CASE OF LUCKY DEV v. SWEDEN
Remainder inadmissible;Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Acquittal;Right not to be tried or punished twice);Non-pecuniary damage - award
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1961 and lives in Hässelby, Sweden. 6. By a decision of 1 June 2004 the Tax Agency (Skatteverket), noting that the applicant ran two restaurants together with her husband, Mr Shibendra Dev (who also lodged an application before the Court; no. 7362/10), found that they should each declare half of the proceeds and the costs of that business. As the applicant, in her tax return, had not declared all her income and had, moreover, not declared it in the correct manner, the Agency revised upwards her income for 2002 (i.e. the taxation year 2003), finding her liable to pay tax on undeclared business income (inkomst av näringsverksamhet) amounting to 764,945 Swedish kronor (SEK; approximately 83,000 euros (EUR)). It also increased her liability to value-added tax (mervärdesskatt; “VAT”) for 2002 by SEK 379,365 (approximately EUR 41,000). Finally, as the information supplied by the applicant in her tax return was found to be incorrect and the revision had had to be made under a discretionary assessment procedure, given the business’s deficient accounting, the Agency ordered her to pay tax surcharges (skattetillägg), amounting to 40% and 20%, respectively, of the increased income tax and VAT. 7. Following the applicant’s appeal, the Tax Agency, on 18 March 2005, made an obligatory review of its decision but did not change it. 8. On 10 January 2007 and 29 October 2008, respectively, the County Administrative Court (länsrätten) in Stockholm and the Administrative Court of Appeal (kammarrätten) in Stockholm upheld the Tax Agency’s decision. 9. By a decision of 20 October 2009 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal. 10. Criminal proceedings were initiated against the applicant on 5 August 2005 in regard to the above conduct. 11. By a judgment of 16 December 2008 the Stockholm District Court (tingsrätt) convicted the applicant of an aggravated bookkeeping offence (grovt bokföringsbrott). She was given a suspended sentence and ordered to perform 160 hours of community service. The offence concerned the same period as the above-mentioned tax decisions, that is, the year 2002. The District Court found that the bookkeeping of the restaurant business had been seriously deficient and that the applicant and her husband had been responsible for failing to account for considerable proceeds and VAT, which had involved large profits for them. In regard to the public prosecutor’s claim that the applicant was guilty also of an aggravated tax offence (grovt skattebrott), the court considered that it could not be ruled out that, as she claimed to have relied on her husband running the business properly and their accountant having entered the correct figures in her tax return, she had been unaware that her tax return contained false information. Thus, it had not been shown that she had intended to give incorrect information, for which reason the indictment was dismissed in this respect. 12. The applicant did not appeal against the District Court’s judgment, which consequently acquired legal force on 8 January 2009.