FOURTH SECTION
Application no. 39771/12
Hanna Riikka ALASIPPOLA against Finland
lodged on 20 June 2012
STATEMENT OF FACTS
The applicant, Mrs Hanna Riikka Alasippola, is a Finnish national who was born in 1972 and lives in Leppävesi. She is represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Taxation proceedings
The applicant was subject to a tax inspection during the years 2003 and 2004 due to an unexplained increase in her income. The tax inspection report was completed on 4 June 2004. At the same time the applicant’s husband was also subject to a tax inspection. He has lodged a separate application with the Court (no. 49509/12 Robert Alasippola v. Finland).
On 9 September 2004 the tax authorities imposed additional taxes and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 1999, 2000, 2001 and 2002. The amount of tax surcharges varied between 700 and 1,850 euros.
On an unspecified date the applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden), requesting it to quash the decisions of 9 September 2004. Also the Tax Ombudsman (veroasiamies, skatteombudet) sought rectification in respect of the tax year 2001, requesting that the taxable income be increased.
On 17 September 2004 the Tax Rectification Committee lowered the amount of additional taxes as well as tax surcharges in respect of the tax year 2000.
On an unspecified date the Tax Rectification Committee accepted the Tax Ombudsman’s application and increased the taxable income for the tax year 2001. However, on 26 June 2006 the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen) quashed that decision.
On 11 December 2006 the Tax Rectification Committee rejected the applicant’s applications in respect of the tax years 1999, 2000, 2001 and 2002.
By letter dated 23 February 2007 the applicant appealed to the Hämeenlinna Administrative Court, requesting that the additional taxes and tax surcharges be quashed or at least reduced.
On 2 May 2008 the Hämeenlinna Administrative Court accepted the applicant’s appeal in respect of the tax year 2002 and quashed the additional tax and the tax surcharges in that respect. The remainder of the applicant’s appeal was rejected. This decision became final on 2 July 2008 as the applicant did not appeal against it.
Criminal proceedings
On 27 March 2009 the public prosecutor brought charges against the applicant on one count of aiding and abetting aggravated dishonesty by a debtor (törkeä velallisen epärehellisyys, grovt oredlighet som gäldenär) and on two counts of aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri), all concerning the tax years 1999 to 2002. According to the charges, the applicant was accused of aiding and abetting aggravated dishonesty by a debtor as she had received unexplained income from her husband between 1999 and 2002. She was accused of aggravated tax fraud as she had failed to declare this income and, consequently, the tax imposed on her had been too low. The taxation authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes.
On 26 February 2010 the Keski-Suomi District Court (käräjäoikeus, tingsrätten) convicted the applicant of aiding and abetting aggravated dishonesty by a debtor and imposed a 9-month suspended sentence. The charges of aggravated tax fraud were dismissed as well as the tax authorities’ compensation claim.
By letter dated 6 April 2010 the applicant appealed to the Vaasa Appeal Court (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charges dismissed. She referred to the ne bis in idem principle and to the Court’s case-law in that respect.
On 31 October 2011 the Vaasa Appeal Court, after having held an oral hearing, upheld the District Court’s judgment. The court found that the mere fact that the same issues had been assessed in the administrative proceedings did not necessary prevent the examination of the charges pressed. In the administrative proceedings, the unexplained increase in the applicant’s wealth had been considered to be income, thus that case concerned only taxes. The criminal proceedings, however, concerned the fact that the applicant had received income from her husband to the detriment of his creditors. As the proceedings did not concern the same matter, there was no impediment to the examination of the charges.
By letter dated 22 December 2011 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. She emphasized that the income received from her husband was exactly the same income for which additional taxes and tax surcharges had been imposed. All the imposed additional taxes and tax surcharges had been paid.
On 31 January 2012 the Supreme Court refused the applicant leave to appeal but granted the applicant’s husband leave to appeal.
B. Relevant domestic law and practice
Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge.
According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.
According to Chapter 39, sections 1 and 1a, of the Penal Code (as amended by Acts no. 61/2003 and no. 317/1994), a debtor who (1) destroys his or her property, (2) gives away or otherwise surrenders his or her property without acceptable reason, (3) transfers his or her property abroad in order to place it beyond the reach of his or her creditors or (4) increases his or her liabilities without basis and thus causes his or her insolvency or essentially worsens his or her state of insolvency, shall be sentenced for dishonesty by a debtor to a fine or to imprisonment for at most two years. If by the dishonesty by a debtor (1) considerable benefit is sought, (2) considerable or particularly substantial damage is caused to the creditors, or (3) the offence is committed in a particularly methodical manner and the dishonesty by a debtor is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated dishonesty by a debtor to imprisonment for at least four months and at most four years.
The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59).
COMPLAINT
The applicant complains under Article 4 of Protocol No. 7 to the Convention about a violation of the ne bis in idem principle. The taxation proceedings, in which tax surcharges were imposed on her, ended with a final decision on 2 July 2008. The criminal proceedings were initiated and concluded thereafter in the same matter.
QUESTION TO THE PARTIES
Has the applicant been tried or punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7? If so, did the proceedings fall within the exceptions envisaged by Article 4 § 2 of Protocol No. 7?
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