CEDH · CASELAW;STATEMENTOFFACTS;ENG — 21 juin 2010

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The applicant company provides inter-urban transportation services. A.     The circumstances of the case The facts of the case, as submitted by the applicant company, may be summarised as follows. On 24 December 2007 the Mat Regional Tax Office (“RTO”) made a tax reassessment report in respect of the applicant company which had allegedly under-declared taxes for the period between 2002 and 2007. The RTO made a reassessment of the applicant company's value added tax, income tax, profit tax, rent tax and social security. In the end, it ordered the applicant company to pay an additional 3,828,759 leks, corresponding to 31,140 euros at the material time, in respect of taxes and an additional 1,766,938 leks, corresponding to 14,371 euros at the material time, in penalties. On 3 January 2008 the RTO informed the applicant company that the tax liability should be paid by 15 January 2008. On an unspecified date the applicant company appealed to the Tax Appeals' Directorate (“TAD”) of the Directorate General of Taxes. On 3 March 2008 the TAD declared the appeal inadmissible, without examining its merits. It held that the applicant company had failed to comply with the Tax Procedure Act (“TPA”) according to which, before filing an appeal, the outstanding tax liability should have been paid in full. There is no information as to whether additional written submissions were made or whether an oral hearing was held. On an unspecified date the applicant company appealed to the Tax Appeals' Commission (“TAC”) of the Ministry of Finance. On 23 April 2008 the TAC declared the appeal inadmissible and did not examine its merits. It relied on the same reasons as the TAD. There is no information whether additional written submissions were made or whether an oral hearing was held. On 21 May 2008 the applicant company appealed to the Mat District Court (“the District Court”), challenging the amounts found in the tax assessment report of 24 December 2007. On 17 July 2008 the District Court declared the case outside its jurisdiction on grounds of non-exhaustion of administrative remedies. It found that the applicant company had not complied with the TPA in so far as it had not paid the tax liability in full. On 21 July 2008 the applicant company appealed to the Supreme Court in accordance with Article 59 of the Code of Civil Procedure (“CCP”). It contended, inter alia , that the tax liability had seriously affected its economic interests. On 2 October 2008 the Supreme Court dismissed the applicant company's appeal and upheld the District Court's decision of 17 July 2008. On 2 April 2009 the applicant company filed a constitutional appeal, relying on a breach of its right of access to a court. On 5 July 2009 the Constitutional Court declared the appeal inadmissible as it raised issues that concerned the interpretation of law and assessment of evidence, which were outside its jurisdiction. B.     Relevant domestic law and practice 1. The Constitution of Albania Article 41 “1. The right of private property is protected by law. ... 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. ...” Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 131 “The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” Article 155 Fees, taxes and other financial obligations, national and local, relief or exemptions of certain categories of taxpayers from paying them as well as the method of their collection are specified by law. In such cases, the law may not be given retroactive effect. Article 157 1. The budgetary system is composed of the state budget and local budgets. 2. The state budget is created by revenues collected from taxes, fees and other financial obligations as well as from other legal revenues. It includes all state expenses. 3. Local organs define and collect taxes and other obligations as provided by law. 2. Code of Civil Procedure Article 59 of the CCP provides that a court may, at any instance of the proceedings, even of its own motion, examine whether the case falls within the judicial or administrative jurisdiction. A special appeal may be filed with the Supreme Court against such court's decision. Article 443 of the CCP stipulates that the special appeal may be filed within five days. 3. The Tax Procedure Act (Law no. 8560 of 22 December 1999 as amended by: Law no. 8710 of 15 December 2000; Law no. 8846 of 11 December 2001; Law no. 8968 of 7 November 2002; Law no. 8980 of 12 December 2002; 9160 of 18 December 2003; Law no. Law no. 9333 of 6 December 2004; Law no. 9460 of 21 December 2005; Law no. 9538 of 22 May 2006; Law no. 9585 of 17 July 2006; Law no. 9596 of 27 July 2006; Law no. 9713 of 16 April 2007; Law no. 9737 of 17 May 2007 and Law no. 9767 of 9 July 2007) The TPA described the basic principles for the organisation and operation of the tax system in Albania. Section 43, as amended, stipulated that taxpayers were obliged to pay only the taxes, excluding penalties and interest due, before having recourse to the appeals procedure. Section 55, as amended, provided for the appeals procedure, whose hierarchy was as follows: a) the head of local government concerning local taxes; b) the TAD within the Directorate General of Taxes in respect of national taxes; c) the TAC in respect of national taxes; d) domestic courts in respect of local and national taxes. The TPA of 1999 was repealed with the entry into force of a new TPA, Law no. 9920 of 19 May 2008. 4. Case-law of the Albanian Constitutional Court a. Decision no. 18/02 In decision no. 18 of 1 February 2002 the Constitutional Court found that, by deciding to discontinue the case as a result of the appellant's company's failure to pay the tax liability in full, the Supreme Court had breached the appellant company's right of access to court. It therefore quashed the Supreme Court's decision and remitted the case for fresh examination. b. Decision no. 9/03 In decision no. 9 of 2 April 2003 the Constitutional Court examined the constitutionality of a number of provisions of the Value Added Tax (“VAT”) Act, which subjected an appellant's right to appeal against a tax reassessment decision to the prior payment of the reassessed tax. The Constitutional Court dismissed the constitutional appeal and found that such a restriction was in the public interest of securing the payment of taxes and was prompted by the existing economic situation. c. Decision no. 18/04 In decision no. 18 of 17 November 2004 the Constitutional Court found that, by deciding to discontinue the case as a result of the appellant's company's failure to pay the tax liability in full, the Supreme Court had not breached the appellant company's right of access to court. The Constitutional Court found that a restriction on the right of access to court served the public interest of payment of tax liability and was in compliance with the State's policy for collection of taxes and income. This was also in line with Article 1 of Protocol No. 1, according to which States could enact laws “to secure the payment of taxes or other contributions or penalties” d. Decision no. 16/08 In decision no. 16 of 25 July 2008 the Constitutional Court examined the constitutionality of Article 3 § 2 of Law no. 9713 of 16 April 2006, according to which “taxpayers are obliged to pay 15% of all penalties and interest before instituting court proceedings”. As regards the appellants' complaint that the immediate payment of 15% of penalties and interest infringed their right to the peaceful enjoyment of possessions, the Constitutional Court held that the obligation to immediate payment of penalties and interest did not fall within the scope of application of Article 41 of the Constitution and Article 1 of Protocol No. 1 to the Convention. However, the Constitutional Court found that the immediate payment of 15% of penalties and interest as a precondition to seizing a court, constituted a disproportionate restriction on the right of access to court. It therefore declared that article unconstitutional. COMPLAINTS The applicant company complains under Article 6 § 1 of the Convention about a denial of access to a court. Under Article 1 of Protocol No. 1 to the Convention, it complains that the tax liability imposed an excessive burden on the peaceful enjoyment of its possessions. QUESTIONS TO THE PARTIES   1. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case (see Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001 ‑ VII; Jussila v. Finland [GC], no. 73053/01, ECHR 2006 ‑ XIII and J.B. v. Switzerland , no. 31827/96, ECHR 2001 ‑ III)? 2. Has there been a breach of the fairness requirements under Article 6 § 1 of the Convention? In particular: a. Did the circumstances of the case require an oral hearing (see Jussila , cited above, §§ 40-49)? b. Was an oral hearing held at the administrative level or the domestic courts' level? c. Did the applicant company have a possibility to request an oral hearing? 3. Has there been a breach of the principle of legal certainty under Article 6 § 1 of the Convention having regard to the Constitutional Court's decisions no. 18 of 1 February 2002, no. 9 of 2 April 2003 and no. 18 of 17 November 2004 (see Beian v. Romania (no. 1) , no. 30658/05, ECHR 2007 ‑ XIII (extracts)? 4. Has there been a breach of the applicant company's peaceful enjoyment of its possessions within the meaning of Article 1 of Protocol No. 1 to the Convention?