FIFTH SECTION

Application no. 7362/10 Shibendra DEV against Sweden lodged on 21 January 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Shibendra Dev, is a Swedish national who was born in 1950 and lives in Hässelby . He was rep resented 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. Tax proceedings

By a decision of 2 June 2004 the Tax Agency ( Skatteverket ) found that the applicant ran two restaurants together with his wife, Mrs Lucky Dev (who has lodged application no. 7356/10 before the Court), and that, consequently, they should each declare half of the proceeds and the costs of that business. As the applicant had failed to do so in his tax return, the Agency revised upwards his income taxation for 2002 (i.e. the taxation year 2003), finding him liable to pay tax on underdeclared business income ( inkomst av näringsverksamhet ) amounting to 765,009 Swedish kronor (SEK). It also increased his liability to value-added tax ( mervärdesskatt ; “VAT”) for 2002 by SEK 260,033. Finally, as the information supplied by the applicant in his tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the company ’ s deficient accounting, the Agency ordered him to pay tax surcharges ( skattetillägg ), amounting to 40% and 20%, respectively, of the increased tax liability for income tax and VAT.

Following the applicant ’ s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it.

On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court ( länsrätten ) in Stockholm and the Administrative Court of Appeal ( kammarrätten ) in Stockholm upheld the Tax Agency ’ s decision.

By a decision of 20 October 2009 the Supreme Administrative Court ( Regeringsrätten ) refused leave to appeal.

B . Criminal proceedings

By a judgment of 16 December 2008 the Stockholm District Court ( tingsrätt ) convicted the applicant of an aggravated bookkeeping offence ( grovt bokföringsbrott ) and an aggravated tax crime ( grovt skattebrott ) and sentenced him to eight months ’ imprisonment. The crimes concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and his wife had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the tax crime, the court considered that the applicant had intentionally given false information in his tax return and had thus failed to declare proceeds of almost one million SEK and a further amount relating to VAT.

On 12 October 2010 the Svea Court of Appeal ( Svea hovrätt ) upheld the District Court ’ s judgment in so far as it concerned the bookkeeping offence. In regard to the tax crime, however, it found that it should be classified as a regular offence, stating that, in particular, the amounts involved did not give reason to consider it as being of an aggravated nature. As a consequence, the Court of Appeal also lowered the penalty, giving the applicant a suspended sentence and ordering him to pay 100 day fines.

On 25 November 2010 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

COMPLAINTS

1. The applicant complains under Article 4 of Protocol No. 7 to the Convention that , through the imposition of tax surcharges and the conviction for an aggravated tax crime, he has been punished twice for the same offence . He argues that the two proceedings have been based on identical facts.

2. The applicant further complains under Article 6 of the Convention that he did not have a fair hearing in the tax proceedings, as the level of proof required for the imposition of tax surcharges was too low given the fact that, in accordance with the Court ’ s case-law, such an imposition involves the determination of a “criminal charge”. He argues that, when a discretionary tax assessment is made because the information supplied by the individual provides no reliable basis for an assessment, the Tax Agency only has to show that it is probable ( sannolikt ) that the tax cannot be calculated reliably in order to impose surcharges.

QUESTION TO THE PARTIES

Having regard to the fact that the applicant was convicted of an aggravated bookkeeping offence and an aggravated tax crime and tax surcharges were imposed on him, h as the applicant been punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7?