FIFTH SECTION

DECISION

Application no . 24705/11 Arya ABDULRAZAGH 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 14 April 2011 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Arya Abdulrazagh , is a Swedish national who was born in 1952 and lives in Stockholm . He was represented before the Court by Mr N. Hillert , a lawyer practising in Stockholm .

A. The circumstances of the case

1. Tax proceedings

By decisions of 9 September 2008 the Tax Agency ( Skatteverket ) reviewed the taxation of the applicant ’ s taxi business for the income years 2005 and 2006 (i.e. the taxation years 2006 and 2007). It found that the applicant had failed to account for substantial amounts and revised upwards his liability to pay business income tax ( inkomst av näringsverksamhet ), value-added tax ( mervärdesskatt ; “VAT”) and employer ’ s contributions ( arbetsgivaravgifter ). Furthermore, he was ordered to pay tax surcharges ( skattetillägg ), amounting to 40%, 20% and 10%, respectively, of the increased income tax, VAT and employer ’ s contributions. It appears that the surcharges totalled 154,177 Swedish kronor (approximately 17,000 euros).

On 12 May 2009 the County Administrative Court ( länsrätten ) in the County of Stockholm upheld the Tax Agency ’ s decisions. The applicant did not appeal against the court ’ s judgment.

2. Criminal proceedings

On 2 June 2009 t he applicant was indicted for a tax offence ( skattebrott ) in regard to the above conduct.

On 27 October 2009 the Nacka District Court ( tingsrätt ) acquitted the applicant .

The public prosecutor appealed and, on 1 April 2010, the Svea Court of Appeal ( Svea h ovrätt ) convicted the applicant of a tax offence. He was given a suspended sentence and ordered to perform 120 hours of community service .

On 15 October 2010 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

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 tax surcharges imposed on the applicant on 9 September 2008 constituted, under the new domestic legal position, a procedural hindrance against a criminal indictment based on the same facts. The criminal proceedings, which commenced on 2 June 2009, were finalised on 15 October 2010, i.e. after 10 February 2009, the date of the Sergey Zolotukhin judgment. It is thus open to the applicant to petition the Supreme Court for a re-opening of the criminal proceedings in so far as they concern the tax offence and request a quashing or reduction of the sentence. Furthermore, he may claim compensation for alleged damage.

There is no indication that the applicant has made use of the remedies described above.

It follows that 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 5 February 2015 .

Stephen Phillips Boštjan M. Zupančič Registrar President