AS TO THE ADMISSIBILITY OF
Application No. 24834/94
by Zekeriya KURTÇA
against Turkey
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 June 1994 by
Zekeriya Kurtça against Turkey and registered on 5 August 1994 under
file No. 24834/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1960 and resident in
Samsun. He is a chartered accountant (serbest muhasebeci).
A. Particular circumstances of the case
The facts as submitted by the applicant may be summarised as
follows:
On 5 July 1989 X., a former client of the applicant, informed the
tax authorities that the applicant, by using false invoices, had been
providing unlawful tax refunds for his clients. He stated that the
invoices, which bore his title, had been illegally produced after he
had ceased his business.
The controllers linked to the Samsun tax office carried out an
investigation into the matter.
The applicant stated to the controllers that he had been recently
informed that the invoices in question had been used by his firm in
receiving tax refunds on behalf of his clients. According to the
applicant, Y., one of his employees, had 20 series of invoices printed
and later used 15 of them as certificates to receive tax refunds. Y had
destroyed copies of the invoices used and of the remaining 5 series
which he had not used.
In his statement to the controllers, Y. admitted that he had
taken delivery of the invoices in question from a printing house. He
had a false stamp produced in order to be able to take delivery.
Some of the applicant's clients stated that they had given powers
of attorney to the applicant to collect a tax refund on their behalf.
On 22 November 1989, the controllers issued their report. They
noted that the invoices in question had been used during a period of
sixteen months. Having regard further to the applicant's statement,
they commented that it was not possible to accept that Y. had carried
out these activities without the applicant's knowledge. They concluded
that the applicant should pay the highest amount of tax refund which
could have been received by using all the false invoices (14.500.000
lira) and that a penalty corresponding to three times the unlawfully
received tax refund (43.500.000 lira) should be imposed on him.
Criminal proceedings were instituted against the applicant and
Y. for falsification of documents.
In a decision dated 3 May 1990 the Samsun Criminal Court (Asliye
Ceza Mahkemesi) acquitted the applicant for lack of evidence.
On 18 June 1991 Samsun Criminal Court convicted Y. for
falsification of documents.
On 28 February 1991 the Gaziler Tax Office sent a payment order
to the applicant requesting him to pay 66.120.000 lira as unlawfully
received tax refunds and penalties.
On 5 June 1991 the applicant applied to the Samsun Tax Court and
instituted proceedings for the annulment of the payment order. He first
contested the procedure followed by the Tax Office while imposing the
unlawfully received tax refunds and fiscal penalties. Next, he
challenged the controllers' report. He asserted that the controllers
had found only a few false invoices recorded in the account books of
some of his clients. According to the applicant, the report was not
based on a proper investigation. The controllers had not obtained a
proper statement from Y. They were therefore prejudiced against him.
He denied that he had any role in supplying false invoices and causing
unlawful tax refund relying also on his acquittal of the charges for
falsification of documents.
On 3 December 1991, the Court dismissed the applicant's request.
The Court first observed that the procedure followed by the Tax Office
was lawful. As to the substance of the applicant's claim, it referred
to Article 6 of the Law No. 2978 (Law on the Tax Refund - Vergi Iadesi
Hakkinda Kanun). It held that the applicant's arguments that the
invoices had been printed and used without his knowledge could not be
accepted since an employer had to assume full responsibility in
relation to his business. In addition, the applicant himself had stated
that 20 series containing 1.000 copies of invoices had been printed,
out of which 15 series containing 750 copies had been used. The Court
held that the assessment of the tax refunds and the imposition of
penalties based on a maximum amount of tax refunds per invoice were
lawful. Nevertheless, the Court held that the number of invoices to be
taken into consideration in this respect should be limited to 750 used
copies and accordingly reduced the unlawfully received tax refunds to
10.875.000 lira and the penalties to 32.625.000 lira.
The applicant appealed.
On 20 October 1992 the Council of State, upholding the cogency
of the Samsun Tax Court's assessment of evidence and reasoning,
dismissed the appeal.
The applicant requested the rectification of this decision. On
22 December 1993 the Council of State dismissed this request.
B. Relevant domestic law
In accordance with Article 6 of the law no. 2978 (Law on the Tax
Refund - Vergi Iadesi Hakkinda Kanun), should the persons who are
entitled to receive tax refunds cause unlawful tax refunds by using
deliberately false or misleading documents or by falsifying the
documents, the amount refunded shall be collected from such persons and
in addition a penalty corresponding to three times the tax refund shall
be imposed on them.
COMPLAINTS
The applicant complains of the unfairness of the national courts'
decisions. He argues that in the proceedings for the annulment of the
payment order concerning the imposition of unlawfully received tax
refunds and penalties, the national courts wrongly applied the domestic
law and dismissed his claim despite the absence of concrete evidence
against him.
THE LAW
The applicant, without invoking any specific Article of the
Convention, complains of the unfairness of the proceedings relating to
unlawfully received tax refund and fiscal penalties imposed on him. He
contests the national courts' assessment of evidence and application
of the domestic law.
The Commission has examined the applicant's complaint under
Article 6 para. 1 (Art. 6) of the Convention which, in so far as
relevant, reads:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
... hearing ... "
The Commission first recalls that Article 6 (Art. 6) is not
applicable, in principle, under the head "civil rights and obligations"
to proceedings in tax cases, even if the fiscal measures complained of
have affected pecuniary rights (see e.g., No. 9908/82, Dec. 4.5.83,
D.R. 32 p. 266). Therefore to the extent that the applicant's complaint
concerns the obligation to reimburse unlawfully received tax refunds,
it is incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
In so far as the applicant's complaint relates to the imposition
of fiscal penalties, the Commission recalls that in certain
circumstances, Article 6 is applicable to proceedings concerning fiscal
penalties under the head "criminal charge" (Eur. Court H.R., Bendenoun
judgment, Series A, No. 284, pp. 25 - 27, paras. 48 - 57).
However, even assuming that Article 6 (Art. 6) is applicable in
the present case, the Commission finds that the application is
manifestly ill-founded for the following reasons.
The Commission recalls in the first place that, in accordance
with Article 19 (Art. 19) of the Convention, its only task is to ensure
the observance of the obligations undertaken by the Parties to the
Convention. In particular, it is not competent to deal with
applications alleging that errors of law or fact have been committed
by domestic courts except where it considers that such errors might
have involved a possible violation of any of the rights and freedoms
set out in the Convention (see e.g., No. 17722/91, Dec. 8.4.91, D.R.
69 pp. 345, 349).
The Commission further recalls that it is primarily for the
national courts to assess the evidence before them. The Convention
organs cannot examine the national courts' assessment of evidence
unless there has been an unfairness or arbitrariness (cf. No. 7987/77,
Dec. 13.12.79, D.R. 18 p. 31).
The Commission observes that in the present case the Samsun Tax
Court examined the particular circumstances of the case, evaluated the
evidence before it and, for reasons expressly stated in its decision
of 3 December 1991, found no violation of the law as regards the
imposition of fiscal penalties on the applicant on the ground that his
business had been responsible for unlawfully claiming tax refunds in
a large number of cases. The applicant's appeal against this decision
was dismissed by the Council of State which upheld the Samsun Tax
Court's reasoning and assessment of evidence. The Commission does not
find any indication that there has been an unfairness or arbitrariness
in the proceedings before the national courts.
It follows that the application is manifestly ill-founded and
must be rejected pursuant to Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy