THIRD SECTION

DECISION

Application no. 59258/18 Jón Ingi GÍSLASON against Iceland

The European Court of Human Rights (Third Section), sitting on 12 October 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 7 December 2018,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Jón Ingi Gíslason, is an Icelandic national who was born in 1959 and lives in Reykjavik. He was represented before the Court by Mr Ragnar Halldór Hall, a lawyer practising in Reykjavik.

2. The application concerns dual tax and criminal proceedings against the applicant for tax violations. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. Following an audit by the Directorate of Tax Investigations, the applicant’s taxes were reassessed with a 25% surcharge by the Directorate of Internal Revenue in a decision of 20 August 2012. That decision was appealed against by the applicant to the State Internal Revenue Board, which dismissed the appeal on 30 December 2013.

4. On 22 June 2012 the Directorate of Tax Investigations referred the applicant’s case to the Special Prosecutor, who indicted the applicant for major tax offences on 26 April 2013. The examination of the case was postponed pending the Court’s judgment in Jón Ásgeir Jóhannesson and Others v. Iceland (no. 22007/11, 18 May 2017).

5. By a ruling of 14 March 2018, the Reykjavik District Court dismissed the case against the applicant for failure to comply with the requirements of the principle of ne bis in idem . The prosecution appealed against that ruling to the Court of Appeal, which overturned it on the merits on 20 June 2018 and remitted the case for a fresh examination.

6. By a judgment of 24 June 2019, the Reykjavik District Court convicted the applicant of major tax violations. He was sentenced to two months’ imprisonment, suspended for one year, and a fine.

7. The prosecution appealed against that judgment to the Court of Appeal. By a judgment of 18 December 2020, the Court of Appeal upheld the applicant’s conviction but increased his sentence to four months’ imprisonment and a fine, both of which were suspended for two years.

8. Neither the applicant nor the prosecution sought leave to appeal against that judgment to the Supreme Court.

9. Article 262 of the General Penal Code ( Almenn hegningarlög ), as in force at the material time, was set out in detail in Bjarni Ármannsson v. Iceland ([Committee], no. 72098/14, § 22, 16 April 2019).

10. The relevant provisions of the Act on Criminal Proceedings read as follows:

Section 198

“An appeal may only be lodged against a conviction if the defendant is sentenced to a term of imprisonment or to payment of a fine, or confiscation of property, amounting to the qualifying sum for lodging an appeal in a civil case.

...”

Section 215

“Subject to the restrictions that follow from other provisions of this Act, an appeal may be lodged with the Supreme Court against a judgment by the Court of Appeal in order to obtain:

...

b. a review of conclusions based on the interpretation or application of legal principles;

...

d. the quashing of a district court judgment and a judgment by the Court of Appeal and the referral of the case back to the district court for a retrial;

e. the dismissal of the case from the district court and the Court of Appeal.

...”

Section 216

“...

A defendant who has been convicted by the Court of Appeal may request leave to appeal against the judgment of the Court of Appeal (see, however, the first paragraph of section 198). ...”

COMPLAINT

11. The applicant complained under Article 4 of Protocol No. 7 to the Convention that the dual tax and criminal proceedings against him amounted to a violation of the ne bis in idem principle. Article 4 of Protocol No. 7 provides as follows, in so far as relevant:

“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.

...”

THE LAW

12. The applicant lodged his application with the Court following the Court of Appeal’s ruling remitting his case for a fresh examination by the District Court, prior to the delivery of the final judgment on the merits. He submitted that the protection of Article 4 of Protocol No. 7 had become relevant at the commencement of the criminal proceedings against him, as he had then been “liable to be tried” twice for the same offence. In this connection, the applicant referred to Sergey Zolotukhin v. Russia ([GC], no. 14939/03, § 83, ECHR 2009).

13. In the above-mentioned judgment, the Court held that, in the context of repeated criminal proceedings against a person for the same offence, it was irrelevant whether the charges were eventually upheld or dismissed in the subsequent proceedings, as Article 4 of Protocol No. 7 provided for safeguards against being tried or being liable to be tried again in new proceedings, rather than a prohibition of a second conviction or acquittal. The Court thus found that the applicant’s eventual acquittal in the second set of proceedings against him did not deprive him of his status as a “victim” of the violation of Article 4 of Protocol No. 7.

14. The finding in the above-mentioned case, which concerns the Court’s jurisdiction ratione personae , does not, however, exempt applicants to the Court from the obligation to exhaust domestic remedies. The applicant in the present case was therefore obliged to exhaust all regular possibilities of appeal in the criminal proceedings against him in order to provide the domestic courts with the opportunity to address the alleged violation of the Convention. Since the applicant did not apply to the Supreme Court for leave to appeal against his 18 December 2020 conviction, his application is inadmissible for failure to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 November 2021.

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Olga Chernishova Georgios A. Serghides Deputy Registrar President