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Date when decision was rendered: 13.10.1983 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 4160; 5544/55/82 Reference to source KHO 1983-A-15. Yearbook of the Supreme Administrative Court 1983 A, General Part Högsta förvaltningsdomstolens årsbok 1983 A, allmän del Korkeimman hallinto-oikeuden vuosikirja 1983 A, yleinen osa Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1985 Pages: pp. 56-57 Subject
respect for private life,
taxation,
Relevant legal provisions Section 49 of the Tax Act; section 12 of the Constitution Act; Chapter 17, section 23-1 of the Code of Judicial Procedure = skattelagen 49 §; regeringsformen 12 §; rättegångsbalken 17 kapitel 23 § 1 mom. = verolaki 49 §; hallitusmuoto 12 §; oikeudenkäymiskaari 17 luku 23 § 1 mom. Abstract Basing its request on the Tax Act, the county tax authorities asked the board of the state telephone company to report the number of calls ordering a taxi received by taxi company X during a certain period.The board refused, stating that giving out such information was contrary to the telephone secrecy guaranteed in section 12 of the Constitution Act and therefore not allowed for public servants under Chapter 17, section 23-1 of the Code of Judicial Procedure.The tax authorities appealed to the Supreme Administrative Court. The Supreme Administrative Court found that sections 40 and 49 of the Tax Act oblige the authorities to upon request provide the tax authorities with information needed for taxation purposes, unless the information requested concerns matters which they are not permitted under law to testify about.According to the Court, information on the number of calls ordering a taxi was not embraced by section 12 of the Constitution Act or otherwise such information that should be kept secret from tax authorities under section 40 of the Tax Act.Taking this into account as well as the fact that it had not been argued that the information would not be necessary for taxation purposes, the state telephone company was obliged to provide the tax authorities with the information requested.The case was returned to the board of the state telephone company for a new consideration. 21.4.1998 / 30.5.2006 / RHANSKI
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| [2 / 9] |
Date when decision was rendered: 6.10.1998 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 2147/1998 (1341/2/97) Reference to source KHO 1998:53. Yearbook of the Supreme Administrative Court 1998 July-December Högsta förvaltningsdomstolens årsbok 1998 juli-december Korkeimman hallinto-oikeuden vuosikirja 1998 heinä-joulukuu Place of publication: Helsinki Publisher: The Supreme Administrative Court Date of publication: 1999 Pages: pp. 143-160 Subject
right to property,
equality,
taxation,
Relevant legal provisions Income Tax Act; sections 5 and 6 of the Constitution Act = inkomstskattelagen; regeringsformen 5 §, 6 § = tuloverolaki; hallitusmuoto 5 §, 6 §. ECHPR-1-1 Abstract Parliament had enacted a law that increased the taxation of certain forms of income based on the possibility of a company employee to benefit from the company's shares.The law had been amended so that it affected benefits received after the date the Government Bill in question had been presented to Parliament, i.e. with limited retroactive effect.The Supreme Administrative Court dismissed the claim that the taxation decision affecting the applicant would violate the right to property, as guaranteed in section 6 of the Constitution Act.The Court stated that the taxation in question did not violate Article 1 of Protocol No. 1 to the ECHR.Furthermore, the Court dismissed the claim that the taxation would violate the right to equal treatment, as prescribed in section 5 of the Constitution Act. 23.10.2002 / 27.3.2003 / LISNELLM
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| [3 / 9] |
Date when decision was rendered: 2.7.2004 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report no. 1059; U04/540 Reference to source VaaHO 2004:5. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
fair trial,
taxation,
effective remedy,
Relevant legal provisions sections 1 and 9 of the Act (367/1961) concerning the collection of taxes and public fees through execution = lag om indrivning av skatter och avgifter i utsökningsväg 1 § och 9 § = laki verojen ja maksujen perimisestä ulosottotoimin 1 § ja 9 §. ECHR-6; ECHR-13 Abstract A's property had been taken in execution for the payment of a punitive tax increase, among other debts.She claimed before the court of first instance that unlike decisions on taxes and public fees, those concerning a punitive tax increase cannot be enforced before they have been confirmed by a court.The court of first instance agreed with A.The punitive tax increase imposed on A was not based on a court decision but on administrative decisions against which A had appealed.With reference to the European Court of Human Rights and the case of Janosevic v.Sweden (judgment of 23 July 2002, Reports of Judgments and Decisions 2002-VII), the court held that a tax increase imposed in an administrative procedure is partly punitive and is thus covered by the requirements set in Article 6 of the ECHR.Therefore, the same rules apply as regarding, for example, the enforcement of a fine and, consequently, enforcement measures cannot be taken before the decision on a punitive tax increase is final.The court concluded that, as far as the punitive tax increase was concerned, the execution was contrary to Article 6 of the ECHR. The court of appeal noted that, under Finnish law, taxes and public fees may be recovered through execution proceedings, although the decision in the matter is not final.In the court's view, this concerns also the enforced collection of a punitive tax increase.With reference to the case law of the European Court of Human Rights and the Janosevic case, the court of appeal affirmed that tax increases were both deterrent and punitive and that Article 6 of the ECHR was applicable.However, it also pointed out that the ECHR does not, in principle, exclude the immediate enforcement of punitive tax increases as long as decisions on such measures can be brought before a court with full jurisdiction.Under Act 367/1961, concerning the collection of taxes and public fees through execution, the taxpayer may request from the tax authorities a suspension of enforcement.As required under Article 6 of the ECHR, the taxpayer also has the right to appeal against the tax authorities' decision to an administrative court which may examine questions of both fact and law and has the power to quash the decision subject to appeal.Moreover, the taxpayer has the right to an effective remedy as prescribed in Article 13 of the ECHR.In this case, A had not shown that she would have exercised these rights.The court concluded that as no appeal or request for a suspension was pending when the execution was levied, the decisions on a punitive tax increase imposed on A were enforceable.The decision is final.The Supreme Court did not grant leave to appeal in the case (decision no. 234 of 7 February 2005). 30.5.2006 / 30.5.2006 / RHANSKI
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| [4 / 9] |
Date when decision was rendered: 5.10.2007 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2525; 3478/2/06 Reference to source KHO 2007:67. Yearbook of the Supreme Administrative Court 2007 July-December Högsta förvaltningsdomstolens årsbok 2007 juli-december Korkeimman hallinto-oikeuden vuosikirja 2007 heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 397-409 Subject
fair trial,
oral hearing,
taxation,
Relevant legal provisions section 38 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act = förvaltningsprocesslag 38 §; grundlagen 21 § = hallintolainkäyttölaki 38 §; perustuslaki 21 §. ECHR-6 Abstract In a case concerning taxation and tax surcharges, the administrative court had, on the basis of the Administrative Judicial Procedure Act, rejected the appellant's request for an oral hearing on the grounds that it was manifestly unnecessary because hearing a witness as proposed by the appellant would not bring any additional information which would be decisive for the outcome of the case.The appellant turned to the Supreme Administrative Court.In its decision, the Supreme Administrative Court discussed in detail the judgment of the European Court of Human Rights in the case of Jussila v.Finland (23 November 2006).The Court held that in the jurisprudence of the European Court of Human Rights, tax surcharges were regarded as being intended as a punishment to deter re-offending.The offence for which the tax surcharges were imposed was therefore "criminal" in nature in the meaning of Article 6 of the ECHR.For this reason, in appeal procedures pertaining to tax surcharges the provisions of the Administrative Judicial Procedure Act on oral hearing by a court must be applied and interpreted in conformity with the minimum requirements set in Article 6 of the ECHR.In assessing the case, the Supreme Administrative Court found that written witness testimonies submitted in the case supported the appellant's claims and the oral hearing of a witness could under the circumstances bring additional clarification to the matter.Though the administrative court had reduced the amount of tax surcharges imposed on the appellant, the sum was still considerable and the financial burden was not insignificant.The Supreme Administrative Court concluded that the appellant's request for an oral hearing before the administrative court could not be rejected on the grounds that it was manifestly unnecessary.The case was referred back to the administrative court for an oral hearing. 22.6.2009 / 28.3.2011 / RHANSKI
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| [5 / 9] |
Date when decision was rendered: 29.6.2010 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1386; R2010/304 Reference to source KKO 2010:45. Decisions of the Supreme Court 2010 January-June Avgöranden av Högsta domstolen 2010 januari-juni Korkeimman oikeuden ratkaisuja 2010 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 359-376 Subject
ne bis in idem,
taxation,
right not to be tried or punished twice,
Relevant legal provisions ECHR-6: ECHRP-7-4; CCPR-14 Abstract X had been ordered to pay reassessed tax and tax surcharges amounting to over EUR 100,000.The decision was concerning fiscal years 1995-1998.X presented a claim for adjustment asking that the decision is changed but cancelled his request later and paid the tax surcharges in 2002.In 2004, the prosecutor brought charges against X for aggravated tax fraud, based on the same tax inspection by reason of which the tax surcharges had been imposed.X claimed the criminal charges against him should be dropped because he had already been punished for the same offence in an administrative procedure. The Supreme Court observed that under Finnish legislation, the imposition of tax surcharges was not considered a criminal sanction but an administrative sanction and it did not prevent the bringing of criminal charges for the same conduct.However, the Supreme Court referred to the cases of Jussila v.Finland (judgment of 23 November 2006) and Ruotsalainen v.Finland (judgment of 16 June 2009), in which the European Court of Human Rights had found that tax surcharges were criminal sanctions and fell within the scope of applicability of Article 4 of Protocol no. 7 to the ECHR (right not to be tried or punished twice).Although tax surcharges were not classified as criminal under Finnish legislation, they were imposed by general legal provisions applying to all taxpayers and had a punitive and deterrent purpose.Again with reference to the case law of the European Court of Human Rights, the Supreme Court also found that there was a duplication of proceedings, because the criminal charges for aggravated tax fraud arose from the same facts as the tax surcharges.According to the case law of the human rights court, the ne bis in idem guarantee under Article 4 of Protocol no. 7 comes into play where the previous decision has become final before the commencement of a new prosecution.In X's case, the decision on tax surcharges had become final, in the meaning of Article 4 of Protocol no. 7, and therefore prevented the bringing of criminal charges for aggravated tax fraud. The Supreme Court was also of the opinion that it was problematic from the citizens' point of view that the risk of being subjected to criminal charges is dependent on the fact whether a decision on tax surcharges is final or not.The Court held that this problem, pertaining to the relation between penal and administrative sanctions, could not be solved in a comprehensive and satisfactory manner by means of judicial decisions.Instead, it would fall within the ambit of the executive and legislative power. 21.2.2011 / 28.2.2011 / RHANSKI
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| [6 / 9] |
Date when decision was rendered: 29.6.2010 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 1387; R2010/323 Reference to source KKO 2010:46. Decisions of the Supreme Court 2010 January-June Avgöranden av Högsta domstolen 2010 januari-juni Korkeimman oikeuden ratkaisuja 2010 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2010 Pages: pp. 377-390 Subject
ne bis in idem,
taxation,
right not to be tried or punished twice,
Relevant legal provisions ECHR-6; ECHRP-7-4; CCPR-14 Abstract In 2007, X had been ordered to pay reassessed tax and tax surcharges which amounted to around EUR 28,000.X had not claimed for adjustment of the decisions.In 2008, the prosecutor brought charges against X for aggravated tax fraud, based on the same tax inspection by reason of which the tax surcharges had been imposed.X claimed the criminal charges against him should be dropped because he had already been punished for the same offence in an administrative procedure. The Supreme Court observed that under Finnish legislation, the imposition of a tax surcharge was not considered a criminal sanction but an administrative sanction, and it did not prevent the bringing of criminal charges for the same conduct.However, the Supreme Court referred to the cases of Jussila v.Finland (judgment of 23 November 2006) and Ruotsalainen v.Finland (judgment of 16 June 2009), in which the European Court of Human Rights had found that tax surcharges were criminal sanctions and fell within the scope of applicability of Article 4 of Protocol no. 7 to the ECHR (right not be be tried or punished twice).Although tax surcharges were not classified as criminal under Finnish legislation, they were imposed by general legal provisions applying to all taxpayers and had a punitive and deterrent purpose.Again with reference to the case law of the European Court of Human Rights, the Supreme Court also found that both proceedings against X were concerning the same offences, because the criminal charges for aggravated tax fraud arose from the same facts as the tax surcharges. The Supreme Court continued that according to the case law of the human rights court (in particular, the case of Zolotukhin v.Russia, judgment of 10 February 2009), the ne bis in idem guarantee under Article 4 of Protocol no. 7 comes into play where the previous decision has become final before the commencement of a new prosecution.However, decisions against which an ordinary appeal lies are excluded from the scope of the guarantee contained in Article 4 as long as the time-limit for lodging such an appeal has not expired.Here, the Finnish praxis differs from that of the human rights court, because in Finnish praxis not only a final decision but also pending criminal charges prevent a new criminal procedure in the same matter.However, this rule does not apply between criminal and administrative procedures.In the opinion of the Supreme Court, it is difficult to adjust this national praxis with the extensive interpretation of the notion of "criminal matter" by the European Court of Human Rights.The Court continued that while the ne bis in idem guarantee under Article 4 of Protocol no. 7 is applicable in matters concerning tax surcharges and tax fraud, there is no reasonable cause to deviate from the wording of Article 4 or from established case law of the human rights court by means of a national judicial decision to the effect that pending matters or matters in which a decision has not yet been reached would be comparable to a final decision in a tax surcharge matter. In X's case the time-limit for presenting a claim for adjustment of the decisions on tax surcharges expires 31 December 2010 and 31 December 2011.Because the decisions on tax surcharges had not yet become final, in the meaning of Article 4 of Protocol no. 7, they did not prevent the bringing of the criminal charges for aggravated tax fraud against X. The Supreme Court was also of the opinion that extending the ne bis in idem guarantee to the relation between administrative and penal sanctions, following the praxis of the European Court of Human Rights, requires a more general reassessment and coordination of the two sanction systems.These issues cannot be solved in a comprehensive and satisfactory manner by means of judicial decisions on a case-by-case basis.The responsibility for the adjustment of the two systems lies within the ambit of the executive and legislative powers. 22.2.2011 / 28.2.2011 / RHANSKI
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Date when decision was rendered: 11.10.2010 Judicial body: Court of Appeal of Eastern Finland = Östra Finlands hovrätt = Itä-Suomen hovioikeus Reference: Report no. 988; R09/768 Reference to source I-SHO 2010:11. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
ne bis in idem,
taxation,
right not to be tried or punished twice,
Relevant legal provisions ECHRP-7-4 Abstract In an administrative procedure in 2008, X had been ordered to pay vehicle tax and a tax surcharge for having driven a vehicle which had been banned from use.X appealed against the decision to an administrative court which rejected the appeal in May 2009.The Supreme Administrative Court decided in February 2010 not to grant X leave to appeal.In 2009, the prosecutor brought charges against X for having violated vehicle requirements.X claimed that the charges should be dropped and referred to his right not to be punished twice for the same offence. The court of appeal referred to the decisions of the Supreme Court KKO 2010:45 and KKO 2010:46 (29 June 2010) in which the Court had found that a tax surcharge should be classified as a criminal sanction as far as the applicability of Article 4 of Protocol no. 7 to the ECHR is concerned.The ne bis in idem guarantee contained in Article 4 thus covered cases concerning a tax surcharge and a tax fraud which both arose from the same facts.Also according to the Supreme Court, the right not to be tried or punished twice for the same offence comes into play where a previous decision has become final before the commencement of a new prosecution.However, in the opinion of the Supreme Court, a matter which is pending or in which a decision has not yet been reached is in this sense not comparable to a final decision.The court of appeal found that both the tax surcharge and the criminal charges against X were based on the same act of having driven a vehicle which had been banned from use and were thus concerning the same offence.The criminal proceedings commenced 1 April 2009.The court of appeal concluded that because the decision concerning the tax surcharge had not by that time become final, in the meaning of Article 4 of Protocol no. 7, it did not prevent the criminal prosecution for violation of vehicle requirements.The decision is final. See also the decisions of the Supreme Court KKO 2010:45 and KKO 2010:46. 23.2.2011 / 28.2.2011 / RHANSKI
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| [8 / 9] |
Date when decision was rendered: 19.11.2010 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2310; R2009/541 Reference to source KKO 2010:82. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
right not to be tried or punished twice,
ne bis in idem,
taxation,
Relevant legal provisions ECHR-6; ECHRP-7-4; CCPR-14 Abstract In 2006, X had been ordered to pay reassessed tax and tax surcharges concerning fiscal years 2001-2003.Later, the prosecutor brought charges against X for aggravated tax fraud.The proceedings commenced in April 2007.After the beginning of the criminal proceedings, X lodged an appeal against the material basis of the reassessment of the tax for fiscal year 2001 (material tax appeal) and presented a claim for adjustment of the decisions concerning fiscal years 2002 and 2003. The Supreme Court considered first whether the imposition of the tax surcharges prevented the prosecution for aggravated tax fraud and secondly, whether X was guilty of aggravated tax fraud.Regarding the question of duplication of proceedings, the Supreme Court referred to its own recent decisions (KKO 2010:45 and KKO 2010:46 of 29 June 2010) and to the case law of the European Court of Human Rights and found that a tax surcharge is a sanction which, in relation to criminal charges for tax fraud, falls within the scope of the ne bis in idem guarantee contained in Article 4 of Protocol no. 7 to the ECHR.The Court held that for the purpose of the legal characterisation of the sanction it was not relevant that in X's case, the sanction was mild or that X had not yet paid the tax surcharges.The Supreme Court also found that the criminal charges for aggravated tax fraud arouse from the same facts as the decisions on tax surcharges.Both proceedings were thus concerning the same offence. With reference to its own case law, to the wording of Article 4 and to the case law of the European Court of Human Rights, the Supreme Court observed that the purpose of Article 4 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision.Also, decisions against which an ordinary appeal lies are excluded from the scope of Article 4 as long as the time-limit for lodging such an appeal has not expired.The Supreme Court held that in cases concerning tax surcharges and tax fraud this means the court must assess whether the decision on tax surcharges has become final before the commencement of the criminal proceedings for tax fraud.In the Court's view, the ne bis in idem guarantee contained in Article 4 does not prevent criminal proceedings for tax fraud in situations where tax surcharge proceedings are already pending or where a decision on tax surcharges becomes final while the criminal proceedings are still pending. Here, the Court also had to take into account that X had both presented a claim for adjustment (concerning fiscal years 2002-2003) within the prescribed time-limit for appeal and lodged a material tax appeal (concerning fiscal year 2001) after the time-limit for presenting a claim for adjustment had expired.At the time of the decision of the Supreme Court, both processes were pending.In the Supreme Court's view, it was the time-limit for presenting the claim for adjustment that was decisive in this case.A claim for adjustment is the primary ordinary appeal in matters concerning taxation, whereas a material tax appeal is a special form of appeal which is secondary to a claim for adjustment and cannot be filed while a claim for adjustment is pending.In X's case, the criminal proceedings for aggravated tax fraud had commenced before the time-limit for presenting a claim for adjustment concerning fiscal years 2001-2003 had expired.The Supreme Court concluded that the decisions on tax surcharges did not prevent the criminal proceedings for tax fraud.The Court then considered the charges for aggravated tax fraud and upheld the decision of the court of appeal by which X had been sentenced to conditional imprisonment. See also Österlund v.Finland (application no. 53197/13), judgment of the European Court of Human Rights, 10 February 2015. 28.2.2011 / 21.5.2015 / RHANSKI
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Date when decision was rendered: 30.6.2010 Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus Reference: Report no. 10/0819/1 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
ne bis in idem,
right not to be tried or punished twice,
taxation,
Relevant legal provisions section 31-1-3 of the Customs Act = tullag 31 § 1 mom. 3 punkten = tullilaki 31 § 1 mom. 3 kohta. ECHRP-7-4 Abstract By a decision concerning tax reassessment in 2008, X had been ordered to pay duty, tobacco tax and value added tax and had been imposed a duty increase by 50 per cent.X claimed that the duty increase should be abolished or reduced.The administrative court noted that a court of first instance had in January 2010 sentenced X to conditional imprisonment for smuggling, aggravated tax fraud and selling snuff contrary to the Tobacco Act.The administrative court found that in this case the duty increase which was based on the tax reassessment decision, fell outside the scope of Article 4 of Protocol no. 7 to the ECHR, because the decision had been taken before judgment in the criminal case.Therefore, the duty increase could not be abolished on the basis of ECHRP-7-4.The court mostly rejected X's claims and reduced the duty increase to 30 per cent. 1.10.2012 / 1.10.2012 / RHANSKI
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