Resolution CM /ResDH(2007)59 [1]

Execution of the judgment of the European Court of Human Rights

Janosevic against Sweden

(Application No. 34619/97, judgment of 23 July 2002, final on 21 May 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”),

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the lack of access to a court to determine criminal charges in taxation proceedings (violation of Article 6, paragraph 1) and the excessive length of proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Sweden ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix,

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close the examination of this case.

Appendix to Resolution CM /ResDH(2007)59

Information on the measures taken to comply with the judgment in the case of

Janosevic against Sweden

Introductory case summary

The case concerns the violation of the applicant ' s right of access to a court to determine the merits of criminal charges brought against him because of allegedly incorrect tax declarations for the tax year 1994. On 8 March 1996 the applicant requested reconsideration of the surcharges decided by the tax authority and a stay of execution. Notwithstanding this request, the tax authority took enforcement measures, particularly on the basis of the surcharges. The stay of execution was refused by the tax authority on 21 May 1996, as no security had been furnished for the amounts due. The enforcement proceedings were continued with the result that the applicant was declared bankrupt on 10 June 1996, before the administrative courts had decided on his appeal against the refusal to stay execution. His applications for leave to appeal before the Supreme Administrative Court were eventually refused on 3 November 1998 in respect of the stay of execution and on 18 September 1996 in respect of the bankruptcy. The decisions on the reconsideration of the surcharges, which were a precondition for the court ' s examination of the appeal on their merits, were not taken until three years after the applicant ' s request for reconsideration.

The European Court found that the tax authority had failed to act with the required urgency and thereby unduly delayed a judicial determination of the issues, depriving the applicant of effective access to court (violation of Article 6 , paragraph 1).

The case also concerns the excessive overall length of the proceedings. The proceedings began on 1 December 1995, the date of the tax authority ' s audit report containing the surcharges, and were still pending before the Administrative Court of Appeal at the date of the European Court ' s judgment (almost 6 years and 8 months) (violation of Article 6 , paragraph 1).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

15 000 EUR

35 000 EUR

50 000 EUR

P aid on 14/08/2003 and 21/08/2003

b) Individual measures

Acceleration of the pending proceedings was requested, particularly to remedy the applicant ' s lack of effective access to a court. On 2 April 2004, the Swedish delegation forwarded the judgments of 2 March 2004 of the Administrative Court of Appeal in the appeals lodged by the applicant. It indicated that the applicant had sought leave to appeal against all three judgments to the Supreme Administrative Court . The Supreme Administrative Court refused leave to appeal on 21 July 2004. The judgments have thereby become final and the proceedings have been terminated.

II. General measures

The judgment of the European Court has attracted a great deal of attention in Swedish media and is well known. Explanatory reports, together with copies of the judgments in the present case and that of Västberga Taxi Ab and Vulic (see Resolution CM /ResDH(2007)61), have been sent to the relevant judicial authorities to draw their attention to their obligations under the Convention. The judgments were commented on in an important legal journal, Svensk Juristtidning , and summaries of the judgments are available on the government ' s website ( www.manskligarattigheter.gov.se ), from where there are links to the judgments on the HUDOC website.

Following the Court ' s judgments in the present case and that of Västberga Taxi Ab and Vulic, the Swedish Tax Agency issued guidelines concerning time-limits for the reconsideration of taxation decisions. This should now be completed within one month or, if further investigations are necessary, within three months. According to the statistics available for 2003, the median time for a decision was 112 days. The Swedish government has also set operational objectives for county administrative courts and administrative courts of appeal regarding the turnaround time of cases and it has asked the National Courts Administration ( Domstolverket ) to evaluate the situation concerning the handling of tax cases. The Swedish authorities have not considered it necessary to introduce new legislation with respect to the slow processing of cases, since existing legislation already provided that tax authorities should deal promptly with cases and imposed a requirement of diligent processing on administrative courts. Furthermore, the European Court ' s judgments are part of the Swedish legal order. However, there is one novelty regarding length of proceedings, in that tax authorities and courts are now empowered to remit or reduce a tax surcharge when the individual has not had his or her case determined within a reasonable time within the meaning of Article 6 (Chapter 5, section 14 of the Taxation Act and Chapter 15, section 10 of the Tax P ayment Act).

Under the Tax P ayment Act, which came into force on 1 July 2003, the taxpayer now has an unconditional right to be granted a stay of execution with respect to tax surcharges until the tax authority has reconsidered its decision or, if an appeal is lodged, until the competent county administrative court has examined the appeal (Chapter 17, sections 2a and 9 of the Act). Moreover, the taxpayer is not required to provide security in order to be granted such a stay of execution (Chapter 17, section 3 of the Act).

In addition, even though the Court did not find a breach of the presumption of innocence, certain amendments have been introduced in the provisions dealing with grounds for remission of tax surcharges (Chapter 5, section 14 of the Taxation Act and Chapter 15, section 10 of the Tax P ayment Act).

III. Conclusions of the respondent state

The government considers that the general measures adopted will prevent similar violations and that Sweden has thus complied with its obligations under Article 46 paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 April 2007 at the 992nd meeting of the Ministers’ Deputies