Date when decision was rendered: 24.2.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 350; R2007/349

Reference to source

KKO 2009:14.

Decisions of the Supreme Court 2009 I January-June

Avgöranden av Högsta domstolen 2009 I januari-juni

Korkeimman oikeuden ratkaisuja 2009 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 125-132

Subject

right not to be tried or punished twice, refugee status, social assistance, aliens, ne bis in idem,
rätten att inte bli lagförd eller straffad två gånger, flyktingstatus, socialhjälp, utlänningar, ne bis in idem,
kielto syyttää tai rangaista kahdesti, pakolaisen oikeusasema, sosiaaliapu, ulkomaalaiset, ne bis in idem,

Relevant legal provisions

chapter 36, sections 1 and 2 of the Penal Code

= strafflagen 36 kapitel 1 § och 2 §

= rikoslaki 36 luku 1 § ja 2 §.

ECHRP-7-4; Article 31 of the Convention relating to the Status of Refugees

Abstract

In applying for a residence permit in Finland on the basis of family reunification, X had told that she was married to Z, who already had a permanent residence permit in Finland and who was the father of her three children.After X had been issued with a residence permit, she and Z applied for various social benefits which the Social Insurance Institution (KELA) and the city of Helsinki had also granted.Later, X and Z told the authorities that they were in fact not married, that Z was not the father of X's children and that X's spouse and the father of her children lived in Ethiopia.Both the court of first instance and the court of appeal convicted X of aggravated fraud and ordered her to pay damages to KELA and the city of Helsinki.

In her appeal to the Supreme Court, X pointed out that she had already been convicted by the court of first instance of a registration offence for having applied for a residence permit on false grounds.X claimed that she could not be tried and punished again for having applied for social benefits on the basis of her residence permit.The Supreme Court referred to the case law of the European Court of Human Rights (Gradinger v.Austria, judgment of 23 October 1995; Oliveira v.Switzerland, judgment of 30 July 1998; Fischer v.Austria, judgment of 29 May 2001; W.F. v.Austria, judgment of 30 May 2002; Sailer v.Austria, judgment of 6 June 2002) and held that the alleged fraud and the registration offence were two different acts and two different offences.Investigating the alleged fraud was therefore not in violation of Article 4 of Protocol No. 7 to the ECHR.

X also referred to Article 31 of the Convention relating to the Status of Refugees which obligates states not to impose penalties on refugees on account of their illegal entry or presence.The Supreme Court concluded that X was not charged with illegal entry or presence but with fraud which she had allegedly committed while residing in the country.Also, no evidence had been presented in the case, showing that X would have been subjected to persecution or other threat in her country of departure (Ethiopia) and she could therefore not be acknowledged as a refugee.Article 31 of the Refugee Convention did thus not prevent the investigation of the alleged fraud.

The Supreme Court then considered whether X's acts constituted fraud as prescribed in the Penal Code.The Court found that the Aliens Act, applicable at that time, did not contain a provision which would have invalidated a residence permit issued on false grounds.X's residence permit had also not been invalidated in an administrative judicial procedure, nor had it been cancelled under the Aliens Act.Therefore, when X had applied for the social benefits, her residence permit had been valid.According to the legislation concerning social benefits, the amount of benefits may depend on whether the applicant is married, cohabiting or is a legal guardian.However, submitting correct information on the applicant's marriage, spouse or the father of the applicant's children is not a requirement for the award of the benefits.The Court held that regardless of the false information, X would still have been entitled to the benefits.The Court continued that no clarification had been presented in the case as to the amount of the social benefits which would have been awarded to X, if she had given correct information on her family relations.Therefore, there was also no evidence showing the amount of damage allegedly caused to KELA and the city of Helsinki.Moreover, it had not been shown, that X, by giving false information on her family relations, would have tried to obtain larger benefits than she was entitled to.The Supreme Court concluded that X was not guilty of fraud, as charged, and she was thus not liable to pay damages either.

One dissenting justice of the Supreme Court held that a valid residence permit does not prevent liability to punishment and damages, when it is obvious that the residence permit has been issued on the basis of false information and an unfounded claim for family reunification.

9.2.2010 / 28.2.2011 / RHANSKI

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,
ne bis in idem, beskattning, rätten att inte bli lagförd eller straffad två gånger,
ne bis in idem, verotus, kielto syyttää tai rangaista kahdesti,

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

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,
ne bis in idem, beskattning, rätten att inte bli lagförd eller straffad två gånger,
ne bis in idem, verotus, kielto syyttää tai rangaista kahdesti,

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

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,
ne bis in idem, beskattning, rätten att inte bli lagförd eller straffad två gånger,
ne bis in idem, verotus, kielto syyttää tai rangaista kahdesti,

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

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,
rätten att inte bli lagförd eller straffad två gånger, ne bis in idem, beskattning,
kielto syyttää tai rangaista kahdesti, ne bis in idem, verotus,

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

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,
ne bis in idem, rätten att inte bli lagförd eller straffad två gånger, beskattning,
ne bis in idem, kielto syyttää tai rangaista kahdesti, verotus,

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