Case of Glantz v. Finland (Application No. 37394/11)
Glantz ve Finlandiya Kararı (Başvuru No. 37394/11)
Tuğçe KARAÇOBAN GÜNEŞ
Mr. Glantz, a Finnish citizen asserted that the Article 4 of the Supplementary protocol No 7 of the European Convention on Human Rights was breach concerning the assertion that due to the additional tax assessment and administrative fine implemented against him, the criminal suit that was filed against him has the characteristics of double jeopardy for the same criminal action. The European Court of Human Rights (“ECHR”) evaluated the case in terms of the four elements of non bis in idem principle which are as follows: “whether it Is a criminal adjudication”, “whether the crimes for which the applicant is charged are the same”, “whether a res judicata is presented” and “whether there were duplicate proceedings”.
Principle of Non Bis In Idem, Tax Sanction Law, Glantz v. Finland Decision, Engel’s Criteria, Taxational Misdemeanors.
Fin vatandaşı olan Bay Kaj- Erik Torsten Glantz, aleyhinde yapılan ek tahakkuk ve idari para cezası ile nitelikli vergi kaçakçılığı suçu nedeniyle yürütülen ceza davasının, aynı suç nedeniyle iki kez yargılanma niteliği taşıdığından bahisle Avrupa İnsan Hakları Sözleşmesi’nin 7 no.lu Ek Protokolü’nün 4. maddesinin ihlal edildiğini ileri sürmüştür. Avrupa İnsan Hakları Mahkemesi, non bis in idem ilkesinin -“ceza muhakemesi”, “başvuranın yargılandığı suçların aynı olup olmadığı”, “kesin bir hükmün mevcut olup olmadığı” ve “iki kez yargılama ve cezalandırmanın söz konusu olup olmadığı” olarak adlandırılan- dört unsuru bakımından detaylı bir değerlendirme yapmıştır.
Non Bis In Idem İlkesi, Vergi Yaptırım Hukuku, Glantz v. Finlandiya Kararı, Engel Kriterleri, Vergi Kabahatleri.
1. Preface
I would like thank to those who contributed to this elegant organization and I would like to greet all of our most valuable professors as well as our participants, Prof. Dr. Dr. h.c. mult. Bahri ÖZTÜRK being first.
In the reports that I presented in the Summer Academy between 2003 - 2010, I discussed the meaning of the scope of fair trial being limited with the disputes regarding the civil rights and obligations as well as with the resolving procedures of the criminal charges, in terms of the disputes, resulting from the tax obligation relation in light of the Jussila1 , Ferrazini2 , Bendenoun3 resolutions of the courts.
Currently, the criterion that were adopted by the court regarding the applicability of the Article 6 to the disputes, resulting from the tax obligation took hold. Therefore, I picked an interesting topic regarding the principle of non bis in idem that constitutes the result of the right of the fair trial.
2. The Circumstances of the Case
Mr. Glantz, a Finnish citizen asserted that the Article 4 of the Supplementary protocol No 7 of the European Convention on Human Rights was breach concerning the assertion that due to the additional tax assessment and administrative fine implemented against him, the criminal suit that was filed against him has the characteristics of double jeopardy for the same criminal action.
The tax inspector conducted a tax inspection of the applicant’s attorney’s office in 2006.
On 18 and 19 December 2006 the tax authorities considered that the applicant had received disguised dividends from his company during the tax years 2000 to 2004. The amounts of the disguised dividends were the following: 107,152 euros (EUR), EUR 1,673, EUR 48,711, EUR 32,759, and EUR 18,842. Additional taxes and tax surcharges were imposed in the amount of EUR 5,300, EUR 84.09, EUR 2,400, EUR 1,600 and EUR 900 respectively.
By letter dated 9 March 2007 the applicant sought rectification from the local Tax Rectification Committee. On 30 May 2007 the Tax Rectification Committee rejected the applicant’s requests. It found that the applicant had given incomplete information to taxation authorities and tax had therefore been incompletely or partially levied. Therefore the additional tax and the tax surcharges imposed on him were not considered to be too high. By letter dated 11 June 2007 the applicant appealed to the Helsinki Administrative Court.
On 22 December 2008 the Helsinki Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee. By letter dated 27 February 2009 the applicant appealed to the Supreme Administrative Court.
On 11 January 2010 the Supreme Administrative Court rejected the applicant's appeal and with that rejection the ordinary ways of appeal in terms of the additional tax assessment and administrative fees were exhausted.
