Information Note on the Court’s case-law No. 179
November 2014
Shibendra Dev v. Sweden (dec.) - 7362/10
Decision 21.10.2014 [Section V]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Retroactive redress in respect of alleged violations of Article 4 of Protocol No. 7 following Supreme Court decision of 11 June 2013: effective remedy
Facts – In a plenary decision of 11 June 2013 (NJA 2013, p. 502) the Swedish Supreme Court, departing from its previous case-law, held that there was sufficient support to conclude that the Swedish system that enabled persons guilty of tax offences to be both prosecuted and subjected to tax surcharges was incompatible with Article 4 of Protocol No. 7 to the Convention. In a series of further decisions, both it and the Supreme Administrative Court ruled that persons convicted or on whom surcharges were imposed in a manner incompatible with Article 4 of Protocol No. 7 could, in certain situations, have their cases re-opened. This applied with retrospective effect from 10 February 2009, the date of the European Court’s judgment in the case of Sergey Zolotukhin v. Russia [GC]*.
The applicant in the instant case was ordered to pay tax surcharges before being convicted of, inter alia, a tax offence. He lodged an application with the European Court complaining of a violation of Article 4 of Protocol No. 7 to the Convention on 21 January 2010. The question arose whether he was required first to exhaust the domestic remedies that had become available as a result of the Supreme Court’s decision.  
Law – Article 35 § 1: In view of the new legal position following the Supreme Court’s decision of 11 June 2013, there was now an accessible and effective remedy in Sweden that was capable of affording redress in respect of alleged violations of Article 4 of Protocol No. 7, provided that the conditions specified in that and later decisions were met. Thus, to the extent that a case involved tax surcharges and tax offences based on the same information supplied in a tax return and had been tried or adjudicated in the second set of proceedings on or after 10 February 2009, a potential applicant could be expected to take domestic action to secure a re-opening of the proceedings, a quashing or reduction of sanctions or an award of compensation for alleged damage.
There were several factors that justified departing from the general principle that the assessment whether domestic remedies had been exhausted was normally carried out by reference to the date the application was lodged. First, by examining the issues in question in plenary, the Supreme Court and Supreme Administrative Court had intended to address a general question of compatibility of the Swedish legal system with the Convention by delivering leading decisions for the guidance of the future handling of cases concerning double proceedings and punishments in tax matters. Second,  the new legal position regarding ne bis in idem and Article 4 of Protocol No. 7 had not come about through gradual changes or been defined in general terms but had been laid down specifically for one type of case and situation. The Supreme Court’s decision of 11 June 2013 and the subsequent decisions taken by the two supreme courts were sufficiently detailed and precise to enable applicants to assess whether their case might meet the conditions stipulated. Third, the remedy afforded litigants a genuine opportunity to obtain redress for their grievances at national level. The Supreme Court had not stopped at a literal reading of Article 4 of Protocol No. 7 but, in reliance on Swedish legal tradition, had decided to extend the prohibition against double proceedings and punishments to situations of lis pendens, thus affording protection that went beyond that offered by Article 4 of Protocol No. 7. Lastly, the remedy allowed criminal punishment and tax surcharges to be quashed or reduced and the new legal position had led to many individuals being released from prison or from having to serve their sentences whereas the compensation afforded by the Convention system was normally limited to an award of monetary damages. 
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See also Lucky Dev v. Sweden, 7356/10, 27 November 2014 – Article 4 of Protocol No. 7 below ‑ page XX).
* Sergey Zolotukhin v. Russia [GC] 14939/03, 10 February 2009, Information Note 116. The case also concerns double jeopardy and duplication of proceedings.

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