CASE OF GLANTZ 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)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1957 and lives in Klaukkala. 6. The tax inspector conducted a tax inspection of the applicant’s attorney’s office in 2006. 7. On 18 and 19 December 2006 the tax authorities considered that the applicant had received disguised dividends from his company during the tax years 2000 to 2004. The amounts of the disguised dividends were the following: 107,152 euros (EUR), EUR 1,673, EUR 48,711, EUR 32,759, and EUR 18,842. Additional taxes and tax surcharges (veronkorotus, skatteförhöjning) were imposed in the amount of EUR 5,300, EUR 84.09, EUR 2,400, EUR 1,600 and EUR 900 respectively. 8. By letter dated 9 March 2007 the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 30 May 2007 the Tax Rectification Committee rejected the applicant’s requests. 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. By letter dated 11 June 2007 the applicant appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen). 11. On 22 December 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee. 12. By letter dated 27 February 2009 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). 13. On 11 January 2010 the Supreme Administrative Court refused the applicant leave to appeal. 14. On 15 December 2008 the public prosecutor brought charges against the applicant on, inter alia, five counts of embezzlement and two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning the tax years 1997 to 2003. According to the charges, the applicant was accused of aggravated tax fraud as, in his personal capacity, he had underdeclared his income. The undeclared income amounted in total to EUR 500,895 and, consequently, the tax imposed had been EUR 263,711.68 too low. 15. On 6 November 2009 the Helsinki District Court (käräjäoikeus, tingsrätten) convicted the applicant, inter alia, on four counts of embezzlement and two counts of aggravated tax fraud and sentenced him to a prison sentence of 2 years and 8 months. He was also ordered to pay the taxation authority EUR 214,168.38 plus interest. 16. By letter dated 25 January 2010 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed. He claimed, inter alia, that one of the embezzlement charges was statute-barred. 17. On 23 December 2010 the Helsinki Appeal Court, after having held an oral hearing on 28 and 29 October 2010, convicted the applicant as charged and sentenced him to 2 years and 8 months in prison. It upheld the District Court’s judgment in respect of the compensation award. The court found that one of the embezzlement charges was not statutebarred. As concerned the aggravated tax fraud in the applicant’s personal taxation, the court noted that tax surcharges had been imposed on the applicant and that the taxation proceedings had become final on 11 January 2010. As the charges had been brought on 20 August 2009, that was, before the taxation proceedings had become final, there were no obstacles to examining the charge concerning aggravated tax fraud. 18. By letter dated 21 February 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges be dismissed. He claimed that there had been a lack of a fair trial and a violation of the legality principle in respect of the embezzlement charges as he had been convicted of something other than the charges against him and the conviction had been based on a wrong Penal Code provision. Also one of the changes had been statute-barred. As concerned the tax fraud charges, he claimed that the ne bis in idem principle had been violated when he was convicted of aggravated tax fraud in respect of his personal taxation. That principle and the legality principle had also been violated when he was convicted of aggravated tax fraud and bookkeeping crime as a representative of the company as the undeclared income was the same as in his personal taxation. He also claimed that there had been a lack of a fair trial before the Appeal Court as he was not allowed to obtain detailed information about the charges and to put questions to one of the witnesses. 19. On 18 May 2011 the Supreme Court refused the applicant leave to appeal. 20. By letter dated 6 June 2011 the applicant lodged an application for an extraordinary appeal with the Supreme Court, requesting, inter alia, that the execution of the prison sentence be stayed. He repeated this request on 10 July 2011, and on 24 and 29 August 2011. 21. On 15 June, and 17, 25 and 30 August 2011 the Supreme Court refused to grant a stay of execution. 22. On 31 August 2011 the applicant started serving his sentence. 23. On 12 December 2011 the Supreme Court refused the applicant’s request for the reopening of the case. 24. By letter dated 16 December 2011 the applicant lodged a new extraordinary appeal with the Supreme Court concerning its decision of 12 December 2011. He referred, inter alia, to Article 6 of the Convention and the lack of a fair trial. 25. It is not known whether the case is still pending before the Supreme Court. 26. By letters dated 24 and 29 August 2011 and 7 February 2012 the applicant lodged a complaint with the Chancellor of Justice (oikeuskansleri, justitiekanslern), asking him to examine whether the Supreme Court justices had acted in accordance with the law and their duties when rendering the decision of 12 December 2011. 27. On 20 March 2012 the Chancellor of Justice informed the applicant that he was not going to investigate the matter as it was still pending before the Supreme Court. However, he indicated that the general interpretation was that the duty to give reasons did not apply to decisions concerning leave to appeal or extraordinary remedies. 28. By letter dated 14 May 2012 the applicant asked the Chancellor of Justice to re-examine the matter and to take action in order to have the Supreme Court decision of 12 December 2011 re-opened. 29. It is not known whether the case is still pending before the Chancellor of Justice.