CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mai 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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)