FIFTH SECTION

DECISION

Application no . 51469/11 Ragnar SVENSSON 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 5 August 2011 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ragnar Svensson , is a Swedish national who was born in 1943 and lives in Uppsala . He was represented before the Court by Mr S. Pleijel , a lawyer practising in Stockholm .

A. The circumstances of the case

1. Tax proceedings

By decisions of 3 October 2007 the Tax Agency ( Skatteverket ) reviewed the applicant ’ s taxation for the income years 2001-2005 (i.e. the taxation years 2002-2006). Finding that he had failed to account for certain income of foreign capital and to declare his total capital, the Agency revised upwards his tax liability for the five years. Furthermore, he was ordered to pay tax surcharges ( skattetillägg ), amounting to 40% of the increased capital tax. It appears that the surcharges totalled 330,550 Swedish kronor (approximately 36,000 euros). The applicant did not appeal against the Tax Agency ’ s decisions.

2. Criminal proceedings

On 26 November 2008 t he applicant was indicted for an aggravated tax offence ( grovt skattebrott ) in regard to the above conduct.

On 19 May 2009 the Uppsala District Court ( tingsrätt ) acquitted the applicant .

The public prosecutor appealed and, on 21 September 2010, the Svea Court of Appeal ( Svea h ovrätt ) convicted the applicant of an aggravated tax offence. He was sentenced to ten months ’ imprisonment .

On 5 July 2011 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

3. Further proceedings

In October 2013 the applicant requested compensation from the Chancellor of Justice ( Justitiekanslern ) for a violation of Article 4 of Protocol No. 7 and for a reduction of his pension while he was serving his prison sentence . On an unknown date he also requested the Supreme Court to re-open the criminal proceedings. Both requests are currently pending.

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 3 October 2007 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 26 November 2008, were finalised on 5 July 2011, i.e. after 10 February 2009, the date of the Sergey Zolotukhin judgment.

The applicant has availed himself of the new remedies by requesting the Supreme Court to re-open the criminal proceedings and the Chancellor of Justice to award him compensation. These proceedings are currently pending.

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