CONCURRING OPINION OF JUDGE THOMASSEN

I agree with the majority of my colleagues as regards the outcome of this case.

Nevertheless, I have some reservations with regard to the more general reasoning of the majority of the Court concerning the relation between the presumptio innocentiae and the early enforcement of tax penalties in general. In my opinion, the limits, which the presumption of innocence should place on the execution of criminal sanctions before they are determined by a court, should be defined on a somewhat stricter basis.

The general point of departure set out by the majority (paragraph 106 of the judgment) is, that “neither Article 6 nor, indeed, any other provision of the Convention can be seen as excluding, in principle, enforcement measures being taken before decisions on tax surcharges have become final”. On the contrary, my preference would be to state that, in principle, the presumption of innocence should be seen as excluding the execution of criminal sanctions before a court has decided on the liability of the person concerned. Otherwise, the right of the individual to have a criminal charge determined by a court could be sapped of any real meaning. This would apply also to proceedings concerning tax penalties.

For the purpose of examining the justification of early enforcement of tax penalties, the Court proposes a balancing exercise between the interests of the State in pre-emptive enforcement and the rights of the individual (paragraph 106 of the judgment). This proposal, however, does not provide sufficient clarity as to how the presumptio innocentiae should limit the interests of the State. My approach would rather be to find that this principle is breached when such pre-emptive execution has the effect of a sanction.

While the special features of tax collection and the problem of tax evasion may provide a respectable reason relating to the general interest which could justify early enforcement, this is not necessarily the case for tax penalties, as is set out by the Court in paragraph 107 of the judgment. When a taxpayer is fined for filing a false tax declaration and he contests this, a fine should in principle not be executed before a court has examined the issue of whether the declaration was incorrect.

Admittedly, specific State interests could justify a different approach, for example where there was a reasonable fear that the person concerned would leave the country or would conceal his assets to evade execution. However, in a balancing exercise such as that proposed by the majority, the interests of the State should not be respected to such an extent that early execution could have the character of a sanction. This might occur, for example, when the consequences of execution cannot be undone or are irreparable or when the amount of money executed is such that it gives rise to serious financial problems for the person concerned, or leads to bankruptcy. In that respect I am not convinced by the majority that the fact that a bankruptcy decision caused by early enforcement of a fine can be quashed upon a request for a reopening of bankruptcy proceedings (paragraph 108 of the judgment) could genuinely compensate for a disturbing and invasive bankruptcy decision.

Had the surcharge been a decisive element in the decision to declare the applicant bankrupt – which was not the situation in this case – I would have voted for a violation of the presumption of innocence.

PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I do not share the majority's view on the last of the applicant's complaints. I consider that the execution of the tax surcharges imposed by the Tax Authority before the courts were able to determine whether the applicant had any criminal liability also infringed Article 6 § 2 of the Convention.

2. Without wishing to pass judgment on the Swedish fiscal legislation, it is my view that the strict application of a system that is already in itself too discretionary resulted, in the circumstances of the present case, in an infringement of the presumption of innocence. I reach that view on the same facts and for the same reasons that led the Court to find violations as regards the right of access to a court and the length of the proceedings. The Tax Authority's decisions on the taxes and tax surcharges were taken in December 1995 , but it was not until December 2001 (almost six years after the applicant's appeal) that the County Administrative Court delivered its decision on the merits. Indeed, the case is still pending [See paragraph 95 of the judgment]. However, in the meantime, in June 1996, even before ruling on the application for a stay of execution [Decisions of the Administrative Court of Appeal of 21 May 1997 and the Supreme Administrative Court of 3 November 1998 , see paragraph 15 of the judgment. See also paragraph 89 in fine ] when the conditions laid down in the Tax Collection Act for granting the applicant such a stay were satisfied [See paragraph 87 of the judgment], enforcement proceedings were commenced and the applicant declared bankrupt by the District Court [Decision of 10 June 1996, see paragraph 86 of the judgment], with the serious irreparable financial and professional consequences which that entailed for him [See paragraph 87 of the judgment]

3. The current Swedish fiscal system operates on the basis of objective criteria, in the interests both of efficient tax collection and of deterrence and retribution. Unlike the earlier system, there is no requirement of intentional or negligent conduct on the part of the taxpayer, and a presumption of criminal liability now operates against him or her [See paragraph 100 in fine of the judgment]. While the Convention does not prohibit certain presumptions of fact or of law in principle, it does require the Contracting States to remain within certain limits in this respect as regards criminal law. In addition, Article 6 § 2 requires States to confine presumptions of fact or of law provided for in the criminal law within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence [See Salabiaku v. France , judgment of 7 October 1988, Series A no.141-A, pp. 15-16, § 28.]. The presumption is, of course, rebuttable , assuming the taxpayer has a genuine opportunity of negating it [The majority accept that it was difficult for the applicant to rebut such a presumption, see paragraph 102 of the judgment] before a court affording all the guarantees required by Article 6. However, in the instant case, since the Tax Authority did not refer the case to the County Administrative Court until February 1999, that is to say three years after the applicant's appeal and more than two and a half years after the execution proceedings had ended [See paragraph 90 of the judgment], it seems to me self-evident that he was denied such a possibility. The Court rightly held that the applicant had been deprived of effective access to a court.

4. As regards the arguments relied on by the majority for dismissing the complaint under Article 6 § 2, I note that they are essentially based on the financial interest of the State [ See paragraphs 104 and 107 of the judgment ] . That is clearly a general interest but, as the Court says in the judgment, a fair balance must be struck between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved. The majority recognise that a system that allows enforcement of considerable amounts of tax surcharges before there has been a court determination of the liability to pay is open to criticism and should be subjected to strict scrutiny [See paragraph 108 in fine of the judgment]. However that did not stop them giving their blessing for such a system.

5. I do not find the majority's other arguments at all convincing, namely that under Swedish law it is possible to obtain reimbursement of any amount paid together with interest on a successful appeal or to have a bankruptcy order quashed on an application to reopen the proceedings, that the applicant had failed to pay his tax liability owing to insufficient means and his financial situation was such that bankruptcy was inevitable. These subsidiary considerations cannot take precedence over the presumption of innocence. In any event, while the possibilities referred to above may perhaps have existed if the applicant had been given effective access to a court within a reasonable time, that, as the Court has found, did not happen in the instant case.