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THIRD
SECTION
CASE OF THE ESTATE OF NITSCHKE v. SWEDEN
(Application
no. 6301/05)
JUDGMENT
STRASBOURG
27
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of the Estate of Nitschke v. Sweden,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 6 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 6301/05) against the
Kingdom of Sweden lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by the estate of a Swedish national,
Mr Alfred Nitschke, (“the applicant”), on 16 February
2005.
- The
applicant was represented by Mr J. Thörnhammar, a lawyer
practising in Stockholm. The Swedish Government (“the
Government”) were represented by their Agent, Mr C. H.
Ehrenkrona, of the Ministry for Foreign Affairs.
- On
6 June 2006 the Court
declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings,
the lack of reasoning in the Administrative Court of Appeal's
judgment and the failure of the appellate courts to remit the tax
surcharges after Mr Nitschke's death to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
application is brought by the estate of a Swedish national, Mr Alfred
Nitschke, who was born in 1940 and died on 13 January 2003.
- From
1988 until its bankruptcy in 1997, Mr Nitschke owned 49 % of the
company Restaurang Takåsen AB (hereinafter referred to
as “the company”). He was a member of the board of
directors and authorised to sign for the company as well as being
responsible for the daily functioning of the company. The other
shares (51%) were owned by Stockholms företagskrogar AB.
- On
3 November 1994 the Tax Authority (skattemyndigheten) of the
County of Stockholm sent an audit report (granskningspromemoria)
to Mr Nitschke, informing him that, following a tax audit of the
company, it was considering altering the tax returns for the tax
assessment years 1993 and 1994 for the company, as well as for Mr
Nitschke, and imposing tax surcharges on them. On the basis of
information from the audit, the Tax Authority concluded that Mr
Nitschke had to be considered the executive of the company, due to
his influence therein, and that his taxable income for both years
should be increased because he had omitted to inform the Tax
Authority about certain income from the company in the form of salary
payments and benefits involving free lunches and the free use of a
company car. Moreover, the Tax Authority had found that Mr Nitschke
had let the company pay for a boat mooring at a marina, as well as
for a computer and stereo which he had bought for private use and
kept in his home.
- Mr
Nitschke replied to the Tax Authority, disputing its findings and
demanding that he be taxed in accordance with his tax returns and
that the tax surcharges be remitted. He stated that he was not the
executive of the company, as he was a minority owner, but that it was
the executive of Stockholms företagskrogar AB who
controlled the company and that the book-keeping was carried out by
that company's accountant. He further claimed that he had never eaten
lunch at the restaurant since he was too busy serving lunches to the
guests. Moreover, he only used the company car for carrying out
work-related matters as he owned a car for private use. The mooring
had been rented for the company to cater for islands in the
archipelago, and he underlined that he did not own a boat himself.
Also, as the company did not have proper office space, he kept the
computer and stereo in a room of his house which he only used as an
office. The stereo was used in the restaurant and when the company
organised parties, and the computer was used to produce lunch menus,
price lists, etc.
- On
8 December 1994 the Tax Authority upheld its findings in the audit
report for the tax assessment year 1993. It increased Mr Nitschke's
income assessment to 240,363 Swedish kronor (SEK) and imposed tax
surcharges amounting to 40 % of the tax liability on that sum (SEK
34,735, approximately EUR 3,800). Further, on 23 December 1994, it
increased Mr Nitschke's income assessment for the tax year 1994 to
SEK 70,260 and imposed tax surcharges on him amounting to SEK 12,992
(approximately EUR 1,400), again on the basis of the findings in the
audit report.
- On
20 February 1995 Mr Nitschke requested the Tax Authority to reassess
its decision as he maintained that his tax returns were correct and
that he should be taxed in accordance with them. He further developed
his reasons for disputing the Tax Authority's findings on each of the
points where his income had been altered.
- On
21 April 1997 the Tax Authority maintained its decision concerning
the tax year 1994 but lowered Mr Nitschke's income assessment by
SEK 10,500 for the tax year 1993, as it had been confirmed that
Mr Nitschke did not own a boat and that the mooring had been
rented for company purposes. As a consequence, the tax surcharges
were lowered to SEK 32,698.
- On
9 May 1997 the company was declared bankrupt.
- On
26 June 1997 Mr Nitschke appealed against the decisions and requested
a stay of payment for the additional taxes for both tax years. This
request was rejected on 18 August 1997 by the Tax Authority, and
Mr Nitschke immediately appealed against it to the County
Administrative Court (länsrätten) of the County of
Stockholm. However, the court rejected the appeal on 23 October 1997,
as it found that the prerequisites for granting a stay of payment
were not fulfilled. Apparently, Mr Nitschke did not appeal against
this judgment and, in the beginning of 1998, he paid the taxes and
the tax surcharges to avoid seizure by the Enforcement Office
(kronofogdemyndigheten).
- In
the meantime, the Tax Authority invited Mr Nitschke to an information
meeting with the responsible officials, which took place on
24 October 1997. Mr Nitschke was given the opportunity to ask
questions about the audit report and to discuss the changes to his
tax returns.
- On
5 March 1998 the Tax Authority made the obligatory re-assessment of
its decisions of 21 April 1997 but decided not to change them.
Following this, it forwarded the appeals to the County Administrative
Court.
- In
August 1998 Mr Nitschke submitted a very detailed account (79 pages)
of the company, its structure, business areas, its plans for the
future, etc., which could be of relevance for the case, and to
clarify his views on the contentious issues. He still maintained that
he should be taxed in accordance with his tax returns and that the
tax surcharges should be remitted, if on no other grounds, then at
least because the proceedings before the Tax Authority had been of
excessive length, which had caused the interest on the added taxes to
increase his debt to the Swedish State.
- In
its reply, the Tax Authority, on 5 February 1999, maintained its
stance, except as concerned the lunch benefits, which it agreed to
remove for both tax assessment years. As a consequence, it also
agreed that the tax surcharges should be lowered, but it objected to
them being remitted completely as it did not consider that the
proceedings had been unreasonably long or that there were any other
reasons on which to remit them.
- In
April 1999 the applicant submitted his comments on the Tax
Authority's submission and requested an extension to supplement his
claims. The County Administrative Court granted an extension of the
time-limit until 4 May 1999. This date was subsequently prolonged
upon request by the applicant until 24 August 1999. However, no
supplementary pleadings were received by the court.
- On
9 February 2000 the County Administrative Court granted the appeal in
so far as it related to the lunch benefits and the tax surcharges
based on these costs, but rejected the remainder of the appeal. In
its judgment, it examined, one by one, each point raised by Mr
Nitschke, stating the grounds for its conclusions. As concerned the
remaining part of the tax surcharges, the court found that no reasons
for remission had been shown.
- In
April 2000 Mr Nitschke appealed against the judgment to the
Administrative Court of Appeal (kammarrätten) in
Stockholm and stated that he would submit supplementary information.
However, no further material was received by the court, despite
reminders. Thus, in September 2000, it formally ordered Mr Nitschke
to submit all further material which he wanted to invoke before the
court, within three weeks from the date on which he received the
order. Apparently, Mr Nitschke asked for further extensions of the
time-limit but did not submit any more material. Therefore, in
September 2002, the court renewed its order and warned Mr Nitschke
that the case could be decided even if he did not submit any material
within the three weeks time-limit. Due to illness, Mr Nitschke hired
a lawyer to represent him, who asked for a respite of four weeks to
submit the supplementary information and material.
- On
13 January 2003 Mr Nitschke died. However, his estate, through the
same representative, pursued his appeal concerning both tax
assessment years and requested another extension of the time-limit to
supplement its claims. The Administrative Court of Appeal granted an
extension until 23 May 2003 and informed the applicant's
representative that no more extensions would be granted.
- On
30 September 2003, without having received any submissions from the
applicant, the Administrative Court of Appeal upheld the lower
court's judgment in full without giving any reasoning of its own. The
court simply stated that:
“What has emerged in the case does not lead the
Administrative Court of Appeal to make an evaluation other than that
made by the County Administrative Court.”
- On
9 December 2003 the applicant appealed to the Supreme Administrative
Court (Regeringsrätten) and at the same time asked for
extra time to supplement its appeal, which was granted and
subsequently prolonged twice. On 1 July 2004 the applicant submitted
its supplementary pleadings, invoking Article 6 of the Convention. It
claimed that the proceedings had been of excessive length and that
the accumulated respite interest should therefore be remitted.
Moreover, it alleged that the proceedings had been flawed in several
ways, inter alia, by ignoring the evidence and by the
Administrative Court of Appeal's failure to give any reasons for its
judgment. Moreover, as Mr Nitschke had died before the appellate
court's judgment, the tax surcharges should have been remitted in
accordance with the Taxation Act, as they were a penalty falling
within the criminal sphere.
- On
17 August 2004 the Supreme Administrative Court refused leave to
appeal.
II. RELEVANT DOMESTIC LAW
- The
rules governing the administration of justice before the
administrative courts are laid down in the 1971 Administrative Court
Procedure Act (förvaltningsprocesslagen, hereinafter “the
1971 Act”).
- According
to section 30 of the 1971 Act, the determination of a case by a court
shall be based on that contained in the documents and what has
otherwise been established in the case. The decision of the court
shall state the reasons that determined the outcome.
- Moreover,
the 1971 Act does not contain any particular provisions stipulating
how rapidly cases must be examined and determined by the
administrative courts. However, it is in the nature of things that
the courts shall conclude the examination of a case and issue a
decision or a judgment as soon as this can be done, having regard,
inter alia, to the character of the case.
- At
the time relevant for the present case, the 1953 Tax Collection Act
(uppbördslagen, hereinafter “the 1953 Act”),
section 102, stipulated that a request for reconsideration or an
appeal against a decision concerning taxes and tax surcharges had no
suspensive effect on the taxpayer's obligation to pay the amounts in
question. However, the Tax Authority could grant a stay of execution
in respect of the taxes and tax surcharges provided that certain
conditions were met (section 49). Its decision in this respect could
be appealed against to the administrative courts.
- If
a stay of execution was not granted, the taxes and tax surcharges
should be paid immediately or they could be enforced by the
Enforcement Agency. However, this also meant that if a tax decision
was quashed or amended to the taxpayer's advantage by a court
judgment after the relevant amounts had been paid, the amount
overpaid was refunded with interest (Chapter 18, section 2, and
Chapter 19, sections 1 and 12, of the Tax Payment Act,
skattebetalningslagen). In addition, a taxpayer could claim
compensation from the Chancellor of Justice or bring an action for
damages against the State for the financial loss caused by
enforcement measures taken, on the ground that the authorities or
courts had acted wrongfully or negligently (Chapter 3, section 2, of
the Tort Liability Act, skadeståndslagen).
- According
to Chapter 5, section 12, of the 1990 Taxation Act (taxeringslagen),
no tax surcharges could be imposed if, at that time, the taxpayer had
deceased. This was confirmed by a judgment from the Supreme
Administrative Court (Regeringsrättens Årsbok 2003
not 13). In this case, the County Administrative Court had
granted the tax payer's appeal and remitted the tax surcharges
imposed by the Tax Authority. The Tax Authority had appealed against
the judgment to the Administrative Court of Appeal which overturned
the lower court's judgment and upheld the Tax Authority's original
decision, including imposing tax surcharges anew. However, during the
proceedings before the appellate court, the taxpayer had died. Thus,
the taxpayer's estate, and the National Tax Board (Riksskatteverket),
appealed to the Supreme Administrative Court and requested that the
tax surcharges be repealed as they could not be imposed on a deceased
person. On 7 February 2003, the Supreme Administrative Court granted
the appeal, noting that since the tax payer had died before the
Administrative Court of Appeal's judgment, there had been no legal
basis on which to impose the tax surcharges.
- Under
Swedish law, the estate of a deceased person is a separate legal
person responsible for settling all matters relating to the deceased
person, including his/her debts and liabilities (see, inter alia,
the Inheritance Code [Ärvdabalken] and Chapter 12,
section 9, and Chapter 22, section 1 (b) 3 of the Tax Payment Act).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 §§ 1 AND 2 OF
THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the proceedings had been incompatible with the
“reasonable time” requirement and that the proceedings
had not been fair as the Administrative Court of Appeal had failed to
give reasons for its judgment. Article 6 § 1 of the Convention
provides, in relevant parts, as follows:
“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 [a]
... tribunal...”
- The
applicant further complained that the appellate courts had violated
Article 6 § 2 of the Convention when they did not remit the tax
surcharges after Mr Nitschke's death but transferred them to the
estate, having regard to the fact that tax surcharges are to be
considered a penalty within the criminal sphere. Article 6 § 2
of the Convention reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
- The
Government denied that that there had been a violation of the
applicant's rights in respect of its complaints concerning the
fairness of the proceedings and the presumption of innocence. With
regard to the complaint relating to the length of the proceedings,
they left it to the Court to decide whether it revealed a violation.
II. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATION
UNDER ARTICLE 37 § 1 OF THE CONVENTION
- Together
with their observations of 12 January 2007, the Government also
submitted a unilateral declaration to the Court in which they stated
that, in their observations, they had acknowledged that the
proceedings before the national authorities and courts had lasted in
total nearly ten years and had left it to the Court's discretion to
decide whether there had been a breach of the Convention in this
respect. They further undertook to pay the applicant, ex gratia,
SEK 150,000 (approximately EUR 16,200) in order to resolve the case.
On the basis of this unilateral declaration the Government invited
the Court to strike the application out of its list of cases, in
accordance with Article 37 § 1 (c) of the Convention.
35. The
applicant objected to the case being struck out and requested that
the Court pursue its examination of the admissibility and merits of
the case.
- The
Court observes that the parties were unable to agree on the terms of
a friendly settlement of the case. However, as it has stated in
earlier cases (see in particular Tahsin Acar v. Turkey [GC],
no. 26307/95, § 74, ECHR 2003, and
Venera-Nord-Vest Borta A.G. v. Moldova, no. 31535/03,
§ 28, 13 February 2007), a distinction must be drawn
between, on the one hand, declarations made in the context of
strictly confidential friendly settlement proceedings (Article 38 §
2 of the Convention and Rule 62 § 2 of the Rules of Court) and,
on the other hand, unilateral declarations made by a respondent
Government in public and adversarial proceedings before the Court. In
accordance with Article 38 § 2 of the Convention and Rule 62 §
2 of the Rules of Court, the Court will proceed on the basis of the
Government's unilateral declaration and the parties' observations
submitted outside the framework of friendly-settlement negotiations,
and will disregard the parties' statements made in the context of
exploring the possibilities for a friendly settlement of the case and
the reasons why the parties were unable to agree on the terms of a
friendly settlement.
- Moreover,
whilst under certain circumstances an application may indeed be
struck out of the Court's list of cases under Article 37 § 1 (c)
of the Convention on the basis of a unilateral declaration by the
respondent Government even if the applicant wishes the examination of
the case to be continued, this procedure is not, as such, intended to
circumvent the applicant's opposition to a friendly settlement (see
Tahsin Acar, cited above, § 76, and Venera-Nord-Vest
Borta A.G. cited above, § 29).
- The
Court considers that relevant factors in this respect include the
nature of the complaints made, whether the issues raised are
comparable to issues already determined by the Court in previous
cases, the nature and scope of any measures taken by the respondent
Government in the context of the execution of judgments delivered by
the Court in any such previous cases, and the impact of these
measures on the case at issue. Moreover, it may be of relevance
whether, in their unilateral declaration, the respondent Government
have made any admission(s) in relation to the alleged violations of
the Convention and, if so, the scope of such admissions and the
manner in which they intend to provide redress to the applicant. This
list is not exhaustive and, depending on the particular circumstances
of each case, it is conceivable that further considerations may come
into play (see Tahsin Acar, cited
above, §§ 76-77).
- As
to whether it would be appropriate to strike out the present
application on the basis of the unilateral declaration made by the
Government, the Court notes in the first place that the Government,
in its unilateral declaration, has referred to only one of the
applicant's three complaints which were communicated to them, namely
that relating to the length of the domestic proceedings. Moreover,
even in respect of this one complaint, the Government have neither
admitted that there has been a violation of the Convention nor
regretted the inconvenience caused to the applicant by the duration
of the proceedings. Instead, the Government have simply referred to
their observations where they have left it for the Court to decide.
Furthermore, although the Court considers that the sum offered by the
Government to the applicant is very reasonable, it observes that it
is proposed to be paid ex gratia.
Having
regard to what have been stated above and the facts of the present
case, the Court finds that the unilateral declaration does not offer
satisfactory redress to the applicant and that, consequently, the
Government have failed to submit a statement offering a sufficient
basis for finding that respect for human rights as defined in the
Convention does not require the Court to continue its examination of
the case (see, by contrast, Akman v.
Turkey (striking out), no. 37453/97,
§§ 23-24, ECHR 2001 VI and Van Houten v. the
Netherlands (striking out), no. 25149/03, §§
34-37, ECHR 2005 IX).
This
being so, the Court rejects the Government's request to strike the
application out under Article 37 § 1 of the Convention and will
accordingly pursue its examination of the admissibility and merits of
the case.
III. ADMISSIBILITY OF THE COMPLAINTS
A. The fairness of the proceedings
- The
applicant complained under Article 6 § 1 of the Convention that
the domestic proceedings had not been fair as the Court of Appeal had
failed to give reasons for its judgment. In its view, the court
should have been obliged to state clearly the grounds for its
judgment in order to enable the applicant to make an appeal with
material content to the Supreme Administrative Court.
- The
Government argued that this complaint was manifestly ill-founded as
the Administrative Court of Appeal had expressly stated that it
upheld the County Administrative Court's judgment in full, and had
appended the lower court's judgment to its own. The Government
stressed that this technique of drafting and presenting the judgment
was in accordance with Swedish legislation and legal tradition.
Moreover, the County Administrative Court's judgment had been
well-reasoned and detailed and Mr Nitschke had not added any new
legal grounds or submitted supplementary information in his appeal to
the Administrative Court of Appeal. Thus, no need arose for the
appellate court to add anything to the lower court's reasoning.
- The
Court reiterates that, according to its established case-law
reflecting the need for the effective administration of justice,
courts and tribunals should adequately state the reasons on which
they base their decisions. The extent to which this obligation
applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case. However, 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 of the lower court (see the
García Ruiz v. Spain judgment of 21 January 1999,
Reports of Judgments and Decisions 1999-I, § 26; Helle
v. Finland, judgment of 19 December 1997, Reports 1997-VIII,
§§ 59-60).
- In
the present case, the Court observes that the County Administrative
Court gave detailed reasons for its judgment, leaving no doubt as to
how it had reached its conclusions on each of the points raised by Mr
Nitschke. Furthermore, both parties had been given the opportunity to
comment on each other's submissions and had also done so while, at
the same time, developing their arguments before the court. Thus, the
Court finds that the proceedings before the County Administrative
Court were fair and that the applicant could appeal in an effective
way against its judgment to the Administrative Court of Appeal.
- Concerning
the proceedings before the Administrative Court of Appeal, the Court
notes that the appellate court allowed Mr Nitschke several extensions
of time-limits in order to be able to supplement his appeal and,
after he had hired a lawyer to represent him, the representative was
granted further respite to complete the appeal and submit
information. Despite these extensions, including two warnings from
the court that the case could be decided even if he did not submit
any material within the new time-limits, no submissions were sent to
the Administrative Court of Appeal.
- The
Court wishes to emphasise 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, Suominen v.
Finland, no. 37801/97, § 37, 1 July 2003). By
confirming the County Administrative Court's judgment and appending
it to its own, the Administrative Court of Appeal demonstrated to the
parties that it agreed with the lower court's reasoning in full (see
paragraph 21 above). Moreover, despite repeated requests by the
appellate court, Mr Nitschke, and later the applicant, did not file
any submissions to substantiate their appeal for which reason the
Administrative Court of Appeal was not called upon to examine any
arguments not already considered by the lower court.
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 Administrative Court.
- Thus,
the Court considers that the proceedings at issue were fair for the
purposes of Article 6 § 1 of the Convention and it follows that
this complaint is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the
Convention.
B. The presumption of innocence
- The
applicant further complained that the appellate courts violated
Article 6 § 2 of the Convention when they did not remit the tax
surcharges after Mr Nitschke's death but transferred them to his
estate. In its view, the inheritance of the guilt of the dead was not
compatible with the presumption of innocence and the standards of
criminal justice.
- The
Government argued that the complaint was manifestly ill-founded. They
submitted that since, under Swedish law, an estate after a deceased
person is a separate legal person, debts cannot be transferred to the
heirs after the death of a debtor. Instead, the balance of the estate
consists of the assets reduced by the debts that the deceased had at
the time of death and, if the balance is positive, the assets which
remain are divided between the heirs. Moreover, the Government
observed that the notions of innocence or guilt were of no relevance
to the imposition, or enforcement, of tax surcharges since they were
determined on objective grounds without any regard being had to
criminal intent of the person. It was for the Tax Authority to show
before the courts that there were grounds for imposing the
surcharges. In this respect, they noted that the matter had been
tried on the merits by the County Administrative Court which had
upheld the Tax Authority's decision while Mr Nitschke was still alive
and the Government emphasised that, if any of the domestic courts had
decided to remit the tax surcharges, then they would have been
repaid, with interest, to the applicant. For these reasons, they
claimed that this complaint was manifestly ill-founded.
- The
Court reiterates that it has found in several judgments concerning
Sweden that the imposition of tax surcharges involves the
determination of a “criminal charge” within the meaning
of Article 6 of the Convention, although they cannot be said to
belong to criminal law under the Swedish legal system (see, in
particular, Janosevic v. Sweden, no. 34619/97, §§
64-71, ECHR 2002 VII, and Västberga Taxi Aktiebolag and
Vulic v. Sweden, no. 36985/97, §§ 75-82, 23
July 2002). It follows that Article 6 is applicable under its
criminal head and the question arises whether Article 6 § 2 was
complied with.
- The
Court first observes that the imposition by the Tax Authority of the
tax surcharges was determined upon appeal by the County
Administrative Court after Mr Nitschke had had the opportunity to
submit his observations on the matter. The court examined all the
evidence before it, including the grounds for remission of the tax
surcharges, but found that no such grounds were applicable and that
the Tax Authority had been justified to impose them. Thus, the Court
considers that Mr Nitschke's right to be presumed innocent was
respected as the imposition of the tax surcharges were subjected to
judicial review, and upheld, while Mr Nitschke was still alive.
- It
remains to be determined whether the appellate courts' decision not
to remit the tax surcharges following Mr Nitschke's death violated
the applicant's (i.e. the estate's) rights under Article 6 § 2.
- The
Court reiterates that it is a fundamental rule of criminal law that
criminal liability does not survive the person who committed the
criminal act. Therefore, imposing criminal sanctions on the living in
respect of acts apparently committed by a deceased person, calls for
careful scrutiny by the Court (see, A.P., M.P. and
T.P. v. Switzerland, judgment of 29 August 1997, Reports
of Judgments and Decisions 1997 V, §§ 46 and 48,
and E.L., R.L. and J.O.-L. v. Switzerland,
judgment of 29 August 1997, Reports of Judgments and Decisions
1997 V, §§ 51 and 53).
- In
the Court's opinion, there are some fundamental differences between
the above-cited Swiss cases and the present case. To begin with,
according to Swiss law, the deceased's assets and liabilities fall
directly to the heirs whereas, under Swedish law, the estate of a
deceased person is a separate legal person responsible for settling
the deceased's financial, and other, matters. Hence, the heirs have
no personal responsibility for the deceased's debts or other
liabilities (unless in some very particular circumstances which were
not present in the instant case).
- Moreover,
in the two Swiss cases proceedings had been brought against the
applicants and fines imposed on them personally, after the death of
their father, for tax evasion allegedly committed by him. In
contrast, Mr Nitschke was never accused of having committed a crime,
such as tax evasion, but the tax surcharges were imposed on him on
objective grounds and after it had been established that no reasons
for remission existed. Furthermore, neither Mr Nitschke's heirs nor
his estate were ever held personally liable for the tax surcharges
since they had already been imposed on Mr Nitschke while he was alive
and paid by him. The Court finds it to be of relevance to observe
that, according to Swedish law, tax surcharges cannot be imposed on a
deceased person or his/her estate (see paragraph 29 above). However,
the estate after Mr Nitschke had the right, and indeed used it, to
pursue the tax proceedings before the appellate courts to try to have
the County Administrative Court's judgment overturned and the
additional taxes and tax surcharges repaid.
- In
these circumstances, and in particular as the Court has found that
the presumption of innocence was respected in relation to Mr Nitschke
and that neither his estate nor his heirs have in any way been held
personally liable for the tax surcharges, the Court considers that
the presumption of innocence in Article 6 § 2 of the Convention
has been complied with.
- It
follows that this part of the application is also manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 § 4.
C. The length of the proceedings
- Lastly,
the applicant claimed that the length of the domestic proceedings had
been excessive as they had lasted almost ten years.
- The
Government left it to the Court to decide whether the proceedings had
been concluded within a reasonable time.
- The
period to be taken into consideration began on 3 November 1994 and
ended on 17 August 2004. It thus lasted nine years and nine months
for four levels of jurisdiction.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
IV. MERITS
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- The
Government claimed that the national proceedings had been of some
complexity as they had concerned the assessment of the turnover of Mr
Nitschke's business activities. They further observed that Mr
Nitschke and the applicant had been responsible for certain delays
before the national courts as they had repeatedly requested extension
of time-limits to supplement their submissions. In this respect, the
Government alleged that Mr Nitschke and the applicant had been
responsible for a delay amounting to approximately ten months before
the County Administrative Court and seven months before the Supreme
Administrative Court. As concerned the proceedings before the
Administrative Court of Appeal, the Government stressed that Mr
Nitschke and the applicant, although having requested and been
granted several extensions of time-limits, never actually
supplemented their appeal to that court.
- The
applicant maintained its stance and emphasised that despite Mr
Nitschke's requests for respite, which had been due to his illness,
the total length of the proceedings had been completely unacceptable.
- The
Court accepts that the present case concerned matters of some
complexity and that Mr Nitschke and the applicant were responsible
for some of the delays before the administrative courts when
requesting several extensions of time-limits. However, the Court does
not find that Mr Nitschke's and the applicant's conduct alone
contributed to the prolonged length of the proceedings. On the
contrary, the Court is of the opinion that there were periods of
inactivity, in particular before the Tax Authority and the
Administrative Court of Appeal, which were at least in part
attributable to these instances and that their handling of the case
did not promote its timely completion.
- Thus,
in the light of the criteria laid down in its case-law and having
regard to all the circumstances of the case, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 12,000 euros (EUR) in respect of non-pecuniary
damage in relation to the length of the proceedings. Moreover, it
requested that the Government be ordered to repay the tax surcharges,
in total SEK 47,727 (approximately EUR 5,200), with interest from 13
January 2003, the day that Mr Nitschke died.
- The
Government considered that, if the Court found a violation in respect
of the length of the proceedings, the compensation for non-pecuniary
damage should not exceed EUR 10,000. They contested that the tax
surcharges should be repaid.
- The
Court finds no causal link between the violation found and the
applicant's request to have the tax surcharges repaid; it therefore
rejects this request. However, it considers that the applicant must
have sustained some non-pecuniary damage because of the excessive
length of the national proceedings but takes into account that Mr
Nitschke and the applicant were responsible for part of the delays
before the national authorities and courts. Thus, ruling on an
equitable basis, it awards the applicant EUR 3,000 under that head.
B. Costs and expenses
- The
applicant also claimed SEK 50,000 (approximately EUR 5,450) for the
costs and expenses incurred before the domestic courts and SEK
125,000 (approximately EUR 13,600), including VAT, for those incurred
before the Court.
- The
Government contested the claim in so far as it concerned the domestic
proceedings but was prepared to accept a total amount of
approximately SEK 50,000 as compensation for lawyer's fees before the
Court.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession, the above criteria and the fact that the Court has
found a violation of only one out of the applicant's original five
complaints lodged before it, the Court rejects the claim for costs
and expenses in the domestic proceedings and considers it reasonable
to award the sum of EUR 4,000 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings (Article 6 § 1 of the Convention)
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Swedish kronor at the rate applicable
at the date of the settlement:
(i)
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 4,000 (four thousand euros) in respect of costs and expenses;
(iii)
any tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
