CEDH · CASELAW;COMMUNICATEDCASES;ENG — 31 mars 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s1DE04B9 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .sA50A48B9 { margin-top:14pt; margin-bottom:3pt; text-align:justify }   Published on 22 April 2025   THIRD SECTION Application no. 22364/23 Eirikur SIGURBJÖRNSSON against Iceland lodged on 1 June 2023 communicated on 31 March 2025   SUBJECT MATTER OF THE CASE In 2016, in the context of tax audit proceedings, the Icelandic Directorate of Internal Revenue ( Ríkisskattstjóri ) researched the applicant’s usage of his company’s foreign credit cards, including for personal purposes. Under Article 94 of the Income Tax Act ( Lög um tekjuskatt , no. 90/2003) it requested the applicant to submit all necessary information and documents about the use of the credit cards. Having submitted some documents already earlier, on 20 December 2016 the applicant also submitted certain Excel documents containing an overview of the credit cards’ usage highlighting the transactions concerning his personal expenses. The Directorate of Internal Revenue forwarded the case to the Directorate of Tax Investigations ( Skattrannsóknarstjóri ríkisins ) which found in its final report of 30 November 2018 that the applicant had incorrectly filed his taxable income. Subsequently, on the basis of the Directorate of Tax Investigation’s report, the Directorate of Internal Revenue informed the applicant on 29 November 2019 of its intention to render a decision about the re-assessment of his taxes, while making no mention of possible surcharges. It gave the applicant 20 days to object and warned that upon the expiry of the time-limit, the Directorate of Internal Revenue would take the case under consideration with a view to issuing a ruling. The time-limit was subsequently extended until 15 January 2020. In the meanwhile, between December 2019 and May 2020, the Icelandic parliament was debating a proposed legislative amendment, which was adopted and entered into force on 15 May 2020. This amendment (introduced by virtue of Act no. 33/2020) provided that a surcharge would not be applied in 2020 if the taxpayer’s case, arising from the circumstances that led to the re-assessment, had been referred for criminal proceedings, and applied to any case which had not been taken under consideration with a view to issuing a ruling ( tekin til úrskurðar ) upon the entry into force of the amendment. On 19 May 2020 the Directorate of Internal Revenue rendered a decision about the applicant’s tax re-assessment and ordered him to pay additional tax. The decision made no mention of tax surcharges. The applicant appealed against the re-assessment decision, but the Internal Revenue Board ( Yfirskattanefnd ) upheld it on 27 January 2021. In parallel, by a letter of 11 March 2019, the Directorate of Tax Investigations referred the applicant’s case to the District Prosecutor for investigation. He was indicted on 23 January 2020 for having failed to report personal withdrawals as income and thus having evaded the payment of taxes. In the domestic proceedings the applicant, referring to the principle of ne bis in idem , argued that his criminal case should be dismissed as he had already been acquitted in the tax proceedings in view of the fact that no tax surcharge had been imposed on him. He also argued that the dual criminal proceedings had not been sufficiently connected in substance and in time. He further complained that the privilege against self-incrimination had been breached given that the indictment had been based on the information in the Excel documents which he had been obliged to provide in the tax audit proceedings. Those claims were dismissed by the domestic courts. As regards the impugned Excel documents, the Court of Appeal ( Landsréttur ) observed that they had not been submitted to it as evidence in the criminal proceedings. However, there was no dispute that the applicant’s indictment (regarding the sums of his personal withdrawals) was based on the information emanating from the Excel documents provided by the applicant in the course of tax audit. The Reykjavik District Court convicted the applicant on 1 October 2021 and the Court of Appeal upheld the conviction on 18 November 2022. The Supreme Court refused to examine his appeal on 1 March 2023. The applicant complains under Article 6 § 1 to the Convention about the breach of the privilege against self-incrimination. He also complains about having been tried twice for the same offence in violation of Article 4 of Protocol No. 7 to the Convention.         QUESTIONS TO THE PARTIES 1.     Has there been a violation of Article 6 § 1 of the Convention in that the applicant was compelled to produce incriminating evidence in the course of tax audit proceedings which was subsequently used in criminal prosecution against him? In particular, could the Excel documents which the applicant submitted to the Directorate of Internal Revenue on 20 December 2016 be considered pre-existing documents? Furthermore, could the authorities be considered to have been aware of the existence of such documents (see De Legé v. the Netherlands , no. 58342/15, §§ 74-78, 4 October 2022)?   2.     Has the applicant been tried twice for the same offence, as prohibited by Article   4 §   1 of Protocol No.   7 to the Convention? In particular, could the tax proceedings where no tax surcharge was imposed be considered “criminal” for the purpose of Article 4 § 1 of Protocol No.   7 (see, albeit in the context of Article 6 of the Convention, Västberga Taxi Aktiebolag and Vulic v. Sweden , no. 36985/97, § 80, 23 July 2002, where the Court noted both the “potential and actual penalty” as one of the elements of assessing the “criminal character” of an offence; see also Engel and Others v.   the Netherlands , 8 June 1976, § 82, Series A no.   22, which mentions “the degree of severity of the penalty that the person concerned risks incurring” )? What was the relevance of Act no.   33/2020, which entered into force on 15   May 2020, for the Directorate of Internal Revenue’s decision of 19   May 2020 not to impose any surcharges on the applicant? Moreover – if the tax proceedings were to be seen as “criminal” – could the fact that no surcharge was imposed be construed as the acquittal of the applicant (see Mihalache v. Romania [GC], no. 54012/10, §§ 96-98, 8   July 2019)? The parties are asked to specify which materials relevant to the question of the applicant’s personal withdrawals did the Directorate of Internal Revenue have at its disposal before 20 December 2016 and which exact documents did the applicant (through an accountant) forward to the Directorate on that date. The parties are invited to submit copies of the impugned Excel documents submitted to the Directorate of Internal Revenue on 20 December 2016.