Application no. 38503/02
by Claes GRILL
The European Court of Human Rights (Second Section), sitting on 22 November 2005 as a Chamber composed of:
Mr A.B. Baka, President,
Mr I. Cabral Barreto,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 24 October 2002,
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 formal declarations accepting a friendly settlement of the case,
Having regard to the Second Section’s partial decision of 25 January 2005,
Having deliberated, decides as follows:
The applicant, Mr Claes Grill, is a Swedish national, who was born in 1957 and lives in Tystberga. He is represented before the Court by Mr B. Leidhammar, a lawyer practising in Stockholm.
The respondent Government are represented by their Agent Ms A. Linder of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In their tax returns for the tax assessment years 1993 and 1994, a substantial number of persons, including the applicant, made deductions for capital losses, after having bought and sold interest options (ränteoptioner), and for paid interest on a promissory note loan (reverslån). All transactions were made with the same opposite party, Nordisk Fondkommission AB (the Nordic Fund Commission, hereinafter referred to as the “NF”) which had also granted the loans.
Because of the substantial number of persons who had made deductions for capital losses following transactions with the NF, the Tax Authority (skattemyndigheten) of the County of Stockholm decided to make an audit of the NF. The findings of the audit were set out in the Tax Authority’s audit report (granskningspromemorian) on 21 June 1995, concluding that the individuals had been offered by the NF an agreement in which everything was predetermined and where the purpose had been to obtain tax benefits.
On 23 November 1994, the Tax Authority sent a preliminary consideration (övervägande) to the applicant, informing him that it was considering disallowing the deduction for capital losses in the amount of SEK 1,214,308 (roughly EUR 128,400), and the deduction for paid interest, SEK 78,139 (around EUR 8,300), on the promissory note loan that he had made in his tax return for the tax assessment year 1993. Further, it was considering imposing tax surcharges (skattetillägg) amounting to 40% of the increased tax liability on the latter sum. The applicant was requested to submit any comments he might have by 12 December 1994.
There then followed lengthy administrative and judicial proceedings, which terminated on 25 April 2002 with the refusal of the applicant’s request for leave to appeal by the Supreme Administrative Court (Regeringsrätten).
The applicant originally complained under Article 6 § 1 of the Convention that the length of the tax proceedings in the present case was excessive.
On 19 September 2005 the Court received the following declaration from the Swedish Government, signed by both the Agent of the Government and the applicant’s representative on 20 June 2005:
“On 24 October 2002, Mr Claes Grill (“the applicant”) lodged application no. 38503/02 against Sweden with the European Court of Human Rights (“the Court”). On 25 January 2005, the Court decided to adjourn the examination of the applicant’s complaint under Article 6 of the Convention concerning the length of tax proceedings and declared the remainder of the application inadmissible.
The Swedish Government (“the Government”) and the applicant have now reached the following friendly settlement on the basis of respect for human rights, as defined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, in order to terminate the proceedings before the Court.
a) The Government will pay, ex gratia, the sum of SEK 80,000 (eighty thousand)1 to the applicant. The amount will be paid to his counsel, Mr Börje Leidhammar, who has been authorized by the applicant to receive payment on his behalf. Execution of the payment will take place when the Government has received the Court’s decision striking the case out of its list of cases.
b) The applicant declares that he has no further claims on the Swedish State based on the facts of the above application
This settlement is dependent upon the formal approval of the Government at a Cabinet meeting.”
The settlement was approved by the Swedish Government on 29 September 2005.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
S. Dollé A.B. Baka
GRILL v. SWEDEN DECISION
GRILL v. SWEDEN DECISION