THIRD SECTION

DECISION

Application no . 9542/11 Johan ISAKSSON against Sweden

The European Court of Human Rights (Third Section), sitting on 27 January 2017 as a Committee composed of:

Dmitry Dedov , President, Helena Jäderblom , Branko Lubarda , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 17 September 2010,

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

The applicant, Mr Johan Isaksson, is a Swedish national, who was born in 1973 and lives in Luleå . He was represented before the Court by Mr J. Frisk, a lawyer practising in Skellefteå .

The Swedish Government (“the Government”) were represented by their Agents, Mr O. Widgren and Ms C. Hellner -Kirstein, Ministry for Foreign Affairs.

A. The circumstances of the case

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

1. Criminal proceedings

The applicant was indicted on 8 September 2006 for an aggravated bookkeeping offence ( grovt bokföringsbrott ), a tax offence ( skattebrott ) and an aggravated tax offence ( grovt skattebrott ). The prosecution for an aggravated tax offence pertained to incorrect information submitted in the applicant ’ s personal income tax return, while the prosecution for a (regular) tax offence was based on the submission of incorrect information in the tax return for value-added tax (VAT) on behalf of a company and the failure to submit such a tax return.

On 15 November 2007 the Luleå District Court ( tingsrätt ) convicted the applicant on all counts and sentenced him to ten months ’ imprisonment. The court found that he had been the actual leader and representative ( faktisk företrädare ) of a limited liability company and that, with the aim of evading taxes, he had failed to record numerous business events in the company ’ s books and had made bookkeeping material from 2003 until the company ’ s bankruptcy in August 2005 disappear. He was also responsible for incorrect VAT declarations on behalf of the company. Finally, in his personal tax returns for income received in 2003 and 2004, he had failed to account for income totalling about 2.5 million Swedish kronor (SEK; approximately 270,000 euros (EUR)). In sentencing the applicant, the District Court had regard to the fact that, by an appealed judgment of 12 May 2006, he had been convicted of bookkeeping offences committed in 1999-2002 and had been sentenced to eight months ’ imprisonment, a sentence that he had not yet begun to serve.

By a judgment of 15 September 2009 the Court of Appeal ( hovrätt ) of Upper Norrland joined the two cases and reviewed the judgments of the District Court of 12 May 2006 and 15 November 2007. It acquitted the applicant of one bookkeeping offence for which he had been convicted in the 2006 judgment, but upheld the District Court ’ s judgments in all other respects. The Court of Appeal considered that the applicant ’ s crimes merited a more severe sentence than that fixed by the District Court. However, it took into account, inter alia , the lengthy proceedings and set a combined sentence for all the offences at imprisonment for one year and six months.

On 7 April 2010 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

2. Tax proceedings

By decisions of 21 December 2006 the Tax Agency ( Skatteverket ) reviewed the applicant ’ s taxation for income received in 2003 and 2004 (i.e. the taxation years 2004 and 2005) and found that he had failed to account for income received from the company in question. His income was revised upwards by SEK 582,000 and 1,818,990, respectively, for the two years. For the taxation year 2005 his capital gains were revised upwards by SEK 575,000. Furthermore, as the information supplied by the applicant in his tax returns was found to be incorrect and the revisions had had to be made under a discretionary assessment procedure, he was ordered to pay tax surcharges ( skattetillägg ), amounting to 40% of the increased tax liability. The surcharges for the two years amounted to SEK 88,782 and 445,376, respectively (approximately EUR 9,600 and 48,000).

It appears that the applicant did not appeal against the Tax Agency ’ s decisions. Consequently, they acquired legal force on 1 January 2010 (in respect of the taxation year 2004) and on 1 January 2011 (in respect of the taxation year 2005), in accordance with the time-limit for appeals against taxation decisions under Chapter 6, Section 3 of the Tax Assessment Act ( Taxeringslagen , SFS 1990:324).

B. Relevant domestic law and practice

For an overview of Swedish law and practice on matters relevant to the present case, see Lucky Dev v. Sweden (no. 7356/10, §§ 13-29, 27 November 2014). Furthermore, a comprehensive summary of the issue of compensation for violations of the Convention in the Swedish legal order can be found in Ruminski v. Sweden ([ dec. ], no. 10404/10, §§ 14-28, 21 May 2013, Marinkovic v. Sweden ([ dec. ], no. 43570/10, §§ 18-26, 10 December 2013) and S.J.P. and E.S. v. Sweden ([ dec. ], no. 8610/11 , §§ 49-60, 16 December 2014).

Recently, the Chancellor of Justice ( Justitiekanslern ) has decided on several applications for damages based on alleged violations of Article 4 of Protocol No. 7 to the Convention (decisions on 31 March 2015, dnr 6528-13-40 and 8203-13-40 ; decisions on 30 September 2015, dnr 2850-14-41 and 9301-14-41; decisions on 22 October 2015, dnr 4990-15-40 and 5442-14-40; and decision on 14 January 2016, dnr 2419-15-41).

Section 2 of the Limitations Act ( Preskriptionslagen , 1981:130) provides that, generally, a civil claim expires ten years after the event that gave rise to the claim.

COMPLAINT

The applicant complained under Article 4 of Protocol No. 7 to the Convention that, through the imposition of tax surcharges and the conviction for tax offences, he had been punished twice for the same offence.

THE LAW

The applicant complained under Article 4 of Protocol No. 7 to the Convention, the relevant parts of which read as follows:

“1. 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.

2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

...”

The Government contested the applicant ’ s claim. They questioned whether the applicant had exhausted domestic remedies, pointing out that he had not appealed against the Tax Agency ’ s decision to impose a tax surcharge and had further failed to take domestic action by attempting to secure a re-opening of proceedings, a quashing or reduction of sanctions or an award of compensation for alleged damages. Moreover, on the substance of the case, the Government asserted that the complaint was manifestly ill-founded.

The applicant submitted that he had exhausted all available effective remedies and maintained that his right not to be tried or punished twice had been violated in the case.

The Court first reiterates that proceedings involving tax surcharges are “criminal” not only for the purposes of Article 6 of the Convention but also for the purposes of Article 4 of Protocol No. 7 (see Lucky Dev v. Sweden , cited above, § 51, with further references ) . Accordingly, both sets of proceedings in the present case were “criminal” for the purposes of Article 4 of Protocol No. 7.

As noted above, the applicant was indicted for and subsequently convicted of a tax offence of standard severity as he had supplied incorrect information in tax returns concerning VAT for a company. However, the decision to impose tax surcharges on the applicant personally was not based on those facts. It was based on the fact that he had submitted incorrect information regarding personal income received from that company. Thus, the applicant ’ s trial and conviction for this tax offence do not disclose any failure to comply with the requirements of Article 4 of Protocol No. 7 (see Isaksen v. Norway ( dec. ), no. 13596/02, 2 December 2003; Pirttimäki v. Finland , no. 35232/11 , §§ 49-52, 20 May 2014; Larsson v. Sweden ( dec. ), no. 64102/10, 13 January 2015; and Heinanen v. Finland ( dec. ), no. 947/13, 6 January 2015).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Consequently, the issue is whether there was a duplication of proceedings and punishments in regard to the imposed tax surcharges and the conviction for an aggravated tax offence.

Nevertheless, the Court need not resolve this issue as it finds that the applicant has failed to exhaust the domestic remedies available to him for the following reasons.

The Court has recurrently considered that there exists an effective remedy in Sweden that is capable of affording redress in respect of alleged violations of the Convention. Reference has been made to the case-law established by the Swedish Supreme Court and the Chancellor of Justice over recent years and their continued development of case-law in this domain. Consequently, the Court has found that potential applicants may, as a general rule, be expected to lodge a domestic claim to seek compensation for alleged breaches of the Convention before applying to the Court (see Eriksson v. Sweden , no. 60437/08, §§ 50-52, 12 April 2012; Ruminski , §§ 37 and 39, cited above; and Marinkovic , §§ 39 and 41, cited above).

Turning to the case before it, the Court can find no reason to depart from the general rule set out above. On the contrary, the applicant complains about issues under Article 4 of Protocol No. 7, a provision which has been examined in several judgments and decisions by the Supreme Court and the Chancellor of Justice. Moreover, the Court has examined several applications against Sweden that are similar to the present application (see, inter alia , Lucky Dev v. Sweden , cited above ) . Thus, there is no ground for believing that the Swedish courts or the Chancellor of Justice would refuse to consider the alleged violations invoked in the present case.

In this connection, it is to be noted that the period of time during which a claim for compensation may be made, under section 2 of the Limitations Act, is ten years. The final decision in the criminal proceedings, in which the applicant was convicted of an aggravated tax offence, was taken by the Supreme Court on 7 April 2010 and the Tax Agency ’ s decisions, which imposed tax surges on him, acquired legal force on 1 January 2010 and 1 January 2011. Thus, the applicant still has the possibility to claim compensation from the Swedish State in relation to the alleged violation.

Furthermore, the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court (see, for example, Brusco v. Italy ( dec. ), no. 69789/01, ECHR 2001 ‑ IX, and Andrei Georgiev v. Bulgaria , no. 61507/00, § 78, 26 July 2007). In both Eriksson v. Sweden and Ruminski v. Sweden , the Court found that the Supreme Court judgment of 3 December 2009 (NJA 2009 N 70; see domestic law above) shifted from establishing precedent in specific matters to establishing a general principle for the domestic courts and the Chancellor of Justice to follow in cases relating to all claims for compensation for alleged violations of the Convention. Thus, the Court found that from that date the existence of a domestic remedy for claims for compensation relating to alleged violations of the Convention must be considered sufficiently clear. Consequently, there was an effective remedy available in Sweden when the applicant lodged the present application on 17 September 2010, nine months after the Supreme Court ’ s judgment (see Savickas and Others v. Lithuania ( dec. ), no. 66365/09 et al., § 86, 15 October 2013).

It follows from the above that this part of the application must be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2017 .

FatoÅŸ Aracı Dmitry Dedov              Deputy Registrar President