Communicated on 10 September 2014
FIFTH SECTION
Application no. 16753/11
DRAUPNER UNIVERSAL
against Sweden
lodged on 31 January 2011
STATEMENT OF FACTS
The first applicant, Draupner Universal AB, is a Swedish limited liability company registered in Stockholm. The second applicant, Mr Toivo Jurik, is a Swedish legal professional and economic consultant who practises as an associate in a Swedish law firm. He is also the father of the two owners of the applicant company and its sole director. The applicants were represented before the Court by Mr C. Lindstrand, a lawyer practising in Stockholm.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 14 March 2008 the Swedish Tax Agency (Skatteverket) decided to take coercive measures against the applicant company under the 1994 Act on Specific Coercive Measures in the Taxation Procedure (Lagen (1994:466) om särskilda tvångsåtgärder i beskattningsförfarandet – hereafter “the 1994 Act”). The measures were taken by virtue of an interim decision by the Tax Agency in accordance with paragraph 15 of the 1994 Act, which requires that such a decision is immediately submitted to the competent administrative court of first instance for a decision on whether or not the decision shall stand.
On the same day the measures were carried out in an apartment which was owned by the applicant company and was its domicile but which was leased by the second applicant and also served as his private dwelling. The search conducted at the apartment resulted in, inter alia, the seizure of certain data media and documents which, according to the applicants, included the second applicant’s private photographs as well as documents which had been entrusted to the second applicant by his clients.
The Tax Agency’s decision was submitted to the County Administrative Court (länsrätten) in Stockholm in accordance with the 1994 Act. The court gave the applicant company a short respite to respond and thereafter, by a judgment of 26 March 2008, it upheld the Tax Agency’s decision. The second applicant was not provided with an opportunity to respond before the court confirmed the coercive measures.
Both applicants appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. The applicant company requested that the decision to seize property in the apartment be reversed, the property returned to its owners and all the seized documents be exempt from the Tax Agency´s audit and the second applicant attempted to intervene on his own behalf and with the same cause.
The Administrative Court of Appeal dismissed, in a decision of 22 August 2008, the applicants’ appeals. In regard to the applicant company, the court stated that there was nothing in the case that showed that the company had a strong interest to have the coercive measure examined in one more instance. With respect to the second applicant, the court considered that he had no standing as a party at this stage of the proceedings. The request for exemption of documents was referred to the County Administrative Court since this request had not been reviewed in the lower instance.
The applicant company appealed against the Administrative Court of Appeal’s decision but, by a decision of 28 January 2009, the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.
The second applicant lodged a separate complaint to the County Administrative Court claiming, inter alia, that his rights under Article 8 of the Convention had been violated by the Tax Agency’s actions. The County Administrative Court dismissed these complaints in a decision of 17 March 2009, saying that an appeal was neither necessary nor possible since the Tax Agency’s decision had immediately been submitted to the appropriate county administrative court for a decision on whether or not the decision should stand.
The second applicant appealed to the Administrative Court of Appeal. He requested that the appeal should either be examined as an appeal against the decision of 17 March 2009 that no appeal lay against the Tax Agency’s decision, or against the judgment of 26 March 2008 in which the County Administrative Court had upheld the Tax Agency’s decision on coercive measures.
By a judgment of 6 May 2009 the Administrative Court of Appeal denied both requests. It noted, as had the County Administrative Court, that it was not possible to appeal against the Tax Agency’s decision since it had been submitted for confirmation to the County Administrative Court. In regard to the judgment confirming the Tax Agency’s decision, the court noted that the second applicant’s right of appeal had already been reviewed in the court’s decision of 22 August 2008.
On 24 July 2009 the Supreme Administrative Court refused leave to appeal against the appellate court’s judgment.
As has been noted above, the applicant company and the second applicant had, in their appeal against the County Administrative Court’s judgment of 26 March 2008, requested that a large number of the documents seized by the Tax Agency on 14 March 2008 be exempt from the Tax Agency’s audit, inter alia because the majority of the documents concerned the second applicant’s attorney-client privileges or were his personal possessions. On 14 September 2009, after the applicant company’s request had been referred to the County Administrative Court, the request for exemption was denied by the court except in regard to a few documents which clearly belonged to the second applicant (namely his last will and his personal banking codes and similar documents). In the same judgment the court denied the applicant company’s request for an oral hearing.
The applicant company appealed and requested an oral hearing but, on 14 September 2010, the Administrative Court of Appeal rejected both the request for exemption of documents and the request for an oral hearing. On 26 October 2010 the Supreme Administrative Court refused leave to appeal.
After the Tax Agency had retrieved the contents of two hard disks and a USB memory, which had been seized in the apartment, the applicant company made a new request for exemption of documents which was partially approved by the County Administrative Court in a judgment of 24 November 2011. On 21 February 2012 this judgment was upheld by the Administrative Court of Appeal. On 8 May 2012 the Supreme Administrative Court refused leave to appeal.
COMPLAINTS
1. The applicants complain under Article 6 § 1 of the Convention that they were denied an oral hearing before the County Administrative Court and the Administrative Court of Appeal in the proceedings concerning the exemption of documents.
2. The second applicant asserts under Article 6 that he was denied access to court concerning the Tax Agency’s seizure of his property and concerning his allegations of a breach of Article 8 of the Convention. He also claims, in this connection, that he did not have an effective remedy under Article 13 of the Convention.
3. Furthermore, the second applicant maintains that there was a breach of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention due to the Tax Agency’s decision of 14 March 2008 to access his private dwelling and there seize property belonging to him.
QUESTIONS TO THE PARTIES
1. Did the second applicant lodge his application within six months of the final domestic decision in the case?
2. Has there been an interference with the second applicant’s right to respect for his private life, home or correspondence, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?
3. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?
If so, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was it justified not to hold an oral hearing in the case and, furthermore, did the second applicant have access to a court for the determination of his civil rights and obligations?
4. Did the second applicant in the present case have access to an effective remedy as guaranteed by Article 13 of the Convention in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1?
5. Has there been an interference with the second applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference necessary to secure the payment of taxes or other contributions or penalties?
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