In
the Darby case,
The
European Court of Human Rights, sitting, in accordance with Article
43 (art. 43) of the Convention for the Protection of Human Rights
and Fundamental Freedoms ("the Convention") and the
relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
and
also of Mr M.-A. Eissen,
Registrar,
and Mr H. Petzold,
Deputy Registrar,
Having
deliberated in private on 25 May 1990 and on 24 September 1990,
Delivers
the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case was brought before the Court on 13 July 1989 by the
European Commission of Human Rights ("the Commission") and
on 8 September 1989 by the Government of the Kingdom of Sweden ("the
Government"), within the period of three months laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. The case originated in an application (no. 11581/85)
against Sweden lodged with the Commission under Article 25 (art. 25)
by Dr Peter Darby, a Finnish citizen, on 20 November 1984.
The
Commission’s request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Sweden recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request and of the application was to obtain a
decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Articles 9 and 14 of
the Convention, Article 14 being taken together with Article 9 (art.
14+9) and with Article 1 of Protocol No. 1 (art. 14+P1-1).
In response to the enquiry made in accordance with Rule 33 para. 3
(d) of the Rules of Court, the applicant stated that he wished to
take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
The Chamber to be constituted included ex officio Mrs E. Palm, the
elected judge of Swedish nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21
para. 3 (b)). On 25 August 1989 the President of the Court drew by
lot, in the presence of the Registrar, the names of the other five
members namely, Mr L.-E. Pettiti, Mr C. Russo, Mr A. Spielmann, Mr
N. Valticos and Mr I. Foighel (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43).
Mr Ryssdal assumed the office of President of the Chamber (Rule 21
para. 5) and, through the Registrar, consulted the Agent of the
Government, the Delegate of the Commission and the lawyer for the
applicant on the need for a written procedure (Rule 37 para. 1). He
also granted a request from the applicant for legal aid (Rule 4 of
the Addendum to the Rules of Court). Thereafter, in accordance with
the President’s Order, the Registrar received the applicant’s
and the Government’s memorials on 28 February and 6 March 1990
respectively; in a letter of 6 April 1990 the Secretary to the
Commission informed the Registrar that the Delegate would submit his
observations at the hearing.
Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 16 January
1990 that the oral proceedings should open on 22 May 1990 (Rule 38).
The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There
appeared before the Court:
-
for the Government
Mr H. Corell, Ambassador,
Under-Secretary for Legal and Consular Affairs, Agent,
Mrs C. Westerling, Legal Adviser,
Ministry of Finance,
Mr C.-H. Ehrencrona, Legal Adviser,
Ministry for Foreign Affairs, Advisers;
-
for the Commission
Mr J. A. Frowein, Delegate;
-
for the applicant
Mr C. Palme, advokat, Counsel.
The
Court heard addresses by Mr Corell for the Government, by Mr Frowein
for the Commission and by Mr Palme for the applicant, as well as
their replies to its questions. The applicant also made a short
statement.
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. General background
The applicant, Dr Peter Darby, is a Finnish citizen of British
origin, born in 1926. In 1977 he was employed as a doctor by the
Swedish State Railways in Gävle, Sweden. He rented a flat in
the town, but spent the weekends with his family on the island of
Lemland in the neutral and demilitarised Finnish archipelago of
Åland at the southern end of the Gulf of Bothnia. From the end
of 1981 he worked as a doctor in the public health service in
another Swedish town, Norrtälje. Since August 1986 he has been
working in Åland.
During the period when the applicant was working in Sweden his
income from the above-mentioned posts was, in accordance with the
convention between Sweden and Finland for the avoidance of double
taxation (see paragraph 18 below), liable to Swedish tax. The
applicant was allowed deductions for the cost of maintaining two
homes as well as for travel expenses to and from Åland. As he
was considered not to be permanently resident in Sweden, he was,
until 1979, taxed in the so-called Common District (gemensamma
distriktet) and he paid only a reduced municipal tax (see paragraph
19 below).
On 1 January 1979 the law was amended, with the result that the
applicant was no longer taxed in the Common District but in the
municipality where he stayed, i.e. in Gävle (see paragraph 20
below). The deductions which had previously been allowed were no
longer permitted and he now had to pay the full municipal tax,
including a special tax to the Lutheran Church of Sweden ("the
church tax" - see paragraphs 21-23 below). He was informed by
the tax authorities that he could not claim any reduction of the
church tax unless he was formally registered as resident in Sweden
(see paragraph 22 below).
B. Dr Darby’s appeal against the decision to tax him as a
resident
Dr Darby appealed to the Joint Municipal Tax Court (mellankommunala
skatterätten) against the decision to treat him for tax
purposes as having been resident in Gävle in 1979. He claimed
that he should still be taxed in the Common District as he was not
living in Sweden. In a judgment of 25 February 1982 the court
dismissed the appeal.
In the meantime, on 19 February 1982, the applicant had obtained a
decision from the National Tax Board (riksskatteverket) to the
effect that if he travelled daily from Åland to his work in
Sweden he would not be regarded as a resident for the purposes of
section 68 of the Municipal Tax Act 1928 (kommunalskattelagen - see
paragraph 20 below) and would thus be taxed in the Common District.
However, he found daily commuting to Gävleimpossible, and in
1982 he accordingly took on less responsible work with lower pay in
Norrtälje, to which he could just manage to commute from
Lemland. As a result he was again taxed in the Common District and
was not liable to the church tax.
An appeal by Dr Darby to the Administrative Court of Appeal
(kammarrätten) of Sundsvall against the Joint Municipal Tax
Court’s judgment was dismissed in a judgment of 22 October
1982 and on 15 October 1984 the Supreme Administrative Court
(regeringsrätten) refused an application by him for leave to
appeal.
C. Dr Darby’s complaints regarding the obligation to pay
full church tax
In addition to the above-mentioned proceedings, the applicant
submitted an appeal to the County Administrative Court (länsrätten)
of Gävleborg County against the order to pay full church tax on
his 1979 income, on the ground that he was neither a member of the
Church of Sweden, nor a Swedish citizen nor resident in Sweden. In a
judgment of 19 May 1981 the court dismissed the appeal, holding that
the Tax (Reduction of Dissenters’ Liability) Act (lag 1951:691
om viss lindring i skattskyldigheten för den som icke tillhör
svenska kyrkan, "the Dissenters Tax Act" - see paragraph
22 below) did not apply to the applicant.
Dr Darby appealed to the Administrative Court of Appeal of
Sundsvall, which in a judgment of 22 October 1982 confirmed the
judgment of the lower court. His application for leave to appeal was
refused by the Supreme Administrative Court on 9 October 1984.
The applicant also lodged a complaint with the Parliamentary
Ombudsman (justitieombudsmannen) concerning his obligation to pay
tax for the religious activities of the Swedish Church. In his
decision of 16 April 1982 the Ombudsman noted that the requirement
in the Dissenters Tax Act that a person be formally registered as
resident in Sweden (mantalsskriven, as defined in the Ordinance on
the keeping of population records, folkbokföringsförordningen)
in order to be able to apply for exemption from the church tax had
been questioned on several occasions by various bodies, including
Parliament. Although the problem raised by the applicant was a
limited one, the Ombudsman concluded that it showed up an
inconsistency in the tax legislation for which there was no
objective justification and that it was understandable if this
inconsistency caused irritation. In a letter of the same day to the
Government, he proposed that the registration requirement should be
abolished. As a result of this proposal the Dissenters Tax Act was
subsequently amended accordingly (see paragraph 23 below).
D. The church tax paid by the applicant
Dr Darby paid church tax in the amount of 1,336 Swedish kronor for
the tax year 1979, 1,717 kronor for 1980 and 1,325 kronor for 1981.
If he had been allowed the reduction provided for in the Dissenters
Tax Act, he would have had to pay 401, 515 and 397 kronor,
respectively (see paragraph 22 below).
II. RELEVANT DOMESTIC LAW
A. Taxation in general
The provisions regarding municipal income taxation in general are
included in the Municipal Tax Act 1928, which has been amended on
numerous occasions over the years. The references below to this Act
and to other enactments are all to the version in force during the
relevant period (1979-1981), unless otherwise stated.
Liability to pay tax in Sweden was regulated in section 53,
subsection 1, of the Municipal Tax Act: residents of Sweden were
taxed on their world-wide income whereas non-residents had a more
limited liability, covering, inter alia, income derived from
employment in the Swedish public service.
Under
Article 19 of the convention with Finland for the avoidance of
double taxation (published in svensk författningssamling ("SFS"
- the official journal), 1977:812), the right to tax income derived
from public service vested in the State which paid the remuneration
(with certain exceptions not relevant here).
Regarding the place of taxation in Sweden, section 59, subsections
1 and 3, of the Municipal Tax Act provided that income earned by a
resident from employment was to be taxed in the municipality where
he was formally registered as a resident (mantalsskriven).
According
to the Tax (Common Municipal Purposes) Act (lag om skatt för
gemensamt kommunal ändamål), income earned by a
non-resident from employment in, inter alia, the Swedish public
service was to be taxed in Stockholm in the so-called Common
District. The tax rate (10 per cent) applicable in this district was
lower than the ordinary municipal tax rate. The tax levied was not
destined for any specific municipality but was used for levelling
out the burden of taxation between different municipalities or other
administrative authorities. It did not include any tax payable to
the Church of Sweden.
As a result of an amendment to section 68 of the Municipal Tax Act
and subsection 1 of the instructions relating to section 66 of the
same Act (SFS 1978:925), certain non-residents were considered, with
effect from 1 January 1979, to have sufficient connection with
Sweden to be liable to pay the full municipal tax. The Government
Bill (1978/79:58) containing these amendments did not mention the
problems which might result for non-residents in relation to the
Dissenters Tax Act.
Henceforth,
a non-resident with certain types of income, such as that derived
from employment in the public service, and with a temporary abode in
Sweden was no longer taxed in the Common District but in the
municipality where he had first lived. This meant that he had to pay
municipal tax at the same rate as a resident and also church tax.
B. The church tax
The church tax is collected together with the ordinary municipal
tax. The rate is determined by the local parish council. This system
has a long tradition and is based on the fact that the Lutheran
Church of Sweden is the established church. Under the transitional
provisions of the 1974 Constitution (regeringsformen), its parishes
have a status similar to that of the municipalities - including the
right of taxation.
The Dissenters Tax Act was enacted in 1951 at the same time as the
Freedom of Religion Act (lag 1951:680 om religionsfrihet) in order
to secure better respect for freedom of religion (see Government
Bill 1951:175, p. 75). Section 1 of the Dissenters Tax Act, made the
following provision for a reduction in the church tax:
"Church
tax which is referred to in the 1961 Act on parish administration
(lag 1961:436 om församlingsstyrelse) and is imposed either by
decision of a parish council or otherwise in accordance with the
principles that apply to the imposition of municipal tax, shall be
levied on a person who was not a member of the Church of Sweden at
the beginning of the tax year and who is formally registered as
resident (mantalsskriven) in this country for the tax year at only
30 per cent of the amount assessed."
The
registration requirement meant that the Dissenters Tax Act did not
apply to persons who had only a temporary abode in Sweden. According
to the travaux préparatoires of the Act, the reasons for this
were that the case for reduction could not be argued with the same
force in regard to persons who were not resident in Sweden as it
could in regard to those who were, and that the procedure would be
more complicated if the reduction applied to non-residents
(Government Bill 1951:175, p.144).
The
30 per cent of the church tax that remained after the reduction was
supposed to cover the costs borne by the parishes of certain
administrative functions such as the keeping of population records
and the maintenance of churchyards and other public burial-grounds.
With effect from 1 January 1987, section 1 of the Dissenters Tax
Act was amended in order to take into account the criticism made by
the Parliamentary Ombudsman (see paragraph 15 above), so that the
taxpayer no longer has to be registered as resident in Sweden in
order to benefit from the reduction of the church tax (Government
Bill 1986/87:45, p. 15).
C. Membership of the Swedish Church
Under the Freedom of Religion Act, as worded before 15 November
1979, membership of the Swedish Church was reserved to Swedish
citizens and foreigners living in Sweden. In 1979 an amendment (SFS
1979:929) opened membership also to other groups of persons. In
order to leave the Church, it is sufficient for the person concerned
to notify his resignation to the church authorities of his parish.
Special rules apply to minors.
PROCEEDINGS BEFORE THE COMMISSION
In his application of 20 November 1984 to the Commission (no.
11581/85), Dr Darby alleged violations of Article 6 para. 1 and
Article 9 (art. 6-1, art. 9) of the Convention. He contended that he
had been discriminated against by the Swedish authorities while
working in Sweden because he was a Finnish citizen domiciled in the
archipelago of Åland; and he also challenged the
interpretation of the Dissenters Tax Act to the effect that he had
to pay the full church tax and claimed that this obligation
infringed his civil rights.
On 11 April 1988 the Commission declared admissible the complaint
that he had been obliged to pay church tax and declared the
remainder of the application inadmissible.
In
its report of 9 May 1989 (made under Article 31) (art. 31), the
Commission expressed the opinion that:
(a)
there had been a violation of Article 9 (art. 9) (by ten votes to
three) and also of Article 14 of the Convention taken together with
Article 9 (art. 14+9) by nine votes to four);
(b)
it was not necessary to examine whether there had been a violation
of Article 14 taken in conjunction with Article 1 of Protocol No. 1
(art. 14+P1-1) (by eleven votes to two).
The
full text of the Commission’s opinion and of the dissenting
opinions contained in the report is reproduced as an annex to the
present judgment.
AS TO THE LAW
Dr Darby complained of the fact that between 1979 and 1981 he had
had to pay 3,065 Swedish kronor (see paragraph 16 above) as a
special tax to the Church of Sweden to finance its religious
activities. In his opinion, this amounted to a breach of Article 9
(art. 9) of the Convention and also of Article 14 of the Convention
taken together either with Article 9 (art. 14+9) or with Article 1
of Protocol No. 1 (art.14+P1-1).
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 1 (art. 14+P1-1)
Considering that the applicant’s grievances relate mainly to
allegedly discriminatory effects of the Swedish tax legislation, the
Court finds it more natural to examine the case under Article 14 of
the Convention taken together with Article 1 of Protocol No. 1 (art.
14+P1-1), which concerns the peaceful enjoyment of possessions.
Article 14 (art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set
forth in this Convention" - and in Protocol No. 1 (Article 5
thereof) (P1-5) - "shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status."
Under
Article 1 of Protocol No. 1 (P1-1):
"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."
Dr
Darby claimed that the refusal to grant him an exemption from the
impugned part of the church tax on the ground merely that he was not
formally registered as a resident in Sweden amounted to a
discrimination in comparison with other non-members of the Church
who were so registered.
This
view was shared by two dissenting members of the Commission, whereas
the Government maintained that it would be out of proportion to
regard this distinction in treatment as constituting prohibited
discrimination.
Article 1 of Protocol No. 1, second paragraph (P1-1-2), establishes
that the duty to pay tax falls within its field of application.
Accordingly, Article 14 (art. 14) is also applicable (see, mutatis
mutandis, the Inze judgment of 28 October 1987, Series A no. 126,
pp. 17-18, paras. 36-40).
Article 14 (art. 14) protects individuals placed in similar
situations from discrimination in their enjoyment of their rights
under the Convention and its Protocols. However, a difference in the
treatment of one of these individuals will only be discriminatory if
it "has no objective and reasonable justification", that
is if it does not pursue a "legitimate aim" and if there
is no "reasonable relationship of proportionality between the
means employed and the aim sought to be realised" (see, amongst
other authorities, the above-mentioned Inze judgment, ibidem, p. 18,
para. 41).
It appears first that Dr Darby can claim to have been, as regards
his right to an exemption under the Dissenters Tax Act, in a
situation similar to that of other non-members of the Church who
were formally registered as residents in Sweden.
As regards the aim of this difference in the treatment of residents
and non-residents, it is worth noting the following. According to
the Government Bill (1951:175) which gave raise to the Dissenters
Tax Act, the reason why the right to exemption was reserved for
persons formally registered as residents was that the case for
reduction could not be argued with the same force in regard to
persons who were not so registered as it could in regard to those
who were, and that the procedure would be more complicated if the
reduction was to apply to non-residents (see paragraph 22 above).
The Government Bill (1978/79:58) containing the tax- law amendments
that brought about this complaint did not mention the special
situation which the amendments would create for non-residents under
the Dissenters Tax Act (see paragraph 20 above). In fact, the
Government stated at the hearing before the Court that they did not
argue that the distinction in treatment had a legitimate aim.
In view of the above, the measure complained of cannot be seen as
having had any legitimate aim under the Convention. Accordingly,
there has been a violation of Article 14 of the Convention taken
together with Article 1 of Protocol No. 1 (art. 14+P1-1).
II. ALLEGED VIOLATION OF ARTICLE 9 (art. 9) OF THE CONVENTION,
TAKEN EITHER ALONE OR TOGETHER WITH ARTICLE 14 (art. 14+9)
Having regard to the circumstances of the case and to the
conclusion in the preceding paragraph, the Court does not find it
necessary to examine also the applicant’s complaint of a
violation of his freedom of religion, as guaranteed by Article 9
(art. 9), or of discrimination contrary to Article 14 (art. 14) in
his enjoyment of this right.
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
According to Article 50 (art. 50):
"If the Court finds that a decision or a measure
taken by a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the internal law
of the said Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the Court
shall, if necessary, afford just satisfaction to the injured party."
The
applicant claimed compensation for pecuniary and non-pecuniary
damage and reimbursement of his costs and expenses. The Government
contested part of the claims; the Delegate of the Commission
refrained from making any comments.
A. Pecuniary damage
As regards pecuniary damage, the applicant claimed repayment of the
excess tax he had paid between 1979 and 1981, that is 3,065 Swedish
kronor (see paragraph 16 above), plus interest calculated in
accordance with the Swedish Interest Act (räntelagen) from the
year in which the taxes were levied until the date of reimbursement.
While accepting this claim in principle, the Government maintained
that the Swedish Interest Act was not applicable. However, they left
it to the Court to determine whether the amount claimed should be
increased on an equitable basis.
The Court awards Dr Darby 8,000 kronor under this head, comprising
the amount of tax unduly paid in 1979-1981 (3,065 kronor) and
interest assessed in the light of the interest rates in Sweden at
the time.
B. Non-pecuniary damage
The applicant also sought 50,000 kronor as compensation for
non-pecuniary damage. He submitted that:
(a)
he had suffered from having to contribute directly to the religious
activities of a foreign church;
(b)
he had had to challenge, without the assistance of a lawyer, his
obligation to pay church tax in several court proceedings in Sweden,
and the ensuing work had caused him stress and considerable loss of
time although he had not actually incurred any costs;
(c)
he had also experienced stress as a result of the measures he took
to adjust his life in accordance with the National Tax Board’s
advance ruling (see paragraph 11 above).
In
the Government’s view, the state of affairs complained of was
not of such significance as to justify compensation in the amount
claimed.
As the Government pointed out, the applicant’s claims under
item (c) must be considered irrelevant in relation to the violation
found, as the obligation to pay the church tax cannot be said to
have required the taking of such measures. For the rest, the Court
agrees with the Government that the main aim of Dr Darby’s
domestic proceedings was to be taxed in the so-called Common
District, where, besides being exempt from the church tax, he would
have enjoyed a generally more favourable tax treatment (see
paragraph 19 above).
In
sum, the present judgment provides sufficient just satisfaction for
any mental suffering.
C. Costs and expenses
The applicant claimed 11,575 kronor for his costs in the
proceedings before the Commission, in which he appeared without
legal counsel. As to the proceedings before the Court, he sought
18,278 kronor for his lawyer’s expenses, 129,500 kronor for
his lawyer’s fee and 14,000 kronor for his own attendance at
the hearing.
The
Government considered the lawyer’s fee to be somewhat high and
left to the Court the question of compensating Dr Darby for his own
attendance. They accepted the other items.
Making an equitable assessment and taking into account the sums
paid in legal aid by the Council of Europe, the Court awards the
applicant 90,000 kronor under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 14 of the
Convention taken together with Article 1 of Protocol No. 1 (art.
14+P1-1);
2. Holds that it is not necessary to examine the case under
Article 9 (art. 9) of the Convention taken either alone or together
with the said Article 14 (art. 14+9);
3. Holds that Sweden is to pay the applicant 8,000 (eight
thousand) Swedish kronor for pecuniary damage and 90,000 (ninety
thousand) kronor for costs and expenses;
4. Rejects the remainder of the claim for just satisfaction.
Done in English and French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 23 October 1990.
Rolv
RYSSDAL
President
Marc-André
EISSEN
Registrar
