FIFTH SECTION

DECISION

Application no . 33029/10 Fernando DE LOS ANGELES ABENZA 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, Stephen Phillips , Section Registrar .

Having regard to the above application lodged on 16 May 2010 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Fernando de Los Angeles Abenza , is a Swedish national who was born in 1960 and lives in Kullavik . He was represented before the Court by Mr P. Olsson , a lawyer practising in Gothenburg .

A. The circumstances of the case

1. Tax proceedings

By decisions of 22 December 2005 the Tax Agency ( Skatteverket ) reviewed the applicant ’ s taxation for income received in 2002 and 2003 (i.e. the taxation years 2003 and 2004) and found that he had failed to account for income received from two companies for which he was deemed to be the actual leader and representative. His income for the two years was consequently revised upwards. Furthermore, as regards the second year, he was ordered to pay tax surcharges ( skattetillägg ), amounting to 40% of the increased tax liability.

Following the applicant ’ s appeal, the Tax Agency made obligatory reviews of its decisions. For the income year 2002 no changes were made. However, for 2003 the Agency lowered the revised income and, as a consequence, also the tax surcharges. The surcharges thereafter amounted to 12,438 Swedish kronor (approximately 1,350 euros).

On 28 January 2008 the County Administrative Court ( länsrätten ) in the County of Gothenburg upheld the Tax Agency ’ s decisions.

On 13 August 2009 the Administrative Court of Appeal ( kammarrätten ) in Gothenburg upheld the County Administrative Court ’ s judgments.

It appears that the applicant did not appeal to the Supreme Administrative Court ( Regeringsrätten ).

2. Criminal proceedings

The applicant was indicted on 5 April 2007.

On 13 February 2009 the Varberg District Court ( tingsrätt ) convicted the applicant of an aggravated bookkeeping offence ( grovt bokföringsbrott ) and an aggravated tax offence ( grovt skattebrott ). He was sentenced to three years ’ imprisonment .

On 29 October 2009 the Court of Appeal for Western Sweden ( H ovrätt en för västra Sverige ) upheld the conviction but reduced the applicant ’ s sentence to two and half years ’ imprisonment .

On 7 April 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 bookkeeping and 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 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.

However, there is no indication that tax surcharges were imposed on the applicant for the income year 2002. The duplication of sanctions against him thus occurred only in regard to the income year 2003. Furthermore, as regards the applicant ’ s defective bookkeeping, his submission of the bookkeeping material to the Tax Agency in support of his tax return constituted an important additional fact in the tax proceedings which did not form part of his conviction for a bookkeeping offence. In these circumstances, the two offences in question were sufficiently separate to conclude that the applicant was not punished twice for the same offence. Thus, the applicant ’ s trial and conviction for a bookkeeping offence do not di sclose any failure to comply with the requirements of Article 4 of Protocol No. 7 (see Lucky Dev v. Sweden , cited above, § 55, with further references ) .

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 concerning the year 2003.

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.

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 22 December 2005 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 5 April 2007, were finalised on 7 April 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 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 5 February 2015 .

             Stephen Phillips BoÅ¡tjan M. Zupančič Registrar President