FIFTH SECTION
Application no. 8307/11
Sven Olof GÖTHLIN
against Sweden
lodged on 9 November 2010
STATEMENT OF FACTS
The applicant, Mr Sven Olof Göthlin, is a Swedish national, who was born in 1943 and lives in Sundborn. He is represented before the Court by Mr A. Grahn, a lawyer practising in Falun.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 September 2009 the Enforcement Authority (Kronofogdemyndigheten) decided to attach and sell a mobile sawmill belonging to the applicant, worth 300,000 SEK (roughly EUR 36,000), due to his tax debts amounting to 245,000 SEK (roughly EUR 29,400).
On 22 April 2010, the Enforcement Authority contacted the applicant in order to discuss the sale of the seized property. A few days later, the applicant contacted the Enforcement Authority and informed it that he had removed the property from his estate and hidden it. He also visited the Enforcement Authority and gave a written statement, reiterating that he alone had hidden the property. On 5 May 2010, the Enforcement Authority visited the applicant’s estate and confirmed that the property had been removed. On that occasion, the applicant was called to be questioned on 7 May 2010 and he was informed about his duty according to Swedish law to give information on the location of the property, and to his possible detention if he did not cooperate. At the questioning, the applicant maintained his earlier statements and refused to give any information on the location of the property. Meanwhile, also the applicant’s wife was questioned. She informed the Enforcement Authority that she had no information on the location of the property.
On 17 May 2010, the Enforcement Authority requested the District Court (tingsrätten) in Falun to detain the applicant because he had refused to cooperate and give the required information. It relied on Chapter 2, Article 16, and Chapter 4, Article 14, of the Enforcement Code (Utsökningsbalken, 1981:774).
On 27 May 2010 the District Court rejected the Enforcement Authority’s request. In reaching its decision, the court noted that the execution decision had become legally binding in early May 2010. Thus, the court held, only a short time had passed since the matter had been finally resolved. Moreover, the court noted that the Enforcement Authority had not resorted to any other means in order to convince the applicant to reveal the location of the property, such as imposition of a conditional fine. Whilst recognising that the applicant up to that point had been reluctant to give information on the location of the property, the court held that it could not be ruled out that a less severe coercive measure would alter his attitude.
The Enforcement Authority appealed to Svea Court of Appeal (hovrätten), which, on 28 June 2010, repealed the lower court’s decision and granted the Enforcement Authority’s request. It stated that a debtor had to give necessary information about his assets and failure to do so could result in the debtor being detained, if there were extraordinary reasons for detention. Having regard to the amount of the debts, the value of the hidden property and the fact that the applicant had maintained his refusal to reveal the location of the property, the Court of Appeal found that the requirements were fulfilled. Lastly, it noted that it should be informed as soon as the applicant had been detained in order to hold a hearing as to the continued detention.
The applicant was detained on the following day. Consequently, on 30 June 2010, the Court of Appeal held an oral hearing and decided to maintain its earlier decision. It added that the applicant should be released immediately if he revealed the location of the property and, moreover, that he under no circumstances should be held in detention for more than three months.
The applicant appealed to the Supreme Court (Högsta domstolen) which, on 6 July 2010, refused leave to appeal.
On 13 July 2010 the District Court reviewed the detention and held a new hearing in the case as required by Chapter 2, Article 16, of the Enforcement Code. The Enforcement Authority maintained that the applicant should be held in detention since he still had not given any information regarding the property. It stated that it had not been possible for it to undertake any investigative measures, since the applicant had stated that he had transported the property from his estate and since it was unknown to the Enforcement Authority where the property was located. The applicant, who opposed the Enforcement Authority’s request, maintained his refusal to give information about the location of the property and held, inter alia, that he suffered from high blood pressure and anxiety hysteria, causing him difficulties to sleep. Moreover, he stated that he recently had been treated for prostate cancer and that he was not allowed to take his normal medication since it contained narcotic substances. In its decision, the District Court noted that the applicant had maintained his refusal to give information on the property and held that there were extraordinary reasons for his continued detention. Hence, the District Court decided that the applicant should remain in custody.
The applicant appealed to the Court of Appeal which, on 20 July 2010, rejected the appeal. Upon further appeal, the Supreme Court dismissed the appeal as a new decision already had been taken by the District Court at that time.
On 27 July 2010 the District Court again reviewed the detention and held a new hearing in the case. The Enforcement Authority maintained its earlier point of view and acknowledged that no investigative measure had been possible due to the applicant’s standpoint. The applicant maintained his earlier position and added that he suffered from asthmatic problems due to the dry air in custody. The District Court found that there were extraordinary reasons for the applicant’s continuing detention and ordered that he should remain in custody.
The applicant appealed to the Court of Appeal which, on 2 August 2010, rejected the appeal. On 5 August 2010, the Supreme Court refused leave to appeal.
On 9 August 2010, the District Court once again reviewed the detention and held a hearing in the case. The parties maintained their earlier point of views. The District Court found that a continued detention of the applicant would be disproportionate to the measure taken by him. Hence, the District Court concluded that there were no extraordinary reasons for the applicant’s continuing detention. As a consequence, the District Court ordered his immediate release.
The Enforcement Authority appealed to the Court of Appeal which, on 13 August 2010, rejected the appeal.
On 7 September 2010 the Supreme Court dismissed the Enforcement Authority’s appeal. Consequently, the District Court struck the case out of its list on 23 September 2010.
COMPLAINTS
The applicant complains under Articles 3 and 5 of the Convention about the lawfulness of the detention order. He claims that he was held in detention without it being prescribed by law and that his detention was utterly disproportionate to the aim pursued. Moreover, he was held in isolation during long periods of time, without being allowed his normal medication, and he was detained with dangerous criminals.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in violation of Article 5 § 1 of the Convention? Did the deprivation of liberty fall within paragraph (b) of this provision?
2. In particular, in which way did the applicant’s detention enable the authorities to try to locate the property in question? Was the idea to search for it without the interference of the applicant? Or, was it to pressure the applicant into revealing the location? Were there other reasons? Would any, or all, of the reasons for the applicant’s detention be consistent with Article 5 § 1 of the Convention?
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