TrustHLT/LaCour huggingface dataset:
GR1 (Government): The Supreme Court of Norway has correctly and in good faith applied this test in conformity with the criteria laid down in the court's case law.
GR1 (Government): Indeed, in the first applicant's case, Justice Mercer concluded that it is rare for administrative and criminal proceedings to be interwoven to this extent.
GR1 (Government): This should call for deference.
GR1 (Government): As regards the substantial connection, the court should recognize the following six points.
GR1 (Government): First, traces of the scheme were initially discovered by tax authorities by chance during a tax audit of a connected company.
GR1 (Government): Their filing of a substantiated police report enabled police to take swift, precise action.
GR1 (Government): Second, police investigation led to the discovery of the applicants, of which the tax authorities were then informed.
GR1 (Government): Tax proceedings began as a result.
GR1 (Government): Third, progress of the tax proceedings depended on the police investigation.
GR1 (Government): Tax authorities were granted access to evidence obtained by police through international police cooperation in seven jurisdictions on different continents, examinations, and police actions.
GR1 (Government): Fourth, police faced the indictments for tax fraud on the administrative authorities' calculation of the complex tax offenses.
GR1 (Government): This avoided duplication of efforts and saved time.
GR1 (Government): Fifth, there were frequent interactions, meetings, and correspondence between the authorities from the start.
GR1 (Government): Sixth, the police were not aware of the existence of a tax fraud in the system.
GR1 (Government): Sixth, surtax was taken into account by courts when sentencing for tax fraud, as statutory law demands.
GR1 (Government): These connection points set our cases apart from Nikkanen and Glantz, where the proceedings were not in any way connected.
GR1 (Government): Turning to the closeness in time, the courts were not able to make a decision on the validity from the imposition of surtax until these decisions were final.
GR1 (Government): They became final as the applicants allowed the three-week and six-month time limit for administrative and judicial appeal to lapse.
GR1 (Government): This aligns our cases with Hakka, where proceedings also overlapped and where the applicant allowed the time limits until the appeal to expire.
GR1 (Government): The court, accordingly, found no violation in that case.
GR1 (Government): Finally, the court should recognize one additional consideration emphasized by the Supreme Court.
GR1 (Government): Justice Mercer concluded that the object and purpose of Article 4 did not indicate that the provision had been violated.
GR1 (Government): It did not have a legitimate expectation that they would be only subject to one set of proceedings.
GR1 (Government): Both applicants testified in court that they never expected the criminal case to be dropped.
GR1 (Government): The circular issued by the general prosecutor did not and could not give rise to legitimate expectations that the criminal case would be discontinued.
GR1 (Government): It was intended for prosecutors and civil servants, and while it introduced a general new routine for simplification purposes, it clearly preserved the right to proceed with parallel proceedings in individual cases.
GR1 (Government): As our cases show, coordinated proceedings from both authorities are essential to tackle complex tax fraud.
GR1 (Government): In a situation of this kind, the Supreme Court concluded, "...considerations of effective proceedings must carry weights."
Guido Raimondi (JudgeP): Sandvig, I apologize for interrupting you, but may I ask you to conclude, please?
Guido Raimondi (JudgeP): Yes. Thank you.
GR1 (Government): This brings me to the conclusion.
GR1 (Government): If the court's allowed, just a final paragraph.
GR1 (Government): To summarize, the court is invited to take into account the wider range of criteria to assess the criminal notion under Article 4, having regard also to the penalty criteria under Article 7 in an overall cumulative assessment.
GR1 (Government): This would confirm a duly reasoned approach in case law, which finds comparative support in the Supreme Court of the United States.
GR1 (Government): The government submits that ordinary surtox is not criminal under this approach.
GR1 (Government): In the alternative, the court is invited to confirm that parallel proceedings are outside the ambit of Article 4, as the principle only prohibits commencement of new proceedings after a final conviction or acquittal.
GR1 (Government): The court would confirm Zulu-Turkin on this point and be aligned with the European Court of Justice.
GR1 (Government): In the event the court considers parallel proceedings may fall within the ambit, the government strongly suggests that the proceedings are sufficiently closely connected to comply with Article 4.
Guido Raimondi (JudgeP): Thank you very much Mrs. Sandvig and I thank both parties for their interventions.
Guido Raimondi (JudgeP): Now I should like to invite judges of the Grand Chamber to put to the parties the questions they may have.
Guido Raimondi (JudgeP): Judge Nußberger please.
Angelika Nußberger (Judge): I would have a question concerning the Norwegian law.
Angelika Nußberger (Judge): We are here, we have two laws.
Angelika Nußberger (Judge): We have Article 10.2 of the Tax Assessment Act and we have Chapter 12 on tax fraud of
Angelika Nußberger (Judge): the Penal Code.
Angelika Nußberger (Judge): And in the case at hand, we have learned that the courts, when assessing the criminal punishment, they took into account the administrative tax surcharges.
Angelika Nußberger (Judge): I wonder, and the government argued that this was, as it was said, a statutory law demand.
Angelika Nußberger (Judge): I would like to understand was that discretionary or is there a duty in the law to take into account the administrative punishment that has been before?
Angelika Nußberger (Judge): And if the procedure had been vice versa, so if there had been first criminal punishment and then the conclusion of the administrative procedure, I read that in the event that the conditions imposing a tax surcharge are fulfilled, the surcharge will normally be assessed at 30%.
Angelika Nußberger (Judge): Would that mean that this normally that we would have an exception if there had been already a high criminal punishment to reduce the administrative sanction?
Angelika Nußberger (Judge): That would be my question, thank you.
Guido Raimondi (JudgeP): Thank you very much Judge Nußberger. Now Judge Paulo Pinto de Albuquerque, please.
Paulo Pinto de Albuquerque (Judge): Thank you Mr. President. My question goes to the government, but of course the applicants
Paulo Pinto de Albuquerque (Judge): may also take a position on this question. In fact, I have two questions to the government.
Paulo Pinto de Albuquerque (Judge): I would like the government to elaborate on the consequences, the negative consequences for a Norwegian citizen who does not pay the tax surcharge. The government pleads that
Paulo Pinto de Albuquerque (Judge): there are no penal means to impose the tax surcharge. No imprisonment, no criminal record,
Paulo Pinto de Albuquerque (Judge): no publicity. Are there any negative consequences for someone who does not pay the surcharge
Paulo Pinto de Albuquerque (Judge): in whatever form, as a fine or any other form of negative consequence that may arise from the fact of not having paid the tax surcharge? And my second point is related to the interaction
Paulo Pinto de Albuquerque (Judge): between the administrative and the criminal procedures. In what measure is the tax surcharge
Paulo Pinto de Albuquerque (Judge): applied in the administrative procedure taken into account in the conviction and sentencing in the criminal procedure? Are the facts established in the administrative procedure binding for
Paulo Pinto de Albuquerque (Judge): the criminal procedure? Is the tax surcharge considered in order to diminish the criminal
Paulo Pinto de Albuquerque (Judge): penalty? And these questions could be put as an alternative seen from the perspective
Paulo Pinto de Albuquerque (Judge): of the criminal procedure seen from the other side of the coin. Are the facts established
Paulo Pinto de Albuquerque (Judge): in the criminal procedure binding for the administrative procedure? Is the criminal
Paulo Pinto de Albuquerque (Judge): penalty considered in order to lower the tax surcharge? So I would like the government
Paulo Pinto de Albuquerque (Judge): to elaborate on this interaction, possible interaction between the effects of each of these procedures in one another. Thank you very much.
Guido Raimondi (JudgeP): Thank you very much, Judge Pinto de Albuquerque  .
Guido Raimondi (JudgeP): So if there are no more questions, now the court will rise for, say, 20 minutes, so we will resume at half past 10, following which the parties will return for a second round of short pleadings to respond to the submissions in the first round and to the judges' questions.
Guido Raimondi (JudgeP): And I call Mr. Kjeldahl.
Guido Raimondi (JudgeP): Do you have the floor, please, Mr. Kjeldahl?
Guido Raimondi (JudgeP): Mr. Kjeldahl, please, you have the floor for 10 minutes for the second round and to reply to the questions of the judges, please.
AP1 (Applicant): there are lots of aspects in this case we would like to proceed with, but it would take much time.
AP1 (Applicant): But some of the issues here is there is a development in the Norwegian law system, trending to what we understand is the majority of decisions from European court in similar cases.
AP1 (Applicant): Instead of this dual prosecution system, it looks like they move over from decisions from tax audit, tax authorities, to find the suspects for an amount corresponding to what they should have paid in tax.
AP1 (Applicant): But this method, we don't believe in it because it causes unequal treatment, because the way they are following up that section in the penalty law, there is a special section number 27, it lists up all the factors to be assessed when they decide the size of the fine.
AP1 (Applicant): So there are other interests in mind.
AP1 (Applicant): So therefore, first, they won't get the same amount as if the tax office make a decision, like in this case.
AP1 (Applicant): Secondly, the result may differ because of other aspects that have nothing to do with aspects in this case, like for instance, the individual situation, financial situation, social aspects, cultural aspects, and so on.
AP1 (Applicant): So we don't believe in anything else than following up the practice we have seen until now in the European Court of Human Rights.
AP1 (Applicant): The only thing that may be a topic of discussion is whether we should allow or whether we should not allow an approach like dual persecution, double persecution.
AP1 (Applicant): But I think by maintaining the dual persecution procedure, I think it makes it very risky to end up with double jeopardy anyway, because it's so easy to go around or to avoid the prohibition against double jeopardy.
AP1 (Applicant): As for instance, in this case, there have been, and this is stated by the Attorney General in the memorial, that there have been a close connection in substance and time that is solely because there have been lots of meetings arranged in order to obtain double jeopardy, both this decision from the tax office, which is by a Supreme Court stated as punishment.
AP1 (Applicant): And the Norwegian Taxation Act, Section 10.2, is by Supreme Court finally stated as punishment.
AP1 (Applicant): And so it will be.
AP1 (Applicant): I think the only way in the future, I think the European Court of Human Rights should maintain the practice as they have today and make this decision in the Grand Chamber to put an end, once for good, for any discussion and any difference in practice between the nations.
AP1 (Applicant): I think it would be a national problem or a challenge to develop their own law system so the practice, the national practice can be more pursuant or more equal, pursuant to equal treatment.
AP1 (Applicant): If, no, I wouldn't say that.
AP1 (Applicant): I withdraw.
AP1 (Applicant): Okay, thank you very much for the attention.
Guido Raimondi (JudgeP): Now I call Mrs. Sandvik, please.
GR1 (Government): thank you for the interesting questions posed.
GR1 (Government): We will try to answer them as fully as possible within the available time.
GR1 (Government): As regards the first question from Judge Nussberger, the first question I recall was whether in the event that surtax is imposed prior to the criminal conviction, whether it is discretionary, whether courts take surtax into account discretionary or according to law-bound duty.
GR1 (Government): The answer to this today would be perhaps a bit complex.
GR1 (Government): Today, in order to ensure a mass operational practice which is clearly within the limits of Article 4, one in most cases would choose between surtax or reporting tax fraud.
GR1 (Government): So that would not be an issue.
GR1 (Government): But prior to this self-imposed safety margin, it is pursuant to Norwegian case law not doubtful that courts take into account surtax imposed when they sentence for the tax fraud.
GR1 (Government): It is a general principle of sentencing under Norwegian law that one has regard to the aggregate reaction in order to ensure a fair and adequate sanction.
GR1 (Government): The government also refers to its memorial on this point.
GR1 (Government): The second question from Judge Nussberger appears to rely on the premise that the surtax is imposed after the criminal conviction.
GR1 (Government): However, the normal progress of proceedings will be that surtax is imposed before the criminal conviction.
GR1 (Government): As our cases show, prosecuting authorities will await the tax authorities' calculation of the tax fraud, which the tax authorities are competent to do.
GR1 (Government): And moreover, the nature of administrative proceedings entail that surtax is imposed swiftly.
GR1 (Government): So the normal situation will be that when courts are to decide on sentencing for tax fraud and there is a surtax proceeding, the surtax will have been imposed.
GR1 (Government): Of course, if the taxpayer has appealed the surtax, the surtax may not be final at the moment the court sentenced for tax fraud.
GR1 (Government): But then the surtax will, at any event, be taken into account in the sentencing.
GR1 (Government): Thus, it would indeed be an extraordinary incident if surtax were not imposed or not even warned of in prior notices before courts decide on sentencing for tax fraud.
GR1 (Government): The guarantee on reasonable time under Article 6 could also be seen as a possible barrier for such a situation, because then, of course, the criminal proceedings, which, presumed of their nature, are complex and resource draining and takes time, will probably have advanced for a certain period of time before then the surtax decisions would be imposed.
GR1 (Government): So we are not aware of such a situation, such a chronology of sanctions.
GR1 (Government): But if the court is interested in this, we may submit, of course, additional observations if the court would wish for such explanations.
GR1 (Government): As concerns the two questions from the Portuguese judge Albuquerque, the first question concerns whether there are any negative consequences for a taxpayer who fails to pay surtax imposed.
GR1 (Government): And we recall there are no penal consequences of this failure.
GR1 (Government): The only consequence will, of course, be forced recovery of death.
GR1 (Government): But as our case shows, these administrative measures are not in every case sufficient to settle the surtax.
GR1 (Government): As concerns the second applicant, an attachment of earnings, two attachment of earnings orders have been issued, one of them in Wayne.
GR1 (Government): The other resulted in forced payments of 575 euros, which is marginal, very marginal, to the 3.5 million Norwegian crowners in taxes, interest
GR1 (Government): rates, and then 30% surtax, which has accumulated since 2009 and the failure to pay until today.
GR1 (Government): Surtax imposed was 403,843 Norwegian crowners in surtax.
GR1 (Government): There has later been filed a petition against the second applicant, a bankruptcy petition, but this has been withdrawn as he is no longer considered to have legal domicile in Norway.
GR1 (Government): He has emigrated to the United States.
GR1 (Government): So as of 2014, his payment case has been suspended.
GR1 (Government): As tax authorities do not consider it possible to obtain settlement of these 3.5 million Norwegian
GR1 (Government): crowners in tax areas and surtax and interest rates owed by the applicant to be settled, it is suspended.
GR1 (Government): Concerning the second question from Judge Albar Kirk, in what measure are the surtax taken into account?
GR1 (Government): Whether the facts in the tax surcharge proceedings are binding on the criminal proceedings or vice versa?
GR1 (Government): The simple answer is that they are not binding.
GR1 (Government): These are separate assessments.
GR1 (Government): However, as we've seen, prosecuting authority will base the indictments on the calculation of the taxes withdrawn on the tax authorities' calculations of the offenses.
GR1 (Government): So in that matter, it is the same subject concerning the objective elements of the provision, which is subject to the court's assessment in the criminal case.
GR1 (Government): In addition, the court considers the guilt criterion, which is not subject to an ordinary surtax case, which is objectively imposed regardless of guilt.
GR1 (Government): Moreover, another complicating factor, as this court has acknowledged in Løkke Dev, for surtax, the burden of proof is significantly lower than the burden of proof for tax fraud criminal proceedings.
GR1 (Government): Tax fraud criminal proceedings, as any criminal proceedings before courts, require that facts have been established beyond reasonable doubt.
GR1 (Government): In Løkke Dev versus Sweden, this court accepted that the burden of proof was that it was most likely that the facts establishing the surtax offense had been established.
GR1 (Government): Under Norwegian law, we demand a clear probability for surtax, which is at any event lower than the burden of proof in criminal cases.
GR1 (Government): So this may be, I hope, this for the answers.
GR1 (Government): And what concerns the vice versa situation, as I answered Judge Nesbøge, this is not a practical situation.
GR1 (Government): Let me just round up by two last remarks, as pointed to by the applicants in their prepared statements.
GR1 (Government): There is a question of whether there are in total 10 or 8 persons involved in the complex tax fraud.
GR1 (Government): There are 8 persons, including the applicants, so 6 others.
GR1 (Government): Then there are two more persons, which are more remotely connected.
GR1 (Government): And these cases are distinguishable on the facts.
GR1 (Government): So the relevant number is then 6 others, in addition to the applicants.
GR1 (Government): The last remark would be from this government that the court should recognize what the wording of Article 4, the Travaux Preparatoires and Zollotuken makes perfectly clear, that double jeopardy protects against successive proceedings, not successive punishment.
GR1 (Government): Article 4 is an essential and absolute criminal law guarantee, which may not be derogated from under Article 15.
GR1 (Government): It should be confined to hardcore criminal law if it is to remain effective.
Guido Raimondi (JudgeP): Thank you very much, Mrs. Sandvig.
Guido Raimondi (JudgeP): Prenez place.
Guido Raimondi (JudgeP): Je déclare ouverte l'audience publique sur la recevabilité et le fonds de l'affaire Beuze contre Belgique.
Guido Raimondi (JudgeP): L'affaire a été introduite devant la Cour le 25 novembre 2010 par un ressortissant belge, M. Philippe Beuze, en vertu de l'article 34 de la Convention.
Guido Raimondi (JudgeP): La requête a été communiquée au gouvernement le 25 août 2014.
Guido Raimondi (JudgeP): Le 13 juin 2017, la Chambre a décidé de se dessaisir au profit de la Grande Chambre.
Guido Raimondi (JudgeP): Le 19 septembre 2017, Fair Trials International a été autorisé à soumettre des observations écrites en tant que tiers parti en vertu de l'article 44, paragraphe 3 du règlement.
Guido Raimondi (JudgeP): Le gouvernement est représenté par son agente, Mme Isabelle Niedlispacher, du service public fédéral justice.
Guido Raimondi (JudgeP): Le requérant est représenté par M. Delphine Paci, conseil.
Guido Raimondi (JudgeP): Je salue également la délégation de magistrats turcs et la délégation de magistrats japonais en visite à la Cour.
Guido Raimondi (JudgeP): Ayant consulté l'agente du gouvernement et la représentante du requérant, j'ai fixé ainsi l'ordre de parole.
Guido Raimondi (JudgeP): Nous entendrons successivement Mme Niedlispacher pour le gouvernement, puis M. Paci pour le requérant.
Guido Raimondi (JudgeP): Je dois expliquer qu'en suce de l'interprétation dans les deux langues officielles de la Cour, l'anglais et le français, l'interprétation en turc a été autorisée au profit de la délégation de magistrats turcs qui assistent à cette audience.
Guido Raimondi (JudgeP): Mme Niedlispacher, vous avez la parole.
GR1 (Government): M. le Président, mesdames, messieurs les juges,
GR1 (Government): la Chambre a décidé de se désaisir de cette affaire au profit de votre grande Chambre parce que son enjeu dépasse la question de savoir si la procédure a été équitable en l'espèce.
GR1 (Government): L'enjeu d'intérêt général est ici de savoir s'il faut confirmer ou infirmer la jurisprudence Ibrahim contre le Royaume-Uni et Simeonovi contre Bulgari.
GR1 (Government): Que nous enseigne cette jurisprudence?
GR1 (Government): Dans son récent arrêt, Ibrahim et autres, la Cour a complété et précisé les critères énoncés dans l'arrêt Saldus.
GR1 (Government): Elle a notamment indiqué que les restrictions de l'accès à une assistance juridique ne sont permises que dans des cas exceptionnels.
GR1 (Government): Elles doivent être de nature temporaire et reposer sur une appréciation individuelle des circonstances particulières de l'espèce.
GR1 (Government): Ainsi, le besoin urgent de prévenir une atteinte grave à la vie, à la liberté ou à l'intégrité physique dans un cas donné constitue une raison impérieuse de restreindre l'accès à l'assistance juridique aux fins de l'article 6 de la Convention.
GR1 (Government): Toutefois, l'absence de raison impérieuse de restreindre l'accès à un avocat n'emporte pas à elle seule violation de l'article 6, paragraphes 1 et 3C.
GR1 (Government): En ce cas, la Cour doit cependant opérer un contrôle très strict de l'équité de la procédure pénale.
GR1 (Government): Il revient alors au gouvernement, défendeur, d'expliquer de façon convaincante pourquoi, à titre exceptionnel et au vu des circonstances particulières de l'espèce, la restriction à l'accès à l'assistance juridique n'a pas porté une atteinte irrémédiable à l'équité globale du procès.
GR1 (Government): Je vais m'y attacher.
GR1 (Government): Il est de jurisprudence constante que l'équité de la procédure pénale s'apprécie au cas par cas et à l'aune de la conduite de la procédure dans son ensemble.
GR1 (Government): Dans son arrêt Ibrahim, la Cour fournit une liste non exhaustive de facteurs à prendre en compte pour mesurer les conséquences de lacunes procédurales survenues au stade de l'instruction sur l'équité globale du procès.
GR1 (Government): On y retrouve notamment les facteurs suivants.