FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45771/99
by Tiit VEEBER
against Estonia
The European Court of Human Rights (First Section), sitting on 3 May 2001 as a Chamber composed of
MrsE. Palm, President,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrR. Türmen,
MrB. Zupančič,
MrT. Panţîru,
MrR. Maruste, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 28 September 1998 and registered on 29 January 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is an Estonian citizen, born in 1948 and living in Tartu. The respondent Government are represented by Mr E. Harremoes, Special Adviser to the Mission of the Republic of Estonia to the Council of Europe, and Ms M. Hion, First Secretary of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of the companies AS Telver and AS Giga. The latter is a shareholder in the company AS Tartu Jõujaam. He is also the chairman of the board of the two latter companies.
On 15 and 20 November 1995, in the context of criminal proceedings against a Tartu City Government official, the police conducted a search in the companies’ premises and seized nearly all bookkeeping records from the years 1994 and 1995 without recording them individually.
On 19 February 1996, 21 March 1996, 27 March 1996 and 28 March 1996 additional searches and seizure of documents took place in the applicant’s workplace as well as his home.
The applicant estimates that the total number of seized documents exceeded 10,000, the majority of which were AS Giga’s bookkeeping records.
All seized files were placed in a separate room in the Tartu Police Prefecture for examination by the state auditors.
On 22 November 1995 the police informed the applicant that if he wanted to use the documents seized from the company AS Giga in connection with a criminal case he should contact a particular inspector.
On 23 November 1995 the Tartu Public Prosecutor instructed the police to make a record of the individual characteristics of the documents and to return the documents irrelevant to the criminal investigation to the companies from which they were seized.
On 24 November 1995, in response to the applicant’s complaint, the Tartu Public Prosecutor informed him of the above instructions and pointed out that the police had given the applicant access to the documents with the possibility of making photocopies.
In a letter to the applicant of 30 November 1995 the Deputy State Public Prosecutor acknowledged deficiencies in the recording of the seized documents during the police searches, but noted that the Tartu Public Prosecutor had instructed the police to correct them. He also noted that the applicant was free to use the documents necessary for the work of the companies concerned during their examination by the State auditors.
On 4 December 1995 criminal proceedings were initiated against the applicant on the suspicion of his having misused his official position in a company.
On 15 January 1996 the Deputy Public Prosecutor informed the applicant that, according to the available information, the auditors who were examining the files had not prevented the companies from using the documents or making photocopies.
On 8 February 1996 an investigator announced to the applicant that copies of his criminal case file documents could not be issued to him at that stage of the proceedings.
On 26 February 1996, upon discovery that AS Giga had failed to pay certain required taxes, the city tax authorities issued an order directing the company to pay the taxes due. The company disputed the lawfulness of the order and filed a complaint with the Tartu Administrative Court (Tartu Halduskohus).
On 22 March 1996 the applicant was formally charged with misusing his position as well as with tax evasion and falsification of documents.
On 28 June 1996 the charge concerning misuse of his position in a company was dropped by the police investigator.
On 3 June 1996 the Tartu Administrative Court dismissed the applicant’s complaint concerning the tax authorities’ order of 26 February 1996. AS Giga appealed against this decision to the Tartu Court of Appeal (Tartu Ringkonnakohus).
On 1 July 1996 a further charge of fraud was added to the indictment against the applicant.
On 26 August 1996 the Court of Appeal granted the company’s appeal and declared the tax authorities’ order invalid on the ground that the authorities had failed to follow the prescribed procedure in examining the company’s files. In particular, due to the fact that the files were examined on police, rather than the company’s premises, and the documents were not individually recorded, it could not be determined whether the examination encompassed all the relevant book-keeping documents. The Court of Appeal stated that, in view of the procedural deficiencies, it could not examine the correctness of the factual basis for the order.
On 7 October 1996 the investigation submitted to the applicant the final version of the charges which concerned his actions as the chairman of the board of AS Giga and AS Tartu Jõujaam and as the owner of the former company. The charges under Article 148-1 § 7 of the Criminal Code (see domestic law below) contained three different counts, one of which related to the forgery and fabrication of documents on five different occasions during the years of 1993 and 1994 in order to show commercial interaction with a fictitious company – AS Toruarmatuur. The second count concerned the use at the end of 1994 and in 1995 of fictitious documents in the
payment of salaries to persons performing work for AS Giga. The third count related to the conclusion, on 12 May 1995, of a sham contract in order to circumvent the tax laws.
On 17 October 1996 the police questioned the bookkeeper of AS Giga, A.M., who stated that at the time of compiling accounting reports the company had invoices from AS Toruarmatuur, but that subsequently they had disappeared from the files. In an earlier questioning, on 8 February 1996, she had alleged that some of the original contracts concluded between the companies had gone missing.
On 31 October 1996, after the completion of the preliminary investigation, the applicant and his lawyer were acquainted with the case file consisting of two volumes of 424 pages. Upon discovery that the file contained certified copies of the company’s contracts and not the originals, the applicant’s lawyer asked that the originals be requested from the auditors, in whose hands they presumably were, and included in the file.
The case was then sent to the Tartu City Court (Tartu Linnakohus) for trial.
By a judgment of 13 October 1997 the City Court found the applicant guilty as charged and imposed a suspended sentence of 3 years and 6 months’ imprisonment.
It found that in collecting the evidence in support of the charges arising out of the alleged fabrication of documents to show transaction with a fictitious company, the preliminary investigation authorities had infringed the procedural requirements for seizure stipulated in Article 140 of the Criminal Code. In particular, they had seized documents which were not relevant as evidence in the criminal case against the applicant, the documents were not recorded individually and they were taken away as entire files. This had hampered the preliminary investigation of the case as well as its examination by the court.
It took note of the Court of Appeal’s decision of 26 August 1996 declaring the order of the tax authorities invalid on procedural grounds. It considered, however, that the determination of the criminal charges against the applicant was independent of that decision.
The City Court further noted that the case file did not contain any book‑keeping documents showing that there existed a real contractual relationship between AS Giga and the purported company or that the former had actually incurred the alleged expenditure. It found unsubstantiated the applicant’s allegation that certain documents might have gone missing from the premises of the police prefecture where they were stored. It relied in this respect on the witness testimony of the police officer A.A., describing the system of work of the auditors and the security arrangements in the building. The testimony was corroborated by another witness, a state auditor M.I. The City Court found both of these witnesses credible.
The City Court also noted the testimony of AS Giga’s bookkeeper, A.M., to the effect that she had participated in the examination of the accounting documents on police premises and that she had access to them. At a court hearing the same witness had stated that she had no recollection that documents had been lost.
In convicting the applicant of the charges concerning tax evasion under Article 148-1 § 7 of the Criminal Code, the City Court observed that the criminal acts started in the third quarter of 1993 and that the last act began on 12 May 1995. It considered that the acts constituted an ongoing crime. They all had the elements of the same offence – they were directed against the State taxation system, they had the same criminal consequences, they were all committed intentionally and in a similar fashion, i.e. by falsifying documents and presenting them to the tax authorities. The City Court held that the applicant’s acts fell under Article 148-1 §§ 1, 2, 3 and 4 of the Criminal Code. As they resulted in causing considerable damage, they fell to be considered under § 7 of the said Article. The court pointed out that this paragraph did not list as its element a previous administrative punishment and referred to the practice of the Supreme Court confirming this finding.
In convicting the applicant of fraud for obtaining by deception in March 1994 shares in AS Tartu Jõujaam the City Court had regard to documentary evidence and witness testimony.
On 18 October 1997 the applicant lodged an appeal against the judgement to the Tartu Court of Appeal. He argued that in convicting him under Article 148-1 § 7 of the Criminal Code of acts committed in 1993 and 1994 the City Court applied retroactively the criminal law as § 7 entered into force only on 13 January 1995. Prior to that date conviction under Article 148-1 could follow only if the person concerned had been subjected to an administrative sanction for the same action or had a previous criminal conviction of the same offence.
He also argued that his conviction on the charge of fraud was unfounded, pointing to the fact that AS Giga obtained shares in AS Tartu Jõujaam already in 1993 when the latter was registered. In addition, the City Court had failed to indicate what actions specifically qualified as fraud.
He further contended that the indiscriminate seizure of documents from AS Giga on 15 and 20 November 1995 violated his rights of defence since he was deprived of the opportunity to submit necessary documents which were in the hands of the police.
By a judgment of 12 January 1998 the Tartu Court of Appeal upheld he applicant’s conviction. It considered that after his first criminal act in 1993 the applicant embarked upon a criminal enterprise which lasted until 1996 when the tax authorities discovered the abuses. The fact that the applicant had not been subjected to an administrative sanction was not relevant for the application of Article 148-1 § 7 of the Criminal Code as the incriminating acts had been committed intentionally. His intent to commit the criminal acts was proved by his conscious and purposeful concealment of objects of taxation and non-payment of taxes.
It held that the fraud committed by the applicant consisted of his presenting a knowingly invalid invoice to AS Tartu Jõujaam, as a result of which AS Giga obtained shares in the former company which brought the applicant personal financial benefit.
In response to the applicant’s contention regarding an infringement of his rights of defence, the Court of Appeal held that the seizures of documents were conducted in accordance with the requirements of Article 140 of the Criminal Code. The records contained a description of the seized files, their number and the number of pages therein. The documents were thus sufficiently individualised.
It found that the alleged loss of certain documents from the police premises was unsupported by the evidence.
On 17 February 1998 the applicant lodged an appeal on points of law with the Supreme Court (Riigikohus) raising the questions contained in his appeal against the judgment of the first instance court. He also argued that the concealment of objects of taxation did not create a continuous state but that it comprised single acts.
By a judgment of 8 April 1998 the Supreme Court upheld the judgments of the lower courts with regard to the applicant’s conviction. It noted that the Court of Appeal had given sufficiently detailed answers to the applicant’s arguments and agreed with its reasoning. The Supreme Court acknowledged that in effecting the seizure of documents the procedural norms were not strictly followed, but found that such infringement was not substantial and that it did not hinder the thorough, complete and objective examination of the case or prevent the court from rendering a lawful and substantiated judgment. It considered that a detailed description of documents in the record of seizure was necessary only when they are used as evidence in the criminal case.
It further considered that a constant and continuous violation of the obligation to declare one’s sources of income and to pay the required taxes created a persisting criminal state.
B. Relevant domestic law and practice
The Code of Criminal Procedure provides in Article 140 that, in performing a search and a seizure, an investigator can take away only those items and documents which are relevant to a criminal case. Each seized item and document must be entered in a protocol indicating their exact amount, format, weight and individual characteristics.
The text of Article 148-1 of the Criminal Code, in force until 27 June 1993, was as follows:
“Concealment of income or other objects of taxation, or evasion of submission of income tax returns:
(1) Concealment of income or other objects of taxation, or submission of knowingly false data in financial statements, tax calculations, income tax returns or other documents relating to the calculation of taxes or payments or transfer thereof to the budget, or evasion of submission of an income tax return or failure to submit an income tax return on time, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(2) The same acts, if committed by a person who has a criminal record [italics added] for a criminal offence prescribed in paragraph (1) of this article are punishable by one to five years’ imprisonment.”
The text of Article 148-1 of the Criminal Code, in force as from 27 June 1993 until 13 January 1995, was as follows:
“Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion:
(1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein by a person who is required to submit an income tax return, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year’s imprisonment;
(2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments or transfer thereof to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or up to three years’ imprisonment;
(3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with an order issued by the Tax Board for the compulsory collection of taxes by a bank, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, by a competent official who is required to perform the corresponding duties, if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(5) The same acts, if committed by a person who has a criminal record [italics added] for a criminal offence prescribed in paragraph (1), (2), (3) or (4) of this article are punishable by one to five years’ imprisonment;
(6) Commission of acts prescribed in paragraph (1), (2), (3) or (4) of this article on a large-scale basis is punishable by up to seven years’ imprisonment.”
The text of Article 148-1 of the Criminal Code, in force as from 13 January 1995, reads as follows:
“Evasion of submission of income tax returns or other tax calculations, concealment of income or other objects of taxation, and tax evasion:
(1) Evasion of submission of an income tax return, or failure to submit an income tax return on time, or submission of falsified data therein, if such acts are intentionally committed by a person who is required to submit an income tax return, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to one year’s imprisonment;
(2) Concealment or reduction of income or other objects of taxation or increase of expenditure for the purpose of concealment or reduction of income or other objects of taxation, or failure to submit or failure to submit on time income tax returns, tax calculations, financial statements or other documents relating to the calculation of taxes or payments or transfer thereof to the budget, or failure to submit or failure to submit on time accounting documents, contracts or other documents necessary for the assessment and verification of the correctness of taxes, or failure to comply with an order of the Tax Board, if the specified acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(3) Failure to pay taxes or failure to pay taxes on time, or inadequate compliance or failure to comply with a precept issued by the Tax Board for the compulsory collection of taxes by a bank, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(4) Incorrect deduction or failure to deduct personal income tax from the wages (income) of employees, or failure to transfer deducted payments to the budget in full or in a timely manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(5) Submission of incorrect data or documents upon compulsory registration on the basis of an Act concerning a tax, or concealment of one’s residence, place of employment or place of business from a tax authority, or evasion of payment of the taxes provided for in the Taxation Act in any other manner, if such acts are intentionally committed by a competent official who is required to perform the corresponding duties or by a natural person, or if an administrative punishment has been imposed on the offender for a similar offence [italics added], is punishable by a fine or detention or up to three years’ imprisonment;
(6) The same acts, if committed by a person who has a criminal record for a criminal offence prescribed in paragraph (1), (2), (3), (4) or (5) of this article are punishable by one to five years’ imprisonment;
(7) Commission of acts prescribed in paragraph (1), (2), (3), (4) or (5) of this article on a large-scale basis is punishable by three to seven years imprisonment.”
According to the practice of the Supreme Court, if a non-payment of taxes is intentional and continuous the latest version of Article 148-1 is applicable to acts which occurred prior to its entry into force provided that part of the criminal activity took place after the critical date. Criminal liability arises on two alternative, not cumulative, grounds: (1) if a person has committed the offence intentionally or (2) if a person has previously been subjected to administrative punishment for the same offence. Article 148-1 § 7 does not contain a separate offence, but it only qualifies the elements listed in §§ 1-5. Thus, a person may be convicted under Article 148-1 § 7 only if his acts encompass the elements of the offences set out in §§ 1-5. (Decision of the Criminal Division of the Supreme Court of 8 April 1997, Riigi Teataja III 1997, 14, 147; and decision of 27 January 1998, Riigi Teataja III 1998, 10, 104).
COMPLAINTS
1. The applicant complains under Article 6 §§ 1 and 3 (b) of the Convention that he did not have a fair trial in the following respects:
(a) He contends that the indiscriminate seizure of documents from his companies and home resulted in the violation of his defence rights, the equality of arms principle and the right to adversarial proceedings. He submits that he had no possibility of using the seized documents in order to rebut the charges against him. The prosecution, which possessed all documents essential to the criminal case, submitted to the court only those which incriminated him in the imputed acts.
(b) He further argues that the court judgments were not motivated. In particular, the first and second instance courts did not explain how AS Giga could obtain by deception shares in AS Tartu Jõujaam in 1994 when it became a shareholder in the latter already in 1993. Moreover, the Supreme Court failed to answer his argument concerning the retroactive application of criminal law.
2. The applicant complains under Article 7 of the Convention that he was found guilty of acts committed in 1993-1994 under the criminal law which entered into force on 13 January 1995. The versions of Article 148-1 of the Criminal Code applicable in 1993-1994 required the existence of a
previous criminal conviction or administrative punishment as a pre‑condition for criminal conviction for acts defined therein. He, however, had no such previous conviction or punishment.
THE LAW
1. The applicant complains that he did not have a fair trial. He invokes Article 6 §§ 1 and 3 (b) of the Convention which provides, insofar as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence.”
(a) The applicant complains that the indiscriminate seizure of documents from his companies and home resulted in the violation of his defence rights, the equality of arms principle and the right to adversarial proceedings. He submits that he had no possibility of using the seized documents in order to rebut the charges against him. The prosecution, which possessed all documents essential to the criminal case, submitted to the court only those which incriminated him in the imputed acts.
The Government submit that the applicant’s complaint is unsubstantiated. They argue that the applicant had access to the documents following their seizure from his companies as shown by letters of the police and the public prosecutors of November 1995 and January 1996. They point out that the courts carefully examined and refuted the applicant’s complaint concerning the alleged loss of documents from the police premises during the preliminary investigation. The courts also established that the applicant had access to them.
As from the end of the preliminary investigation on 31 October 1996 and during the subsequent court proceedings the applicant had unlimited access to his case file. The documents contained therein were the only written evidence which the courts examined and relied upon in their judgments. Other documents and files were never referred to by the prosecution and played no part as evidence in the case. The Government point out that the applicant never used the opportunity available to him to request a court to allow him to present additional documents he considered relevant to his defence. Moreover, the applicant failed to specify which documents, in addition to those in the case file, would have been necessary for the preparation of his defence.
The Government submit that it is sufficient under Article 6 § 3 (b) that the applicant (or his lawyer) have unimpeded access to the case file, as it is presented to the court, once the charges against a person have been formulated.
The Government therefore conclude that the applicant had access to his criminal case file, that no evidence not included therein was submitted to the courts and that he had at his disposal all the required facilities for preparing his defence.
The applicant points out that the letters of the police and the public prosecutors of November 1995 and January 1996 date back to the time before official charges were brought against him in March 1996. Without knowing the content of the charges, he could not request the documents he might have needed. Moreover, on 8 February 1996, the investigator refused to issue him copies of the case file documents.
He argues that the indiscriminate and large-scale seizure of documents by the police created a possibility for them to dispose of the exculpatory documents. The charges concerning tax evasion were based on the lack of documentary proof that AS Giga had incurred the expenditure alleged. However, before the seizure of documents the company had this proof in the form of original contracts and invoices, as testified by its bookkeeper on 8 February 1996 and 17 October 1996. On 31 October 1996 the defence lawyer requested that the original contracts, be included in the file. As these documents were not presented to the court, it is likely that they were disposed of by the police.
The applicant argues that the finding of the court that the documents could not have disappeared from the police was grounded solely on the testimony of the police officer A.A. who had failed to duly document their seizure.
He further submits that his case file, which consisted of two volumes of 424 pages, contained only an insignificant number of the seized documents the total of which amounted to 10,000. He disagrees with the Government’s allegation that the documents, which were not included in the file, played no role as evidence in the criminal proceedings. It was because the prosecution possessed almost every document and there was no list of individual items, that it could claim the lack of certain bookkeeping documents as a basis for a charge of tax evasion. In these circumstances, it was impossible for him to rebut the claims of the prosecution.
The applicant finally submits that he was convicted on the basis of the allegations contained in the tax authorities’ order which had been declared invalid.
The Court recalls that according to the principle of equality of arms – one of the elements of the broader concept of a fair trial – each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent (see, for example, the Foucher v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, p. 465, § 34.) The concept of a fair trial also includes the right to adversarial proceedings which means the opportunity for the parties to have knowledge of and comment on all evidence adduced or observations filed (see, for example, the Nideröst-Huber v. Switzerland judgment of 18 February 1997, Reports 1997-I, p. 108, § 24, and the Mantonavelli v. France judgment of 18 March 1997, Reports 1997-II, p. 436, § 33). It further recalls that the Convention does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see. for example, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46, and Garcia Ruiz v. Spain [GC], no. 30544/99, § 28, ECHR-I).
In the present case the Court notes that the charges against the applicant, as they were presented to the court, were formulated in the wake of a seizure from the applicant’s company of documents, which served as a basis for the prosecution. It observes that the documents were not recorded in full accordance with the procedural requirements as acknowledged by the domestic courts.
It notes, however, that upon the completion of the preliminary investigation on 31 October 1996 the applicant and his lawyer were acquainted with its results. According to the Government, the applicant had as from that date an unlimited access to his case-file – a submission which is not disputed by the applicant. The Court therefore considers that the applicant was made fully aware of the charges against him and the supporting material, which allowed him the possibility of organising his defence with the assistance of a lawyer.
The Court further observes that the applicant had the opportunity to request the trial court to permit the submission of further documents as evidence. The applicant, however, made no such request.
As regards the applicant’s allegation that the prosecution had suppressed material evidence for him, the Court notes that the arguments concerning the possible loss of the relevant documents were examined and rejected by the domestic courts as unsubstantiated. It finds no indication that the courts’ assessment of the evidence was unreasonable.
It notes that throughout the proceedings the applicant was able to submit arguments he considered relevant to his case and comment on all evidence adduced by the prosecution.
In these circumstances the Court finds that that the applicant had adequate facilities for the preparation of his defence, that he had been afforded equality of arms and that he had the benefit of adversarial proceedings.
(b) The applicant complains that the court judgments were not motivated. In particular, the first and second instance courts did not explain how AS Giga could obtain by deception shares in AS Tartu Jõujaam in 1994 when it became a shareholder in the latter already in 1993. Moreover, the Supreme Court failed to answer his argument concerning the retroactive application of criminal law.
The Court recalls that Article 6 § 1 obliges courts to give reasons for their decisions, but it cannot be understood as requiring a detailed answer to every argument (see, for example, the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, p. 20, § 61). In the present case, the City Court found that the commission of fraud by the applicant was proved by the evidence. In its judgment the Court of Appeal stated that the fraud consisted of his presenting a knowingly invalid invoice to AS Tartu Jõujaam, as a result of which AS Giga obtained shares in the former company which brought the applicant personal financial benefit.
The Court finds no indication that the reasoning of these courts prevented the applicant from exercising his right of appeal or was otherwise incompatible with Article 6 of the Convention.
As regards the alleged failure of the Supreme Court to address the applicant’s submission concerning the retroactive application of criminal law, the Court notes that the Supreme Court agreed with the reasoning of the Court of Appeal which had given the applicant sufficiently detailed answers. It observes that the applicant had not presented to the Supreme Court any new submissions which would have had a bearing on his appeal. In these circumstances, the adoption of the lower court’s reasons does not disclose any appearance of a violation of Article 6 of the Convention (see, for example, the Helle v Finland judgment of 19 December 1997, Reports 1997-VIII, p. 2930, §§ 59-60).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2. The applicant complains that his conviction of acts committed in 1993-1994 under the criminal law which entered into force on 13 January 1995 infringed the guarantee against retroactive application of criminal law set forth in Article 7 § 1 of the Convention, which provides:
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The Government submit that this part of the application is manifestly ill‑founded. They refer to the application and interpretation of Article 148‑1 § 7 of the Criminal Code by the domestic courts in the applicant’s case and the practice of the Supreme Court, according to which the criminal provision is applicable to acts of intentional and continuous tax evasion also before its entry into force if the criminal activity has continued after the critical date. The courts have applied the criminal law in the same way in a number of criminal cases. All these judgments are published and accessible to the public. Therefore, its application and interpretation did not go beyond what could be reasonably foreseen by the applicant.
The Government argue that the fact that the domestic courts qualified the applicant’s tax evasion in 1993-1995 as an ongoing crime had no effect on the nature and gravity of the sanction – a suspended sentence – and entailed no tangible negative consequences for him.
They point out that tax evasion was also defined as a crime in the earlier versions of Article 148-1 of the Criminal Code.
The applicant submits that his acts committed prior to 13 January 1995 did not qualify as a crime under the law in force at that time since he had no criminal conviction or administrative punishment which were the constitutive elements of the offences. Therefore, his conviction under the law of 13 January 1995 of these acts violated the principle nullum crimen sine lege.
The Court considers, in the light of the parties’ submission, that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. It concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint under Article 7 of the Convention that he was convicted of acts which did not constitute a criminal offence under national law at the time when they were committed.
Declares inadmissible the remainder of the application.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy