FIFTH SECTION DECISION

Transcription

1 FIFTH SECTION DECISION Application no /10 Lars ÅBERG against Sweden The European Court of Human Rights (Fifth Section), sitting on 21 October 2014 as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having regard to the above application lodged on 16 September 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1. The applicant, Mr Lars Åberg, 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. 2. The Swedish Government ( the Government ) were represented by their Agents, Ms I. Kalmerborn, Ms H. Kristiansson and Mr. A. Rönquist, Ministry for Foreign Affairs.

2 2 ÅBERG v. SWEDEN DECISION A. The circumstances of the case 1. Tax proceedings 3. By decisions of 4 October 2002 and 7 October 2004 the Tax Agency (Skatteverket) reviewed the applicant s taxation for income received in the years 2000, 2001 and 2002 (i.e. the taxation years 2001, 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 pay income tax in Sweden. His income was revised upwards by approximately 1.9 million, 2.8 million and 3.7 million Swedish kronor (SEK), respectively, for the three 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. 4. Following the applicant s appeals, the Tax Agency made obligatory reviews of its decisions but did not change them. 5. By judgments of 11 November 2004 and 27 April 2006 the County Administrative Court (länsrätten) in Skåne upheld the Tax Agency s decisions. 6. It is not clear whether the applicant appealed against the judgment of 11 November 2004, but he did so against the judgment of 27 April 2006 which concerned income received in 2001 and On 26 February 2008 the Administrative Court of Appeal (kammarrätten) in Gothenburg agreed with the principal considerations in the Tax Agency s decision but lowered the amounts in question following new information obtained by the Agency to approximately 1.8 million and 1.2 millon SEK for the two years (in total about 330,000 euros (EUR)). 8. By a decision of 3 November 2008 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal. 9. It appears that the Tax Agency and, upon appeal, the administrative courts have made similar tax revisions for income received in 2003 and Criminal proceedings 10. Criminal proceedings were initiated against the applicant on 11 February 2008 in regard to the above conduct. 11. By a judgment of 30 September 2008 the Lund District Court (tingsrätt) convicted the applicant of an aggravated tax offence (grovt skattebrott) and sentenced him to two years and six months in prison. The conviction concerned the period , corresponding to all the five years which had been subject to tax revisions, and thus including the three

3 ÅBERG v. SWEDEN DECISION 3 years which are relevant in the present case before the Court. 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. In sentencing the applicant, the court took into account that a long time had passed since the offences had been committed. 12. 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 commission of the offences 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. The court did not, however, give any details as to how much the sentence was reduced due to the surcharges. In conclusion, it upheld the sentence passed by the District Court. 13. 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. 14. By a decision of 31 March 2010 the Supreme Court found, by a majority of 3 votes to 2, that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (published in Nytt juridiskt arkiv (NJA) 2010, p. 168). The court considered that, following the judgment in Sergey Zolotukhin v. Russia ([GC], no /03, judgment of 10 February 2009, ECHR 2009) and later judgments concerning the issue, it could be excluded that the European Court would find that proceedings concerning sanctions for the submission of identical statements would involve different offences because of the differing subjective prerequisites for the imposition of tax surcharges and the conviction for tax offences; instead, it was now clear that the question of whether two proceedings concerned the same offence had to be examined on the basis of the circumstances of the case. If the later proceedings concerned identical or essentially the same facts as the earlier proceedings, it was a matter of proceedings concerning the same offence. However, the Supreme Court noted that the Strasbourg case-law left some room for several punishments for the same offence 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 Court s jurisprudence provided clear support for that conclusion and considered that

4 4 ÅBERG v. SWEDEN DECISION 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. The Court of Appeal s judgment was accordingly upheld. 15. The applicant started to serve his prison sentence on 28 April He was released on probation on 17 January On 23 October 2013 the Supreme Court, at the applicant s request, decided to re-open the criminal proceedings in so far as they concerned the applicant s liability for tax offences in the years (corresponding to the taxation years ) and the sentence fixed by the Court of Appeal. In those respects, the case was referred back to the appellate court for a new examination. Referring to Article 4 of Protocol No. 7 and to its decisions of 11 June and 16 July 2013 (see further paragraphs 26 and 27 below), the Supreme Court noted that the applicant had been convicted by the Court of Appeal after the Sergey Zolotukhin judgment of 10 February 2009 and that the tax surcharges previously imposed on him concerned the same conduct as the criminal indictment. However, the court rejected the petition for a re-opening of the criminal case to the extent that it concerned offences committed in 2003 and 2004 as, in those respects, the conviction had occurred before the Tax Agency s decisions on surcharges. 17. On 1 July 2014 the Court of Appeal quashed its judgment of 28 April 2009 in so far as it concerned the part that had been re-opened by the Supreme Court (that is, the years ) and dismissed the indictment in that respect. The sentence for the remaining tax offences, committed in 2003 and 2004, was fixed at eight months imprisonment. 18. The applicant has appealed to the Supreme Court against the sentence fixed by the Court of Appeal. Thus, his appeal does not concern the years relevant in the present case. The appeal is presently pending. 3. Compensation proceedings 19. On 17 September 2013 the applicant instituted proceedings for damages against the State before the Stockholm District Court. He claimed SEK 347,500 (approximately EUR 38,000) for suffering due to his having been imprisoned following dual proceedings that allegedly violated Article 4 of Protocol No. 7. The claimed amount was calculated in accordance with the practice of the Chancellor of Justice (Justitiekanslern) (see further paragraph 33 below). The compensation proceedings have been adjourned pending the outcome of the re-opened criminal proceedings.

5 ÅBERG v. SWEDEN DECISION 5 B. Relevant domestic law and practice 1. Provisions on taxes and tax surcharges 20. The rules on taxes and tax surcharges relevant to the present case were primarily laid down in, as far as income tax was concerned, the Tax Assessment Act (Taxeringslagen, 1990:324) and, with respect to VAT, the Tax Payment Act (Skattebetalningslagen, 1997:483). Both laws have since been replaced by the Tax Procedure Act (Skatteförfarandelagen; 2011:1244). 21. A tax surcharge could and still can be imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (Chapter 5, section 1 of the Tax Assessment Act, and Chapter 15, section 1 of the Tax Payment Act) or if, following a discretionary assessment, the Tax Agency decides not to rely on the tax return (Chapter 5, section 2, and Chapter 15, section 2, respectively). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the Tax Agency cannot base its tax assessment on it or if he or she has not filed a tax return despite the obligation to do so. In certain circumstances, the tax surcharges may be exempted. 2. Criminal law provisions 22. A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information, thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her, is criminally liable under sections 2-4 of the Tax Offences Act (Skattebrottslagen, 1971:69). The possible sentence ranges from a fine for a tax misdemeanour (skatteförseelse) to imprisonment for a maximum of six years for an aggravated tax offence. Section 5 provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so (vårdslös skatteuppgift) may be sentenced to a fine or a maximum of one year in prison. The term incorrect information in the Tax Offences Act is considered to have the same meaning as in the above provisions on tax surcharges (Government Bill 2010/11:165, p. 1110). 3. Tax surcharges and tax offences and the Convention in Swedish case-law 23. In a judgment of 29 November 2000 the Supreme Court considered whether a person could be convicted of a tax offence in criminal

6 6 ÅBERG v. SWEDEN DECISION proceedings following the imposition of a tax surcharge in tax proceedings (NJA 2000, p. 622). Having noted that, under internal Swedish law, a surcharge is not considered a criminal penalty and does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the Court s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention presupposed that the initial conviction or acquittal had been delivered in accordance with the penal procedure of the State. Therefore the principle did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied. This view was confirmed in later judgments delivered by the Supreme Court. 24. On 17 September 2009 the Supreme Administrative Court examined the reverse situation, that is, where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence (judgment published in Regeringsrättens årsbok (RÅ) 2009, ref. 94). In assessing whether there was a violation of the prohibition on double punishment under Article 4 of Protocol No. 7 to the Convention, the court referred to the fact that the relevant Swedish provisions aimed at ensuring that the combined sanctions criminal conviction and imposition of tax surcharges were in reasonable proportion to the conduct for which the individual had been found liable. It further noted that the Swedish legal system contained the special feature of separate general 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. While acknowledging that the Court s recent judgments in Sergey Zolotukhin v. Russia (cited above) and Ruotsalainen v. Finland (no /03, judgment of 16 June 2009) suggested a change in the Strasbourg case-law, the Supreme Administrative Court noted that they did not relate to the Swedish legal system and concluded that this system, allowing for both a conviction for a tax offence and an imposition of tax surcharges, was in conformity with the Convention. 25. On 31 March 2010, in its decision concerning the present case, the Supreme Court examined the issue anew and again found that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (see further paragraph 14 above). 26. By a plenary decision of 11 June 2013 (NJA 2013, p. 502) the Supreme Court overturned its previous conclusions. In line with its 2010 decision, the court held that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and the relevant

7 ÅBERG v. SWEDEN DECISION 7 proceedings thus concern the same offence within the meaning of Article 4 of Protocol No. 7. However, where the court in 2010 had found that the invalidation of the Swedish system required clear support in the Convention itself or in Strasbourg case-law, the court now noted that the judgment of the European Court of Justice in the case of Åkerberg Fransson (26 February 2013, case no. C-617/10) already prohibited double proceedings and punishments with respect to VAT. As the Swedish system had thereby been partially invalidated, the legal and practical consequences of further changes were not so radical as to require the intervention of the legislature. The court also took into account that no legislative amendments had been made despite the developments in Strasbourg case-law since 2009 and that it would be inexpedient and difficult to apply different rules on similar contraventions within a system meant to be coherent. Consequently, the court held that there was sufficient support for concluding that the Swedish system of tax surcharges and tax offences was incompatible with Article 4 of Protocol No. 7. This conclusion applied not only to VAT, but also to income tax, employer s contributions and similar payments. The Supreme Court further found that the protection under Swedish law against double proceedings and punishments was valid also in cases where the state exacted personal liability on an individual for tax surcharges imposed on a legal person. Having regard to the strong and systematic connection in Swedish law between the principles of res judicata and lis pendens, the court also held, although the Court s jurisprudence was unclear on this point, that ongoing, not finalised proceedings on tax surcharges precluded a criminal indictment concerning the same factual circumstances. The procedural hindrance against an indictment materialised when the Tax Agency took its decision to impose surcharges. However, whereas the imposition of tax surcharges and the conviction for a tax offence based on the same factual circumstances concerned the same offence and were thus prohibited, the situation was different when the criminal conviction concerned a bookkeeping offence. According to the Supreme Court, which had regard to the case-law of the Court, the concrete factual circumstances forming the basis of a bookkeeping offence could normally not be considered inextricably linked to the factual circumstances leading to the imposition of tax surcharges. In addition to the breach of bookkeeping obligations under the Accountancy Act, the imposition of a tax surcharge involved a further factual element, namely the submission of incorrect information in a tax return. In the case at hand, which involved the imposition of tax surcharges against an individual in November 2009 and the criminal indictment of him in June 2010 for, inter alia, aggravated tax offences and an aggravated bookkeeping offence, the Supreme Court quashed the appealed judgment of the Court of Appeal in so far as it concerned the tax offence relating to his personal income tax and dismissed the indictment in that respect. However,

8 8 ÅBERG v. SWEDEN DECISION nothing prevented the examination of the bookkeeping offence or the tax offences concerning VAT and employer s contributions. In the latter respect, the conclusion was due to the tax surcharges relating to VAT and employer s contributions having been imposed on the appellant s limited liability company and not on him personally. 27. In a further decision, taken on 16 July 2013 (NJA 2013, p. 746), the Supreme Court examined the question whether a former defendant could be granted a re-opening of criminal proceedings (resning) under Chapter 58, section 2 of the Code of Judicial Procedure (Rättegångsbalken) if he or she had been convicted of an offence under the Tax Offences Act in a manner incompatible with Article 4 of Protocol No. 7, as interpreted by the decision of 11 June The court concluded that, on the basis of the Convention, in particular Article 13, a Swedish court may decide, in certain situations, that a case is to be re-opened notwithstanding the special conditions specified in Chapter 58, section 2. The court also took the position that the incompatibility of Swedish legislation regarding sanctions for tax-related offences with Article 4 of Protocol No. 7 had arisen by virtue of the Sergey Zolotukhin judgment (cited above), thus on 10 February The Supreme Court s decision led to criminal proceedings being re-opened in respect of an individual s conviction for an offence under the Tax Offences Act. As a result, the possibility of being granted a re-opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from 10 February On 25 July 2013 the Supreme Court took another decision of relevance (NJA 2013, p. 780). It stated therein that, if criminal proceedings have commenced before the Tax Agency has decided to impose tax surcharges, the prohibition against ne bis in idem cannot result in a criminal judgment that has become final being re-opened and quashed. Instead, it is the second set of proceedings to be commenced the tax proceedings involving surcharges that are contrary to the law. The violation of the right not to be tried or punished twice for the same offence is therefore in this situation a matter for the administrative courts. 29. By a plenary judgment of 29 October 2013 (HFD 2013 ref. 71), the Supreme Administrative Court (now Högsta förvaltningsdomstolen) reversed the position taken in its judgment of 17 September 2009 and confirmed in a judgment of 21 December 2010 (RÅ 2010 ref. 117). Agreeing with the conclusions drawn by the Supreme Court, the Supreme Administrative Court found that the same principles should apply when the order of the tax and criminal proceedings is different, that is, when the tax proceedings are commenced later. Accordingly, a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information. In the case at hand, where the individual had been indicted in February 2005 and surcharges had been imposed by the Tax Agency in April 2005,

9 ÅBERG v. SWEDEN DECISION 9 the Supreme Administrative Court concluded that the latter decision violated Article 4 of Protocol No. 7. The appeal made against the appellate court s judgment on tax surcharges was accordingly granted and the surcharges set aside. 30. The Supreme Administrative Court has since examined several petitions for the re-opening of tax proceedings in which tax surcharges had been imposed. In a decision of 2 December 2013 (cases nos and ) it rejected the petition, stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that, accordingly, no violation of the prohibition against double proceedings had occurred. In a judgment of 5 June 2014 (cases nos and ) it granted a re-opening, noting that, pursuant to the Supreme Court s decision of 16 July 2013, the applicant would have had a right of re-opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand, which was the reverse, should not be treated differently. The Supreme Administrative Court accordingly re-opened the tax proceedings and quashed the tax surcharges in question. The latter case had already been examined by the Supreme Administrative Court as part of the original tax proceedings in December 2010 prior to the recent developments in Swedish case-law and had then been considered not to involve a breach of Article 4 of Protocol No In a judgment of 19 June 2014 (cases nos and ) the Supreme Administrative Court examined a different situation where tax surcharges had been imposed on a person by a decision of the Tax Agency in May 2011, upheld by the County Administrative Court in February During the subsequent examination before the Administrative Court of Appeal, the person in question was, in separate criminal proceedings, indicted for a tax offence but acquitted thereof by a judgment of the District Court in April 2013 which soon afterwards acquired legal force. As a consequence, the Administrative Court of Appeal, in September 2013, quashed the surcharges that had been imposed. The Supreme Administrative Court agreed with this course of action, noting that the Court had established in several judgments (including Nykänen v. Finland, no /11, 20 May 2014) that, in the event that one of two concurrent sets of proceedings becomes final, Article 4 of Protocol No. 7 required that the other set of proceedings be discontinued. The Supreme Administrative Court s judgment was delivered in ordinary proceedings which had not involved any re-opening. Furthermore, all the decisions and judgments in the case were delivered after the Sergey Zolotukhin judgment. 32. Following the above judicial changes, the Prosecutor-General (Riksåklagaren) and the Economic Crime Authority (Ekobrottsmyndigheten) decided to examine all tax cases where there may have been double punishments in accordance with the conclusions by the two supreme

10 10 ÅBERG v. SWEDEN DECISION courts. Whenever the conditions were met, the prosecutor would file a petition for the criminal proceedings to be re-opened, provided that the individual agreed to this course of action and had not already sought a reopening him- or herself. The undertaking, expected to be finalised by mid- March 2014, was to cover all cases ending with a judgment, an order of summary punishment (strafföreläggande) or a decision not to prosecute (åtalsunderlåtelse) since 10 February On 25 April 2014 the Swedish newspaper Dagens Nyheter, basing itself on information provided by the Economic Crime Authority, reported that close to 3,000 cases concerning tax offences had been examined. Out of more than 110 individuals who were serving prison sentences, 42 had been released. Those who had not been released had been convicted also for other crimes than tax offences. A further number of persons who were about to start serving prison sentences did not have to do so. 800 individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re-opening of proceedings and, so far, 541 of them had accepted and 128 cases had been re-opened. In some re-opened cases the convictions had been quashed in their entirety; in others, involving several offences, the proceedings had to be repeated. 4. Provisions on monetary compensation 33. Section 4 of the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder; 1998:714) stipulates that a person who has served a prison sentence is entitled to compensation if, following an appeal or a reopening of proceedings, he or she is acquitted or given a less severe sentence or the judgment containing the conviction is quashed. Under section 7 of that Act, compensation is awarded for costs, loss of income, interference in business activities and suffering. Normally, in accordance with the practice of the Chancellor of Justice, compensation for suffering is set at a rate of SEK 30,000 (approximately EUR 3,300) for the first month, SEK 20,000 (EUR 2,200) for each additional month up to and including the sixth month and SEK 15,000 (EUR 1,600) per month after that. Certain circumstances can lead to a higher rate of compensation. This is primarily the case if the suspicions have concerned a particularly serious crime or if the matter has attracted extensive media attention. 34. An action for damages can also be based on the Tort Liability Act (Skadeståndslagen, 1972:207). Under Chapter 3, section 2 of that Act, compensation is awarded for damage caused by fault or negligence on the part of a public authority. Requests can be lodged with the Chancellor of Justice. If dissatisfied with the Chancellor s decision, the individual has the option of bringing an action for damages against the State in the general courts. He or she may also institute such proceedings directly without having made a request to the Chancellor.

11 ÅBERG v. SWEDEN DECISION In addition, the Supreme Court has developed case-law which provides that, in order to provide redress for victims of Convention violations, compensation may be awarded without direct support in Swedish law. Based on this case-law, the Chancellor of Justice has awarded compensation in many cases following requests from individuals. The Court has had regard to this development and has concluded that, following a Supreme Court judgment of 3 December 2009 (NJA 2009 N 70), there is an accessible and effective remedy of general applicability, capable of affording redress in respect of alleged violations of the Convention (see, for example, Eriksson v. Sweden, no /08, 48-52, 12 April 2012, and Marinkovic v. Sweden (dec.), no /10, 43, 10 December 2013, and in regard to the domestic case-law developments the latter decision, 21-31). COMPLAINT 36. The applicant complained, under Article 4 of Protocol No. 7 to the Convention, that, through the imposition of tax surcharges and the conviction of an aggravated tax offence, he had been tried and punished twice for the same offence. THE LAW 37. The applicant claimed that he had been tried and punished twice. He invoked Article 4 of Protocol No. 7 to the Convention, the relevant parts of which read as follows: 1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case....

12 12 ÅBERG v. SWEDEN DECISION A. The parties submissions 1. The Government 38. The Government raised the issue of exhaustion of domestic remedies and left it to the Court to decide whether the application should be declared inadmissible for non-exhaustion. They referred to the recent case-law from the two supreme courts regarding the application of the principle of ne bis in idem in tax matters and the possibilities of re-opening the set of proceedings that occurred later in time and noted that the criminal proceedings against the applicant had been re-opened. While conceding that, at the time of introduction of the present application, there had been no effective domestic remedies available to the applicant, the Government further submitted that there were exceptions also to the rule that the relevant time for assessing whether domestic remedies had been exhausted was the date on which the application to the Court had been lodged. In addition, the Government referred to the practice during the past several years of the Supreme Court and the Chancellor of Justice, which had established a general principle of right to compensation for violations of the Convention. This had been accepted by the Court as an effective remedy which potential applicants could be expected to exhaust. Compensation could also be claimed under the Act on Compensation for Deprivation of Liberty and Other Coercive Measures. In this connection, the Government pointed out that the applicant had instituted proceedings for damages before the District Court. 39. Should the Court declare the application admissible, the Government left it to the Court to decide whether the case revealed a violation of the Convention. They referred to the recent developments at national level, notably the Supreme Court s conclusion that Article 4 of Protocol No. 7 constituted an impediment against an indictment for a tax offence as soon as tax surcharges had been imposed. 2. The applicant 40. The applicant did not make any submissions on the issue of exhaustion of domestic remedies. 41. As to the merits, the applicant stated that the two sets of proceedings in his case tax and criminal had been based on identical facts. Furthermore, they had not been connected. He referred, inter alia, to the Court s judgments in Sergey Zolotukhin v. Russia (both cited above) and argued that the double proceedings against him had not been compatible with the Court s jurisprudence.

13 ÅBERG v. SWEDEN DECISION 13 B. The Court s assessment 42. The Court first reiterates that the present case concerns the double proceedings and punishments of the applicant in regard to his tax returns for the years (i.e. the taxation years ). Thus, the years 2003 and 2004 although they formed part of the criminal proceedings are not relevant for the Court s assessment. 43. In regard to the issue of exhaustion of domestic remedies, the Court reiterates that the purpose of this requirement, laid down in Article 35 1 of the Convention, is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention with which it has close affinity, that there is an effective remedy available in the domestic system in respect of the alleged breach. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Selmouni v. France [GC], no /94, 74, ECHR 1999-V, with further references). 44. The only remedies which should be exhausted are those that relate to the breach alleged and are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness: it falls to the respondent State to establish that these conditions are satisfied (see, among many other authorities, McFarlane v. Ireland [GC], no /06, 107, 10 September 2010). 45. Turning to the circumstances of the present case, the Government have pointed to three different domestic remedies, none of which existed at the time of the introduction of the present application. It should first be pointed out that the domestic case-law developments concerning the possibility to claim compensation for violations of the Convention (see paragraph 35 above) did not in themselves create a remedy that could be used to put right any alleged violation in situations such as that of the applicant. The reason for this is that, until the Supreme Court s decision of 11 June 2013, domestic case-law did not acknowledge that the Swedish system of double proceedings and punishments in tax matters could involve a breach of Article 4 of Protocol No. 7. Notably, in its decision of 31 March 2010, the Supreme Court itself concluded that there was no clear support for invalidating that system. 46. Accordingly, the issue whether there is an effective domestic remedy must be assessed with reference to the new legal position brought about by

14 14 ÅBERG v. SWEDEN DECISION the Supreme Court s decision of 11 June 2013 and the later decisions taken by the two supreme courts (see paragraphs above). 47. The Court notes that the decisions in question established that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and therefore, having regard to the findings in the Sergey Zolotukhin judgment (cited above), are incompatible with Article 4 of Protocol No. 7. Moreover, the Supreme Court s decision of 16 July 2013 introduced the possibility of having the criminal proceedings re-opened if a person has been convicted in contravention of this provision. Having regard to these recent developments, the Court concludes that there is now an accessible and effective remedy in Sweden that is capable of affording redress in respect of alleged violations of Article 4 of Protocol No. 7, provided that the conditions specified in the decisions of the supreme courts are met. 48. The applicant has availed himself of this new remedy. On 23 October 2013 the criminal proceedings against him were re-opened by a decision of the Supreme Court and the case was referred back to the Court of Appeal for a new examination. On 1 July 2014 the appellate court quashed its previous judgment in regard to the parts that had been referred back to it and dismissed the indictment accordingly. As a consequence, the criminal conviction of the applicant for the years relevant in the present case has been set aside. Consequently, the applicant has obtained redress at the national level for the fact that he was found liable in two sets of proceedings on the basis of the same set of facts. 49. As to compensation, the Court notes that the applicant served approximately one year and eight and a half months of his original two-anda-half-year prison sentence. Following the re-opening of the criminal proceedings, his sentence was reduced to eight months imprisonment. He should thus be entitled to compensation under the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (see paragraph 33 above) which may include reparation for costs, loss of income, interference in business activities and suffering. He may also claim damages under the Tort Liability Act (paragraph 34) and, in accordance with the case-law developed by the Supreme Court, request compensation without direct support in Swedish law (paragraph 35). While the latter development did not create a remedy that could be used to argue a violation of Article 4 of Protocol No. 7 prior to the Supreme Court s decision of 11 June 2013, there is no reason to believe that the new compensation rules would not apply thereafter to cases like that of the applicant, where an individual has been granted a re-opening of proceedings and has had a prison sentence quashed or reduced due to a breach of the principle of ne bis in idem. This is all the more so since the alleged Convention violation would not be based on

15 ÅBERG v. SWEDEN DECISION 15 general considerations in Strasbourg case-law but on individual decisions taken by the Swedish courts. 50. The applicant has already instituted proceedings for damages (see paragraph 19 above) in which he has claimed an amount for suffering which corresponds to the practice of the Chancellor of Justice under the Act on Compensation for Deprivation of Liberty and Other Coercive Measures. These proceedings are at present adjourned pending the outcome of the reopened criminal proceedings, currently conducted before the Supreme Court. In the Court s view, the applicant should be able to introduce further claims of compensation he may have in these or other proceedings, in accordance with what has been mentioned in the preceding paragraph. Accordingly, the aspects of the case that relate to compensation are premature. 51. It follows that, the application must be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Claudia Westerdiek Registrar Mark Villiger President