FIFTH SECTION

DECISION

Application no . 8167/11 Fredrik ASK against Sweden

The European Court of Human Rights ( Fifth Section ), sitting on 13 January 2015 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges , and Stephen Phillips , Section Registrar .

Having regard to the above application lodged on 13 September 2010 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Fredrik Ask , is a Swedish national, who was born in 1955 and lives in Malaga, Spain . He was represented before the Court by Mr J. Södergren , a lawyer practising in Stockholm .

A. The circumstances of the case

1. Tax proceedings

By a decision of 25 October 2007 the Tax Agency ( Skatteverket ) reviewed the applicant ’ s taxation for income received in 2001-2005 (i.e. the taxation years 2002-2006). Finding that he had failed to account for certain income, the Agency revised upwards his income for the five years. Furthermore, he was ordered to pay tax surcharges ( skattetillägg ), amounting to 40% of the increased tax liability.

On 30 October 2008 the County Administrative Court ( länsrätten ) in the County of Skåne upheld the Tax Agency ’ s decisions.

The applicant appealed to the Administrative Court of Appeal ( kammarrätten ) in Gothenburg but later withdrew his appeal. On 17 November 2009 the appellate court accordingly struck out the case.

2. Criminal proceedings

On 5 May 2009 the Malmö District Court ( tingsrätt ) convicted the applicant of an aggravated tax offence ( grovt skattebrott ) in regard to the above conduct. He was sentenced to one year ’ s imprisonment .

On 16 June 2010 the Court of Appeal for Skåne and Blekinge ( H ovrätt en över Skåne och Blekinge ) upheld the District Court ’ s judgment .

On 8 November 2010 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

3. Further proceedings

In September 2013 the applicant submitted a request to the Supreme Court to have the criminal proceedings re-opened with reference to the new domestic legal position established by the decisions of the Supreme Court of 11 June and 16 and 25 July 2013 (see further below).

By an interim decision of 20 September 2013 the Supreme Court suspended further execution of the Court of Appeal ’ s judgment of 16 June 2010. However, at that time, the applicant had already served his prison sentence and had been released on probation.

On 13 November 2014 the Supreme Court granted the applicant ’ s re-opening request. It re-opened the proceedings, quashed the Court of Appeal ’ s judgment and dismissed the indictment against the applicant.

B. Relevant domestic law and practice

For an overview of Swedish law and practice, see Lucky Dev v. Sweden (no. 7356/10, §§ 13-29, 27 November 2014).

COMPLAINT

The applicant claimed under Article 4 of Protocol No. 7 to the Convention that , through the imposition of tax surcharges and the conviction for a tax offence, 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 Court first reiterates that proceedings involving tax surcharges are “criminal” not only for the purpose s of Article 6 of the Convention but also for the purpose s 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 by the Court in recent decisions (see, for instance, Shibendra Dev v. Sweden ( dec. ), no. 7362/10, § 42, 27 November 2014), a new domestic legal position has been brought about by a decision of the Supreme Court of 11 June 2013 and later decisions and judgments delivered by the two Swedish supreme courts, which have concluded that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and therefore, having regard to the findings in the judgment of Sergey Zolotukhin v. Russia ([GC], no. 14939/03, judgment of 10 February 2009, ECHR 2009), are incompatible with Article 4 of Protocol No. 7.

The domestic decisions and judgments in question have also created new remedies which the Court has deemed to be accessible and effective, capable of affording redress in respect of alleged violations of Article 4 of Protocol No. 7, provided that the conditions specified by the supreme courts are met. Thus, to the extent that the case involves tax surcharges and tax offences based on the same information supplied in a tax return and has been tried or adjudicated in the second set of proceedings on or after 10 February 2009, a potential applicant may be expected to take domestic action to secure a re-opening of proceedings, a quashing or reduction of sanctions and an award of compensation for alleged damage. This principle applies whether or not the individual has already lodged an application with the Court ( Shibendra Dev v. Sweden ( dec. ), cited above, §§ 45 and 48).

In the present case, the applicant has successfully availed himself of the possibility to request a re-opening of proceedings. By the Supreme Court ’ s decision of 13 November 2014 the criminal proceedings were re-opened, the Court of Appeal ’ s judgment containing the conviction at issue was quashed and the indictment against the applicant was dismissed. Consequently, the applicant has obtained redress at the national level for the fact that he was found liable in two sets of proceedings on the basis of the same set of facts.

Noting that the applicant has served the prison sentence imposed by the Court of Appeal ’ s judgment, it is not clear whether he has instituted or will institute proceedings for damages. In any event, he appears to be entitled to compensation under the Act on Compensation for Deprivation of Liberty and Other Coercive Measures ( Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder ; 1998:714) which may include reparation for costs, loss of income, interference in business activities and suffering. He may also claim damages under the Tort Liability Act ( Skadeståndslagen , 1972:207) and, in accordance with the case-law developed by t he Supreme Court, request compensation without direct support in Swedish law, alleging a violation of the Convention (see Åberg v. Sweden , no. 57762/10, § 49, 27 November 2014).

In these circumstances, the Court is of the view that the applicant can no longer claim to be the victim of a violation of Article 4 of Protocol No. 7.

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 February 2015 .

Stephen Phillips Boštjan M. Zupančič Registrar President