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FIFTH SECTION

Application no. 57762/10
Lars WEILAND
against Sweden
lodged on 16 September 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Lars Weiland, is a Swedish national who was born in 1947 and lives in Landskrona. He was represented before the Court by Mr O. Lekander, a lawyer practising in Limhamn.

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

A.  Tax proceedings

By a decision of 7 October 2004 the Tax Agency (Skatteverket) reviewed the applicant’s taxation for 2001 and 2002 (i.e. the taxation years 2002 and 2003) and found that payments made by Swedish county councils and health care districts to a company registered in Gibraltar and 90% owned by the applicant should be considered as salary for work performed as a medical doctor for which he was liable to income tax in Sweden. His income was revised upwards by approximately 2.8 million and 3.7 million Swedish kronor (SEK), respectively, for the two years. Furthermore, as the applicant had failed to account for the amounts in question in his annual tax returns and had thus supplied the Tax Agency with incorrect information, the Agency ordered him to pay tax surcharges (skattetillägg), amounting to 40% of the increased tax liability.

On 27 April 2006 the County Administrative Court (länsrätten) in Skåne upheld the Tax Agency’s decision.

On 26 February 2008 the Administrative Court of Appeal (kammar-rätten) in Gothenburg agreed with the principal considerations in the Tax Agency’s decision but lowered the amounts in question – following new information from the applicant, which had been confirmed by the Agency – to approximately 1.8 million and 1.2 millon SEK for the two years.

By a decision of 3 November 2008 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.

It appears that the Tax Agency and, upon appeal, the administrative courts have made similar tax revisions for the years 2000, 2003 and 2004.

B.  Criminal proceedings

By a judgment of 30 September 2008 the Lund District Court (tingsrätt) convicted the applicant of an aggravated tax crime (grovt skattebrott) and sentenced him to two years and six months in prison. The crime concerned the period 2000-2004, thus the same years as the above-mentioned tax decisions. In sentencing the applicant, the court took into account that a long time had passed since the crimes had commenced.

The District Court held an oral hearing during which it heard the applicant and 14 witnesses. It also had regard to extensive written evidence. It considered that the statements made by the applicant during the hearing were of great importance but that also the information submitted by him to the Tax Agency and his other actions were to be taken into account.

The court found that the applicant had systematically and intentionally given the Tax Agency misleading information as to where he lived and worked. Although he had lived and worked in Sweden during the years in question, he had incorrectly claimed that he had left the country and worked abroad. The total undeclared income amounted to more than 6 million SEK and the evaded income tax came to approximately 2.9 million SEK.

On 28 April 2009 the Court of Appeal (hovrätt) of Skåne and Blekinge upheld the District Court’s judgment. While the appellate court did not find that the time between the crimes and the indictment gave reason to reduce the length of the prison sentence, it found that the considerable tax surcharges imposed on the applicant constituted such a reason. In conclusion, it upheld the sentence passed by the District Court.

The Supreme Court (Högsta domstolen) granted leave to appeal with respect to the question whether, pursuant to Article 4 of Protocol No. 7 to the Convention, the imposition of tax surcharges barred the criminal trial or conviction of the applicant.

By a judgment of 31 March 2010 the Supreme Court found, by a majority of 3 votes to 2, that there was no reason to generally invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7. The Supreme Court considered that, following the judgment in Zolotukhin v. Russia (no. 14939/03, judgment of 10 February 2009) and later judgments concerning this issue, it could be excluded that the European Court would find that the same submission of information for taxation purposes would constitute different crimes because of the differing subjective prerequisites for the imposition of tax surcharges and the conviction for tax crimes. However, the Supreme Court noted that the Strasbourg case-law left some room for several punishments for the same crime that could be decided by separate organs at different times and mentioned by way of example, inter alia, the conviction for a traffic offence and the resultant withdrawal of the offender’s driving licence. The Supreme Court further found that the invalidation of a Swedish system regulated by domestic law with reference to the Convention required that either the Convention itself or the European Court’s jurisprudence provided clear support for such a conclusion and considered that neither Article 4 of Protocol No. 7 nor the jurisprudence provided such support in the matter at hand. There were no other grounds for finding that Article 4 of Protocol No. 7 prevented the trial or conviction of the applicant because of the fact that tax surcharges had been imposed on him. In these circumstances, there was no reason to grant leave to appeal in regard to the applicant’s conviction and sentence.

In their dissenting opinion, two judges stated that, while the Strasbourg case-law left some room for several punishments for the same crime, this jurisprudence had to be considered as requiring that the crime was not the subject of a new complete examination in the second proceedings but that the latter was only complementary for the imposition of sanctions. A Swedish court examining a criminal indictment was not bound by the considerations drawn in a decision or judgment imposing tax surcharges and the criminal trial involved a complete examination of the indicted action. Consequently, there was clear support for finding that Article 4 of Protocol No. 7 prevented a criminal trial in cases where tax surcharges had been imposed due to the same incorrect tax declarations, in so far as the decision imposing surcharges had acquired legal force. In these situations, the decision on surcharges constituted res judicata. However, there was no clear support for such a finding in cases where the decision on surcharges had not acquired legal force. Nor was there any clear basis for discontinuing a criminal trial if and when the decision on surcharges acquired legal force. Still, in these cases, practical considerations spoke in favour of applying the rule on lis pendens in the Code of Judicial Procedure (Rättegångsbalken) extensively to cover also situations where the Tax Agency had taken a decision imposing tax surcharges.

COMPLAINT

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.

QUESTION TO THE PARTIES

Having regard to the fact that the applicant was convicted of an aggravated tax crime and tax surcharges were imposed on him, has 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?