PROCEDURE

The case was brought before the Court on 13 July 1989 by the European Commission of Human Rights (“the Commission“) and on 8 September 1989 by the Government of the Kingdom of Sweden (“the Government“), within the period of three months laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 11581/85) against Sweden lodged with the Commission under Article 25 (art. 25) by Dr Peter Darby, a Finnish citizen, on 20 November 1984. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 9 and 14 of the Convention, Article 14 being taken together with Article 9 (art. 14+9) and with Article 1 of Protocol No. 1 (art. 14+P1-1).

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

The Chamber to be constituted included ex officio Mrs E. Palm, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 25 August 1989 the President of the Court drew by lot, in the presence of the Registrar, the names of the other five members namely, Mr L.-E. Pettiti, Mr C. Russo, Mr A. Spielmann, Mr N. Valticos and Mr I. Foighel (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant on the need for a written procedure (Rule 37 para. 1). He also granted a request from the applicant for legal aid (Rule 4 of the Addendum to the Rules of Court). Thereafter, in accordance with the President’s Order, the Registrar received the applicant’s and the Government’s memorials on 28 February and 6 March 1990 respectively; in a letter of 6 April 1990 the Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

Having consulted, through the Registrar, those who would be appearing before the Court, the President directed on 16 January 1990 that the oral proceedings should open on 22 May 1990 (Rule 38).

The hearing took place in public in the Human Rights Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mr H. Corell, Ambassador, Under-Secretary for Legal and Consular Affairs, Agent, Mrs C. Westerling, Legal Adviser, Ministry of Finance, Mr C.-H. Ehrencrona, Legal Adviser, Ministry for Foreign Affairs, Advisers;

for the Commission Mr J. A. Frowein, Delegate;

for the applicant Mr C. Palme, advokat, Counsel. The Court heard addresses by Mr Corell for the Government, by Mr Frowein for the Commission and by Mr Palme for the applicant, as well as their replies to its questions. The applicant also made a short statement.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

A. General background

The applicant, Dr Peter Darby, is a Finnish citizen of British origin, born in 1926. In 1977 he was employed as a doctor by the Swedish State Railways in Gävle, Sweden. He rented a flat in the town, but spent the weekends with his family on the island of Lemland in the neutral and demilitarised Finnish archipelago of Åland at the southern end of the Gulf of Bothnia. From the end of 1981 he worked as a doctor in the public health service in another Swedish town, Norrtälje. Since August 1986 he has been working in Åland.

During the period when the applicant was working in Sweden his income from the above-mentioned posts was, in accordance with the convention between Sweden and Finland for the avoidance of double taxation (see paragraph 18 below), liable to Swedish tax. The applicant was allowed deductions for the cost of maintaining two homes as well as for travel expenses to and from Åland. As he was considered not to be permanently resident in Sweden, he was, until 1979, taxed in the so-called Common District (gemensamma distriktet) and he paid only a reduced municipal tax (see paragraph 19 below).

On 1 January 1979 the law was amended, with the result that the applicant was no longer taxed in the Common District but in the municipality where he stayed, i.e. in Gävle (see paragraph 20 below). The deductions which had previously been allowed were no longer permitted and he now had to pay the full municipal tax, including a special tax to the Lutheran Church of Sweden (“the church tax“ - see paragraphs 21-23 below). He was informed by the tax authorities that he could not claim any reduction of the church tax unless he was formally registered as resident in Sweden (see paragraph 22 below).

B. Dr Darby’s appeal against the decision to tax him as a resident

Dr Darby appealed to the Joint Municipal Tax Court (mellankommunala skatterätten) against the decision to treat him for tax purposes as having been resident in Gävle in 1979. He claimed that he should still be taxed in the Common District as he was not living in Sweden. In a judgment of 25 February 1982 the court dismissed the appeal.

In the meantime, on 19 February 1982, the applicant had obtained a decision from the National Tax Board (riksskatteverket) to the effect that if he travelled daily from Åland to his work in Sweden he would not be regarded as a resident for the purposes of section 68 of the Municipal Tax Act 1928 (kommunalskattelagen - see paragraph 20 below) and would thus be taxed in the Common District. However, he found daily commuting to Gävleimpossible, and in 1982 he accordingly took on less responsible work with lower pay in Norrtälje, to which he could just manage to commute from Lemland. As a result he was again taxed in the Common District and was not liable to the church tax.

An appeal by Dr Darby to the Administrative Court of Appeal (kammarrätten) of Sundsvall against the Joint Municipal Tax Court’s judgment was dismissed in a judgment of 22 October 1982 and on 15 October 1984 the Supreme Administrative Court (regeringsrätten) refused an application by him for leave to appeal.

C. Dr Darby’s complaints regarding the obligation to pay full church tax

In addition to the above-mentioned proceedings, the applicant submitted an appeal to the County Administrative Court (länsrätten) of Gävleborg County against the order to pay full church tax on his 1979 income, on the ground that he was neither a member of the Church of Sweden, nor a Swedish citizen nor resident in Sweden. In a judgment of 19 May 1981 the court dismissed the appeal, holding that the Tax (Reduction of Dissenters’ Liability) Act (lag 1951:691 om viss lindring i skattskyldigheten för den som icke tillhör svenska kyrkan, “the Dissenters Tax Act“ - see paragraph 22 below) did not apply to the applicant.

Dr Darby appealed to the Administrative Court of Appeal of Sundsvall, which in a judgment of 22 October 1982 confirmed the judgment of the lower court. His application for leave to appeal was refused by the Supreme Administrative Court on 9 October 1984.

The applicant also lodged a complaint with the Parliamentary Ombudsman (justitieombudsmannen) concerning his obligation to pay tax for the religious activities of the Swedish Church. In his decision of 16 April 1982 the Ombudsman noted that the requirement in the Dissenters Tax Act that a person be formally registered as resident in Sweden (mantalsskriven, as defined in the Ordinance on the keeping of population records, folkbokföringsförordningen) in order to be able to apply for exemption from the church tax had been questioned on several occasions by various bodies, including Parliament. Although the problem raised by the applicant was a limited one, the Ombudsman concluded that it showed up an inconsistency in the tax legislation for which there was no objective justification and that it was understandable if this inconsistency caused irritation. In a letter of the same day to the Government, he proposed that the registration requirement should be abolished. As a result of this proposal the Dissenters Tax Act was subsequently amended accordingly (see paragraph 23 below).

D. The church tax paid by the applicant

Dr Darby paid church tax in the amount of 1,336 Swedish kronor for the tax year 1979, 1,717 kronor for 1980 and 1,325 kronor for 1981. If he had been allowed the reduction provided for in the Dissenters Tax Act, he would have had to pay 401, 515 and 397 kronor, respectively (see paragraph 22 below).