CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 25994/94                       by Josef JUPIN                       against Sweden         The European Commission of Human Rights (Second Chamber) sitting in private on 15 May 1996, the following members being present:              Mrs.   G.H. THUNE, Acting President            MM.    H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 September 1994 by Josef Jupin against Sweden and registered on 19 December 1994 under file No. 25994/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Swedish citizen born in 1934 and residing in Uppsala, is a businessman.         The facts of the case, as submitted by the applicant, may be summarised as follows.   Early retirement pension         In May 1990, the applicant applied to the Social Insurance Office (Försäkringskassan) for an early retirement pension.         After having investigated the matter, the Office, by decision of 3 April 1991, rejected the application as the available medical evidence failed to show that the applicant was entitled to such a pension.         On 12 June 1991 the Office's decision was upheld on appeal by the Social Insurance Court for Central Sweden (Försäkringsrätten för Mellansverige). On 9 September 1993 the Supreme Social Insurance Court (Försäkringsöverdomstolen) refused the applicant leave to appeal.   Fixing of taxable income and imposition of tax supplement         In 1988, the Local Tax Assessment Board (Taxeringsnämnden) fixed the applicant's taxable income at 8,200 SEK for the income year 1987. Save for a miscalculation, it was fixed in accordance with the information supplied by the applicant in his annual tax return.         After a tax audit of the applicant's companies, the County Tax Authority (Länsskattemyndigheten) of the County of Uppsala, on 28 June 1989, appealed to the County Administrative Court (Länsrätten) of the County of Uppsala to have the applicant's taxable income raised. The Authority further claimed that a tax supplement (skattetillägg) should be imposed on the applicant.         By judgment of 3 December 1992, the County Administrative Court raised the applicant's taxable income to 87,300 SEK. The Court found that the applicant should be taxed, inter alia, for a swimming pool which had been constructed at the applicant's summer house and for certain purchases of private items, all of which had been entered in the books of one of the companies as deductions to set off its profits. As the raised taxable income, in its entirety, was considered to be related to incorrect information supplied by the applicant in his tax return, the Court further decided, under Sections 116 a and 116 b of the Taxation Act (Taxeringslagen, 1956:623), to impose a tax supplement equivalent to 40 per cent of the tax levied on 79,100 SEK, i.e. on the amount by which the taxable income was raised.         The applicant appealed to the Administrative Court of Appeal (Kammarrätten) in Stockholm, claiming that his taxable income should be fixed in accordance with the decision of the Local Tax Assessment Board. He did not refer to the tax supplement. Section 116 p of the Taxation Act provides, however, that if there are reasons to reduce the taxable income fixed by an appealed decision, the courts examining the appeal shall ex officio make a corresponding correction of the tax supplement imposed.    On 2 May 1994 the appellate court, agreeing with the County Administrative Court's assessments, upheld its judgment.         On 7 March 1995 the Supreme Administrative Court (Regerings- rätten) refused the applicant leave to appeal.   Property taxation         In 1990, the Local Property Tax Assessment Board (Fastighets- taxeringsnämnden) fixed the rates (taxeringsvärde) for the applicant's two properties, the above-mentioned summer house and a permanent home, which was registered on the applicant's wife.         On 1 November 1993 the County Administrative Court rejected the appeals made against the Board's decisions by the applicant and his wife. Their further appeals were rejected by the Administrative Court of Appeal on 30 March 1994 (the summer house) and 21 December 1994 (the permanent home).         The applicant and his wife thereafter appealed to the Supreme Administrative Court. The appeals were, in accordance with the applicable rules, sent to the Administrative Court of Appeal.         With respect to the case concerning the summer house, the Administrative Court of Appeal, by decision of 8 July 1994, dismissed the appeal for having been lodged out of time, i.e. more than two months after the serving of its judgment. The applicant appealed against this decision, claiming that he had received the judgment only a few days before he had appealed against it. However, the decision was upheld by the Supreme Administrative Court on 22 March 1995.         As regards the case concerning the permanent home, leave to appeal was refused by the Supreme Administrative Court on 2 March 1995.   COMPLAINTS         The applicant claims that the decisions taken in the various cases were wrong. In addition, he complains that his application for an early retirement pension was rejected without any medical examination or court hearing. He further contends that his appeal against the Administrative Court of Appeal's judgment of 30 March 1994 should not have been dismissed as he allegedly received the judgment only a few days before lodging the appeal. Finally, he complains of the length of the proceedings in the case concerning income tax and tax supplement. He invokes Articles 2, 3, 4, 6, 7, 8 and 10 of the Convention.   THE LAW   1.     The applicant complains of the decisions to reject his application for an early retirement pension. In particular, he alleges that the decisions were wrong and that there should have been a medical examination and a court hearing before the decisions were taken.   The Commission, however, is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Articles invoked as, under Article 26 (Art. 26) of the Convention, it "may only deal with the matter ... within a period of six months from the date on which the final decision was taken". The Commission recalls that the final decision regarding the pension was taken by the Supreme Social Insurance Court on 9 September 1993. The present application was introduced on 2 September 1994, which is more than six months after this decision.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant further claims that the decisions concerning the rating of the two properties, including the decision to dismiss his appeal against the Administrative Court of Appeal's judgment of 30 March 1994, were wrong.         The Commission recalls its established case-law according to which Article 6 (Art. 6) is not applicable to proceedings regarding taxation (cf., e.g., No. 11189/84, Dec. 11.12.86, D.R. 50 p. 121, and No. 13013/87, Dec. 14.12.88, D.R. 58 p. 163).         It follows that this part of the application is incompatible ratione materiae with Article 6 (Art. 6) of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         It is true that the applicant also invokes Articles 2, 3, 4, 7, 8 and 10 (Art. 2, 3, 4, 7, 8, 10) of the Convention. However, the Commission finds that an examination of this complaint as it has been submitted does not disclose any appearance of a violation of the rights and freedoms of the Convention and in particular of the Articles invoked.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally, the applicant complains of the decisions relating to the fixing of his taxable income and the imposition of a tax supplement. In particular, he claims that the decisions were wrong and that the relevant proceedings were not concluded within a reasonable time.         As far as the applicant alleges that the courts' decisions were wrong, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with a complaint concerning errors of law and fact allegedly committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention or its Protocols. The Commission refers, on this point, to the established case-law of the Commission and the European Court of Human Rights (cf., e.g., No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 88, and Eur. Court H.R., Klaas v. Germany judgment of 22 September 1993, Series A no. 269, p. 17, para. 29).         The Commission finds that an examination of the applicant's submissions in respect of the complaint that the decisions in question were wrong does not disclose any appearance of a violation of the above rights and freedoms and in particular of the Articles invoked.     It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         The applicant, however, further contends that the proceedings in the case were not concluded within a reasonable time. The Commission considers that this complaint raises the issue whether the case in question, in so far as it concerned the imposition of a tax supplement, involved a determination of a criminal charge within the meaning of Article 6 (Art. 6) of the Convention and, if so, whether the applicant was afforded the guarantees of this provision in the relevant proceedings (cf. No. 11464/85, von Sydow v. Sweden, Dec. 12.5.87, D.R. 53 p. 85, and Eur. Court H.R., Bendenoun v. France judgment of 24 February 1994, Series A no. 284).         The Commission finds that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government and to invite the Government to submit written observations on the admissibility and merits thereof.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN the examination of the applicant's complaint       that the case in which a tax supplement was imposed on him was       not determined within a reasonable time;         DECLARES INADMISSIBLE the remainder of the application.       Secretary to                            Acting President   the Second Chamber                      of the Second Chamber     (M.-T. SCHOEPFER)                            (G.H. THUNE)