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FIFTH SECTION

Application no. 7396/10
Bjorn HENRIKSSON
against Sweden
lodged on 19 January 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Björn Henriksson, is a Swedish national who was born in 1940 and lives in Söderhamn. He was represented 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.  Criminal proceedings

By a judgment of 18 May 2006 the Handen District Court (tingsrätt) convicted the applicant of a tax crime (skattebrott). He was given a suspended sentence and ordered to perform 50 hours of community service. The District Court found that he had had a temporary employment with a company in 2003 and had failed to declare in his tax return the remuneration received, a motorboat and an electricity board, according to the applicant worth in total about 20,000 Swedish kronor (SEK). The applicant did not dispute this, but claimed that he had not understood that the remuneration was liable to tax and that, thus, he had had no intention of evading taxes. He maintained that his conduct, in any event, could only be regarded as a tax misdemeanour (skatteförseelse). The court considered, however, that the investigation clearly showed that he had been aware of his tax liability and that the offence was to be designated as a tax crime.

On 16 November 2006 the Svea Court of Appeal (Svea hovrätt) reclassified the offence as a tax misdemeanour and sentenced the applicant to 75 day fines (dagsböter). The appellate court found that, in distinguishing between a tax crime and a tax misdemeanour, all objective facts were to be considered, although the amount in question was of particular importance. According to domestic case-law, the line had been drawn at about SEK 30,000, and the court could not find beyond reasonable doubt that the total remuneration received by the applicant had exceeded that amount. Nor were there other circumstances that justified the classification of the offence as a tax crime.

The applicant did not appeal against the Court of Appeal’s judgment.

B.  Tax proceedings

By a decision of 22 March 2007 the Tax Agency (Skatteverket) reviewed the applicant’s taxation for 2003 (i.e. the taxation year 2004) and found that he had failed to account for income received from the company mentioned above. Having regard to the documentation in the case, including the judgments in the criminal case, the Agency found it reasonable to assume that the applicant had received an income of SEK 200,000. After deductions for estimated costs for travels to and from work and increased living expenses of in total SEK 24,000, the Agency revised upwards his income taxation by SEK 176,000. Furthermore, 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, he was ordered to pay tax surcharges (skattetillägg), amounting to 40% of the increased tax liability.

Following the applicant’s appeal, the Tax Agency, on 21 June 2007, made an obligatory review of its decision and lowered the above amounts. The applicant’s income taxation was instead raised by SEK 83,000. The tax surcharges were lowered correspondingly.

By a judgment of 5 May 2008 the County Administrative Court (länsrätten) in the County of Gävleborg agreed with the Tax Agency’s decision of 21 June 2007. However, the court had regard to the preparatory works (prop. 2002/03:106, p. 244) to the provisions on remission of tax surcharges (in particular, Chapter 5, section 14 of the Taxation Act; Taxeringslagen, 1990:324), according to which, in determining the surcharges, it could be taken into account that the same reproachable act or omission had also led to the individual’s conviction for a crime under the Tax Offences Act (Skattebrottslagen, 1971:69), the reason being that the total penalty should not be unreasonably heavy. In view of the applicant’s conviction and sentence, the court found reason to halve the tax surcharges in question.

On 6 October 2008 the Administrative Court of Appeal (kammarrätten) in Sundsvall upheld the County Administrative Court’s judgment.

The applicant as well as the Tax Agency appealed to the Supreme Administrative Court (Regeringsrätten) which, on 10 March 2009, granted leave to appeal.

By a judgment of 17 September 2009 the Supreme Adminstrative Court quashed the lower courts’ judgments and upheld the Tax Agency’s review decision of 21 June 2007. In examining whether there was a violation of the prohibition on double punishment under Article 4 of Protocol No. 7 to the Convention, the Supreme Administrative Court had regard to the Court’s judgments in Zolotukhin v. Russia (no. 14939/03, judgment of 10 February 2009) and Ruotsalainen v. Finland (no. 13079/03, judgment of 16 June 2009). It noted, however, that these cases did not relate to the Swedish legal system which, among other things, contained the special feature of separate ordinary courts and administrative courts. In the court’s opinion, Article 4 of Protocol No. 7 had to be interpreted in the light of such special features in the national legal systems. It therefore concluded that the Swedish system, allowing for both a conviction for a tax crime and an imposition of tax surcharges, was in conformity with the Convention. The court further found that a remission of surcharges under Chapter 5, section 14 of the Taxation Act could only be granted if the individual had received a more severe fine or prison sentence. As that was not considered to be the case with regard to the applicant and, thus, his total penalty was not unreasonable, there was no reason to reduce the surcharges fixed by the Tax Agency.

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 also claims, without giving any arguments, that his rights under Article 6 §§ 1 and 2 have been violated.

QUESTION TO THE PARTIES

Having regard to the fact that the applicant was convicted of a tax misdemeanour 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?