TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Search information may be in the same paragraph or in divided sections.
AP1 (Applicant): And the panel provision may be available or complete in one paragraph or divided in other sections.
AP1 (Applicant): The text assessment act, section 10-2, contains both description of the offense and punishment.
AP1 (Applicant): And it's a panel provision like section 12-2 in the same act.
AP1 (Applicant): Both applicants, they're imposed tax surcharges and convicted to imprisonment for tax fraud.
AP1 (Applicant): Mr. President, it looks like I was lending out my documents
AP1 (Applicant): in order to get copies for the interpreters.
AP1 (Applicant): And it looks like I got just half the documents.
AP1 (Applicant): I have to ask for an intermission if that's OK.
AP1 (Applicant): No, sorry, I got it.
Guido Raimondi (JudgeP): Do you need one minute?
Guido Raimondi (JudgeP): Could you manage?
Guido Raimondi (JudgeP): Okay.
AP1 (Applicant): Both applicants were imposed tax surges and convicted to imprisonment for tax fraud.
AP1 (Applicant): They were both punished for violating both Section 10-2 and 12-2 in our Tax Assessment Act.
AP1 (Applicant): Both these sections, they are penal provisions and they are working independent from each other.
AP1 (Applicant): So in this case, we experience two different criminal cases, in this case, two criminal cases and two different penal frame, the one and identical offence.
AP1 (Applicant): And in that sense, they obviously, as far as we can see, they were victims of double jeopardy.
AP1 (Applicant): For the very same act, they were convicted by two different penal provisions.
AP1 (Applicant): And two different authorities, the tax authorities made a tax decision and the court sentenced them to one year in prison for exactly the same identical offence.
AP1 (Applicant): It is hard for us to understand this as anything else but a classic example of double jeopardy.
AP1 (Applicant): And this obvious case of double jeopardy cannot be compared with cases referred to, as we saw in the Attorney General's Memorial.
AP1 (Applicant): For instance, and I like to quote this, confiscation of driving licence for drunk or careless driving, disqualification pursuant to bankruptcy legislation, loss of right to husbandry, losing right to keep animals, suspension of licensia practicandi, duty practice like the Harvig v. Norweg case,
AP1 (Applicant): the doctor who lost his licensia practicandi, revocation of a lawyer's licence, compulsive placement in child welfare institution, et cetera, et cetera.
AP1 (Applicant): We consider these sanctions, they are not punishment.
AP1 (Applicant): They are not penal provisions, but precautions in order to protect the community against individuals disqualified, temporary or permanently.
AP1 (Applicant): Although these sanctions may be experienced like punishment for those affected, none of them are penal provisions as they do not describe the prospective criminal offence and do not fulfil the second or the Engel criteria, the nature of the offence.
AP1 (Applicant): They are closely connected to the fact that other circumstances must have happened, like criminal offences, different kinds, like for instance drunk driving, maybe misusing drugs, et cetera, for the doctor who lost his licence or maybe a lawyer, he is committing fraud, for instance, and loses, these, I mean, these licences called back are totally dependent on other kind of activities to put them into force.
AP1 (Applicant): But back to our clients, the provisions they have been convicted for, they contain completely both a description of the criminal offence, like number two, Engel criteria, and the punishment.
AP1 (Applicant): So that's the way how we see it.
AP1 (Applicant): And I know about this parallel, alleged parallel proceedings.
AP1 (Applicant): We don't feel, in general, we don't feel too comfortable allowing parallel proceedings because by using parallel proceedings, maybe make the easiest way in this world to avoid, to avoid, to violate the prohibition of double jeopardy.
AP1 (Applicant): Like in this case, where the prosecution authorities and the tax authorities coordinate, the prosecution coordinating the investigation.
AP1 (Applicant): It may be useful for the sake of the investigation of a criminal offence, for instance, but it's rather risky business as we see it because it may lead to double jeopardy, like in this case.
AP1 (Applicant): Of course, I second that meaning from the Attorney General in his memorial, stating that these prosecutions from the police and the tax office were closely connected in substance and time.
AP1 (Applicant): Naturally, because there have been meetings, they coordinated this closely in order, as we can see, I think, I wouldn't say it's intended, but it looks like it was coordinated closely to open the possibility of avoiding the prohibition of double jeopardy and to succeed in getting both applicants punished twice for the same, the only activity.
AP1 (Applicant): I think I will end my procedure there, just by referring to all statements in the oral memorandum.
Guido Raimondi (JudgeP): Thank you very much, Mr. Kjeldahl.
Guido Raimondi (JudgeP): Now I call Ms. Sandvig. Please.
GR1 (Government): the applicants took part in one of the largest tax fraud schemes ever exposed in Norway.
GR1 (Government): Through companies established in tax havens with the sole purpose of concealing income and wealth from taxation, the applicants and six others withheld more than 15 million euros.
GR1 (Government): The applicants were charged and convicted to prison in one year for aggravated tax fraud with criminal intent.
GR1 (Government): While the criminal proceedings were pending, they were levied 30% surtax by tax authorities regardless of guilt.
GR1 (Government): The applicants refrained from challenging these decisions.
GR1 (Government): Contrary to what has been claimed in the applicants' memorial, the second applicant has never paid the surtax imposed or the tax he owes.
GR1 (Government): Both applicants claim nonetheless that the surtax shielded them from continuation of the foregoing and ongoing criminal proceedings for tax fraud by virtue of Article 4 of Protocol 7 to the Convention.
GR1 (Government): The government disputes this claim on three grounds.
GR1 (Government): First and principally, the government invites the court to consider the administrative proceedings to fall outside the ambit of Article 4.
GR1 (Government): Second, and in the alternative, the government invites the court to affirm that parallel proceedings are permissible under Article 4.
GR1 (Government): Third, and at any rate, we invite the court to hold the proceedings in compliance with Article 4 as they were closely connected in substance and time, forming part of the sanctions under Norwegian law for the offenses in question.
GR1 (Government): I will present these arguments in turn.
GR1 (Government): To each of the applicants, I will present these arguments in turn.
GR1 (Government): To fully consider the significance of this case, it is necessary, however, to start by zooming out.
GR1 (Government): In three preliminary points, the government will explain why the court should seize this opportunity to interpret Article 4 in a stringent and coherent manner.
GR1 (Government): As a first point, the government is of the firm view that to interpret Article 4 as to require discontinuation of parallel proceedings upon finality of one proceedings would transform the court's longstanding res judicata rule to become, in practice, a lispendence rule.
GR1 (Government): Authorities would have but the choice to commence either administrative or criminal proceedings, as only one of them may conclude.
GR1 (Government): Article 4 would thus merge two different legal concepts, res judicata and lispendence, which are separate under national law.
GR1 (Government): As a second point, the approach favored by the applicants will have far-reaching and unforeseeable ramifications.
GR1 (Government): This mode of interpretation will affect regulatory areas such as environment, social security, finance, competition, fisheries, child welfare, to mention but a few.
GR1 (Government): It would hamper the widespread and well-established existence of parallel administrative and criminal proceedings in contracting states, described by some as a common constitutional tradition in Europe.
GR1 (Government): The acknowledgment of similar concerns prompt the US Supreme Court to disavow previous case law and reserve the double jeopardy clause to essentially criminal law.
GR1 (Government): Chief Justice Rehnquist held in Hudson that it had been ill-considered and proved unworkable to apply the strictures of double jeopardy also to civil penalties with deterrent purposes.
GR1 (Government): He argued, and I quote, it would severely undermine government's ability to engage in effective regulation.
GR1 (Government): Moreover, individuals were at any rate adequately protected in those proceedings through fair trial.
GR1 (Government): As a last preliminary point, the court should consider the many factors suggesting a wide margin of appreciation in this case.
GR1 (Government): First, there is a considerable lack of agreement in Europe on Article 4.
GR1 (Government): It is telling that several states have not ratified Protocol 7 or declared that Article 7 is a violation of Article 7 or declared that it only relates to criminal offenses under national law.
GR1 (Government): The number of states having chosen to intervene in support of Norway testifies to the lack of consensus that parallel surtax and tax fraud proceedings violate Article 4.
GR1 (Government): The provision of criminal and administrative systems is left within the margin of appreciation of the contracting states.
GR1 (Government): In the field of taxation, this margin is particularly wide.
GR1 (Government): With this in mind, the court should consider that the Norwegian parliament has carefully considered the obligations flowing from Article 4 and has carefully voted to maintain parallel proceedings in this field.
GR1 (Government): Parliament considers surtax necessary to ensure the proper functioning of the taxation system and compensate the costs of control, while it considers criminal punishment indispensable to tackle tax fraud.
GR1 (Government): In addition, Norwegian courts have dealt extensively with Article 4 since 2000.
GR1 (Government): The margin of appreciation should accordingly be wide.
GR1 (Government): I turn now to the government's first and principal argument that ordinary surtax, 30%, is not criminal for Article 4 purposes.
GR1 (Government): To substantiate this position, it is necessary to shed light on the diverging approaches in the court's case law.
GR1 (Government): It is well established that penal procedure in Article 4 must be interpreted in light of the general principles concerning the corresponding words criminal charge and penalty in Article 6 and 7.
GR1 (Government): From here, two diverging approaches have emerged.
GR1 (Government): The first, seen for instance in Nikanen and Lekki Dev, implies that the assessment is based solely on the Engel criteria, formulated with reference to Article 6 and criminal charge.
GR1 (Government): Surtax would be criminal under this expansive approach.
GR1 (Government): The second approach, applied for instance in Nilsson, Storbrotten, Mjelde, and Harvig, resembles the assessment of penalty under Article 7.
GR1 (Government): It takes into account a wider range of criteria than the Engel criteria, considering in an overall cumulative assessment also the purpose, nature, and degree of severity of the measure, and the extent of the penalty.
GR1 (Government): It is also important to consider its national legal classification, whether the measure was imposed following conviction for a criminal offence, and the procedures involved in the making and implementation of the measure.
GR1 (Government): In Gucton, for instance, the court assumed the criminal notion in Article 4 to equal penalty under Article 7.
GR1 (Government): It is also important to consider the fact that the measure was imposed following conviction for a criminal offence, and the procedures involved in the making and implementation of the measure.
GR1 (Government): In the government's view, the measure should not be seen as conclusive on this divergence.
GR1 (Government): We refer here to the memorial paragraphs 44 to 45.
GR1 (Government): The government invites the Grand Chamber in this view.
GR1 (Government): The government is supported by several contracting states to have intervened in this case.
GR1 (Government): There are a number of reasons why the penalty assessment is more compelling for Article 4 purposes than the criminal charge mode of inquiry.
GR1 (Government): The government will mention three reasons why the court will be well advised to follow this approach.
GR1 (Government): First, the wording of the provision implies the criminal notion to be confined to criminal law stricto sensu, as it refers to punishment, conviction, and penal procedure of the state.
GR1 (Government): Article 6 is worded more openly.
GR1 (Government): As this court held in Perinček, differences in the terms used must normally be presumed to denote a variation in the meaning.
GR1 (Government): This presumption is supported in our case by the explanatory report to Protocol 7.
GR1 (Government): It shows that Article 4 was construed narrowly.
GR1 (Government): The contracting states considered further specification of the criminal notion unnecessary, as the provision already contained references to penal procedure and criminal proceedings.
GR1 (Government): The contracting states also held that proceedings of a different character were not subject to the provision.
GR1 (Government): Next, the purposes of Article 4 and Article 6 differ.
GR1 (Government): An expensive interpretation of criminal charge is justified to promote due process guarantees.
GR1 (Government): The purpose of Article 4 is another and more specialized.
GR1 (Government): It protects against the burden of being exposed to new criminal proceedings after one has gained security that society, through its criminal law machinery, has finally acquitted or convicted the person.
GR1 (Government): For this purpose, the wider range of criteria under the penalty assessment, with its emphasis on the procedures involved in the making and implementation of the measure, is more apt than the Angler criteria.
GR1 (Government): Third, Article 4, like Article 7, is non-derogable and absolute.
GR1 (Government): It does not lend itself to the relative assessment applied to surtax under Article 6.
GR1 (Government): In USILA, the Grand Chamber stated that surtax differ from the hardcore of criminal law.
GR1 (Government): Consequently, the criminal head guarantees will not necessarily apply with their full stringency.
GR1 (Government): As Article 4 is absolute, this distinction could hardly be respected otherwise than by confining the criminal notion to hardcore criminal law.
GR1 (Government): Individuals facing proceedings outside the court would, in any event, be adequately protected through the fair trial guarantees.
GR1 (Government): In the event the court agrees for the government in the correctness of applying the second approach, rather than a criminal charge approach, the government submits that 30% surtax is not penal for the purposes of Article 4.
GR1 (Government): The measure is regarded administrative under national law.
GR1 (Government): Its purpose is to compensate the costs of control while also serving deterrent purposes.
GR1 (Government): Surtax is not imposed following conviction for a criminal offence.
GR1 (Government): And the procedures, it is imposed in connection with tax reassessments.
GR1 (Government): And the procedures involved in the making and implementation of surtax are purely administrative.
GR1 (Government): Tax authorities do not dispose of coercive measures in the discovery or in the enforcement of the measure.
GR1 (Government): It is telling that if the taxpayer fails to pay the surtax imposed, as the second applicant has done in our case, tax authorities have no penal means to enforce it.
GR1 (Government): Surtax is not sanctioned by imprisonment or marked in any criminal record.
GR1 (Government): And may I add, surtax is imposed in confidential decisions.
GR1 (Government): They are not public-like convictions.
GR1 (Government): Thus, the general preventive effect of surtax is limited.
GR1 (Government): And the stigmatising effect, similarly low.
GR1 (Government): In the event the court considers surtax as criminal, I turn now to the government's second main argument.
GR1 (Government): There has been no violation of Article 4 in our case, as the parallel proceedings were permitted.
GR1 (Government): All six states to have intervened in this case supports this position.
GR1 (Government): The government is of the firm view that Article 4 only relates, prohibits commencement of subsequent proceedings.
GR1 (Government): And as such, does not apply to the conclusion of concurrent proceedings, like in our case.
GR1 (Government): As the Grand Chamber stated in Solotukin, the guarantee enshrined in Article 4 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already gained the force of res judicata.
GR1 (Government): This is also evident from the wording of the provision and from the explanatory report.
GR1 (Government): It states that the principle of nebis in idem applies only after the person has been finally acquitted or convicted.
GR1 (Government): This is further supported by the object and purpose of the provision, which is to prohibit the repetition of criminal proceedings that have been concluded by a final decision.
GR1 (Government): The provision does not, therefore, apply before new proceedings have been opened, as the court held in both Gradinger and Gaudi.
GR1 (Government): This understanding accords with how the principle of nebis in idem is understood in national and international law.
GR1 (Government): We recall, for instance, the European Court of Justice in Orchiba de Franco, which held that it is only if the tax penalty is criminal in nature for the purposes of Article 50 of the Charter and has become final, that that provision precludes criminal proceedings in respect of the same act from being brought against the same person.
GR1 (Government): Thus, the commencement of tax proceedings while criminal proceedings were pending raised no issue.
GR1 (Government): As this court emphasized in Lucky Dev, Article 4 does not protect against multiple proceedings or less pendants.
GR1 (Government): The government contends that it does not and cannot follow that the mere continuation of criminal proceedings upon the conclusion of concurrent tax proceedings will result in a breach of the provision.
GR1 (Government): This continuation would not only be meaningless for society at large, it could also be disadvantageous to the individual.
GR1 (Government): He may wish for an acquittal in the pending criminal track to clear his name from a criminal charge which the administrative decision will not have settled.
GR1 (Government): It makes more sense, therefore, as stated in Sulu-Turkin, that Article 4 provides a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal.
GR1 (Government): The recent chamber decisions which appear to require such discontinuation, for instance, Nikkanen and Glantz, seem to depart from Sulu-Turkin and the court's otherwise consistent case law.
GR1 (Government): In view of the government, this departure from Sulu-Turkin is not supported by way of legal argument.
GR1 (Government): It is also not warranted by policy considerations.
GR1 (Government): There are four points to be made.
GR1 (Government): First, the aim of Article 4 is to protect against the burden of being exposed to a new set of proceedings after one has gained security that the offense has been sanctioned res judicata.
GR1 (Government): In the event of parallel proceedings, the individual could have no expectation that the offense is finally sanctioned of a conclusion of one proceeding.
GR1 (Government): Rather, the first conclusion would bring clarity and reduce the burden compared to the prior situation of having two pending proceedings with uncertainty in both ends.
GR1 (Government): Thus, in the event of continued parallel proceedings, there seems to be no renewed burden to protect against.
GR1 (Government): Second, discontinuation would run counter to the principle of equal treatment before the law.
GR1 (Government): Progress of proceedings varies from case to case, depending, for instance, on whether the individual choose to appeal.
GR1 (Government): As such, persons A and B may end up with different sanctions for the same offense due to mere coincidences.
GR1 (Government): The court recognized this concern in Newconin and Glantz.
GR1 (Government): Person A could get away with surtax, while person B would end up in prison simply because B cooperates with police, ensuring a swift conviction, or appeals to surtax, which A does not.
GR1 (Government): Third, a requirement to break off parallel proceedings might in practice often mean that only one set of proceedings is ever applied.
GR1 (Government): Thus, the advantages of the other set of proceedings, either criminal or administrative, would not be attained.
GR1 (Government): If solely administrative proceedings are commenced, contracting states would in practice be precluded from investigating the criminal offense, which may reveal the offense to be more severe than the administrative authorities have competence to uncover.
GR1 (Government): This would favor complex crime and international tax fraud in particular.
GR1 (Government): In our case, for instance, the applicant's tax fraud would never have been discovered.
GR1 (Government): On the other hand, if solely criminal proceedings are pursued, this would burden the judicial system with more criminal cases without the time-saving interplay of administrative authorities.
GR1 (Government): This could prolong proceedings beyond reasonable time.
GR1 (Government): As such, parallel proceedings promoting efficiency, equality, and proportionate reactions may better serve the interests of individuals and society at large.
GR1 (Government): Fourth, administrative and criminal proceedings serve different purposes, which cannot be fully attained or safeguarded in only one set of proceedings before one authority.
GR1 (Government): This could be illustrated by two examples from regulatory areas where the Supreme Court of Norway has found the administrative sanctions, revocation of a license to fish, and compulsory placement in a child welfare institution to be criminal pursuant to the Engel criteria.
GR1 (Government): In fisheries, it is difficult to envisage a system whereby the prosecuting authority decides on whether a license to fish is to be revoked to safeguard a maritime ecosystem from damage.
GR1 (Government): In child welfare, it is equally difficult to envisage the child welfare service safeguarding the public interest in prosecuting manslaughter allegedly committed by a minor.
GR1 (Government): Or police deciding on compulsory placement in a child welfare institution to safeguard as its foremost consideration the best interests of the child.
GR1 (Government): Should continuation of parallel proceedings be prohibited by Article 4, these different purposes would not be attained as they are today.
GR1 (Government): In sum, the government invites the Grand Chamber to stay with its interpretation in Solotukin and hold that parallel proceedings, and hence their conclusion, fall outside the ambit of Article 4.
GR1 (Government): In the event, the court should hold otherwise.
GR1 (Government): The government submits as its third and final argument that the proceedings in our case did not violate Article 4, as they were sufficiently connected in substance and time.
GR1 (Government): This test was developed by the court in Nilsson, with reference to RT versus Switzerland.
GR1 (Government): It has been affirmed in Nikanen and subsequent cases.