AS TO THE ADMISSIBILITY OF
Application No. 12662/87
by Riemeke VISSER
against the Netherlands
The European Commission of Human Rights sitting in private
on 2 May 1989, the following members being present:
MM. S. TRECHSEL, Acting President
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. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 22 November
1986 by R. V.against the Netherlands and registered on 23 January 1987
under file No. 12662/87;
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 applicant is a Dutch citizen, born in 1946 and presently
residing in Amsterdam.
The facts, as submitted by the applicant, may be summarised as
follows:
On 27 February 1981 the applicant placed an advertisement in a
Dutch newspaper, offering to let a flat in Israel. The applicant's
telephone number was mentioned in the advertisement.
The Inspector of Direct Taxes (Inspecteur der directe
belastingen) asked the Telephone Service the name and the address of
the person whose telephone number had been mentioned in the
advertisement.
By letter of 15 September 1982 the Inspector of Direct Taxes
asked the applicant, inter alia, for the name of the owner of the flat
and the rental value of the flat. The applicant answered that the
flat was owned by a friend.
By letter of 4 October 1982 the Inspector asked the applicant
for the name and the address of the friend for whom she had placed the
advertisement. The applicant answered that she did not consider
herself obliged to give information concerning the levying of taxes on
third parties.
Apparently, the applicant asked the Telephone Service on what
basis it gave information concerning the names and addresses of
telephone subscribers. By letter of 19 July 1983 the Telephone
Service informed the applicant that, under the General State Taxation
Act (Algemene wet inzake rijksbelastingen) it was obliged to give this
kind of information if this might be necessary for the establishment
of facts that might influence the levying of tax on third parties.
By letter of 16 March 1983 the Inspector of Direct Taxes
imposed upon the applicant an additional tax assessment to the amount
of 867 DFL with an increase of 433 DFL. By letter of the same date
the Inspector of Direct Taxes imposed upon the applicant an additional
social security contribution assessment of 1117 DFL with an increase
of 558 DFL.
In April 1983 the applicant appealed to the Court of Appeal
(Gerechtshof) of Amsterdam against the additional tax assessment.
In its decision of 14 June 1985 the Court of Appeal rejected
the appeal.
The applicant appealed to the Supreme Court (Hoge Raad). She
alleged, inter alia, that Article 8 of the Convention had been
violated since her right to respect for her private life could only be
interfered with if this would be in accordance with the law and
necessary for the economic well-being of the country. Since under an
agreement between the Netherlands and Israel for the avoidance of
double taxation, income from real estate can be taxed in the State in
which the real estate is situated, Article 8 para. 2 of the Convention
was not applicable in this case, according to the applicant.
In its decision of 28 May 1986 the Supreme Court rejected the
appeal. As regards Article 8 of the Convention it held that, even
assuming that an obligation to give information that may be relevant
for a tax assessment to the Inspector of Taxes amounts to an
interference with the right to respect for private life, this
limitation can be considered to be necessary in a democratic society
in the interest of the economic well-being of the country, since a
so-called progression reservation is embodied in the agreement with
Israel.
COMPLAINTS
The applicant complains that the Tax Authorities asked the
Telephone Service for her name and address and that this information
was given. She considers this to be a violation of her right to
respect for her private life. She invokes Article 12 of the
Convention.
The applicant furthermore complains that tax law is used to
impose criminal penalties and that the applicant is not afforded the
safeguards contained in Article 6 of the Convention.
THE LAW
1. The applicant has complained that her right to privacy has
been interfered with because the Telephone Service gave her name and
address to the Tax Authorities. She has invoked Article 12 (Art. 12)
of the Convention.
Since the applicant complains that her right to respect for
her private life has been violated, which right is embodied in Article
8 (Art. 8) of the Convention, the Commission will examine her
complaint under Article 8 (Art. 8) of the Convention.
The Commission considers that, even if the fact that the
Telephone Service informed the Tax Authorities at their request of the
applicant's name and address constitutes an interference with her
right to respect for her private life under Article 8 para. 1
(Art. 8-1)of the Convention, the interference was justified under
Article 8 para. 2 (Art. 8-2).
The Commission notes that under the General State Taxation Act
the Telephone Service is obliged to permit their records to be
inspected by the Tax Authorities, if this inspection is necessary to
facilitate the levying of tax on third parties. In the present case,
the interference was, therefore, in accordance with law.
Secondly, as regards the objective concerned, the purpose of
the provision mentioned above is precision in the collection of taxes
and the prevention of fraud and tax evasion. The interference may,
therefore, be considered to pursue a legitimate aim, namely, the
economic well-being of the country.
Thirdly, the Commission is satisfied that the interference
with the applicant's right to respect for her private life is in
proportion to the pursued objective. In this respect the applicant
has not shown that there were other, less far-reaching means available
to the Tax Authorities to reach the objective concerned. The
interference in the present case was therefore necessary in a
democratic society for the achievement of the above aim.
It follows that, even assuming that the applicant has
exhausted domestic remedies, this part of the application must be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has complained that tax law is used to
impose criminal penalties and that the applicant is not afforded the
safeguards contained in Article 6 (Art. 6) of the Convention.
a) To the extent to which the applicant complains that, in
effect, she was charged with and convicted of a criminal offence,
viz. a refusal to give information to the Tax Authorities, without
having had the benefit of the legal safeguards under penal law, the
Commission notes that the additional tax assessment was imposed upon
her because the Tax Authorities were of the opinion that she had
derived an additional income from letting a flat in Israel and not
that she had committed a criminal offence by not revealing the name of
the owner of the said flat.
It follows that this aspect of the complaint must be declared
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b) To the extent to which the applicant complains that her tax
assessment was increased in a manner which amounted to a criminal penalty
and that she lacked the guarantees under Article 6 (Art. 6) of the
Convention, the Commission considers that it is not required to decide
whether or not the facts alleged by the applicant disclose any
appearance of a violation of this provision as, under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
The Commission notes that, in the present case, the applicant,
in the proceedings concerning the additional tax assessment, did not
raise, either in form or in substance, the complaint that she lacked
the guarantees under Article 6 (Art. 6) of the Convention in respect
of the increase in her tax assessment. Moreover, an examination of
the case does not disclose the existence of any special circumstances
which might have absolved the applicant, according to the generally
recognised rules of international law, from raising her complaint in
the proceedings referred to.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and this complaint
must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission,
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)