AS TO THE ADMISSIBILITY OF
Application no. 36689/02
by Lasse LILJA
The European Court of Human Rights (Second Section), sitting on 6 September 2005 as a Chamber composed of:
Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 20 September 2002,
Having deliberated, decides as follows:
The applicant, Mr Lasse Lilja, is a Swedish national who was born in 1948 and lives in Norsborg. He is represented before the Court by Ms E.-L. Kiiski, a lawyer practising in Sundbyberg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Criminal proceedings
On 21 October 1996 the applicant was arrested on suspicion of aggravated tax fraud and an aggravated bookkeeping offence in relation to the declaration of value-added tax and employers’ contributions for the period July 1994 – September 1996 by Latem AB, a building company wholly owned by the applicant. The applicant was detained by a decision of the District Court (tingsrätten) of Stockholm on 23 October 1996. Property belonging to him was seized by a decision of the public prosecutor at the National Economic Crimes Bureau (Ekobrottsmyndigheten). This decision was confirmed by the District Court on 4 November 1996. The applicant was released from detention on 3 December 1996.
The applicant was interrogated on several occasions in October, November and December 1996 and in February, April and May 1997. The preliminary investigation, which concerned 20 companies, was concluded on 25 April 1998. The applicant was notified of the investigation report which covered 7,000 pages. Following submissions by the various suspects, the public prosecutor declared in June 1999 that he expected to bring indictments in the autumn of 1999.
On 51 occasions thereafter, the public prosecutor requested and the District Court granted extensions of the time-limit for bringing indictments. Eventually, on 28 October 2002 the applicant, together with 16 other suspects, was indicted for aggravated tax fraud and an aggravated bookkeeping offence.
By a judgment of 4 December 2003, the District Court acquitted the applicant.
B. Tax proceedings
At about the same time as the criminal investigation, the Tax Authority (skattemyndigheten) of the County of Stockholm reviewed Latem AB’s liability to value-added tax and employers’ contributions concerning the above-mentioned period, July 1994 – September 1996. By decisions of 18 December 1997 and 26 March and 1 April 1998, the Tax Authority revised upwards the taxation bases for calculating the relevant taxes by a total of approximately 3 million Swedish kronor (SEK) (value-added tax) and approximately SEK 14.6 million (employers’ contributions). In addition, Latem AB was considered responsible for employees’ taxes based on a total salary amount of approximately SEK 10.6 million. Moreover, as the information supplied by the company in its tax returns was found to be incorrect, the Tax Authority ordered it to pay tax surcharges (skattetillägg, avgiftstillägg) amounting to 20% of the increased tax liability for value-added tax and employers’ contributions.
The company appealed to the County Administrative Court (länsrätten) of the County of Stockholm. The court held an oral hearing on 11 November 1999 at which evidence was given by four witnesses proposed by the company.
By six judgments of 29 November 1999, the court upheld the Tax Authority’s decisions, save for a minor reduction of the taxation base for employers’ contributions for one year. The court gave extensive reasons for its judgments.
Upon the company’s further appeal, the Administrative Court of Appeal (kammarrätten) in Stockholm, on 12 February 2003, held an oral hearing at which two of the witnesses were heard anew. On 10 March 2003 the appellate court upheld the County Administrative Court’s judgments, stating that it agreed with the assessments made in those judgments.
On 2 October 2003 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal.
C. Other proceedings
On 15 February 2002 the applicant complained to the Parliamentary Ombudsman (Justitieombudsmannen) about the preliminary investigation against him. The matter was referred to the Director-General of the National Economic Crimes Bureau.
In a decision of 22 November 2002, the Director-General criticised the responsible prosecutor for the delays in the preliminary investigation. He found that the prosecutor should have decided whether to bring an indictment at the latest during the autumn of 1999 and thus disagreed with the prosecutor’s opinion that he had to await the outcome of the tax proceedings. The Director-General further stated that, whatever reasons there might have been for the delay, it was unacceptable for a suspect to have to wait more than four years after a completed preliminary investigation for a decision whether he would be indicted for offences dating back even further. The Director-General was also astonished that the District Court repeatedly had extended the time-limit set for bringing an indictment. Noting that the prosecutor had not given any information on the state of the investigation when requesting extensions and that the court had not asked for such information, he pointed out that the court’s task when examining such requests was to determine whether the seizure of property should remain, to keep itself informed of the state of the investigation and to see to it that the investigation proceeded with appropriate speed.
Upon application by the Enforcement Office (kronofogdemyndigheten), representing the State, the District Court, on 18 December 2003, declared Latem AB bankrupt on the basis of unpaid taxes and surcharges totalling approximately SEK 10.7 million which were due as a consequence of the above tax decisions.
1. The applicant complains under Article 6 § 1 of the Convention about the length of the criminal and tax proceedings.
2. Also under Article 6 § 1, the applicant claims that he did not have a fair hearing in the tax proceedings. He asserts that the administrative courts were not impartial, submitting that they made an incorrect assessment of the evidence in the case and based their conclusions on a different standard of evidence than that used in the criminal proceedings. Moreover, the Administrative Court of Appeal did not make an independent assessment of the evidence. Further, the Tax Authority failed to respect the principle of objectivity.
1. The applicant complains about the length of the criminal and tax proceedings. He relies on Article 6 § 1 of the Convention which, in relevant parts, provides the following:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal ...”
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
2. The applicant further claims, under Article 6 § 1 of the Convention, that he did not have a fair hearing in the tax proceedings. He asserts, inter alia, that the courts were not impartial and that they made an incorrect assessment of the evidence in the case.
The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national authority or court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts. Further, while judgments of courts should adequately state the reasons on which they are based, the extent to which this duty 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, among other authorities, García Ruiz v. Spain [GC], judgment of 21 January 1999, Reports of Judgments and Decisions 1999-I, pp. 97-99, §§ 26 and 28).
In the light of the foregoing considerations, the Court notes that, following the applicant’s company’s appeal against the Tax Authority’s decisions, the tax matters were examined on the merits by courts of two instances. The courts held oral hearings and heard evidence from witnesses proposed by the company. The company was able to submit the arguments it considered relevant. The County Administrative Court gave extensive reasons for its judgments, clearly finding that the Tax Authority had shown that the company was liable for the taxes in question under the relevant laws. In so far as the Administrative Court of Appeal agreed with the lower court’s assessment, there was no need for it to give a detailed statement of reasons. Furthermore, there is no indication that the courts failed to respect the requirement of impartiality.
In conclusion, the Court finds that an examination of the applicant’s submissions does not disclose any appearance of unfairness in the impugned proceedings.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings in the case;
Declares the remainder of the application inadmissible.
S. Dollé J.-P.
LILJA v. SWEDEN DECISION
LILJA v. SWEDEN DECISION