CASE OF LINDSTRAND PARTNERS ADVOKATBYRÅ AB v. SWEDEN
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Article 8 - Right to respect for private and family life)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johan Hirschfeldt;Luis López Guerra;Pere Pastor Vilanova
6. From 20 January 2006 onwards the Tax Agency (Skatteverket) conducted audits of value-added tax, employers’ social security contributions (arbetsgivaravgifter) and income tax at the three Swedish companies Ergonia Sweden AB, SNS-LAN Trading AB (“SNS”) and Mouse Trapper Nordic AB. The audit covered the period June 2001 – June 2005. On 4 March 2008 the Tax Agency applied to the County Administrative Court (länsrätten) in Stockholm for permission to take coercive measures in respect of SNS under section 8 of the Act on Special Coercive Measures in Taxation Procedures (Lagen om särskilda tvångsåtgärder i beskattningsförfarandet, 1994:466 – hereafter “the Coercive Measures Act”), in particular the search and seizure of certain documents and other material. 7. The Tax Agency’s application contained detailed information on what it had been able to establish in regard to the above-mentioned companies during the audits. The Agency stated that it suspected that significant amounts of money had been withheld from Swedish taxation through irregular transactions between SNS and a Swiss company. According to the Agency, the latter company had been established solely in order to evade taxes on some of the business profits in the above-mentioned Swedish companies. While it was considered highly likely that the persons owning or having a decisive influence in the Swedish companies, including a Mr Toivo Jurik, were also running the Swiss company, it had proved impossible to obtain information on ownership and control of the latter company from the persons involved, who claimed that they had no knowledge of these matters. After Mr Jurik had been shown an extract of the Swiss company register, where he was listed as an executive, he had admitted that he and another person involved in the Swedish companies had been present at the establishment of the Swiss company but that he was listed as an executive only for formal reasons. The other person mentioned had since stated that he would not assist the Tax Agency any further in the audit. The Agency therefore considered that it could not continue to investigate the ownership issue and the accuracy of certain business costs unless it obtained access to documents that showed the Swiss company’s relationship to the Swedish companies and their owners and leaders as well as the Swiss company’s role in the business activities. In the Agency’s view, there were no alternative means of review. 8. Not considering it appropriate to order SNS to provide the required documents, the Tax Agency further requested that the application for coercive measures should not be communicated to the company and that it should not be notified of the court’s decision before the measures had been undertaken, as there was a risk that the documents to be searched and seized could be withheld or destroyed. 9. As SNS had recently been liquidated and had not had its own business premises, the requested search should be made at two addresses connected to Mr Jurik, who had been responsible for the bookkeeping in all three audited companies and was also representing SNS in its contacts with the Tax Agency, and therefore could be expected to be in possession of the required documentation. Thus, the search should start at the registered premises of the parent company, Draupner Universal AB (“Draupner”), at the address P.O. Hallmans gata 15, Stockholm. This was a flat which, in addition to being owned by Draupner and serving as its registered address, was rented by Mr Jurik and used as a pied-à-terre. Draupner was owned by Mr Jurik’s children but was represented and run by Mr Jurik himself. If the necessary documents were not found at the first address, the search should continue at the office of Mr Jurik at the applicant law firm (whose name at the time was Hagenfeldt Advokatbyrå AB), at the address Döbelnsgatan 15, Stockholm. 10. By a judgment of 10 March 2008 the County Administrative Court granted the Tax Agency’s application and ordered that the judgment was immediately enforceable. Agreeing with the Tax Agency, the court considered that there was a substantial risk that documents could be withheld, corrupted or destroyed and that, having regard to Mr Jurik’s connection with SNS and the two addresses in question, there was good reason to assume that the documents relevant to the audit of SNS were to be found at those addresses. While a search and seizure undertaken at a location different from the audited party’s business premises involved a particular encroachment on rights of integrity, the court found that, in the case at hand, the importance of the measures outweighed the intrusion caused. 11. The search of the two designated premises took place on 14 March 2008 and was conducted by officials of the Enforcement Authority (kronofogdemyndigheten) in Stockholm and several auditors of the Tax Agency. The flat was searched first. Present were Mr Carl Lindstrand, a lawyer of the applicant law firm, representing Mr Jurik (who was at the time in Switzerland), and – towards the end of the search – Mr Roland Möller, who, as an associate of the law firm, had been the liquidator of SNS and who was also the designated person to be served writs on behalf of Draupner in Sweden. According to the minutes of the proceedings, drawn up by one of the officers of the Enforcement Authority, the persons present were reminded of the possibility to request exemption of documents. 12. During the search of the flat, material of interest that belonged to Draupner was found. Since Draupner had been involved in transactions connected with the activities of SNS, a decision to audit the company was taken on site by the audit manager of the Tax Agency. She also took an interim decision to use coercive measures against Draupner, in accordance with section 15 of the Coercive Measures Act. It was decided to search for and seize material relating to the audit of Draupner both at the flat and at the applicant law firm. In the latter respect, the decision referred to the fact that not only Mr Jurik but also Mr Möller had offices there. 13. The need for an immediate decision and enforcement was explained by the substantial risk of corruption of material. The decision referred to sections 7-9 of the Coercive Measures Act and to the County Administrative Court’s judgment of 10 March 2008. 14. At the flat 19 files with accounting material, an external hard disk drive and a torn document were seized and the hard disk drive of a computer as well as a USB memory stick were copied (mirrored). This was specified in a report drawn up and submitted to the parties concerned the same day by the Enforcement Authority. 15. The premises of the applicant law firm – that is, the offices of Mr Jurik and Mr Möller – were searched thereafter, again in the presence of Mr Lindstrand and Mr Möller. Attending was also a legal representative whom the applicant had appointed. The issue of possible exemption of documents was discussed and the representative was given a list of the officers attending. Cupboards, shelves and computers in the two offices were searched and a safe was opened by Mr Möller, all monitored by the applicant’s representative. However, no material of relevance was found on the premises. At the end of the proceedings, the applicant’s representative requested that the external hard disk drive and the USB memory stick – seized and copied, respectively, at the flat – be exempted from the audit. 16. The applicant and SNS appealed against the County Administrative Court’s judgment of 10 March 2008. On 7 April 2008 the Administrative Court of Appeal (kammarrätten) in Stockholm dismissed the applicant’s appeal and struck out the case in so far as it concerned SNS. In regard to the applicant, it stated that, while the appealed judgment did indeed allow the use of coercive measures on the premises of the applicant law firm, the reason for this was not that the law firm was the subject of the measures but that it could be assumed that documents relevant to the audit of SNS would be found there. In these circumstances, the appellate court concluded that the applicant was not affected by the appealed judgment in such a way that it was entitled to appeal against it. With respect to SNS, the court considered that, as the coercive measures had already been enforced, it did not have a justified interest in having them examined by a second judicial instance. 17. By a decision of 19 June 2008 the Supreme Administrative Court (Regeringsrätten) refused the applicant and SNS leave to appeal. On 3 July 2008 the court dismissed an appeal in the same matter lodged by Mr Jurik, noting that he had not previously been a party to the case and could not therefore join the proceedings at the level of the Supreme Administrative Court. 18. The Tax Agency’s interim decision of 14 March 2008 to use coercive measures against Draupner was referred to the County Administrative Court, which received it on 17 March 2008, the following Monday. The Agency stated as reasons for its decision that Draupner had had transactions connected to SNS, its subsidiary company, that there had been special reasons to search for material at the applicant law firm as two of Draupner’s representatives, Mr Jurik and Mr Möller, had offices there and that the risk of corruption of material was acute in view of the fact that, during the ongoing enforcement, it had become apparent to persons involved which transactions and connected documents were to be examined. Draupner requested that the decision be quashed, referring, inter alia, to attorney-client privilege pertaining to its representatives. By a judgment of 26 March 2008 the interim decision was confirmed by the court, which found that the seizure of the documents at issue had been justified. The court further considered that there was a substantial risk that the documents would be withheld, corrupted or destroyed if they were returned. 19. Draupner and Mr Jurik appealed to the Administrative Court of Appeal. On 22 August 2008 the court struck out Draupner’s appeal and dismissed that of Mr Jurik. As in the similar case concerning SNS (see paragraph 16 above), the court took into account that the coercive measures had already been enforced and considered therefore that Draupner did not have a justified interest in having them examined by a second judicial instance. In regard to Mr Jurik, it was noted that he had not been a party to the case at the lower court. 20. On 28 January 2009 the Supreme Administrative Court refused Draupner leave to appeal. 21. Draupner also appealed against the Tax Agency’s decision of 14 March 2008 to conduct an audit. On 18 June 2008 the Tax Agency dismissed the appeal because, in accordance with Chapter 6, section 2 of the Tax Assessment Act (Taxeringslagen; 1990:324), no appeal lay against such a decision. This determination was upheld by the County Administrative Court on 11 July 2008. 22. On 19 September 2008 the Administrative Court of Appeal quashed the Tax Agency’s decision to dismiss the appeal and the County Administrative Court’s judgment and referred the case back to the County Administrative Court. The appellate court found that the Tax Agency had lacked a legal basis for its decision; instead of dismissing Draupner’s appeal, it should have submitted it to the County Administrative Court for determination. 23. After a new examination of the case, the County Administrative Court dismissed the appeal in a decision of 3 October 2008, finding that no appeal lay against a decision to conduct a tax audit and that the European Convention was not applicable to such a decision. In addition, it noted that, while the audit decision itself did not involve any harm to Draupner, possible detriment caused by the audit procedure could be removed or mitigated through a request for the exemption of documents from the audit. Such a request was at the time already under examination by the court (see paragraphs 35-43 below). 24. On 15 January 2009 the Administrative Court of Appeal rejected Draupner’s further appeal, agreeing with the lower court’s assessment. 25. By a letter dated 14 March 2008, the day of the search of the flat and the law office, and received by the County Administrative Court on 17 March 2008, the applicant requested that those parts of the material seized and copied at the flat that could concern the law firm be exempted from the audit. It mentioned, in particular, the external hard disk drive and the USB memory stick. Noting that both SNS and Draupner were clients of the law firm, the applicant argued that the material it sought to have exempted was protected by attorney-client privilege. 26. By a decision of 26 March 2008 the County Administrative Court dismissed the request, finding that the applicant lacked legal standing in the matter. It noted that the material had been seized from Draupner and was therefore not under the applicant’s right of disposition. 27. The applicant appealed to the Administrative Court of Appeal, demanding that all seized and copied material except for the files with accounting material be exempted. It also requested that an oral hearing be held on the question of its legal standing in the matter. Mr Jurik joined the applicant’s appeal. 28. On 18 April 2008 the Administrative Court of Appeal refused the request for an oral hearing, finding it unnecessary. 29. By a judgment of 22 August 2008 the Administrative Court of Appeal rejected the applicant’s appeal and agreed with the lower court that the applicant did not have legal standing concerning the requested exemption of documents, as the coercive measures had not been directed against the law firm. Mr Jurik’s appeal was dismissed, as he had not been a party to the case at the lower court. 30. The applicant made a further appeal, stating, among other things, that the Tax Agency’s original interim decision of 14 March 2008 concerning Draupner and the County Administrative Court’s judgment of 26 March 2008 confirming that decision had been directed against the law firm because they allowed a search in the firm’s offices. Moreover, the coercive measures employed had led to the seizure of material which allegedly belonged to the applicant and could contain information covered by attorney-client privilege. In the latter respect, the applicant claimed that the external hard disk drive and the USB memory stick had been used by its associate lawyer Mr Jurik in his work for the firm. 31. On 28 January 2009 the Supreme Administrative Court refused the applicant leave to appeal. 32. In the decision of the Administrative Court of Appeal of 18 April 2008 not to hold an oral hearing (see paragraph 28 above) three judges participated, one of whom was a co-opted member (adjungerad ledamot). She was also a civil servant at the Tax Agency, albeit formally on leave of absence while temporarily serving with the court. The Tax Agency being the opposing party, the applicant challenged her impartiality and called for her disqualification from the case. 33. On 14 May 2008 the Administrative Court of Appeal, sitting in a different formation, rejected the objection, noting that the co-opted member was on leave from her post at the Tax Agency. 34. By a judgment of 5 March 2009 the Supreme Administrative Court, which had regard to Strasbourg case-law, rejected the applicant’s appeal, declaring that the objection had not been justified. It considered that the issue of objective impartiality had to be examined in light of the individual character of the case at hand. In this respect, it noted that the co-opted member’s tasks at the Tax Agency had concerned activities of a different type than those relevant in the case and had been performed in a different part of the country. Furthermore, she was only one of three judges participating in the decision in question, which had concerned a request for an oral hearing. She had not participated in the judgment on the merits of the case. 35. Draupner, represented by Mr Lindstrand, requested that all material seized or copied during the audit be exempted, in particular because it contained information protected by attorney-client privilege pertaining to the applicant law firm and its clients. 36. On 16 October 2008 the County Administrative Court rejected the request. It stated that Draupner was the subject of a tax audit and that all electronic or paper documents linked to the company’s business found on its premises should be considered as belonging to it and being eligible for examination in the audit. The court noted that the company register listed Mr Jurik as a board member and signatory of Draupner. Furthermore, the available evidence in the case showed that he was the representative of the company and that the flat where the search and seizure had taken place constituted the company’s business premises. As the documents at issue had been found at that flat, they should be considered to belong to Draupner, concern its business and, as a rule, be included in the audit. While the coercive measures used could not therefore be considered to have contravened the Coercive Measures Act or the Convention, the question remained whether there were reasons to exempt some or all of the material. Noting that the burden of proof rested with the audited party, the court considered that the company had not demonstrated that the documents were covered by any of the exemptions under the Act. 37. Upon Draupner’s appeal, the Administrative Court of Appeal, on 5 March 2009, decided to quash the County Administrative Court’s judgment and refer the case back to that court. The appellate court found that the lower court had not examined the contents of all the documents, which was a requirement for the assessment of the question of exemption. 38. The County Administrative Court then directed Draupner to specify its request in greater detail, which the company did. By a judgment of 14 September 2009 the court rejected the company’s requests for an oral hearing and an inspection of the flat but granted that a few seized documents be exempted from examination by the Tax Agency, as they were considered to be Mr Jurik’s private documents. It further considered that deleted files, which were readable only after reconstruction, could not be the object of a seizure under the Coercive Measures Act and could therefore neither be exempted nor used by the Tax Agency. 39. Draupner and the Tax Agency appealed. Draupner agreed that 17 of the 19 files seized on 14 March 2008 could be handed over to the Tax Agency for examination, following which the request for exemption concerned the remaining material seized and copied on that day. The Tax Agency requested that it be allowed to examine deleted and reconstructed data files. 40. On 14 September 2010 the Administrative Court of Appeal rejected Draupner’s appeal, but granted that of the Tax Agency. Draupner’s procedural requests for an oral hearing and an inspection were rejected, but the court held a preparatory meeting with the parties to determine the continued proceedings in the case, notably the method for examining the disputed material. The court found that, due to the extremely extensive data material – more than 300,000 files and entries –, it was impossible to examine each and every data file, and the Tax Agency was therefore instructed to list the documents and files it considered as part of its examination after which Draupner would have an opportunity to lodge a new request for exemption. The appellate court agreed with the County Administrative Court’s assessments that the material, including the hard disk drive and the USB memory stick, had been seized on Draupner’s business premises, that there was, accordingly, a presumption that it was included in the audit and eligible for the Tax Agency’s examination and that the burden of proof for exemptions rested with the company, even though a modest level of evidence was sufficient. With regard to Draupner’ 41. On 15 November 2010 the Supreme Administrative Court refused Draupner leave to appeal. 42. After the Tax Agency had listed the documents and files it wished to examine, Draupner made a new application for exemption of documents which was partially approved by the County Administrative Court on 24 November 2011 in regard to some documents which were considered to be of a private nature. However, none of the documents for which exemption had been requested were found to have such content that attorney-client privilege applied. 43. On 21 February 2012 the Administrative Court of Appeal upheld the lower court’s judgment. On 8 May 2012 the Supreme Administrative Court (now Högsta förvaltningsdomstolen) refused Draupner leave to appeal. 44. The applicant and Mr Jurik made a complaint to the Parliamentary Ombudsman (Justitieombudsmannen) against the handling of the case by the Tax Agency, the County Administrative Court and the Administrative Court of Appeal and assessments made by these instances. On 11 December 2008 the Ombudsman found no reason to take action. 45. The applicant also petitioned for a re-opening of the Supreme Administrative Court’s decision of 28 January 2009 not to grant leave to appeal in the case concerning the applicant’s request for exemption of documents. This petition was rejected by the Supreme Administrative Court on 20 September 2010. 46. The audits concerning SNS and Draupner were eventually discontinued and no taxation decisions were taken on the basis of the audits. All documents were returned to Draupner. Like SNS, Draupner has since been liquidated.