THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 27098/04
by Urban PERSSON
against Sweden
The European Court of Human Rights (Third Section), sitting on 27 March 2008 as a Chamber composed of:
Josep Casadevall, President,
Elisabet Fura-Sandström,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 7 July 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
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
The applicant, Mr Urban Persson, is a Swedish national who was born in 1957 and lives in Storfors. He was represented before the Court by Mr P. Bergqvist, a lawyer practising in Huddinge.
The Swedish Government (“the Government”) were represented by their Agent, Mrs Inger Kalmerborn, of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owned and ran a private limited company (later called Urban Persson Bil AB) which, from January 1997, imported and sold cars from Germany.
The applicant alleged that in August 1997 the Swedish Tax Authority orally informed him that VAT had to be paid in Germany and not in Sweden, where it was fifteen per cent higher. He applied these rules. In August 1998, however, the Tax Authority asserted that VAT had to be paid in Sweden and not in Germany. Realising that he would thereby be charged VAT and a tax surcharge in Sweden, and that the VAT paid in Germany would not be refunded, and that consequently he would go bankrupt, he burned all his bookkeeping records.
By a letter of 27 August 1998 the Tax Authority announced that it would revise the applicant’s tax assessment. It had noted that the applicant had advertised numerous cars for sale in the papers but hardly paid any VAT in Sweden.
On 8 December 1998 the Tax Authority made an announced visit to inspect the applicant’s business records.
On 27 January 1999 the applicant’s company went bankrupt. The public receiver established that no cars remained in the company’s possession.
On 25 August 1999 the Tax Authority procured an audit report concerning the applicant and his company. The report stated that on 8 December 1998 the applicant had told the tax officials who made the official visit that he suffered from memory loss after having slipped and injured his head and therefore could not remember where he had put the business records. Subsequently, the auditors of the Tax Authority had on several occasions requested to see the records but their requests had been in vain.
By a decision of 21 October 1999 the Tax Authority determined the applicant’s taxable income for 1998 and 1999 and the appropriate tax and tax surcharge to be paid. The decision also contained a discretionary assessment as to the profit made by the company and as to whether the company or the applicant ran the business.
In December 1999 a newspaper ran an article on the administrative proceedings against the applicant, without naming him. The newspaper article contained information from the Tax Authority, including the finding that the applicant had sold at least one hundred and seventy cars without paying VAT and that he had not been in possession of any sort of accounting records. It was mentioned that if the case were pursued by the prosecution the applicant risked incurring a prison sentence.
1. The administrative proceedings
On 16 March 2001 the applicant complained of the Tax Authority’s decision of 21 October 1999 before the administrative courts, making various allegations and maintaining that his personal tax debt should be set at 0 Swedish kronor (SEK). The applicant did not apply for free legal aid in those proceedings.
The Tax Authority issued a revised decision on 27 June 2001.
By a judgment of 4 June 2002, the County Administrative Court (Länsrätten i Värmlands Län) found against the applicant and on 4 June 2004 the Administrative Court of Appeal (Kammarrätten i Göteborg) found against him in part. Leave to appeal to the Supreme Administrative Court (Regeringsrätten) was refused on 27 May 2005.
2. The criminal proceedings
In the meantime, by a letter of 29 December 2000 the Tax Authority informed the prosecution authorities that it suspected that the applicant had committed a bookkeeping offence.
Unbeknown to the applicant, on 22 January 2001 the prosecution authorities opened a file on him.
By a letter of 12 September 2002 the applicant was informed that the public prosecutor had opened a preliminary investigation against him and that he was suspected of having committed a bookkeeping offence with aggravating circumstances. He was summoned to an interview with the Tax Crime Unit within the Tax Authority, which had been instructed by the prosecution to carry out an investigation.
The said interview was held on 2 October 2002. Another one was held on 16 January 2003.
On 4 April 2003 an indictment as regards the applicant was submitted to the District Court (Kristinehamns Tingrätt), before which the applicant, represented by counsel, made submissions. He confirmed that he had burned all the accounting records. He had thought that he would thereby be able to reach a friendly settlement with the Tax Authority. He estimated that the company had sold approximately one hundred and thirty-five cars with a turnover for the relevant years of around SEK 9.7 million, equal to approximately 1.06 million euros (EUR). In addition a witness was heard and substantial written evidence submitted.
By a judgment of 26 June 2003 the District Court convicted the applicant of two offences with aggravating circumstances, one being the lack of bookkeeping and one the obstruction of tax revision. Taking the applicant’s own information as to the company’s turnover into account, the District Court sentenced him to one year’s imprisonment. In addition, he was deprived of his right to run a business (näringsförbud) for five years.
On 17 July 2003 the applicant appealed against the conviction to the Court of Appeal (Hövrätten for Västra Sverige). In the alternative, he maintained that there were no aggravating circumstances and that he should therefore maintain the right to run a business. In any event, he submitted, the sentence should be reduced and suspended. In support of that submission, he claimed to be a victim of a violation of Article 6 of the Convention in that there had been a long period between receiving notification on 8 December 1998 that he was suspected of having committed an offence and receving a summons on 12 September 2002 to an interview, that is, a period of forty-five months, which, he submitted, had caused him significant psychological suffering.
By a judgment of 17 October 2003 the Court of Appeal upheld the District Court’s judgment in its entirety. It did not comment specifically on the length-of-proceedings issue. The District Court’s judgment was appended to the Court of Appeal’s judgment.
On 18 December 2003 the applicant requested leave to appeal to the Supreme Court (Högsta Domstolen), which was refused on 13 January 2004.
B. Relevant domestic law and practice
Domestic provisions of relevance to the present case are found mainly in the 1942 Code of Judicial Procedure (rattegångsbalken), the 1962
Penal Code (brottsbalken) and the Tax Offences Act (skattebrottslagen; SFS 1971:69).
1. Preliminary investigations and judicial proceedings
Provisions governing the conduct of preliminary investigations are contained in Chapter 23 of the Code of Judicial Procedure. Save in a few exceptional cases, a preliminary investigation is initiated as soon as there is reason to believe that an offence subject to public prosecution has been
committed (Section 1). During the investigation an inquiry is made concerning who may be reasonably suspected of having committed the
offence and whether sufficient reason exists for prosecution (Section 2). A suspect is not informed that a preliminary investigation has been initiated. A
decision to initiate a preliminary investigation is made either by the police authority or by the prosecutor (Section 3). If the investigation has been initiated by the police authority and the matter is not of a simple nature, the prosecutor assumes responsibility for conducting the investigation as soon as someone is reasonably suspected of the offence. A prosecutor conducting a preliminary investigation may require the assistance of the police authority (ibid.).
A preliminary investigation regarding a bookkeeping offence with aggravating circumstances is conducted by the prosecutor. Pursuant to section 2 of the Criminal Investigations (Participation of the Swedish Tax Agency) Act (lagen om Skatteverkets medverkan i brottsutredningar, SFS 1997:1024), the prosecutor is entitled to seek the assistance of a criminal investigator at the Tax Agency.
A preliminary investigation is conducted as expeditiously as possible and in such a manner that no one is unnecessarily exposed to suspicion or put to unnecessary cost or inconvenience (Chapter 23, Section 4, of the Code of Judicial Procedure). Special requirements for expedition apply in certain circumstances, inter alia, when the suspect is under the age of eighteen or when he is remanded in custody. There are no rules stipulating that a preliminary investigation must be concluded within a certain time-limit. If there is no longer any reason for pursuing the investigation, it will be discontinued (Chapter 23, Section 4, of the Code of Judicial Procedure).
During the preliminary investigation, anyone who is reasonably likely to possess information relevant to the inquiry may be questioned (Chapter 23, Section 6, of the Code of Judicial Procedure).
Chapter 23, Section 18, of the Code of Judicial Procedure contains provisions regarding the suspect’s right to be informed of the investigation. When the investigation has advanced so far that a person is reasonably suspected of having committed the offence, he will, when he is questioned, be notified of the suspicion against him. In so far as it is possible without detriment to the investigation, the suspect and his defence counsel will be informed continuously of developments in the investigation. They are also entitled to state what inquiries they consider desirable and necessary.
Upon conclusion of the preliminary investigation, the prosecutor decides whether to bring charges against the individual concerned (Chapter 23, Section 20, of the Code of Judicial Procedure). The latter does not contain any formal time-limits in this respect, but it is made clear in the preparatory rules (NJA 111943 p. 316) that a prosecutor will bring charges against the suspect as soon as the circumstances so permit.
The Code of Judicial Procedure contains no particular provisions concerning how rapidly a case will be examined and determined in cases where no coercive measures are involved. It does, however, provide that the courts will set the dates for the main hearing as soon as possible (Chapter 45, Section 14). Furthermore, it is implied that they will decide on a case as soon as possible, having regard to, inter alia, the nature of the case.
2. Relevant offences
A person who, intentionally or through carelessness, neglects the obligation to maintain accounts in accordance with, inter alia, the Bookkeeping Act (bokföringslagen; SFS 1976:125; replaced by a new Bookkeeping Act; SFS 1999:1078) by failing to enter business transactions into the accounts or to preserve accounting records, or by entering false information into the accounts or in some other way, will, if in consequence the course of the business or its financial results or status cannot be assessed, be convicted of a bookkeeping offence (bokföringsbrott). At the material time, the penalty for a bookkeeping offence was imprisonment for a maximum of two years, or, if the crime was a petty one, a fine; if the crime was committed with aggravating circumstances, imprisonment for not less than six months and not more than four years was to be imposed (Chapter 11, Section 5, of the Penal Code as worded before 1 January 2000). Following amendments to Chapter 11, Section 5, which entered into force on 1 July 2005, a petty offence carries a penalty in the form of a fine or imprisonment for a maximum of six months and the maximum punishment for an offence with aggravating circumstances is imprisonment for six years.
A person who, intentionally or through gross negligence, disregards the obligation to keep accounts or such obligations to maintain and save
accounting records as are prescribed for certain persons who are obliged to supply information, and who thereby causes a risk that official control
activities when assessing or levying taxes or charges will be seriously obstructed, is to be sentenced for “obstruction of tax revision” (försvårande av skatterkontrol) to a fine or imprisonment for a maximum of two years, or, if the offence is one with aggravating circumstances, to imprisonment for not less than six months and not more than four years (Section 10, sub-section I, of the 1971 Tax Offences Act).
3. The content of judgments and decisions
The requirements in Swedish law as regards the content of judgments in criminal cases are found in the Code of Judicial Procedure. Pursuant to
Chapter 30, Section 5, a judgment is in writing and specifies in separate sections:
1. the court, the time and place of pronouncement of the judgment;
2. the parties, their attorneys or counsel, and the defence counsel for the defendant;
3. the conclusion of the judgment (domslutet);
4. the parties’ claims and the circumstances upon which they are founded; and
5. the reasoning of the judgment (domskälen), including a statement of what has been proved in the case.
A judgment rendered by a superior court will, to the extent necessary, describe the judgment of the lower court. If a party is entitled to appeal, the judgment will inform him of the steps he must take in that case.
In certain cases the courts may render a judgment in a so-called simplified form (förenklad form). One relevant example is a judgment by a higher court upholding the judgment of a lower court (Chapter 30, Section 6, of the Code of Judicial Procedure). In such a case the appellate court has to state the reasons in support of its judgment only when they differ from those given in support of the appealed judgment (section 22 of the Ordinance concerning Cases and Matters before the General Courts; förordningen om mål och ärenden i allmän domstol; SFS 1996:271). If the appellate court upholds the lower court’s judgment, it means that it shares the assessment of the lower court with regard to both the final judgment and the reasoning.
In the preparatory rules (NJA 111943 p. 221) it is stated that the Supreme Court does not need to state reasons in a decision refusing leave to appeal.
COMPLAINTS
1. The applicant complained that the criminal proceedings against him were at variance with Article 6 of the Convention. He alleged in particular that a) the proceedings had failed to comply with the reasonable time criteria, and b) that the Court of Appeal’s judgment of 17 October 2003 and the Supreme Court’s decision of 13 January 2004 refusing leave to appeal lacked reasoning.
2. The applicant also invoked Article 6 of the Convention regarding the fact that he was not provided with free legal aid to initiate compensation proceedings against the State. He maintained that the “equality of arms” principle had thereby been infringed. It appears that the complaint related to the proceedings before the administrative courts. In addition, he invoked Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. As regards the criminal proceedings against him the applicant invoked Article 6 of the Convention, which, in so far as relevant, reads:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
a) The length of the proceedings
(i) The period to be taken into consideration
In the Government’s view, the starting point of the criminal proceedings for the purposes of Article 6 § 1 of the Convention occurred in September 2002, when the applicant was summoned by letter to an interview with the Tax Crime Unit within the Tax Authority, which had been instructed by the prosecution to carry out the investigation. On receiving the letter, which was dated 12 September 2002, the applicant was informed for the first time that the prosecution had opened a preliminary investigation against him and that he was suspected of having committed a bookkeeping offence with aggravating circumstances. The proceedings ended on 13 January 2004, when the Supreme Court refused leave to appeal in the criminal case. Accordingly, the proceedings lasted approximately one year and four months.
The applicant maintained that he had been substantially affected as from 27 August 1998, when the Tax Authority announced that it would revise the applicant’s tax assessment, or at the latest in August 1999, when the Tax Authority’s audit report was finalised.
The Court considers that the applicant was not substantially affected in the criminal proceedings until he received the letter of 12 September 2002 which informed him for the first time of the preliminary investigation and the offences he was suspected of having committed. The proceedings ended on 13 January 2004, when the Supreme Court refused to grant leave to appeal. Thus, the proceedings lasted approximately one year and four months.
(ii) Reasonableness of the length of the proceedings
The Government maintained that the proceedings complied with the “reasonable time” requirement of Article 6 of the Convention.
The applicant disagreed.
The Court reiterates that from a general point of view the reasonableness of the length of the proceedings must be assessed with reference to the complexity of the case, and the conduct of the applicant and that of the authorities before which the case was brought (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
It notes that the criminal proceedings lasted approximately one year and four months, which in itself is not excessive, and that the case discloses no periods of inactivity which could make the proceedings fall foul of the invoked Article.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention
b) The complaint as to lack of reasoning
The Government submitted that by upholding the District Court’s judgment the Court of Appeal demonstrated to the parties both that it agreed with the lower court as to the outcome of the case and that it subscribed to the reasons set out in the lower court’s judgment. Thus, it was
obvious that the appellate court had found no reason to reduce the sentence imposed by the District Court on account of the length of the proceedings.
Moreover, the absence of any detailed reasoning in the Supreme Court’s decision not to grant leave to appeal was in accordance with Swedish law and legal tradition and the Court’s case-law.
The applicant maintained that the absence of reasoning by the appeal courts concerning the length of the proceedings was in breach of the invoked provision. In any event, the domestic court should have imposed a less severe sentence due to the alleged excessive length.
The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case. Although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument. Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court’s decision (see, inter alia, García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-1, and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII, §§ 59 and 60). A lower court or authority must, in turn, give such reasons as to enable the parties to make effective use of any existing right of appeal.
The Court emphasises that the function of a reasoned judgment is to afford the parties the possibility of an effective appeal and to show to the parties that they have been heard (see, among other authorities, Klemeco Nord AB v. Sweden, no. 73841/01, § 42, 19 December 2006).
By upholding the District Court’s judgment and appending it to its own, on 17 October 2003, the Court of Appeal demonstrated to the parties that it agreed with the lower court’s reasoning and that the arguments put forward by the applicant concerning the length of the proceedings did not alter its conclusion. Consequently, the Court finds that the appellate court’s judgment was sufficiently clear and did not hinder the applicant’s effective appeal to the Supreme Court.
Furthermore, in the Court’s view, the Supreme Court’s decision of 13 January 2004 refusing leave to appeal did contain sufficient reasons for the purposes of Article 6 § 1 of the Convention. That manner of wording and presenting a decision regarding leave to appeal is in accordance with the Court’s established case-law (see, inter alia, Bufferne v. France (dec.), no. 54367/00, ECHR 2002-III (extracts), and Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II).
Consequently, this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The remainder of the applicants’ complaints
The Court has examined the complaints as they have been submitted.
It notes that the applicant has not submitted any documentation to show that he applied for free legal aid or that such was refused him.
It also notes that in so far as the applicant’s complaints under Article 6 § 1 of the Convention relate to the administrative proceedings, the provision applies only to the part of the proceedings which concerned tax surcharges, as only in this respect did they involve a determination of a “criminal charge” (see Janosevic v. Sweden, no. 34619/97, §§ 65-71, ECHR 2002‑VII).
The provision does not, however, apply to the dispute over the tax itself (see Ferrazzini v. Italy [GC], judgment of 12 July 2001, Reports 2001-VII, p. 359, p. 29).
In the light of the material in its possession, and in so far as the criteria set out in Article 35 § 1 have been complied with and the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be rejected in accordance with Article 35 § 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy