FIFTH SECTION
Application no. 18700/09
HAGENFELDT ADVOKATBYRÅ AB against Sweden
lodged on 3 April 2009
STATEMENT OF FACTS
The applicant, Hagenfeldt Advokatbyrå AB, is a Swedish limited liability law firm registered in Stockholm, Sweden. The applicant was 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 applicant, may be summarised as follows.
The applicant is a Swedish law firm providing services in corporate and commercial law under the Swedish Bar Association (Sveriges Advokatsamfund).
On 14 March 2008 the Swedish Tax Agency (Skatteverket) decided to take coercive measures against another Swedish limited liability company, which was a client of the applicant. The coercive measures were taken 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 according to paragraph 15 of the 1994 Act, which requires that such a decision is immediately submitted to the appropriate administrative court of first instance for a decision on whether or not the decision shall stand.
Since an associate of the applicant was the director of the company which was subject to the measures in question, the Tax Agency decided that it had the right to search for relevant documents on the applicant's premises, inter alia, the applicant's law offices and place of business in Stockholm, as well as in an apartment leased by the associate. The search conducted on the applicant's premises did not result in any seizures. However, the search conducted at the apartment of the applicant's associate did, inter alia, result in the seizure of a USB memory stick.
The USB memory stick in question was the property of the applicant and it had been entrusted to the applicant's associate to be used in the applicant's law practice. The USB memory stick contained information and documents, not only regarding the applicant and the client, which was the subject of the coercive measures, but also regarding a number of the applicant's other clients.
The applicant complained before the County Administrative Court (länsrätten) in Stockholm and requested that the confiscated documents be exempt from the Tax Agency's audit due to attorney-client privilege. On 26 March 2008, the County Administrative Court dismissed the complaint on the grounds that the applicant was not the object of and “not concerned” by the coercive measures and that it therefore had no locus standi in the matter of exemption of documents from the Tax Agency's audit.
Subsequently, the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm. The Tax Agency had locus standi in the proceedings before that court, appearing as a party to argue its case against the applicant.
Before the appellate court, the applicant requested an oral hearing; the request was rejected on 7 April 2008. In this decision three judges participated, one of whom was a “co-opted judge” (adjungerad ledamot), who was also an employee and civil servant of the Tax Agency, albeit formally on leave of absence while temporarily serving with the court. The applicant objected to the participation of the co-opted judge in a case where the Tax Agency appeared as a party.
The Administrative Court of Appeal rejected the applicant's objection on 14 May 2009. This decision was subsequently appealed against to the Supreme Administrative Court (Regeringsrätten), which requested a statement from the President of the Administrative Court of Appeal. On 5 March 2009, the Supreme Administrative Court rejected the applicant's appeal, declaring that the objection had not been justified. One member of the court was of a dissenting opinion.
During the course of the above proceedings on the request for an oral hearing, the applicant continued to argue its case before the Administrative Court of Appeal as to the unlawfulness of the Tax Agency's decision.
On 22 August 2008, the appellate court rejected the applicant's appeal and upheld the County Administrative Court's decision.
The applicant appealed to the Supreme Administrative Court and argued, inter alia, that its rights under the Convention had been breached and that locus standi therefore had to be granted. On 28 January 2009, leave to appeal was refused.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the Swedish authorities failed to observe the requirement of independence and organisational impartiality, since a civil servant of the Tax Agency was permitted to sit as judge in the Administrative Court of Appeal.
The applicant also complains under Article 6 § 1 in conjunction with Article 13 of the Convention that it did not have a fair trial or an effective remedy, as it was denied locus standi before the Administrative Court of Appeal in the matter of the Tax Agency's decision of 14 March 2008.
Furthermore, the applicant complains that there was a breach of Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, due to the fact that the Tax Agency's decision of 14 March 2009 and the subsequent judgment of the County Administrative Court gave the Tax Agency access to the applicant's premises and led to the seizure of property belonging to it.
QUESTIONS
1. Has there been an interference with the applicant's right to respect for its 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?
2. Did the 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?
3. Is Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?
If so, was the court which dealt with the applicant's case independent and impartial, as required by Article 6 § 1 of the Convention?
4. Has there been an interference with the right to respect for property, within the meaning of Article 1 of Protocol No 1 to the Convention?
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