FIFTH SECTION

DECISION

Application no . 57324/08 Thomas OLSSON against Sweden

The European Court of Human Rights ( Fifth Section ), sitting on 13 May 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Ann Power-Forde , Helena Jäderblom , judges,

and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 7 November 2008 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Thomas Olsson , is a Swedish national, who was born in 1963 and lives in Gothenburg . He is represented before the Court by Mr B. Leidhammar , a lawyer practising in Stockholm .

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Criminal proceedings

By a judgment of 15 April 2005 the Gothenburg District Court ( Göteborgs t ingsrätt ) convicted the applicant of a n aggravated tax crime ( grovt s kattebrott ) , an aggravated bookkeeping offence ( grovt bokföringsbrott ) and for having grossly impeded tax supervision ( försvårande av skattekontroll , grovt brott ) and sentenced him to seven years ’ imprisonment . The c ourt found that t he applicant – who was indicted together with many co-accused – had been a leader in two interrelated staffing agencies which had supplied other companies with staff. To the agencies were connected several subcontractors that had invoiced the agencies for such staff but, in reality, had not conducted any business or had any employees. The purpose of the fake invoices had been to transfer large sums to the subcontractors and there convert them into cash, evading the payment of income tax, value-added tax and employer ’ s contributions. The operation had been large-scale and had been going on for several years; as for the applicant, his actions had led to the risk of taxes and charges in the amount of 86 million Swedish kronor (SEK; corresponding to approximately 10 million euros) being withheld from the state.

On 29 August 200 5 the Court of Appeal for Western Sweden ( H ovrätt en för västra Sverige ) upheld the District Court ’ s judgment . On 9 November 2005 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

B. Tax proceedings

By a decision of 30 June 200 5 the Tax Agency ( Skatteverket ) reviewed the taxation of the two staffing agencies and the companies connected to them for the accounting period February – September 2004 and found that the company group had failed to pay large amounts of income tax, value-added tax and employer ’ s contributions. The Agency applied to the County Administrative Court to have the applicant found personally liable, jointly and severally with the company group, for payment of these taxes and fees in the amount of 12.5 million kronor (approximately 1.4 million euros) . The Agency argued that the applicant had acted as the actual leader and representative ( faktisk företrädare ) of the group of companies which, under Swedish law, w ould make him liable for the taxes in question. Judgments were pronounced by the County Administrative Court and, upon appeal, the Administrative Court of Appeal on 8 June 2007 and 21 January 2008, respectively. The first-instance court did not find the evidence sufficient to conclude that the applicant was liable to pay the taxes as an actual representative, but the appellate court did and thus found the applicant liable – t ogether with the company group – to pay the tax amount in question. On 19 June 2008 the Supreme Administrative Court refused leave to appeal.

COMPLAINTS

The applicant complained under Articles 6 and 7 of the Convention and, in substance, Article 4 of Protocol No. 7 to the Convention . He claimed, in relation to the applicability of the Convention, that personal liability for payment of a company ’ s taxes including tax surcharges ( skattetillägg ) falls under the guarantees afforded by Articles 6 and 7. Allegedly, tax surcharges had been imposed on him as part of the appellate court ’ s judgment that he was jointly liable to pay 12.5 million kronor. The applicant submitted that the presumption of innocence had been breached, as he had been forced to prove that he had not been the actual representative of the company group, a reversed burden of proof which was impossible to discharge. He also claimed that he had been punished without law, as national case-law was not clear enough in regard to the tax liabilities of an actual representative. Finally, he maintained that the sanctions – imprisonment, tax surcharges and personal liability for payment of the taxes – had the same repressive purpose and that they were disproportional to the offence.

THE LAW

The applicant ’ s complaints under Article 6 relate to questions of criminal liability. The Court will therefore consider them under the criminal limb of that article.

The Court notes that, despite what the applicant claimed, no tax surcharges were imposed on him in the tax proceedings, whether specifically on him or jointly with the company. The tax judgments refer only to income tax, value-added tax and employer ’ s contributions. Furthermore, the amount for which the Tax Agency demanded the applicant ’ s personal liability corresponds to the various tax es set out in its review decision concerning the companies and does not include the tax surcharges that t he Agency imposed on the company group .

Moreover, in the Court ’ s view, the purpose of finding the applicant personally liable – as actual leader and representative – for payment of the taxes of the company group was to secure that those taxes were actually paid to the State. It cannot find that this liability had a deterrent or punitive purpose rendering it criminal in character, nor have the applicant ’ s submissions given any such indication.

Accordingly, t he proceedings before the administrative courts – which are the object of the applicant ’ s complaints – did not involve any “crimina l charge” or “criminal offence”. Neither the criminal limb of Article 6 of the Convention nor Article 7 of the Convention or Article 4 of Protocol No. 7 is thus applicable to his complaints.

It follows that the application is incompatible ratione materiae with the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President