EIT:n tuomio ne bis in idem -asiassa Ruotsia koskien

3.12.2014 | Oikeusuutiset

Markku Fredman

Euroopan ihmisoikeustuomioistuin (EIT) on tuoreessa ratkaisussaan katsonut, että Euroopan ihmisoikeussopimuksen (EIS) 7 pöytäkirjan 4 artiklasta ei sellaisenaan voi johtaa lis pendens -kieltoa, mutta mikäli kaksi samaa asiaa koskevaa prosessia on vireillä samaan aikaan (tässä tapauksessa veronkorotus- ja rikosprosessi), tulee toinen prosessi päättää, kun toisesta tulee lopullinen.

EIT:n tuomiosta:

58. Article 4 of Protocol No. 7 is not confined
to the right not to be punished twice but extends to the right not to be tried
twice (see Franz Fischer v. Austria, no. 37950/97,
§ 29, 29 May 2001). Were this not the case, it would not have been necessary to
add the word “punished” to the word “tried” since this would be mere
duplication. Article 4 of Protocol No. 7 applies even where the individual has
merely been prosecuted in proceedings that have not resulted in a conviction.
The provision contains three distinct guarantees and provides that no one shall
be (i) liable to be tried, (ii) tried or (iii) punished for the same offence
(see Sergey Zolotukhin v. Russia, cited above, § 110, with further references).

59. As is clear from the above, further criminal
proceedings against an individual are prohibited when a decision concerning the
same offence is final; Article 4 of Protocol No. 7 does not, however, preclude
that several concurrent sets of proceedings are conducted before that final
decision has been issued. In such a situation it cannot be said that the
individual is prosecuted several times “for an offence for which he has already
been finally acquitted or convicted” (see Garaudy v. France (dec.), no. 65831/01,
ECHR 2003-IX (extracts)). There is no issue under the Convention when, in a
situation of two parallel sets of proceedings, the second set of proceedings is
discontinued when the first set of proceedings has become final (see Zigarella
v. Italy (dec.), no. 48154/99,
ECHR 2002-IX (extracts)). However, when no such discontinuation occurs, the
Court has found a violation (see Tomasović v. Croatia, no. 53785/09,
§§ 30-32, 18 October 2011; and Muslija v. Bosnia and Herzegovina, no. 32042/11,
§ 37, 14 January 2014).

60. Accordingly, the Court would emphasise that
Article 4 of Protocol No. 7 does not provide protection against lis
pendens. In the Swedish context, simultaneous tax proceedings determining tax
surcharges and criminal proceedings examining a corresponding tax offence would
thus not be incompatible with Article 4 of Protocol No. 7. A violation of this
provision would occur, however, if one set of proceedings continued after the
date on which the other set of proceedings was concluded with a final decision.
That final decision would require that the other set of proceedings be
discontinued. The Court notes that the Swedish supreme courts have concluded,
having regard to Swedish legal tradition, that also ongoing, not finalised
proceedings preclude the commencement of other proceedings concerning the same
offence and have taken the view that the procedural hindrance materialises when
the Tax Agency decides to impose tax surcharges or when a criminal indictment
is brought against an individual, whichever comes first (see paragraphs 20 and
23 above). However, this guarantee against multiple proceedings cannot be
derived from Article 4 of Protocol No. 7.

61. Notwithstanding the existence of a final
decision, the Court has found in some cases (see R.T. v. Switzerland (dec.),
no. 31982/96,
30 May 2000; and Nilsson v. Sweden (dec.), no. 73661/01,
13 December 2005) that although different sanctions (suspended prison sentences
and withdrawal of driving licences) concerning the same matter (drunken
driving) have been imposed by different authorities in different proceedings,
there has been a sufficiently close connection between them, in substance and
in time. The conclusion in those cases was that the individuals were not tried
or punished again for an offence for which they had already been finally
convicted and that there was thus no repetition of the proceedings.

62. Turning to the facts of the present case, it
is true that both the applicant’s indictment for a tax offence and the tax
surcharges imposed on her form part of the actions taken and sanctions imposed
under Swedish law for the failure to provide accurate information in a tax
return and that the two actions were foreseeable. However, they were examined
by different authorities and courts without the proceedings being connected;
both sets of proceedings followed their own separate course and they became
final at different times. Moreover, the Supreme Administrative Court did not
take into account the fact that the applicant had been acquitted of the tax
offence when it refused leave to appeal and thereby made the imposition of tax
surcharges final. Thus, in accordance with the Swedish system as it stood at
the relevant time, the applicant’s conduct as well as her criminal guilt under
the Tax Offences Act and her liability to pay tax surcharges under the relevant
tax legislation were determined in proceedings that were wholly independent of
each other. It cannot be said that there was a close connection, in substance
and in time, between the criminal proceedings and the tax proceedings. This
contrasts with the Court’s earlier cases R.T. v. Switzerland and Nilsson v.
Sweden (cited above) where the decisions on withdrawal of a driving licence
were directly based on an expected or final conviction for a traffic offence
and thus did not contain a separate examination of the offence or conduct at
issue (see further Nykänen v.Finland, cited above, § 51).

63. Accordingly, the present case concerns two
parallel and separate sets of proceedings of which the tax proceedings
commenced on 1 June 2004 and were finalised on 20 October 2009 and the criminal
proceedings were initiated on 5 August 2005 and became final on 8 January 2009.
The two proceedings were thus pending concurrently for almost three and a half
years. This duplication of proceedings did not involve a breach of Article 4 of
Protocol No. 7. However, the tax proceedings were not terminated and the tax
surcharges were not quashed after the criminal proceedings had become final but
continued for a further nine and a half months until 20 October 2009. Therefore,
the applicant was tried “again” for an offence for which she had already been
finally acquitted.

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