(Application no. 13079/03)
16 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Ruotsalainen v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 26 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Misdemeanour, modus operandi:
Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax (lisävero, tilläggsskatt).
Footnote: he had carried out the refuelling himself”
The fine amounted to 720 Finnish marks (FIM; 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act (laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001.
“No special reasons provided for by law to grant a relief have been put forward.”
“Section 4 of the Fuel Fee Act provides that a fuel fee (polttoainemaksu, bränsleavgift) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount.
The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle.
The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu.
The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention.
Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Section 2 - Fuel fee
A vehicle referred to in section 1 shall be subject to a fuel fee as a tax corresponding to fuel tax, if a more leniently taxed fuel than diesel oil is used in the vehicle. A fuel fee shall not be collected on the fuel contained in the tank of a vehicle when the vehicle is imported. A fuel fee shall, however, be collected, if the fuel contained in the tank of the imported vehicle has been made identifiable as provided by virtue of the Excise Duty on Fuels Act (Act no. 948/82). A vehicle in respect of which a notification within the meaning of section 20 of the Motor Vehicle Tax Act has been given for collecting additional tax shall not be subject to a fuel fee during the tax period of the additional tax.
Section 3 - Notification obligation
If a more leniently taxed fuel than diesel oil is used in a vehicle referred to in section 1, the owner or holder of the vehicle shall be obliged to notify the Vehicle Administration of such use before using it. In respect of a vehicle imported to Finland, the notification may also be given to the customs authorities.
Section 4 - Imposition of a fuel fee
A fuel fee shall be collected for the number of days on which, according to a notification, a more leniently taxed fuel than diesel oil is used in a motor vehicle.
If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle during a time in respect of which no prior notification has been given, a fuel fee shall be collected for the number of days on which the vehicle has been continuously located in Finland prior to the use, but not for more than 20 days at a time. If a fuel fee has been imposed on the vehicle, the time shall be counted from the first day following the previous tax period at the earliest. If the date of importing the vehicle to Finland cannot be established, the fuel fee shall be collected for a minimum of 10 days.
Section 5 – The amount of the fuel fee
The fuel fee for a pickup van is FIM 1,500 [equivalent to EUR 252.28] per diem. ...
Section 6 - Increase of the fuel fee
If the use of a more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notification laid down by section 3 has been given, the fuel fee collected shall be three times the normal amount.
Section 7 - Party liable for payment
The fuel fee shall be collected from the person who was the owner of the vehicle at the time when a more leniently taxed fuel than diesel oil was used in the vehicle. If another person holds the vehicle permanently in his or her possession, the fuel fee shall be collected from this holder. ...
Section 9 - Establishing the use of fuel
The use of a fuel other than diesel oil shall be presumed if a tank belonging to the fuel system of a vehicle contains a fuel which has been made identifiable pursuant to the legal provisions on light fuel oil. A fuel fee shall be collected irrespective of the amount of such fuel in the vehicle.
Section 15 - Tax relief and respite of payment
For particularly weighty reasons, the Ministry of Finance may, on application and on conditions set by the Ministry, grant an exemption from the payment of a fuel fee, a penal interest and an arrears payment, and an interest due because of respite of payment.
The National Board of Taxes shall make a decision on the application referred to in subsection 1, if the sum whose removal or return is requested does not exceed FIM 300 000 [equivalent to EUR 16,818.79]. The Ministry of Finance may, however, take the case up for decision, if it is of particular significance.
The National Board of Taxes may, on application, grant respite of the payment of a fuel fee. The provisions on the additional tax on the motor vehicle tax shall apply to the conditions of such respite. The Ministry of Finance may take a case concerning respite of payment up for decision. In such cases, the Ministry shall determine the respite conditions in its decision concerning the application.
A decision made by virtue of this section shall not be subject to appeal.
Section 16 - Penal provisions
Illegal evasion of a fuel fee and attempted such evasion are punishable according to Chapter 29, Articles 1-3, of the Penal Code.”
“Article 1 - Tax fraud (Act no. 1228/1997)
A person who
(1) gives a taxation 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, a tax to be assessed too low or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for at most two years.
Article 2 - Aggravated tax fraud (Act no. 769/1990)
If in 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 also when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for at least four months and at most four years.
Article 3 - Petty tax fraud (Act no. 769/1990)
(1) If the tax fraud, when assessed as a whole, with due consideration to the amount of financial benefit sought and the other circumstances connected with the offence, is to be deemed petty, the offender shall be sentenced for petty tax fraud to a fine.
(2) If a punitive tax increase is deemed a sufficient sanction, the report of, prosecution for or punishment for petty tax fraud may be waived.”
I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION
Article 4 of Protocol No. 7 to the Convention reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
1. The parties' submissions
2. The Court's assessment
A. Whether the sanctions were criminal in nature
B. Whether the latter sanction arose from the same facts as the former and whether there was a duplication of proceedings
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and EUR 8,000 (eight thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 16 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza