EHRM, 18-05-2017, nr. 22007/11

Firstly, the applicants submitted that, according to the case-law of the Court, the imposition of tax surcharges constituted sanctions which were criminal by nature and fell within the scope of Articles 6 and 7, and thus also Article 4 of Protocol No. 7 (referring, among other authorities, to Ponsetti and Chesnel v. France (dec.), nos. 36855/97 and 41731/98, ECHR 1999-VI; Janosevic v. Sweden, no. 34619/97, ECHR 2002-VII; Rosenquist v. Sweden (dec.), no. 60619/00, 24 September 2004; and Carlberg v. Sweden (dec.), no. 9631/04, 27 January 2009). The Swedish decisions referred to were particularly relevant to the present application as the systems of tax surcharges in Sweden and Iceland were comparable in respect of the penal nature of the surcharges. Furthermore, the applicants referred to Sergey Zolotukhin v. Russia (cited above, § 52) in which the Court had confirmed that the notion of ‘criminal procedure’ in Article 4 of Protocol No. 7 should be interpreted in the light of the general principles concerning the concepts of ‘criminal charge’ and ‘penalty’ in Articles 6 and 7 of the Convention, namely the so-called ‘Engel criteria’ (that is, the legal classification under domestic law, the nature of the offence and the degree of severity of the penalty — see Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22).

Applying these criteria to the facts of the present case, the applicants submitted that the surcharges imposed on them had by their nature served a penal purpose of deterring taxpayers from violating statutory obligations to report taxable income and other relevant information to the authorities in a correct manner. In that context, they also referred to the fact that, according to domestic law, these surcharges were to be deducted from subsequent criminal sanctions. The applicants emphasised that such a system did not provide protection against being tried or being liable to be tried in new proceedings following a final decision.

As to the degree of severity of the measure, the applicants submitted that the 25% surcharge imposed on the applicants was the maximum potential penalty provided for by the relevant domestic law. This had amounted to ISK 45,558,248 (approximately EUR 530,000 at the exchange rate applicable in August/September 2007) for the first applicant and ISK 1,314,781 (approximately EUR 15,000) for the second applicant.

Moreover, the applicants submitted that the offences for which they had been prosecuted were the same as those that had formed the basis for the imposition of the tax surcharges (the ‘idem’ element of the principle of ne bis in idem). Referring again to the case of Sergey Zolotukhin (cited above), the applicant submitted that Article 4 of Protocol No. 7 prohibited trial for a second offence ‘in so far as it arises from identical facts or facts which are substantially the same’ (§ 82). In the present case, neither the domestic courts nor the prosecution authorities had disputed the applicants' submission that the indictment in the criminal proceedings had been based on the same facts as the tax surcharges.

Finally, the applicant pointed out that the police investigation had started on 16 August 2006. They claimed that when looking at the facts of the present case it was clear that the two sets of proceedings — administrative and criminal — had neither been conducted in parallel nor had they been interconnected, contrasting the case of A and B v. Norway ([GC], nos. 24130/11 and 29758/11, ECHR 2016).

The Government did not dispute that the imposition of a 25% tax surcharge pursuant to Section 108 of the Act on Income Tax constituted a penalty within the meaning of Article 4 of Protocol No. 7 and that therefore the proceedings before the tax authorities had been criminal in nature.

As to whether the applicants had been tried or punished twice for the same offence, the Government acknowledged that the tax proceedings, on the one hand, and the criminal proceedings, on the other, had been rooted in the same events. However, they argued that the Court's interpretation in the case of Sergey Zolotukhin (cited above, § 82) — that the ‘idem’ element of Article 4 of Protocol No. 7 prohibits the trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same — could not be applied in the present case in light of the special nature of tax cases, as it would lead to an extremely unreasonable conclusion. The circumstances and particulars in the present case were of a very different nature than in Sergey Zolotukhin and were therefore not comparable.

The Government submitted that tax surcharges were imposed on an objective basis and that the conditions for their imposition were fulfilled if a tax return was not submitted at the required time or if there were flaws or misstatements in the return, irrespective of any culpability of the taxpayer. The primary purpose of the surcharges was therefore to ensure that the tax authorities were provided with adequate, correct and timely information to enable them to regulate in a practical and efficient manner the levy of taxes. There needed to be an effective and immediately applicable sanction to ensure this. Criminal proceedings could take a long time and it would reduce the deterrent effects against violations of the tax law if sanctions could only be applied after the conclusion of criminal proceedings. Moreover, the tax authorities did not take any stand on the criminal character of the actions of taxpayers; there were other provisions in the Income Tax Act and other acts relevant to taxation which were more akin to criminal sanctions and which involved a requirement of intent or gross neglect. Furthermore, the surcharges imposed on the applicants had been deducted from the fines determined by the Supreme Court in the criminal proceedings.

Iceland's legal provisions regarding unpaid tax and tax surcharges, on the one hand, and criminal liability, on the other, were fundamentally different. The Government referred to the cases of Ponsetti and Chesnel and Rosenquist (both cited above) and argued that the provisions relevant to the present case differed in their purpose and did not include the same fundamental elements. The two offences were therefore not the same within the meaning of Article 4 of Protocol No. 7.

Moreover, the Icelandic system was fully transparent and ensured harmonised enforcement and efficiency. The applicants could therefore not have had any legitimate expectation that they would not be indicted for criminal conduct after having been subjected to the tax surcharges. The situation in the present case was therefore distinguishable from the situation in Sergey Zolotukhin and the Court's interpretation in the latter case could not apply to the present case. In that context, the Government also referred to the principle of subsidiarity which entailed that the domestic authorities were better placed than international courts in certain tasks which, in the Government's view, would indeed apply to measures adopted by States to create efficient tax systems.

In any event, the Government asserted that the applicants had not been subjected to new or repeated proceedings within the meaning of Article 4 of Protocol No. 7. Referring to R.T. v Switzerland ((dec.), no. 31982/96, 30 May 2000) and Nilsson v. Sweden ((dec.), no. 73661/01, ECHR 2005-XIII), they argued that the provision did not prohibit parallel proceedings. In the present case, the tax proceedings and the criminal proceedings had begun at virtually the same time, since the investigation of the Director of Tax Investigations had been finalised on 27 October 2004 and he had reported the matter to the Economic Crimes Unit of the National Commissioner of the Icelandic Police on 12 November 2004. The criminal proceedings had begun on the latter date and the criminal investigation had been ongoing for the entire period during which the tax proceedings had taken place. In August 2006 the applicants had been informed that they had the status of suspects in the criminal investigation and they had been indicted on 18 December 2008. The Government submitted that it was of no relevance that the indictment had been issued after the decisions of the tax authorities relating to the tax surcharges had become final, as the investigation had begun many years earlier. When, as in the present case, the criminal proceedings had begun long before the final decision by the tax authorities had been issued, the applicants could have had no legitimate expectation that the criminal proceedings would be discontinued. Moreover, the two sets of proceedings had been closely connected in substance as they had been rooted in the same events. Thus, they had been a part of an integrated dual process.

Additionally, the Government maintained that the facts of the present case were similar to the case of A and B v. Norway (cited above). The administrative and criminal investigations had been interconnected because they had both been based on the facts in the respective final reports of the tax investigation.

In comparable cases involving the imposition of tax surcharges, the Court has held, on the basis of the Engel criteria, that the proceedings in question were ‘criminal’ in nature, not only for the purposes of Article 6 of the Convention but also for the purposes of Article 4 of Protocol No. 7 (see A and B v. Norway, cited above, §§ 107, 136 and 138, with further references).

Noting that the parties did not dispute this, the Court concludes that both sets of proceedings in the present case concerned a ‘criminal’ matter within the autonomous meaning of Article 4 of Protocol No. 7

The notion of the ‘same offence’ — the idem element of the ne bis in idem principle in Article 4 of Protocol No. 7 — is to be understood as prohibiting the prosecution or conviction of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same (see Sergey Zolutukhin, cited above, §§ 78–84)

In the criminal proceedings in the present case, the applicants were indicted and convicted for aggravated tax offences. Both parties submitted, and the domestic courts found, that the facts underlying the indictment and conviction were the same or substantially the same as those leading to the imposition of tax surcharges.

The Court agrees with the parties. The applicants' conviction and the imposition of tax surcharges were based on the same failure to declare income. Moreover, the tax proceedings and the criminal proceedings concerned the same period of time and essentially the same amount of evaded taxes. Consequently, the idem element of the ne bis in idem principle is present.

Before determining whether there was a duplication of proceedings (bis), in some cases the Court has first undertaken an examination whether and, if so, when there was a ‘final’ decision in one set of proceedings (potentially barring the continuation of the other set). However, the issue as to whether a decision is ‘final’ or not is devoid of relevance if there is no real duplication of proceedings but rather a combination of proceedings considered to constitute an integrated whole. In the present case, the Court does not find it necessary to determine whether and when the first set of proceedings — the tax proceedings — became ‘final’ as this circumstance does not affect the assessment given below of the relationship between them (see A and B v. Norway, cited above, §§ 126 and 142).

In the recent Grand Chamber judgment in the case of A and B v. Norway (cited above), the Court stated (§ 130):

The Court exemplified what should be taken into account when evaluating the connection in substance and in time between dual criminal and administrative proceedings. In regard to the substance connection, the Court stated (§§ 132–133):

With respect to the time connection between the two proceedings, the Court noted (§ 134):

In the present case, the Directorate of Tax Investigations initiated a tax audit on the applicants on 17 November 2003. It was finalised with the issuing of reports on 27 October 2004 (as regards the first applicant) and 24 November 2005 (as regards the second applicant) (see paragraphs 9–10 above). On 12 November 2004 the Directorate reported the matter to the police for criminal investigation. The Directorate forwarded to the police its reports and the documents collected during the tax audit. In August 2006 the police questioned the applicants and other witnesses for the first time and, apparently, informed the applicant about their status as suspects in the criminal investigation (see paragraph 14 above). The State Internal Revenue Board's decisions in the tax proceedings were issued on 29 August 2007 (in respect of the second applicant) and 26 September 2007 (in respect of the first applicant) and became final six months thereafter (see paragraph 13 above). On 18 December 2008, about two years and four months after the applicants had been informed about the criminal investigation and their status as suspects and approximately nine months after the decisions in the tax proceedings had become final, the indictments in the criminal case were issued. By a judgment of 9 December 2011 the District Court convicted the applicants for aggravated tax offences. On 7 February 2013, the Supreme Court upheld the applicants´ convictions for the most part, and convicted the first applicant on two further charges for which he had been acquitted by the District Court. Thus, the overall length of the two proceedings, from the start of the Directorate's investigation until the Supreme Court gave its final ruling, was almost nine years and three months which, as noted by the Supreme Court, was not the applicants' fault.

Assessing the connection in substance between the tax and criminal proceedings in the present case — as well as the different sanctions imposed on the applicants — at the outset the Court accepts that they pursued complementary purposes in addressing the issue of taxpayers' failure to comply with the legal requirements relating to the filing of tax returns. Furthermore, the consequences of the applicants' conduct were foreseeable: both the imposition of tax surcharges and the indictment and conviction for tax offences form part of the actions taken and sanctions levied under Icelandic law for failure to provide accurate information in a tax return.

The Supreme Court sentenced the applicants to a suspended sentence of respectively 12 and 18 months, which included earlier suspended sentences for different offences (see paragraph 19 above) and ordered them to pay fines. In fixing the fines, the court had regard to the excessive length of proceedings and tax surcharges that had already been imposed on the applicants, albeit without providing any details on the calculation in this respect. However, in determining the prison sentence the court only considered the excessive length of the proceedings. Nevertheless, the Court concludes that, given that the tax surcharges were offset against the fines, the sanctions already imposed in the tax proceedings were sufficiently taken into account in the sentencing in the criminal proceedings.

As has been noted above (paragraph 14), the police in charge of the criminal investigation had access to the reports issued by the Directorate of Tax Investigations and the documents collected during the tax audit. Nevertheless, the police proceeded by conducting their own independent investigation, which resulted in the applicants' conviction by the Supreme Court more than eight years after the Directorate had reported the matter to the police. The applicants' conduct and their liability under the different provisions of tax and criminal law were thus examined by different authorities and courts in proceedings that were largely independent of each other.

Turning to the connection in time between the two proceedings, the Court reiterates that the overall length was about nine years and three months. During that period, the proceedings were in effect progressing concurrently between August 2006, when the first interviews were held by the police, and 29 August 2007 (in the second applicant's case) or 26 September 2007 (in the first applicant's case), when the Internal Revenue Board issued its decisions upon the applicants' tax appeals, confirming their obligation to pay tax surcharges. The proceedings were thus conducted in parallel for just a little more than a year. Moreover, the applicants were indicted on 18 December 2008, 15 and 16 months after the mentioned tax decision had been taken and nine and ten months after they had acquired legal force. The criminal proceedings then continued on their own for several years: the District Court convicted the applicants on 9 November 2011, more than four years after the decisions of the State Internal Revenue Board, and the Supreme Court's judgment was not pronounced until more than a year later, on 7 February 2013. This, again, stands in contrast to the case of A and B v. Norway (cited above), where the total length of the proceedings against the two applicants amounted to approximately five years and the criminal proceedings continued for less than two years after the tax decisions had acquired legal force, and where the integration between the two proceedings was evident through the fact that the indictments against the applicants were issued before the tax authorities' decisions to amend their tax assessments were taken and the District Court convicted them only months after those tax decisions. Furthermore, in the present case the Government have failed to explain and justify the delay which occurred in the domestic proceedings and which, as the Supreme Court held, had not been the applicants' fault (see A. and B., cited above, § 134).

Having regard to the above circumstances, in particular the limited overlap in time and the largely independent collection and assessment of evidence, the Court cannot find that there was a sufficiently close connection in substance and in time between the tax proceedings and the criminal proceedings in the case for them to be compatible with the bis criterion in Article 4 of Protocol No. 7.

Consequently, the applicants suffered disproportionate prejudice as a result of having been tried and punished for the same or substantially the same conduct by different authorities in two different proceedings which lacked the required connection.

For these reasons, there has been a violation of Article 4 of Protocol No. 7 to the Convention.