the Supreme Court dismissed, without examining the merits, that part of the criminal conviction that concerned the tax year 2002 as it considered that the fact that the tax surcharges imposed on the applicant had become final in 2008, that is, before the charges had been brought against the applicant in March 2009, prevented the examination of the matter. Otherwise the lower court’s judgment was upheld. The court considered that as long as the time-limit for appeal had not elapsed with regard to the other tax years at the moment when the charges were brought against the applicant, there was no issue of ne bis in idem. As a part of the applicant’s conviction was dismissed without examining the merits, his sentence was accordingly also lowered to imprisonment for 2 years and 10 months. 15. On 21 August 2012 the applicant lodged an extraordinary appeal with the Supreme Court, requesting the reopening of the case on the basis of incorrect application of the law and the prohibition on self-incrimination. 16. Apparently in March 2013 this extraordinary appeal was refused by the Supreme Court.