European Court of Human Rights

Information Note on the Court’s case-law No. 179

November 2014

Lucky Dev v. Sweden - 7356/10

Judgment 27.11.2014 [Section V] See: [2014] ECHR 1332

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Continuation of tax-surcharge proceedings after taxpayer’s acquittal of tax offence arising out of same facts: violation

Facts - In June 2004 the Swedish tax authorities instituted proceedings against the applicant in respect of her income tax and VAT returns for 2002 and ordered her to pay additional tax and surcharges. The applicant challenged that order in the courts. She was also prosecuted for bookkeeping and tax offences arising out of the same set of tax returns. Although she was convicted of the bookkeeping offence, she was acquitted of the tax offence (for want of the requisite intent). The tax proceedings continued for a further nine and a half months after the date her acquittal became final. In her application to the European Court, the applicant complained that as a result of being prosecuted and ordered to pay tax surcharges in respect of the same events, she had been tried and punished twice, in breach of Article 4 of Protocol No. 7.

Law - Article 4 of Protocol no. 7

(a) Admissibility: In three recent decisions, including Shibendra Dev v. Sweden (7362/10, 21 October 2014 - see Article 35 § 1 above, page XX), the Court had ruled that new remedies that had become available in the domestic law as a result of recent rulings of the Swedish Supreme Court concerning liability to both prosecution and tax surcharges could now be considered effective and had to be exhausted in any case in which the set of proceedings which commenced later in time ended on or after 10 February 2009. Since the second set of proceedings (the criminal proceedings in the applicant’s case) had ended before that date, the applicant had not been required to use that remedy.

(b) Merits: The Court reiterated that proceedings involving tax surcharges were to be considered “criminal” not only for the purposes of Article 6 of the Convention but also for the purposes of Article 4 of Protocol No. 7. Thus, both the tax and the criminal proceedings in the applicant’s case came under the ambit of the latter provision.

Article 4 of Protocol No. 7 prohibited the prosecution or trial of a second “offence” in so far as it arose from identical facts or facts which were substantially the same. The elements of the bookkeeping offence were sufficiently separate from the facts that had given rise to the tax surcharges as to enable the Court to conclude that the applicant’s conviction of that offence had not amounted to double punishment. The position regarding his prosecution for the tax offence was, however, different: the applicant’s indictment and the imposition of tax surcharges were based on the same failure to declare business proceeds and VAT while the tax proceedings and the criminal proceedings concerned the same period of time and essentially the same amount of evaded taxes. Accordingly, the facts were at least substantially the same.

The requirement of a “final” decision had been met in as much as no appeal had been lodged against the decision acquitting the applicant of the tax charge, which had thus acquired legal force.

As to whether there had been duplication of the proceedings, the Court reiterated that Article 4 of Protocol No. 7 was not confined to the right not to be punished twice but extended to the right not to be tried twice for the same offence. It thus applied even where the individual was prosecuted in proceedings that did not result in a conviction. However, the protection only operated once a decision concerning the same offence was final: Article 4 of Protocol No. 7 did not preclude several concurrent sets of proceedings being conducted before that final decision was issued. A violation would occur, however, if one set of proceedings continued after the date on which the other set was concluded with a final decision. The tax proceedings in the applicant’s case were not terminated and the tax surcharges were not quashed after the criminal proceedings became final but instead had continued for a further nine and a half months. There had not been a sufficiently close connection, in substance and in time, between the two sets of proceedings for them to be viewed as part of the same set of sanctions (contrast the position in cases such as R.T. v. Switzerland and Nilsson v. Sweden, in which the Court found that decisions on withdrawal of a driving licence were directly based on an expected or final conviction for a traffic offence and thus did not contain a separate examination of the offence or conduct at issue).

In sum, the applicant had thus been tried “again” for an offence for which she had already been finally acquitted.

Conclusion: violation (unanimously).

Article 41: EUR 2,000 euros in respect of non-pecuniary damage.

 

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This summary by the Registry does not bind the Court.

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