Oskäligt lång tid: En undersökning av befrielsegrunden i 51 kap. skatteförfarandelagen och hur svensk rätt förhåller sig till Europadomstolens praxis rörande artikel 6 i EKMR
Sammanfattning: According to Chapter 51 Section 1 (3) of the Swedish Tax Procedure Act, skatteförfarandelagen (2011:1244), the STPA, there is a possibility to be granted exemption from tax surcharges if the length of the tax proceedings has been excessive. The purpose of this paper is to examine Chapter 51 Section 1 (3) of the STPA and to analyze the relationship between Swedish applicable law and the right to a trial within a reasonable time (Article 6 Section 1 of the European Convention on Human Rights) according to the European Court of Human Rights, the ECtHR. A legal dogmatic method has been used in order to fulfill the subject of the paper and to answer the question of what is to be considered an unreasonable time. Regarding the length of the proceedings the period to be taken into consideration begins, according to the preparatory work for the provision, when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the Swedish Tax Agency as a result of the suspicion against him. The relevant period ends when there is a final judgment or when that judgment becomes legally binding. As to the concept of unreasonable time in cases of tax surcharge, it appears from the preparatory work for Chapter 51 Section 1 (3) of the STPA that an assessment must be made in the light of the particular circumstances of the case and that the legislator found it very difficult to state any specific guidelines regarding unreasonable time. The preparatory statements seem to be in accordance with the ECtHR case law concerning Article 6 Section 1 of the convention. According to the ECtHR case law four different criteria must be taken into account when assessing the reasonableness of the length of proceedings; the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant. My study shows that the ECtHR appears to pay particular attention to whether there have been extended periods of unexplained inactivity among the relevant authorities. Extensive delays attributed to the relevant authorities seem to indicate that there has been a violation of Article 6 of the convention. Cases that are factually complex or where the applicant during the proceedings requested several extensions of time limits indicates on the other hand that a slightly longer processing time should be accepted. Lastly, there is currently no case law from the Supreme Administrative Court regarding Chapter 51 Section 1 (3) of the STPA. Our Supreme Court's application of Article 6 of the convention has therefore been used in this paper for the interpretation of applicable law. Based on the rulings of the ECtHR and our Supreme Court's, certain precautious conclusions have been made regarding unreasonable time in cases of tax surcharges. I have come to the conclusion that an administrative court presumably will not grant an exemption from tax surcharges if the processing time per instance has been approximately one year or less.
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