FIFTH SECTION

DECISION

Application no . 59347/10 Bengt HELLBORG 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 6 October 2010 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Bengt Hellborg , is a Swedish national who was born in 1940 and lives in Lund . He was represented before the Court by Mr B.C.J. Söderquist , a lawyer practising in Lund .

A. The circumstances of the case

1. Tax proceedings

By a decision of 24 October 2007 the Tax Agency ( Skatteverket ) reviewed the applicant ’ s taxation for income received in 2003-2005 (i.e. the taxation years 2004-2006) and found that he had failed to account for various amounts of income. His income for the three years was consequently revised upwards and he was ordered to pay tax surcharges ( skattetillägg ).

Following the applicant ’ s appeal against part of the Tax Agency ’ s decision, the Agency, on 21 November 2008, made an obligatory review but did not make any changes. The applicant later withdrew the appeal, which led the Agency to strike out the matter on 7 January 2010.

2. Criminal proceedings

The applicant was indicted on 10 July 2008.

On 18 November 2008 the Malmö District Court ( tingsrätt ) convicted the applicant of a bookkeeping offence ( bokföringsbrott ) and of having impeded tax supervision ( försvårande av skattekontroll ) and supplied negligent tax information ( vårdslös skatteuppgift ). He was given a suspended sentence and ordered to pay 120 day fines ( dagsböter ) of 1,000 Swedish kronor (SEK) each.

On 17 November 2009 the Court of Appeal for Skåne and Blekinge ( H ovrätt en över Skåne och Blekinge ) upheld the conviction but lowered the amount of the day fines to SEK 490 (approximately 55 euros) each .

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

3. Further proceedings

In August and September 2013 the applicant contacted the public prosecutor in his criminal case and the Prosecutor-General ’ s office and requested that they take measures to obtain a re-opening of the criminal proceedings in the light of the new domestic remedies established by the decision of the Supreme Court of 11 June 2013 and later decisions taken by that court (see further below). It appears that no action has been taken in regard to the applicant ’ s request.

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).

COMPLAINTS

1. 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 .

2. He further complained under Article 6 of the Convention that he had not had a fair hearing, as the Tax Agency and the courts had made wrong and incomplete evaluations of facts and law.

THE LAW

1. 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, 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 complaint 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 offences under the Tax Offences Act ( Skattebrottslagen , 1971:69), namely for having impeded tax supervision and supplied negligent tax information.

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 24 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 10 July 2008, 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 offences and request a quashing or reduction of the sentence. Furthermore, he may claim compensation for alleged damage.

While the applicant has apparently requested the public prosecutor in his criminal case and the Prosecutor-General ’ s office to take action on his behalf, there is no indication that he has himself lodged a re-opening request with the Supreme Court or in any other way made use of the remedies described above.

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

2. The applicant also complained under Article 6 of the Convention that he had not had a fair hearing. This provision provides, inter alia , the following:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal established by law. ...”

The Court has examined the applicant ’ s complaint as it has been submitted. However, in the light of all the material in its possession, and in so far as the criteria set out in Article 35 § 1 of the Convention have been complied with and the matters complained of are within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this complaint must be declared inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 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