AS TO THE ADMISSIBILITY OF
by Kenth CARLBERG
The European Court of Human Rights (Third Section), sitting on 27 January 2009 as a Chamber composed of:
Boštjan M. Zupančič,
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:
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
B. Requests for a stay of execution and further investigations, and enforcement measures
C. Criminal proceedings
D. Review of traffic licence
E. Further proceedings on taxes and tax surcharges
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.
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.
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.
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.
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.
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.
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