Dubbla signaler avseende ne bis in idem i skatterätten? - En rättslig konsekvensanalys av Europadomstolens dom den 15 november 2016 i målet A och B mot Norge

Sammanfattning: The principle of ne bis in idem is expressed in article 4 of Protocol No. 7 to the European Convention on Human Rights and prohibits a state from trying or punish an individual twice in criminal proceedings for a crime which he has already been finally acquitted or convicted. Article 50 of the EU Charter of Fundamental Rights contains a corresponding double trial prohibition. The Swedish sanctions system for violation of tax legislation has gone through a change during the past years since it was considered incompatible with the right not to be tried or punished twice. The case law of the European Court of Human Rights and The Court of Justice of the European Union has resulted in Sweden having introduced a coordinated sanction procedure. According to the new system a taxpayer is not being tried or punished twice due to the same offences in the context of two different procedures. In November 2016, a new case law concerning the right not to be tried or punished twice was delivered from The European Court of Human Rights. In the case, two taxpayers in Norway had been subject to double sanctions due to the failure to declare profits from stock sales. During the trial in the European Court of Human Rights, the applicants alleged that in breach of Article 4 of Protocol No. 7 to the European Convention on Human Rights, they had been both prosecuted and punished twice in the respect of the same tax offence. However, the European Court of Human Rights determined there was no violation of Article 4 of Protocol No. 7 to the European Convention on Human Rights. The two procedures were considered being conducted in parallel and were interconnected in such a way that they constituted a coherent whole. An important factor was that the sentence imposed in the criminal trial had regards to the tax penalty. As a result it now seems that the current view of the European Court of Human Rights is that parallel procedures are compatible with Article 4 of Protocol No. 7 to the European Convention on Human Rights, provided that the two procedures are coordinated and integrated in such a way that they constitute a coherent whole. The question is whether the new view of the European Court of Human Rights means that the changes to the Swedish system were unnecessary in this respect. In the previous system, the Swedish Tax Agency and the prosecutor conducted two separate procedures without any interaction between them. Due to the introduction of a coordinated sanction procedure of tax liability and tax evasion, the current Swedish system is more resembling to the Norwegian system, which has been considered compatible with Article 4 of Protocol No. 7 to the European Convention on Human Rights. The conclusion is therefore that the new case law would not have a significant effect on Swedish law.