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Cite as: [2009] ECHR 330

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THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9631/04
by Kenth CARLBERG
against Sweden

The European Court of Human Rights (Third Section), sitting on 27 January 2009 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 15 March 2004,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kenth Carlberg, is a Swedish national who was born in 1951 and lives in Täby. He was represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Ms I. Kalmerborn, Ministry for Foreign Affairs.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

A. The Tax Authority’s decisions on taxes and tax surcharges

Following a tax audit of the applicant’s taxi firm, the Tax Authority (skattemyndigheten) of the County of Stockholm considered that revenues from the firm had not been accounted for in the applicant’s tax returns for the assessment year 1994, i.e. the income year 1993. Accordingly, by decisions of 27 November 1995, the Tax Authority revised upwards his taxable income by 335,532 Swedish kronor (SEK) and increased his liability to employer’s contributions by SEK 80,616. By a further decision of 22 February 1996, the Tax Authority increased his liability to value-added tax (mervärdesskatt) by SEK 97,878. Moreover, as the information supplied by the applicant in his tax returns was found to be incorrect and the turnover of the applicant’s business had been revised upwards under a discretionary assessment procedure, the Tax Authority ordered him to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% or 40% of the increased tax liability, depending on the type of tax involved. As a result of the decisions, tax surcharges of SEK 97,596 (approximately 10,000 euros (EUR)) were levied on the applicant. Of this amount, SEK 61,898 related to income tax, SEK 16,123 to employer’s contributions and SEK 19,575 to value-added tax. It appears that the amounts were payable in March 1996.

B. Requests for a stay of execution and further investigations, and enforcement measures

On 22 December 1995 the Tax Authority rejected the applicant’s request for a stay of execution with regard to the employer’s contributions and related surcharges.

On 22 January 1996 the applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm against the Tax Authority’s taxation decisions. While, at that time, the formal decision on value-added tax had not yet been taken, the appeal letter referred to all the tax issues reviewed by the Tax Authority, i.e. income tax, employer’s contributions and value-added tax. He also requested that the execution of payment of the amounts assessed be stayed.

On 12 March 1996 he complained to the Tax Authority that the time until the taxes became due was too short. By letters of 1 and 6 April 1996, the Tax Authority called on the applicant to pay the disputed amounts.

On 17 April 1996 the Tax Authority reconsidered its decision on a stay of execution with regard to the employer’s contributions but decided not to change it. The Tax Authority did not find that the outcome of the tax case was uncertain or that payment of the amount in question would result in considerable damage for the applicant or would otherwise appear unjust, and thus concluded that the prerequisites laid down in section 49, subsection 1 (2) or (3) of the Tax Collection Act (Uppbördslagen, 1953:272) had not been fulfilled.

On 19 April 1996, and upon review, on 11 July 1996, the Tax Authority also refused a stay of execution with regard to the income tax and related surcharges assessed on 27 November 1995.

The applicant appealed against the Tax Authority’s decisions to refuse stays of execution. By judgments of 26 July 1996, the County Administrative Court rejected the appeals. It noted that the disputed amounts of income tax, employer’s contributions and corresponding surcharges and late-payment fees had already been paid, inter alia through execution levied by the Enforcement Office (kronofogdemyndigheten) on 31 May 1996. As a consequence, the amounts could only be refunded in the event of the applicant being successful in the main tax cases, and there was therefore no reason to grant a stay.

The applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. On 2 December 1996 the Tax Authority stated to the appellate court that all tax amounts had been paid and that there was therefore no ground on which to grant a stay. In a letter to the applicant of 9 December 1996, the Tax Authority stated, however, that late-payment fees of SEK 12,684 remained due and that the applicant had been granted a stay of execution with regard to this amount.

According to a case note in the appellate court’s file, the Enforcement Office had stated, on 16 April 1997, that no taxes and fees were due following the levying of execution of SEK 589,211 on 31 May 1996 and the payment by the applicant of SEK 45,419 on 27 June 1996.

By a judgment of 23 June 1997, subscribing to the reasons given by the County Administrative Court, the Administrative Court of Appeal rejected the applicant’s appeal.

On 12 February 1999 the Supreme Administrative Court (Regerings-rätten) refused leave to appeal concerning the stay-of-execution issue.

C. Criminal proceedings

On 6 March 1996 the Tax Authority reported the applicant to the Regional Public Prosecution Office (regionåklagarmyndigheten) in Stockholm, claiming that proceeds in the amount of SEK 794,038 had not been accounted for in the applicant’s bookkeeping.

While accepting the applicant’s objections concerning certain amounts, the public prosecutor, on 17 January 1997, indicted him for a suspected bookkeeping offence relating to undeclared proceeds of SEK 421,000 as well as undeclared salaries paid to various taxi drivers.

By a judgment of 2 September 1997, the District Court (tingsrätten) of Södra Roslag found the applicant guilty of having intentionally failed to enter proceeds of at least SEK 350,000 as well as substantial salary payments in the books. This constituted a bookkeeping offence under Chapter 11, section 5 of the Penal Code (Brottsbalken). He was sentenced to two months’ imprisonment.

On 26 March 1998 the Svea Court of Appeal (Svea hovrätt) upheld the District Court’s judgment. On 13 October 1998 the Supreme Court (Högsta domstolen) refused leave to appeal.

D. Review of traffic licence

As the applicant had been convicted of a bookkeeping offence, the County Administrative Board (länsstyrelsen) of the County of Stockholm, reviewed his eligibility for a traffic licence (trafiktillstånd). By a decision of 4 November 1998, it decided that an admonition was sufficient, having regard to the time that had passed since the offence had been committed. It appears that the applicant did not appeal against this decision.

E. Further proceedings on taxes and tax surcharges

As mentioned above, on 22 January 1996 the applicant appealed against the Tax Authority’s decisions on taxes and tax surcharges. On 23 June 1999 the Authority reconsidered its decision relating to income tax but did not change it.

By a judgment of 22 February 2001, the County Administrative Court upheld the Tax Authority’s decision on income tax. The court considered that the documentation on which the impugned decision was based was reliable. In this connection, it had regard to previous judgments by the Svea Court of Appeal and the Administrative Court of Appeal where the computerised control material from Taxi Stockholm, an association to which the applicant was affiliated, had been examined and found reliable. It took into account other evidence as well in finding that the applicant had failed to account for revenues from the taxi business in his tax returns. In regard to the applicant’s objection that the public prosecutor, in the criminal proceedings, had only indicted him for undeclared proceeds of SEK 421,000 whereas the basis for the Tax Authority’s taxation decision was that there were undeclared proceeds of SEK 794,038, the court noted that, whereas a criminal conviction required proof beyond reasonable doubt, the standard of proof was lower in tax proceedings. In upholding the tax surcharge, the court had regard to Article 4 of Protocol No. 7 to the Convention and the case-law of the Supreme Court and found that a criminal conviction did not prevent the imposition of a surcharge. Moreover, no grounds for remission of the surcharge were at hand.

On 27 March 2001 the applicant asked the County Administrative Court why his appeals concerning employer’s contributions and value-added tax had not been examined. The same day the court informed the applicant that no cases concerning these issues had been registered with the court, that the Tax Authority had stated, on 15 January 2001, that it did not have any such cases either and that the court, on the latter date, had sent a copy of the applicant’s appeal letter to the Tax Authority for possible action.

The applicant appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal, requesting that his income tax liability be fixed in accordance with his tax returns and that the tax surcharge be set aside. He claimed that, as a surcharge was involved, in order for the hearing to be fair under Article 6 of the Convention, the standard of proof of criminal proceedings had to be applied. Moreover, the surcharge should be set aside on account of the unreasonable length of the proceedings in the case and the prohibition on double jeopardy.

On 25 March 2003 the Administrative Court of Appeal upheld the County Administrative Court’s judgment, subscribing to the reasons given by the latter court in regard to the income tax. With respect to the tax surcharge, the appellate court referred to case-law of the Supreme Administrative Court concerning the possibility of remission due to lengthy proceedings and the prohibition on double jeopardy. It concluded that there had not been any irregularities in the handling of the case which could involve a violation of the applicant’s rights under the Convention. As the surcharge could not be remitted on this basis or on any other ground, the applicant’s complaints in this respect were rejected.

On 1 October 2003 the Supreme Administrative Court refused the applicant leave to appeal in the income tax case.

In a letter of 16 March 2004, the applicant asked the Tax Authority what had happened to his appeals against the decisions on employer’s contributions and value-added tax. On 30 March 2004 the Tax Authority made reconsideration decisions, in which it set aside the associated tax surcharges, but upheld the amounts of employer’s contributions and value-added tax as such. On 15 April 2004, as a consequence of the reconsideration decisions, the Tax Authority adopted new taxation decisions, in which it stated that the surcharges relating to employer’s contributions and value-added tax had been quashed due to the excessive length of the proceedings and mistakes made in the handling of the applicant’s appeals. In early June 2004 the Tax Authority repaid to the applicant the quashed tax surcharges with interest.

The applicant appealed to the County Administrative Court in regard to the amounts of employer’s contributions and value-added tax. By a judgment of 27 September 2004, the court upheld the Tax Authority’s decisions. Following an appeal to the Administrative Court of Appeal, no further information has been provided as to the progress of the proceedings.

F. Compensation proceedings

27. On 31 March 2006 the applicant requested compensation from the Chancellor of Justice (Justitiekanslern). He referred to the issues on which the Court, in the present case, had invited the Government to submit observations, namely the enforcement of the Tax Authority’s decisions before a court determination, the length of the proceedings, the presumption of innocence, and the Tax Authority’s original failure to examine the appeals concerning employer’s contributions and value-added tax.

By a letter of 5 April 2006, the Chancellor of Justice informed the applicant that, given the still unsettled Supreme Court practice as to when compensation could be given for possible violations of the Conventions, it was unlikely that the Chancellor would exercise the authority to settle compensation claims on behalf of the State out of court. Instead, the applicant was advised to initiate court proceedings in the matter.

On 29 August 2006 the applicant instituted compensation proceedings against the State before the District Court of Stockholm. He claimed EUR 19,000 in non-pecuniary damages, 7,000 for lack of effective access to court and 12,000 for excessive length of proceedings. He also claimed SEK 260,000 in pecuniary damages for what he perceived as the difference between a correct tax amount and the amount that had actually been fixed by the Tax Authority and SEK 202,793 in legal costs. Finally, he requested interest on the amounts as from 24 November 2005.

In reply, the State acknowledged that the length of the proceedings had violated the Convention and submitted that compensation in the amount of SEK 50,000 plus interest would be reasonable in this respect. The State, however, disputed the applicant’s other claims.

By a judgment of 2 June 2008, the District Court found that the time that had passed between the applicant’s appeals in January 1996 and the Tax Authority’s latest reconsideration decisions in March 2004 – more than eight years – had been excessive and in breach of Article 6 of the Convention. It further considered that the applicant had not had effective access to court under that provision, as the examination of his request for a stay of execution had been precluded by the immediate enforcement of the taxes and surcharges. However, noting that the complaint relating to the allegedly excessive tax amount concerned the substance of the tax case which had already been examined by the courts on the basis of the evidence presented, the District Court found no violation of the applicant’s rights under the Convention in this respect.

The District Court awarded the applicant compensation for the two Convention violations found with an overall amount of EUR 10,000. As to legal costs, it refused compensation for costs relating to the proceedings before the European Court. In regard to the remaining amount of SEK 121,855.50, accrued in the compensation proceedings, the District Court took into account that the applicant had been unsuccessful with one of his claims and decided to grant him two-thirds of that amount, or SEK 81,237 (approximately EUR 8,000).

The applicant appealed to the Court of Appeal, reiterating the claims made before the District Court. The State contested the appeal and requested that the judgment of the District Court be upheld. The case is at present pending before the appellate court.

COMPLAINTS

34. Under Article 6 of the Convention, the applicant complained of the fact that the Tax Authority’s taxation decisions were enforced prior to a court having determined the request for a stay of execution as well as the principal tax dispute. He considered that he had been thereby deprived of effective access to court. He further claimed that the tax dispute had not been determined within a reasonable time.

35. The applicant further asserted that the early enforcement of taxes and tax surcharges as well as the imposition of surcharges on objective grounds had violated his right to be presumed innocent under Article 6 § 2 of the Convention. He also claimed that, in upholding the Tax Authority’s tax assessments, the courts had accepted the simple statement that he had not accounted for some income and had refused to order further investigations into the tax matters. He considered this to be in breach of Articles 6 and 7 of the Convention.

36. Maintaining that the domestic courts had failed to pay sufficient attention to the Convention and the Court’s case-law, inter alia when he had complained about the length of the proceedings, the applicant further complained that he had not had an effective remedy under Article 13 of the Convention.

37. Pointing out that the tax matters had been dealt with in five different proceedings – concerning taxation, stay of execution, tax enforcement, criminal liability and review of traffic licence – and that he had been punished twice – by the conviction for a bookkeeping offence and the imposition of tax surcharges – the applicant submitted that the principle of ne bis in idem, under Article 4 of Protocol No. 7 to the Convention, had been violated. In the alternative, he claimed that the multiplicity of proceedings had violated the right to a fair hearing under Article 6 of the Convention.

THE LAW

A. As to effective access to court and length of proceedings

38. The applicant complained that he had not had effective access to court and that the length of the tax dispute had been excessive. He relied on Article 6 of the Convention which, in relevant parts, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

39. The respondent Government submitted that the applicant could no longer claim to be a victim in these respects, as he had been awarded EUR 10,000 for non-pecuniary damage in the domestic compensation proceedings.

40. The applicant maintained his complaints, pointing to the fact that he had not been awarded compensation for legal costs incurred before the European Court.

41. The Court reiterates that it has found in several judgments concerning Sweden that the imposition of tax surcharges involves the determination of a “criminal charge” within the meaning of Article 6 of the Convention, although they cannot be said to belong to criminal law under the Swedish legal system (see, for instance, Janosevic v. Sweden, no. 34619/97, §§ 64 71, ECHR 2002-VII). Article 6 is therefore applicable to the tax proceedings in the present case in so far as they concerned tax surcharges.

42. As to the present complaint, the Court further notes, however, that the District Court, by a judgment of 2 June 2008, found that the applicant’s rights under Article 6 to effective access to court and to a hearing within a reasonable time had been breached in the tax proceedings. It awarded him EUR 10,000 for non-pecuniary damage and approximately EUR 8,000 for legal costs. Although the applicant has appealed against that judgment, he does not risk being awarded less by the Court of Appeal as the State, his adversary in the compensation proceedings, did not file an appeal.

Moreover, in decisions of 30 March and 15 April 2004, the Tax Authority quashed the tax surcharges relating to employer’s contributions and value-added tax on the grounds that the proceedings had been excessively lengthy and mistakes had been made in the handling of the applicant’s appeals. In early June 2004 it repaid with interest the quashed tax surcharges (which amounted to a total of SEK 35,698, or approximately EUR 3,500).

In these circumstances, the Court considers that the applicant has been afforded adequate redress for the alleged violations and the legal costs incurred in defending his rights. Therefore, he can no longer claim to be a victim of violations of Article 6 § 1 of the Convention in the present respects.

45. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

B. As to presumption of innocence, etc.

46. The applicant asserted that he had not been presumed innocent, as required by Article 6 § 2 of the Convention. He also claimed that the courts had accepted the Tax Authority’s assertions and had refused to order further investigations, allegedly in violation of Articles 6 and 7 of the Convention.

Article 6 § 2 reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 7 provides the following:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

47. The Government submitted that the applicant had failed to exhaust domestic remedies as he had not appealed against the execution levied by the Enforcement Office on 31 May 1996. They furthermore claimed that he had failed to observe the six-month time-limit with respect to the complaint concerning early enforcement, as the measures in this regard had taken place almost eight years before the applicant submitted his application to the Court. In any event, the Government were of the opinion that the present complaint was manifestly ill-founded and asserted that the early enforcement of the Tax Authority’s claims had been confined within reasonable limits and had been compatible with the applicant’s right to be presumed innocent. They also pointed out that the tax surcharges had been determined on objective grounds without regard to any criminal intent or negligence, that the applicant’s appeal had been examined by courts with full jurisdiction on the basis of the evidence presented and that it had been for the Tax Authority to show that there were grounds for imposing the surcharges.

48. The applicant pointed out that the Tax Authority’s decisions – including the imposed tax surcharges – had been enforced before a court had determined the request for a stay of execution and the principal tax dispute. This line of action as well as the fact that the surcharges had been imposed on objective grounds had violated his right to be presumed innocent. He further claimed that, in upholding the Tax Authority’s tax assessments, the courts had accepted the simple statement that the applicant had not accounted for some income and had refused to order further investigations into the tax matters.

49. The Court finds that the present complaint raises two separate issues: on the one hand, whether the applicant’s right to presumption of innocence was breached by the early enforcement of the tax surcharges and, on the other hand, whether that right or the applicant’s other rights under Articles 6 and 7 was violated by the courts’ application of the rules on evidence or their assessment of the evidence presented.

50. In regard to the first issue, the Court reiterates that an enforcement of tax surcharges prior to a court determination of the liability to pay the taxes and surcharges in question should be confined within reasonable limits that strike a fair balance between the interests involved. A system that allows enforcement of considerable amounts of tax surcharges before there has been a court determination of the liability to pay the surcharges is therefore open to criticism and should be subjected to strict scrutiny (see the above-mentioned Janosevic v. Sweden judgment, §§ 105-108).

51. Given the importance of the stay-of-execution decisions and the enforcement measures, the issues relating to presumption of innocence must be considered sufficiently separate from the remainder of the present application. The Court’s examination of the part of this complaint which concerns early enforcement thus requires that the applicant exhausted the domestic remedies available against the relevant decisions and measures. Moreover, the starting-point of the assessment whether this part of the complaint was lodged in time must be the dates when the stay-of-execution decisions and enforcement measures were taken.

52. The Court first notes that, while the applicant may not have lodged a formal appeal against the Enforcement Office’s levying of execution, he did challenge the enforcement in substance by requesting a stay of execution. He must therefore be considered to have exhausted domestic remedies in this regard.

53. However, he failed to observe the six-month time-limit laid down in Article 35 § 1 of the Convention. Thus, whereas the present application was introduced with the Court on 15 March 2004, the stay-of-execution proceedings ended already on 12 February 1999 with the Supreme Administrative Court’s decision to refuse leave to appeal. Moreover, the Enforcement Office’s levying of execution occurred on 31 May 1996.

54. Consequently, the Court notes that, in so far as the early enforcement is concerned, the present application was introduced more than five years after the relevant national decisions and measures.

55. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

56. As to the second issue raised by this complaint – whether the courts’ application of the rules on evidence or their assessment of the evidence violated the presumption of innocence or the applicant’s other rights under Articles 6 and 7 – the Court observes at the outset that there is no indication that the members of the courts adjudicating the various issues prejudged the merits of the case or that the tax surcharges were imposed without a basis in law. Moreover, the courts did not place the burden of proof on the applicant but determined positively that the documents relied on by the Tax Authority and the other evidence presented sufficiently proved that the applicant had failed to report the income in question and that there were thus grounds for imposing tax surcharges. It was up to the domestic courts to make that assessment following an examination of the evidence and they could not be obliged to order further investigations unless they found reasons to do so.

57. Furthermore, it was open to the applicant to put forward grounds for a reduction or remission of the surcharges and to adduce supporting evidence. Thus, he could have claimed, as an alternative line of defence, that, even if he was found to have furnished incorrect information to the Tax Authority, it was excusable in the circumstances or that, in any event, the imposition of surcharges would be manifestly unreasonable (ibid., § 102). However, it appears that, apart from his contention that the surcharges should be set aside on account of the unreasonable length of the proceedings and the prohibition on double jeopardy, he did not make any such claim. Still, the courts examined the issue and concluded in the case concerning income tax that no grounds for remitting the surcharges was at hand. In the proceedings concerning employer’s contributions and value-added tax, the Tax Authority, in a later decision quashed the surcharges in question on account of lengthy and irregular proceedings, thus agreeing on one of the applicant’s contentions. In the Court’s opinion, this clearly shows that the applicant was not left without means of defence against the surcharges.

58. In these circumstances, the Court considers that the applicant’s right to be presumed innocent was not violated by the rules on evidence or their application. Nor is there otherwise any indication of a breach of Article 6 or 7 of the Convention in this respect.

59. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

C. As to effective remedy

60. The applicant further maintained that the domestic courts had failed to pay sufficient attention to the Convention and the Court’s case-law, thus denying him an effective remedy under Article 13 of the Convention. This provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

61. The Court notes that, in fact, both the County Administrative Court and the Administrative Court of Appeal had regard to the Convention and the Court’s case-law in their respective judgments of 22 February 2001 and 25 March 2003. Moreover, in awarding the applicant compensation on 2 June 2008, the District Court relied entirely on Convention principles.

62. It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

D. As to the principle of ne bis in idem

63. Referring to the multiplicity of proceedings, the applicant finally complained that the principle of ne bis in idem, under Article 4 of Protocol No. 7 to the Convention, had been violated. Alternatively, he submitted that this had involved a violation of the right to a fair hearing under Article 6 of the Convention. Article 4 § 1 of Protocol No. 7 provides the following:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

64. The Court notes that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings which have been concluded by a final decision (see Gradinger v. Austria, judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53). In order to determine whether there has been such repetition, the Court has previously focused on, among other things, the “conduct” of the applicant (ibid., § 53) or whether the offences had the same “essential elements” (see Franz Fischer v. Austria, no. 37950/97, 29 May 2001, § 25).

65. The Court first finds that the decisions on the request for a stay of execution and the enforcement measures, invoked by the applicant in the present context, concern the tax surcharges and, thus, the taxation proceedings. They have no independent importance for the examination under Article 4 of Protocol No. 7. Moreover, the review of the traffic licence only led to an admonition, a decision against which the applicant did not appeal. Thus, the issue raised by the instant complaint is confined to a determination whether the imposition of tax surcharges constituted a second criminal punishment in regard to the same offence as the bookkeeping offence of which he was convicted in the criminal proceedings.

66. As noted above, the imposition of tax surcharges involved the determination of a “criminal charge” within the meaning of Article 6 of the Convention. Moreover, in its judgment in the case of Göktan v. France (no. 33402/96, § 48, ECHR 2002-V) concerning Article 7 of the Convention and Article 4 of Protocol No. 7, the Court held that the notion of penalty should not have different meanings under different provisions of the Convention. Likewise, in the decision in the case of Manasson v. Sweden (no. 41265/98, 8 April 2003), it was concluded that proceedings involving tax surcharges were “criminal” not only for the purpose of Article 6 of the Convention, but also for the purpose of Article 4 of Protocol No. 7 to the Convention. Accordingly, noting that the bookkeeping offence was clearly determined in criminal proceedings, the Court considers that both proceedings were criminal in nature for the purpose of the invoked provision. It remains to be determined whether the applicant was punished twice for the same offence.

The Court notes that a conviction for a bookkeeping offence requires intent or negligence, while these subjective elements are not a condition for the imposition of tax surcharges. Thus, the applicant was convicted for a bookkeeping offence as he had intentionally failed to record important events in the books of his taxi business. In contrast, the Tax Authority ordered him to pay tax surcharges due to the incorrect information supplied in his tax returns regardless of intent or negligence (see Rosenquist v. Sweden (dec.), no. 60619/00, 14 September 2004, and Synnelius and Edsbergs Taxi AB v. Sweden (dec.), no. 44298/02, 17 June 2008). However, these subjective elements are contained in the legal classification of the offences and, in the Court’s view, do not give grounds for distinguishing the two offences for the purposes of Article 4 of Protocol No. 7, in particular since the applicant’s possible intent was not assessed in the tax proceedings.

68. With respect to the conduct attributed to the applicant in the two proceedings, the Court notes that he was finally convicted by the Court of Appeal on 26 March 1998 pursuant to Chapter 11, section 5 of the Penal Code for having intentionally failed to enter proceeds of at least SEK 350,000 as well as substantial salary payments in the books. The tax surcharges, however, were imposed on him by the Tax Authority and the administrative courts pursuant to the Taxation Act because the information he had supplied in his tax returns had been incorrect and had necessitated a discretionary tax assessment.

The Court observes that the obligation of a businessman to enter correct figures in the books is an obligation per se, which is not dependent on the use of bookkeeping material for the determination of tax liability. In this connection, it should be noted that, although the applicant had not fulfilled the legal bookkeeping requirements, he could have complied with the duty to supply the tax authorities with sufficient and correct information by submitting other material which could adequately form the basis of a tax assessment.

70. Accordingly, the applicant’s submission of the incorrect bookkeeping material to the Tax Authority in support of the claims and statements made in his tax return and his failure to provide the Tax Authority with other reliable documentation on which it could base its tax assessment constituted important additional facts in the tax proceedings. In these circumstances, the Court finds that the two offences in question were sufficiently separate for it to conclude that the applicant was not punished twice for the same offence. Thus, the Court does not find that the proceedings at issue disclose any failure to comply with the requirements of Article 4 of Protocol No. 7 to the Convention. Nor does it find that they involved a violation of the right to a fair hearing under Article 6 of the Convention.

71. It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President