CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                            Application No. 12670/87                          by H.                          against Sweden             The European Commission of Human Rights sitting in private on 10 March 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 12 September 1986 by H. against Sweden and registered on 12 January 1987 under file N° 12670/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant is a Swedish citizen, born in 1929.   He is a forester and resides at B., Sweden.           In the years 1973 to 1977 the applicant worked in the Federal Republic of Germany in the forestry business.   He did not report his income from this in his annual tax returns in Sweden being of the opinion that it was unnecessary since he considered himself subject to taxation only in the Federal Republic of Germany.   It appears, however, that the Swedish taxation authorities considered the applicant under the obligation to pay income tax in Sweden and accordingly proceedings were instituted against the applicant for the income years 1973-77 which under Swedish taxation law correspond to the taxation years 1974-78.           The case was heard by the Regional Administrative Court (länsrätten) of Älvsborg County where the applicant, represented by a lawyer, had the opportunity to present his case.   After having heard the parties' submissions and after an evaluation of the written evidence obtained, the Regional Administrative Court in its judgment of 29 November 1982 found that the applicant, during the taxation years 1974-78, had had a taxable income of approximately 2,054,000 Swedish crowns.   It was accordingly decided to impose additional taxation on the applicant for this amount.   In addition to imposing additional taxation, the Regional Administrative Court imposed a special charge (tax supplement) which amounted to 40% of the tax imposed as a result of the additional taxation concerning the years 1974-77 and 50% of the tax imposed for the year 1978.           The applicant appealed to the Administrative Court of Appeal (kammarrätten) of Gothenburg.   In his written submissions to the court the applicant explained the factual circumstances concerning his income and set out his arguments as to why additional taxation should not be imposed.   He also maintained that the circumstances in his case did not allow for the imposition of the special charge (tax supplement). Finally the applicant requested that an oral hearing be held before the court.           The tax inspector also appealed to the Administrative Court of Appeal.   He requested a further increase of the taxation and for the special charge (tax supplement) to be imposed also on the increased amount.           In its judgment of 30 December 1983 the Administrative Court of Appeal rejected the request for an oral hearing stating that this appeared to be unnecessary since the file of the case was complete. No separate appeal lay against the decision of the Administrative Court of Appeal in this respect.           In its judgment the Administrative Court of Appeal furthermore confirmed the decision of the Regional Administrative Court of 29 November 1982 in large parts but increased the income on which to impose additional taxation for the taxation year 1975 by 175,000 Swedish crowns.   The Court also ordered that a special charge (tax supplement) should be imposed on the additional tax.   As regards the imposition of the special charge (tax supplement) the court further stated:   "There is no reason to remit the tax supplement. In this respect the court notes in particular that (the applicant) did not report to the Swedish tax authorities that he had conducted an extensive business. He furthermore reported to the German tax authorities that his activities had no permanent place of business in the Federal Republic of Germany.   (The applicant) has accordingly obviously speculated in avoiding taxation in both Sweden and the Federal Republic of Germany."           It appears that the applicant subsequently asked for and was granted leave to appeal against this judgment to the Supreme Administrative Court (regeringsrätten).   In his written submissions to the Court the applicant maintained that the judgment of the Administrative Court of Appeal was wrong and that the Court of Appeal had misinterpreted the applicable legislation.   He accordingly asked the Supreme Administrative Court to quash the decision of the lower court and to find in his favour.           In its judgment of 6 May 1986 the Supreme Administrative Court upheld the judgment of the Administrative Court of Appeal.   It examined in particular the question whether the applicant had had a permanent place of business in Germany in accordance with the terms of the Swedish-German double taxation agreement, but found that this had not been the case.   The Court concluded as follows:   "As stated by the Administrative Court of Appeal (the applicant) has submitted incorrect information by omitting to report his activities in the Federal Republic of Germany in his tax returns.   The conditions for imposing additional taxation and a tax supplement therefore exist.   The examination does not show that the amount of additional taxation has been set too high.   Reasons to remit the tax supplement are not at hand."     COMPLAINTS           The applicant complains that the Supreme Administrative Court has passed a judgment whereby he must pay taxes in Sweden although he did not work in Sweden at all.   He also complains that the Swedish courts failed to take the double taxation agreement between Sweden and the Federal Republic of Germany into consideration.           The applicant furthermore complains that there was no hearing at all in the Supreme Administrative Court and that the judgment was not impartial.           The applicant invokes Article 6 para. 1 of the Convention.   THE LAW   1.       The applicant complains that he has been obliged to pay taxes in Sweden although he had not worked there, and he considers this taxation to be contrary to the applicable double taxation agreement between Sweden and the Federal Republic of Germany.           The Commission has examined this complaint on the basis of Article 1 of Protocol No. 1 (P1-1) to the Convention which reads as follows:           "Every natural or legal person is entitled to the peaceful         enjoyment of his possessions.   No one shall be deprived of         his possessions except in the public interest and subject         to the conditions provided for by law and by the general         principles of international law.           The preceding provisions shall not, however, in any way         impair the right of a State to enforce such laws as it         deems necessary to control the use of property in         accordance with the general interest or to secure the         payment of taxes or other contributions or penalties."           The Commission notes that the second paragraph of that Article expressly reserves the right of States to enforce laws to secure the payment of taxes.   Moreover, it is not the task of the Commission to determine whether a double taxation agreement has been correctly applied, but merely to ensure that the applicant's rights under the Convention and Protocol No. 1 (P1-1) have been respected.   In this regard, the Commission finds no appearance that the taxation violated the applicant's right to respect for his property as guaranteed by Article 1 of Protocol No. 1 (P1-1).           Consequently, this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains that there was no hearing in the Supreme Administrative Court and that the judgment was not impartial.   In this respect, he invokes Article 6 para. 1 (Art. 6-1) of the Convention which reads as follows:           "In the determination of his civil rights and obligations         or of any criminal charge against him, everyone is entitled         to a fair and public hearing within a reasonable time by         an independent and impartial tribunal established by law.         Judgment shall be pronounced publicly but the press and         public may be excluded from all or part of the trial in         the interests of morals, public order or national security         in a democratic society, where the interests of juveniles         or the protection of the private life of the parties so         require, or to the extent strictly necessary in the opinion         of the court in special circumstances where publicity would         prejudice the interests of justice."           The Commission first notes that the proceedings concerned both the applicant's taxation and the imposition on the applicant of a special charge (tax supplement) as a consequence of his omission to report certain income in his tax returns.           While the Commission has constantly considered Article 6 para. 1 (Art. 6-1) of the Convention not to be applicable to proceedings regarding tax assessments (see e.g.   No. 9908/82, Dec. 4.5.83, D.R. 32 p. 266), it has not excluded the possibility that proceedings regarding the imposition of a special charge (tax supplement) according to Swedish law concern the determination of a criminal charge in the meaning of Article 6 para. 1 (Art. 6-1) (see No. 11464/85, Dec. 12.5.87, to be published in D.R.).           However, it is not necessary in the present case to take a position on the applicability of Article 6 para. 1 (Art. 6-1), since this part of the application is in any event inadmissible for the following reasons.           The Commission notes that the applicant had a hearing before the Regional Administrative Court.   It further appears that he requested a hearing before the Administrative Court of Appeal, but that this request was refused on the ground that a hearing appeared to the Court to be unnecessary.   However, the applicant has not complained to the Commission of the refusal of that Court to grant him a hearing, and the Commission finds no reason, therefore, to examine whether or not that refusal was in conformity with Article 6 para. 1 (Art. 6-1).           The Commission recalls that the European Court of Human Rights has considered an oral hearing not to be necessary in a court of cassation whose task is limited to an examination of whether the law has been correctly applied (Eur.   Court H.R., Axen judgment of 8 December 1983, Series A no. 72, Sutter judgment of 22 February 1984, Series A no. 74).           In the present case, the Commission notes that the Supreme Administrative Court was the third degree of jurisdiction whose examination followed upon the judgments given previously by the Regional Administrative Court and the Administrative Court of Appeal. The task of the Supreme Administrative Court in the Swedish legal system is essentially to develop the case-law in administrative matters under its jurisdiction.   An appeal to the Supreme Administrative Court can, with few exceptions, only be examined on its merits after leave to appeal has been granted, and such leave shall only be granted if it is important for the development of the case-law that the case is examined by the Supreme Administrative Court, or if there are special reasons such as the existence of a ground for re-opening of proceedings or of a serious error in the judgment of the Administrative Court of Appeal.   Where leave to appeal is granted, new evidence shall normally not be admitted before the Supreme Administrative Court.           The Commission further notes that the main question which the Supreme Administrative Court had to consider in the present case was whether the applicant had had a permanent place of business in Germany in the meaning of the Swedish-German double taxation agreement, which essentially was a question of legal qualification.   It is also clear that, since only the applicant had appealed, there was no question of the Supreme Administrative Court giving a judgment more unfavourable to the applicant than that of the Administrative Court of Appeal.           In these circumstances, the Commission considers that the guarantees in Article 6 para. 1 (Art. 6-1) did not require an oral hearing to be held also in the Supreme Administrative Court.           The Commission further notes that the applicant's allegation of lack of impartiality is entirely unsubstantiated.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.           Secretary to the Commission          President of the Commission                    (H.C. KRÜGER)                       (C.A. NØRGAARD)