ITEMID: 001-58358
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF SPACEK, s.r.o. v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (estoppel);No violation of P1-1
TEXT: 6. The applicant is a limited liability company incorporated under Czech law with its head office in Prague.
7. In 1991 Špaček SW (the predecessor of the applicant company) maintained its accounts by single-entry book-keeping in accordance with section 25 of Private Business Activities Act (No. 105/1990) (zákon o soukromém podnikání občanů) ("the Private Business Activities Act") and the Private Business Accounting Rules (zásady vedení účetnictví při soukromém podnikání občanů) ("the Rules") published in the Ministry of Finance's Financial Bulletin No. 5 on 15 June 1990.
8. On 31 May 1991 Špaček SW was registered in the Register of Commerce (podnikový rejstřík) pursuant to section 13(3) of the Private Business Activities Act.
9. On 1 January 1992 Špaček SW passed to double-entry book-keeping. On 19 November 1992 it ceased to exist, and the applicant company, Špaček, s.r.o. (společnost s ručením omezeným) was incorporated.
10. On 22 April 1993 the Prague 5 Finance Office (finanční úřad) notified the applicant company that it was required to pay additional income tax of CZK 385,600, including a penalty of CZK 37,200, for the 1991 tax year because Špaček SW had not increased the income tax base for the 1991 tax year by including certain assets amounting to CZK 713,971 even though, pursuant to section 4(e) of the Regulations on the procedure for passing from single to double-entry book-keeping (postup přechodu z jednoduchého na podvojné účetnictví) ("the Regulations") of 17 April 1991, published in Financial Bulletin No. 6/7 on 30 May 1991, it had been required to do so. The Finance Office held that Špaček SW had violated both section 25 of the Private Business Activities Act and the Regulations.
11. On 17 August 1993 the Prague Finance Department (finanční ředitelství) dismissed the applicant company's appeal. It stated that the Finance Office had correctly decided the case in accordance with the Rules published in Financial Bulletin No. 5 and the Regulations published in Financial Bulletin No. 6/7. It also stated that the Rules and Regulations were issued in order to clarify obligations arising from section 25 of the Private Business Activities Act.
12. On 14 October 1993 the applicant company appealed to the Prague Municipal Court (mĕstský soud). It submitted that in 1991 Špaček SW had maintained single-entry book-keeping in accordance with section 25 of the Private Business Activities Act and section 1(2) of the Rules issued by the Ministry of Finance on 18 April 1990 under number V/2-4900/90. It claimed that the Rules provided for single-entry book-keeping by businesses which were not registered in the Register of Commerce, or businesses which were registered in the Register of Commerce under section 13(3) of the Private Business Activities Act (i.e. voluntarily and not pursuant to the obligation to register under section 13(1) of the Act). The applicant company also submitted that, even though the contents of the Rules were not legally binding, businesses were applying them for the sake of convenience. It further maintained that the Prague Finance Department, having applied the Regulations which were not legally binding, had breached section 2(1) of Administration of Taxes Act (No. 337/1992) as amended (zákon o správě daní a poplatků), which had provided that tax administrators were obliged to act and decide in compliance with statutes (zákony) and other legislative or regulatory instruments binding in general (obecně závazné právní předpisy), and section 4(1) of the Income Tax Act (No. 157/1989) as amended (zákon o důchodové dani), as it had concluded that the profits of the applicant company had been increased by amounts by which its expenses had not been increased contrary to the law.
13. On 22 December 1993 the Prague Municipal Court rejected the applicant company's appeal. It considered that in 1991 the Ministry of Finance was entitled to regulate the way in which accounts were to be kept and that there was no law obliging the Ministry to publish principles and regulations concerning this matter in the Official Gazette. Under section 8(1)(b) of the Official Gazette Act (No. 131/1989) (zákon o sbírce zákonů), measures (opatření) of central administrative authorities and other central authorities were to be published only where statute so required. As the applicant company did not increase its income tax base for 1991, it had not complied with the Regulations, and there was a breach of section 25(2) of the Private Business Activities Act.
14. On 1 March 1994 the applicant company lodged a constitutional appeal alleging a violation of its right under Article 2(4) of the Constitution, according to which “everyone shall be allowed to do anything which is not forbidden by law, and no one shall be forced to do anything which is not required by law”. It also invoked Article 4(1) of the Charter of Fundamental Rights and Freedoms, according to which “obligations shall be imposed only by law, within its limits, and by observing fundamental rights and freedoms”. The applicant company claimed that the Prague Municipal Court had not decided whether the Regulations met the requirements of the Official Gazette Act regarding generally binding legislative or regulatory instruments, and had not taken into consideration the principle that any secondary legal act must be published in the Official Gazette (sbírka zákonů), must have an appropriate title and form, and must be intended to become valid and enforceable in order to be binding on individuals and legal entities not subordinate to the issuing body.
15. The applicant company also criticised the opinion of the Prague Municipal Court that it was obliged to observe internal regulations (interní normativní akty) which were not accessible to it and whose contents could not objectively be found out and applied. The applicant company concluded that in 1991 it had been required to fulfil obligations imposed on it by the Regulations, of which it had not been, and could have not been, aware as they had been imposed in a manner and form incompatible with the Official Gazette Act.
16. On 2 June 1994 the Constitutional Court (Ústavní soud) dismissed the applicant company's constitutional appeal as ill-founded. The Court found inter alia that:
"Section 25 of the Private Business Activities Act ... established the obligation to keep single or double-entry book-keeping in compliance with accounting rules as prescribed by law. In 1991 the ... Ministry of Finance was entitled to set up conditions and requirements for accounting ... To specify obligations set out in section 25 ..., the ... Ministry of Finance issued the Private Business Accounting Rules, ... published in Financial Bulletin No. 5. This measure ... further defined obligations on businesses in respect of book-keeping. Moreover, section 29(1) and (3) define the responsibility of businesses for the state of their accounting records and set out the sanctions arising from a violation of the obligations under ... section 25 ... or from a failure to observe the Rules. This measure, which sets up standards of book-keeping for private businesses, was followed by the Ministry of Finance Regulations ... of 17 April 1991, ... published in Financial Bulletin No. 6/7 ... The date of the entry into force of these Regulations is not specifically given; nevertheless, it states that the transfer from single to double entry book-keeping shall always take place on 1 January of an accounting year ...
... as regards any insufficiency in the publication of those Regulations ..., the Court can, in general, agree with the applicant that ordinary legal acts become valid only when published in the Official Gazette. In cases where there is no reason to publish generally binding legal acts of central administrative authorities, such legal acts must be announced in the Official Gazette. The present case concerned a regulation of a ... central administrative authority which, in the light of section 8(1)(b) of the Official Gazette Act, had to be published in the Official Gazette only if so provided by law. This was not the case for section 25 of the Private Business Activities Act."
17. Czech tax legislation has adopted the principle that taxes and contributions may be imposed only on the basis of statute (zákon), as enunciated in Article 11(5) of the Charter of Fundamental Rights and Freedoms.
18. At the material time income tax was governed by the Income Tax Act (No. 157/1989) which came into force on 1 January 1990. Under section 4(1)(a), the tax base was the profits resulting from the activities caught by the tax, as established in the taxpayer’s accounts, together with any amounts by which the expenses shown in those accounts had been increased or the revenues reduced in violation of the law. The Act was successively amended by Acts Nos. 108/1990, 574/1990 and 578/1991.
19. On 1 January 1993 the Administration of Taxes Act (No. 337/1992) came into force. It governed, inter alia, the procedure for the assessment of tax obligations and the calculation of taxes to be applied by financial authorities and taxpayers. Under section 2(1), tax administrators were obliged to act in compliance with statutes and other generally binding legislative and regulatory instruments, and to protect the interests of the State while maintaining the rights and legal interests of taxpayers and other persons involved in tax proceedings. The Act was successively amended by Acts Nos. 35/1993, 157/1993 and 302/1993.
20. The obligation for businesses to keep single or double-entry book accounts in compliance with prescribed accounting principles was laid down by section 25(2) of the Private Business Activities Act (No. 105/1990), which came into force on 1 May 1990. According to the first paragraph of this provision, businesses were required to keep accounts showing their revenues, their expenses and the results of their business activities, and the assets used for, and the liabilities ensuing from, those business activities. The Act specified neither the legal form under which accounting principles be adopted nor the authority entitled to issue them.
21. The Ministry of Finance had jurisdiction over accounting matters by virtue of section 14 of the Socio-economic Information Act (No. 21/1971), as amended by Act No. 128/1989, which empowered the Ministry to regulate accounting, budgeting, calculation and matters of financial reporting, and to issue model accounts, related guidelines and other accounting standards. The Act did not require the Ministry to publish measures taken by it in the Official Gazette.
22. The Private Business Accounting Rules (“the Rules”), published in Financial Bulletin No. 5 on 15 June 1990, introduced the requirement for businesses to use single or double-entry book-keeping and indicated that the base accounting period was to be the calendar year. The Rules came into effect on 1 June 1990. They referred to the Private Business Activities Act and the fact that they were issued by the Ministry of Finance for the purposes of specifying the obligations introduced by section 25 of the Act. They did not, however, make transitional regulations for businesses which were starting to use double-entry book-keeping. They set out the sanctions arising from a violation of the obligations under section 25 and from a failure to observe the Rules.
23. The Regulations on the procedure for passing from single to double-entry book-keeping (“the Regulations”), published in Financial Bulletin No. 6/7 on 30 May 1991, made provision for the transition from single to double-entry book-keeping. Amongst other matters, Section 4(e) provided that, when the transition was made, the business’ income tax base for the current year was to be increased, apart from non-deductible and deductible items specified by statute, by the value of materials, depreciating assets and stock, if the relevant invoices were entered in the accounting books and had been paid before 31 December of the previous year. The Regulations did not contain any reference to the Private Business Activities Act and did not specify the date on which they would become effective.
24. Neither the Rules nor the Regulations were published or announced in the Official Gazette.
25. The Official Gazette Act (No. 131/1989), as amended by Act No. 426/1990, governed, inter alia, the manner of promulgating legislative or regulatory instruments binding on individuals and legal entities in general, as well as the measures of central authorities.
26. According to section 2, the full wording of all constitutional and other statutes (zákony) enacted by Parliament and legal measures (zákonná opatření) taken by the Parliamentary President’s office, orders issued by the Government (nařízení vlády) and legislative statutory instruments taken by central administrative or other central authorities - decrees (vyhlášky), save for the exceptions enumerated in section 3, must be published in the Official Gazette.
27. According to section 3, in the case of rulings (výnosy) issued by the central administrative or other central authorities, an announcement in the Official Gazette of their delivery will suffice if they concern, inter alia, a small number of recipients, or govern details of labour and social security rights and obligations of a group of closely linked persons.
28. Section 6 provides that the legal acts enumerated in sections 2 and 3 become valid on the day of their publication in the Official Gazette and are enforceable on the fifteenth day after such publication, unless otherwise postponed.
29. Section 8(1)(b) provides that measures (opatření) taken by the central administrative or other central authorities can either be published in full in the Official Gazette, or simply announced there where a statute so requires. According to section 8(2), such measures or internal instructions (vnitřní směrnice) are not to be described as “decrees” or “rulings”.


ITEMID: 001-57557
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF PIERSACK v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Just satisfaction reserved
TEXT: 7. The applicant, a Belgian national born in 1948, is a gunsmith. He is in the process of serving in Mons prison a sentence of eighteen years’ hard labour imposed on him on 10 November 1978 by the Brabant Assize Court for murder.
8. During the night of 22-23 April 1976, two Frenchmen, Mr. Gilles Gros and Mr. Michel Dulon, were killed by revolver shots in Brussels whilst they were in a motor-car with Mr. Piersack, Mr. Constantinos Kavadias (against whom proceedings were subsequently discontinued) and a Portuguese national, Mr. Joao Tadeo Santos de Sousa Gravo.
9. On 9 July 1976, Mr. Preuveneers, an investigating judge at the Brussels Court of First Instance, issued a warrant for the arrest of the applicant, who was suspected of having caused both deaths. He was in France at the time, but was arrested by the French authorities who, after agreeing to grant his extradition, handed him over to the Belgian police (gendarmerie) on 13 January 1977. The Courtrai procureur du Roi (public prosecutor) so informed his colleague in Brussels by a letter of the same date. Mr. Pierre Van de Walle, a senior deputy procureur, initialled the letter and forwarded it to the official in the public prosecutor’s department (parquet) who was dealing with the case, one Mrs. del Carril. She transmitted it to Mr. Preuveneers with a covering note (apostille) dated 17 January.
10. On 4 February 1977, the investigating judge wrote to the Brussels procureur du Roi to enquire whether, as regards the co-accused Santos de Sousa, the public prosecutor’s department intended to report the facts to the Portuguese authorities, those authorities apparently being no longer willing to grant his extradition. On his covering note, the judge added in manuscript, between brackets, the words "for the attention of Mr. P. Van de Walle". Mrs. del Carril replied to Mr. Preuveneers on 9 February 1977.
11. On 20 June, the procureur général (State prosecutor) attached to the Brussels Court of Appeal sent to the procureur du Roi the results of letters rogatory executed in Portugal concerning Mr. Santos de Sousa. After initialling the covering note, Mr. Van de Walle forwarded it to Mr. De Nauw, the deputy who had taken over from Mrs. del Carril in dealing with the case; Mr. De Nauw transmitted the note to the investigating judge on 22 June.
12. On 13 December 1977, Mr. Van de Walle took his oath as a judge on the Brussels Court of Appeal, to which office he had been appointed on 18 November. Most of the investigations had been completed by that time, although some further formal steps were taken at a later date.
13. On 12 May 1978, the deputy, Mr. De Nauw, signed an application for an arrest warrant (réquisitoire de prise de corps); prior to that, in a report of forty-five pages, he had referred the matter to the procureur général attached to the Court of Appeal, who had replied on 11 May. By judgment of 16 June, the Indictments Chamber (Chambre des mises en accusation) of the Brussels Court of Appeal remitted the applicant for trial before the Brabant Assize Court on charges of voluntary and premeditated manslaughter of Mr. Gros and Mr. Dulon. The procureur général drew up the formal indictment on 27 June.
14. The trial took place from 6 to 10 November 1978 before the Assize Court which was presided over by Mr. Van de Walle. After the court had heard, amongst others, numerous prosecution and defence witnesses, the twelve members of the jury withdrew to consider their verdict. Mr. Piersack had maintained throughout that he was innocent. On the third question put to them, concerning the "principal count", they arrived at a verdict of guilty, but only by seven votes to five. After deliberating on that question in private, the President and the two other judges (assesseurs) declared that they agreed with the majority.
In the final event, the Assize Court convicted the applicant of the murder of Mr. Dulon and acquitted him as regards the other charges; it accepted that there were mitigating circumstances and sentenced him on 10 November 1978 to eighteen years’ hard labour. It also recorded that on account of his nationality it had not been possible to obtain the extradition to Belgium of Mr. Santos de Sousa, who had been arrested in Portugal.
15. The applicant then appealed on points of law to the Court of Cassation. His sixth ground of appeal, the only ground that is relevant in the present case, was that there had been a violation of Article 127 of the Judicial Code, which provides that "proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as public prosecutor (ministère public) ...". He contended that the words "for the attention of Mr. P. Van de Walle" appearing in manuscript on the covering note of 4 February 1977 (see paragraph 10 above) showed that Mr. Van de Walle, and not some other judicial officer in the public prosecutor’s department, had been dealing with the matter at the relevant time and had, accordingly, taken some part or other in the investigation of the case. Mr. Piersack made no mention of the letter of 13 January and the note of 20 June 1977 (see paragraphs 9 and 11 above), since at that stage neither he nor his lawyer had identified the author of the initials marked thereon; the Government on their own initiative supplied this information to the Commission in their written observations of March 1980 on the admissibility of the application.
16. In his submissions, Mr. Velu, an avocat général, retraced developments in the relevant Belgian legislation and judicial decisions, distinguishing between three periods:
(a) Before 1955, although there were no written rules on the subject, the Court of Cassation had delivered eight judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and, in particular, on the assize court bench. The Court of Cassation founded this prohibition on a general and absolute principle that was said to derive from the very nature of the functions. The avocat général summarised the judgments as follows:
"It is of little moment - that the judicial officer in the public prosecutor’s department intervened in the case only occasionally or by chance...;
- that his intervention did not implicate one or more of the accused by name;
- that his intervention did not involve a formal step in the process of investigation.
It suffices that the judicial officer in the public prosecutor’s department personally played some part in the conduct of the prosecution in the case in question.
There is incompatibility as soon as the judicial officer, during the course of the prosecution, has personally intervened in the case in the capacity of member of the public prosecutor’s department."
(b) The second period (1955-1968), during which the Court of Cassation apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge, was marked by two new factors: the incorporation of the Convention into the Belgian domestic legal system and the developments in domestic case-law with regard to the general principle of law whereby cases must be impartially examined by the court.
The litigant’s right to "an impartial tribunal", within the meaning of Article 6 § 1 (art. 6-1) of the Convention, could imply either that a judge was simply obliged to withdraw if he were at all biased as regards the case or, alternatively, that he was under the more extensive duty of withdrawing whenever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartiality. The avocat général rejected the first interpretation, which he described as "restrictive", in favour of the second, the "extensive", interpretation; he relied notably on Article 31 of the Vienna Convention on the Law of Treaties (account to be taken of the object and purpose) and on the Delcourt judgment of 17 January 1970 (Series A no. 11, pp. 14-15, § 25 in fine). As regards the general principle of law whereby cases must be impartially examined by the court, he also referred to judgments of the Belgian Court of Cassation and the Belgian Conseil d’État. In addition, he cited the following passage from an inaugural address of 1 September 1970 to the Court of Cassation: "any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision".
(c) The third period saw the entry into force of Articles 127 and 292 of the Judicial Code (see paragraph 22 below) and the application by the Court of Cassation of the second of these Articles to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor’s department. According to the avocat général, the five judgments that he listed followed the same approach as those delivered in the first period and established that:
(i) notwithstanding Article 292 of the Judicial Code, the general principle of law whereby cases must be impartially examined by the court had retained its full force;
(ii) for the purposes of that Article, the expression "dealing with a case in the exercise of the functions of public prosecutor" signified intervening therein in the capacity of prosecuting party;
(iii) there could not be said to have been such an intervention if, in the case concerned, a judicial officer in the public prosecutor’s department had simply
- appeared at a hearing at which the court did no more than adopt a purely procedural measure; or
- taken some step which was manifestly without effect on the conduct of the prosecution.
In the light of the foregoing, the avocat général concluded that the Court of Cassation should "set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground, to be taken into consideration by the Court of its own motion, of violation either of Article 6 § 1 (art. 6-1) of the Convention ... or of the general principle of law whereby cases must be impartially examined by the court".
The avocat général stressed that the covering note of 4 February 1977 emanated from the investigating judge, the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor’s department who were dealing with the prosecution. And Mr. Preuveneers had added to the covering note, in manuscript, the words "for the attention of Mr. P. Van de Walle", thereby indicating the specific addressee for whom the note was personally intended:
"If the investigating judge marked this covering note as being for Mr. P. Van de Walle’s attention, it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution.
What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the two officers had been in contact regarding the investigation of the case?
It is of little moment that other judicial officers in the public prosecutor’s department intervened in the case, for example to follow up the investigating judge’s covering note, or that Mr. Van de Walle intervened only by chance or occasionally, or that such intervention has not been shown to have implicated the appellant or a co-accused by name or ... to have involved a formal step in the process of investigation.
Finally, there would be no reasonable explanation for the handwritten words ... if Mr. Van de Walle’s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution."
Even if the Court of Cassation were not to allow the appeal on the sixth ground, which was based on Article 127 of the Judicial Code, the circumstances described above were, in the opinion of the avocat général, Mr. Velu, sufficient to give rise to legitimate doubts as to whether the President of the Assize Court had offered the guarantees of impartiality required both by Article 6 § 1 (art. 6-1) of the Convention and by the general principle whereby cases must be impartially examined by the court.
17. The Court of Cassation dismissed the appeal on 21 February 1979.
As regards the sixth ground of appeal, the Court of Cassation observed firstly that the mere despatch of the covering note of 4 February 1977 did not necessarily show that Mr. Van de Walle had "acted in the case as public prosecutor", within the meaning of Article 127 of the Judicial Code.
The Court of Cassation also took into consideration of its own motion Article 6 § 1 (art. 6-1) of the Convention and the general principle of law establishing the right to the impartiality of the court. It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled. However, the Court held that the documents which it could take into account did not reveal that after the public prosecutor’s department had received the covering note mentioned in the ground of appeal, Mr. Van de Walle, who was then a senior deputy to the Brussels procureur du Roi, had taken any decision or intervened in any manner whatsoever in the conduct of the prosecution relating to the facts in question. Admittedly, for a judge’s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor’s department, it was not essential that such intervention should have consisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation. Nevertheless, it could not be assumed that a judicial officer in the public prosecutor’s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case. In this connection, the Court of Cassation noted finally that it was not the senior deputy Van de Walle who had replied to the covering note.
18. In criminal matters, the public prosecutor’s department "conducts prosecutions in the manner specified by law" (Article 138, first paragraph, of the Judicial Code). In that capacity, it investigates, and institutes proceedings in respect of, offences and then, if appropriate, appears at the trial in order to argue the case for the prosecution.
All the judicial officers in the public prosecutor’s department form a hierarchical body which is generally recognised as being characterised by unity, indivisibility and independence.
In addition to the departments of the procureur général at the Court of Cassation and of the procureurs généraux at the Courts of Appeal, there is a procureur du Roi for each district; subject to the supervision and directions of the procureur général attached to the Court of Appeal, a procureur du Roi acts as public prosecutor before the District Courts, the Courts of First Instance, the Commercial Courts and the District Police Courts (Article 150 of the Judicial Code). He is aided by one or more deputies who are subject to his personal supervision and directions, including one or more senior deputies appointed by Royal Decree who assist him in the management of the public prosecutor’s department (Article 151 of the Judicial Code).
19. In the Brussels public prosecutor’s department, there are several dozen judicial officers all of whom are answerable to the procureur du Roi. The department is divided into sections, with a senior deputy at the head of each section. As a strict matter of law, the individual deputies come under the sole authority of the procureur du Roi who himself comes under the authority of the procureur général attached to the Court of Appeal, but in practice a senior deputy exercises certain administrative powers over the deputies. In particular, he revises their written submissions to the courts, discusses with them the approach to be adopted in a specific case and, if the occasion arises, gives them advice on points of law.
One of the above-mentioned sections - section B - deals with indictable and non-indictable offences (crimes et délits) against the person. Mr. P. Van de Walle was the head of this section during the period in question, until his appointment to the Brussels Court of Appeal (see paragraph 12 above). According to the Government, the procureur du Roi regarded himself at that time as personally responsible for cases - like Mr. Piersack’s - involving an indictable offence, the number whereof was actually fairly small; he worked on those cases directly with the deputy in charge of the file - on this occasion, Mrs. del Carril and then Mr. De Nauw -, rather than through the intermediary of the senior deputy whose principal role was to countersign documents, if not to act as a "letter-box". The applicant contested this version of the facts, maintaining that the Government were giving an exaggerated view of the "autonomy" enjoyed by the deputies vis-à-vis the senior deputies.
20. Under Article 98 of the Belgian Constitution, a jury has to be constituted in all cases involving an indictable offence. Assizes are held, as a rule at the chief town in each province, in order to try accused persons remitted for trial there by the Court of Appeal (Articles 114 to 116 of the Judicial Code and Article 231 of the Code of Criminal Procedure).
Each assize court is composed of a President and two other judges (assesseurs); for criminal matters, it sits with a jury of twelve members (Articles 119 to 124 of the Judicial Code).
The President’s duties include directing the jurors in the exercise of their functions, summing-up the case on which they have to deliberate, presiding over the whole of the procedure and determining the order in which those wishing to do so shall address the court; he also keeps order in court (Article 267 of the Code of Criminal Procedure). He is entitled by law to take, at his discretion and on his own initiative, any steps which he may consider expedient for the purpose of establishing the truth, and he is bound in honour and conscience to make every effort to that end, for example by ordering of his own motion the attendance of witnesses or the production of documents (Articles 268 and 269).
21. After closing the hearings (Article 335, last paragraph, of the Code of Criminal Procedure), the President puts to the jury the questions arising from the indictment and hands the text of those questions to the foreman of the jury (Articles 337 to 342). The jurors then retire to their room to deliberate together, in the absence of the President and the other judges; they may return only when they have arrived at their verdict (Articles 342 and 343).
To be valid, the jury’s verdict must be adopted by a majority for or against the accused; if the voting is equal, he is acquitted (Article 347). However, if he is found guilty on the principal count by no more than the simple majority of seven votes to five - as was the case for Mr. Piersack (see paragraph 14 above) -, the President and the two other judges deliberate together on the same question; if a majority of them does not agree with the majority of the jury, the accused is acquitted (Article 351). If there is a finding of guilt, the judges retire with the jurors to the jury-room and they deliberate as a single body, under the chairmanship of the President of the Court, on the sentence to be imposed in accordance with the criminal law; the decision is taken by an absolute majority (Article 364).
22. Article 292 of the 1967 Judicial Code prohibits the concurrent exercise of different judicial functions, except where otherwise provided by law; it lays down that "any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function" shall be null and void. Article 127 specifies that "proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as ... public prosecutor (ministère public) or has delivered rulings on the conduct of the investigations".
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88555
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MARSDEN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Leslie Marsden, is a British national who was born in 1948 and lives in West Yorkshire. He was represented before the Court by Ms C. Greenwood, Citizens Advice Bureau, Halifax. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 19 August 1996. His claim for widows’ benefits, namely Widow’s Pension (“WP”), was made on 20 June 2004 and was rejected on 17 November 2004 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 18 May 2005. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-139284
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ADAMS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr Andrew Keith Adams, is a British national, who was born in 1970 and lives in Newcastle-On-Tyne. He is represented before the Court by D. Machover, a lawyer practising in London with Hickman & Rose.
2. On 18 May 1993 the applicant was convicted by a jury of murder. K.T. was the principal witness at his trial. The applicant was subsequently sentenced to life imprisonment.
3. On 16 January 1998 the Court of Appeal (Criminal Division) (“CACD”) dismissed his appeal.
4. In 1998 the applicant applied to the Criminal Cases Review Commission (“CCRC”) for a review of his conviction. On 27 September 2005 the CCRC referred the applicant’s case back to the CACD.
5. On 12 January 2007 the CACD allowed the applicant’s appeal. It considered in detail a number of alleged failings in the applicant’s defence at trial. It concluded that the failure by the applicant’s defence team to deploy relevant evidence in respect of, inter alia, K.T. in his defence resulted in his conviction being unsafe, explaining:
“156. It is difficult to conclude that the criticisms and failures which we have found in respect of any one of the individual topics were on their own sufficient to render the verdict unsafe but we are quite satisfied that taken together, cumulatively they were sufficient to render the verdict unsafe. Each of these topics was important ...
157. We are not to be taken as finding that if there had been no such failures the appellant would inevitably have been acquitted. We are however satisfied for the reasons given that the verdict is unsafe. The appeal will be allowed and the conviction quashed.”
6. Following the quashing of the conviction, the applicant applied to the Secretary of State for compensation for a miscarriage of justice pursuant to section 133 of the Criminal Justice Act 1988 (“the 1988 Act”).
7. By letter dated 3 January 2008 the applicant’s solicitors were informed that the Secretary of State did not consider that a right to compensation arose in his case, for two reasons. First, the applicant’s conviction had not been reversed on the basis of new or newly discovered facts. Second, it could not be said that there had been a miscarriage of justice in the sense that the applicant should never have been convicted. All that could be said, on the basis of the judgment of the CACD, was that the jury might or might not have reached a different conclusion had the defence made proper use of the material in question.
8. The applicant subsequently brought judicial review proceedings challenging the decision to refuse to pay him compensation under section 133 of the 1988 Act. He contended that he met the criteria for compensation set out in that section.
9. The claim was dismissed by the Divisional Court on 4 February 2009. The court referred to the comment of the CACD to the effect that the judgment quashing the conviction was not to be taken as finding that if there had been no failures the applicant would inevitably have been acquitted. The court considered the discussion of the meaning of “miscarriage of justice” by Lords Bingham of Cornhill and Steyn in R (Mullen) v. Secretary of State for the Home Department ([2004] UKHL 18) and held that the applicant did not fall within either interpretation. The court further noted counsel for the applicant’s concession that he could not succeed in showing beyond reasonable doubt that a miscarriage of justice had occurred in light of the Court of Appeal’s judgment in R (Allen) v. Secretary of State for Justice ([2008] EWCA Civ 808).
10. Finally, the court concluded that, in any event, the conviction had not been quashed on the basis of new or newly discovered facts.
11. The applicant was granted leave to appeal on 10 June 2009. On 27 November 2009 the Court of Appeal dismissed the appeal. Lord Justice Dyson, giving judgment for the court, accepted that the applicant’s conviction had been quashed on the basis of new or newly discovered facts. He therefore turned to examine whether there had been a miscarriage of justice.
12. He identified four categories of case where the CACD allowed an appeal against conviction on the basis of fresh evidence, and explained each category as follows:
“19. ... A category 1 case is where the court is sure that the defendant is innocent of the crime of which he has been convicted. An obvious example is where DNA evidence, not obtainable at the time of trial, shows beyond doubt that the defendant was not guilty of the offence. A category 2 case is where the fresh evidence shows that he was wrongly convicted in the sense that, had the fresh evidence been available at the trial, no reasonable jury could properly have convicted. An example is where the prosecution case rested entirely on the evidence of a witness who was put forward as a witness of truth and fresh evidence undermines the creditworthiness of that witness, so that no fair-minded jury could properly have convicted on the evidence of that witness. It does not follow in a category 2 case that the defendant was innocent. A category 3 case is where the fresh evidence is such that the conviction cannot be regarded as safe, but the court cannot say that no fair-minded jury could properly convict if there were to be a trial which included the fresh evidence. The court concludes that a fair-minded jury might convict or it might acquit. There is a fourth category of case to which Lord Bingham referred in Mullen. This is where a conviction is quashed because something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.”
13.
14. The present case, the judge said, was neither a category 1 nor a category 2 case. He continued:
“20. ... On any view, it was a category 3 case. As I have said, the CACD accepted that there was some force in the submissions made on behalf of the prosecution that the case against the appellant was strong. Nevertheless, they said that the case was ‘by no means overwhelming’. In other words, they did not say that no fair-minded jury could properly have convicted if the undeployed evidence had been before them. The appellant had already been in custody for some 15 years when the CACD allowed his appeal. No doubt it was for that reason that there was no order for a retrial ...”
15. Noting counsel for the applicant’s submission that it was also a category 4 case, the judge examined carefully Lord Bingham’s interpretation of miscarriage of justice in Mullen and subsequent case-law in so far as it discussed that interpretation. He concluded that even if the failure to use the undeployed evidence had resulted in an unfair trial in the applicant’s case, that did not lead to a miscarriage of justice according to Lord Bingham’s interpretation. He explained:
“61. ... The essence of his interpretation is that something has gone ‘seriously wrong in the ...conduct of the trial’...
62. ... I do not consider that the errors of trial counsel identified by the CACD in this case caused something to go seriously wrong with the trial process. These errors were committed by experienced and apparently competent counsel acting conscientiously in good faith in the best interests of their client. It cannot fairly be said that the errors showed that the appellant was deprived of effective representation. Accordingly, on an application of Lord Bingham’s interpretation, there was no miscarriage of justice in this case.”
16. On 25 May 2010 the applicant was granted permission to appeal to the Supreme Court. His appeal was heard together with those of two other appellants. On 11 May 2011 the Supreme Court dismissed his appeal.
17. Lord Phillips, in the majority, considered the primary object of section 133 to be clear, namely to provide entitlement to compensation to a person who had been convicted and punished for a crime that he did not commit. But he considered that a subsidiary object of the section was that compensation should not be paid to a person who had been convicted and punished for a crime that he did commit. He continued:
“37. ... The problem with achieving both objects is that the quashing of a conviction does not of itself prove that the person whose conviction has been quashed did not commit the crime of which he was convicted. Thus it is not satisfactory to make the mere quashing of a conviction the trigger for the payment of compensation ...”
18. As a framework for the discussion of the correct interpretation of the phrase “miscarriage of justice”, Lord Phillips adopted the categorisation formulated by the Court of Appeal of the circumstances in which convictions might be quashed on the basis of the discovery of fresh evidence. The four categories identified were:
“9 ... (1) Where the fresh evidence shows clearly that the defendant is innocent of the crime of which he has been convicted.
(2) Where the fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant.
(3) Where the fresh evidence renders the conviction unsafe in that, had it been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.
(4) Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.”
19. Lord Phillips considered that section 133 of the 1988 Act did not embrace categories 3 or 4. He then turned to consider category 1, observing:
“43. ... Plainly section 133 will embrace this category, but does it provide the exclusive definition of ‘miscarriage of justice’ in that section? ...”
20. He examined a number of arguments for and against the limitation of the phrase “miscarriage of justice” to this category of cases, noting in particular that it would exclude from entitlement to compensation those who no longer seemed likely to be guilty, but whose innocence was not established beyond reasonable doubt. He considered this a “heavy price to pay” for ensuring that no guilty person was ever the recipient of compensation.
21. Examining, finally, category 2, Lord Phillips expressed doubts as to the practicality and sense of the test it proposed and found that it did not provide a satisfactory definition. He therefore concluded that it should be replaced with a more robust test of miscarriage of justice. He continued:
“55. ... A new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it. This is a matter to which the test of satisfaction beyond reasonable doubt can readily be applied. This test will not guarantee that all those who are entitled to compensation are in fact innocent. It will, however, ensure that when innocent defendants are convicted on evidence which is subsequently discredited, they are not precluded from obtaining compensation because they cannot prove their innocence beyond reasonable doubt. I find this a more satisfactory outcome than that produced by category 1. I believe that it is a test that is workable in practice and which will readily distinguish those to whom it applies from those in category 3. It is also an interpretation of miscarriage of justice which is capable of universal application.”
22. Lord Phillips also considered the relevance of Article 6 § 2 to the test for compensation under section 133. He agreed with the reasons given by the Court of Appeal in the applicant’s case for rejecting any reliance on Article 6 § 2. He added:
“58. ... The appellants’ claims are for compensation pursuant to the provisions of section 133. On no view does that section make the right to compensation conditional on proof of innocence by a claimant. The right to compensation depends upon a new or newly discovered fact showing beyond reasonable doubt that a miscarriage of justice has occurred. Whatever the precise meaning of ‘miscarriage of justice’ the issue in the individual case will be whether it was conclusively demonstrated by the new fact. The issue will not be whether or not the claimant was in fact innocent. The presumption of innocence will not be infringed.”
23. As to the scope of the term “miscarriage of justice”, Lord Hope explained:
“96. ... It clearly includes cases where the innocence of the defendant is clearly demonstrated. But [Article 14(6) of the International Covenant on Civil and Political Right 1966 (“ICCPR”), on which section 133 was based] does not state in terms that the only criterion is innocence. Indeed, the test of ‘innocence’ had appeared in previous drafts but it was not adopted. I would hold, in agreement with Lord Phillips ... that it includes also cases where the new or newly discovered fact shows that the evidence against the defendant has been so undermined that no conviction could possibly be based upon it. In that situation it will have been shown conclusively that the defendant had no case to answer, so the prosecution should not have been brought in the first place.
97. There is an important difference between these two categories. It is one thing to be able to assert that the defendant is clearly innocent. Cases of that kind have become more common and much more easily recognised since the introduction into the criminal courts, long after article 14(6) of the ICCPR was ratified in 1976, of DNA evidence. It seems unlikely that the possibility of demonstrating innocence in this way was contemplated when the test in article 14(6) was being formulated ... The state should not, of course, subject those who are clearly innocent to punishment and it is clearly right that they should be compensated if it does so. But it is just as clear that it should not subject to the criminal process those against whom a prosecution would be bound to fail because the evidence was so undermined that no conviction could possibly be based upon it. If the new or newly discovered fact shows conclusively that the case was of that kind, it would seem right in principle that compensation should be payable even though it is not possible to say that the defendant was clearly innocent. I do not think that the wording of article 14(6) excludes this, and it seems to me that its narrowly circumscribed language permits it.”
24. He therefore concluded that category 1 plainly fell within the scope of section 133. He further held that category 2, as rephrased by Lord Phillips, also fell within the scope of that section. He added:
“102. ... It may be quite impossible to say in such a case that he was, beyond reasonable doubt, innocent. But, as the evidence against him has been completely undermined, it can be said that it has been shown beyond reasonable doubt, or ‘conclusively’, that there has been a miscarriage of justice in his case which was as great as it would have been if he had in fact been innocent, because in neither case should he have been prosecuted at all.”
25. On the question of the compatibility of section 133 with Article 6 § 2 of the Convention, Lord Hope examined the judgments of this Court and held that the principle that was applied was that it was not open to the State to undermine the effect of an acquittal. However, he considered that Article 14(6) ICCPR did not forbid comments on the underlying facts of the case in subsequent proceedings of a different kind, such as a civil claim of damages, when it was necessary to find out what happened. He was of the view that the system created by Article 14(6) did not cross the “forbidden boundary”. He noted that the procedure laid down in section 133 provided for a decision to be taken by the executive on the question of entitlement to compensation, which was entirely separate from the proceedings in the criminal courts. He further noted that in none of the cases from Austria or Norway was the court called upon to consider the interaction between Article 6 § 2 and Article 3 of Protocol No. 7. He continued:
“111. ... On the contrary, the fact that the court was careful to emphasise in Sekanina v Austria, para 25 that the situation in that case was not comparable to that governed by article 3 of the Seventh Protocol is an important pointer to the conclusion that ... article 14(6) and section 133 of the 1988 Act are in the category of lex specialis and that the general provision for a presumption of innocence does not have any impact on them. A refusal of compensation under section 133 on the basis that the innocence of the convicted person has not been clearly demonstrated, or that it has not been shown that the proceedings should not have been brought at all, does not have the effect of undermining the acquittal.”
26. Lady Hale agreed that a “miscarriage of justice” in section 133 should be interpreted as proposed by Lord Phillips as the phrase was clearly capable of bearing a wider meaning than conclusive proof of innocence. She explained:
“115. As I understand it, Lord Phillips’ formulation ... would limit the concept to a person who should not have been convicted because the evidence against him has been completely undermined ... I agree with Lord Phillips that the object of this particular exercise is to compensate people who cannot be shown to be guilty rather than to provide some wider redress for shortcomings in the system.”
27. Lord Kerr also preferred the analysis of Lord Bingham in R (Mullen) to that of Lord Steyn, noting:
“172. ... I cannot accept that the section imposes a requirement to prove innocence. In the first place, not only does such a requirement involve an exercise that is alien to our system of criminal justice, that system of justice does not provide a forum in which assertion of innocence may be advanced. An appeal against conviction heard by the Court of Appeal Criminal Division is statutorily required to focus on the question whether the conviction under challenge is safe. In a number of cases, evidence may emerge which conclusively demonstrates that the appellant was wholly innocent of the crime of which he or she was convicted but that will inevitably be incidental to the primary purpose of the appeal. The Court of Appeal has no function or power to make a pronouncement of innocence ...”
28. Although he proposed his own test, namely whether, on the facts as they stood revealed, it could be concluded beyond reasonable doubt that the applicant should not have been convicted, he was content to subscribe to Lord Phillips’ formulation, observing:
“178. ... This appears to me to achieve the same result as the test which I would have proposed ... The proper application of either test ties entitlement to compensation firmly to the true factual situation. Procedural deficiencies that led to irregularities in the trial or errors in the investigation of offences will not suffice to establish entitlement to compensation. A claimant for compensation will not need to prove that he was innocent of the crime but he will have to show that, on the basis of the facts as they are now known, he should not have been convicted or that conviction could not possibly be based on those facts. Of course, if innocence can be proved, the test, on either formulation, will be amply satisfied.”
29. Although Lord Clarke preferred the category 2 test as formulated by the Court of Appeal, he accepted the test proposed by Lord Phillips on the basis that it was consistent with his view.
30. As regards Article 6 § 2, Lord Clarke considered that the court hearing and determining a claim for compensation under section 133(1) must not say or do anything inconsistent with the claimant’s acquittal. However, he was satisfied that if the analysis set out in the judgment was adopted, there was no risk of its doing so. The question in each case was whether the claimant had proved beyond reasonable doubt that the new or newly discovered fact demonstrated that there was a miscarriage of justice on the basis that no reasonable jury, properly directed, could convict him. The trial of that question in no way affected or impugned the acquittal of the claimant as provided by section 2 of the Criminal Appeal Act 1968. He explained:
“233. The question at such a trial is different and so is the burden of proof. The position is not unlike a civil process where a claimant seeks damages from a defendant who has been acquitted of, say, causing grievous bodily harm to A at a criminal trial. Under English law it is permissible for A to seek damages from the defendant on the ground that he was unlawfully injured by him, alleging all the same facts as had been relied upon at the criminal trial. The critical difference between the two processes is that at the criminal trial the prosecution has to prove guilt beyond reasonable doubt, whereas at the civil trial A only has to prove liability on the balance of probabilities.”
31. Four judges dissented from the Supreme Court’s judgment. Lords Judge, Brown, Rodger and Walker were of the view that section 133 was limited to cases where the defendant had been convicted of an offence of which he was truly innocent (category 1 cases).
32. Details of the relevant domestic law and practice are set out in the judgment of the Grand Chamber in Allen v. the United Kingdom [GC], no. 25424/09 [GC], 12 July 2013.


ITEMID: 001-90866
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DEURING v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Eduard Deuring, is an Austrian national living in Hörbranz (Austria). He was represented by Mr W.L. Weh, a lawyer practising in Bregenz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was, at the relevant time, the owner of K. Deuring & Co, a company producing starch from corn and sugar. Due to ongoing ecological problems with effluents emitted by his company, he installed an in-house sewerage plant.
On 30 June 1998 the Bregenz District Administrative Authority granted an operating permit.
On 21 July 1999 it requested the applicant to comment on charges concerning non-compliance with environmental regulations as set out in the operating permit.
On 31 August 1999 the applicant filed his comments. He submitted that the reason for temporarily exceeding environmental limits was the fact that the sewerage system was still in its early stages. As proof he requested that H.S., the Regional Governor (Landeshauptmann), H.G., a Member of the Regional Government (Landesrat), and B.G., the head of the competent Administrative Authority (Bezirkshauptmann) as well as D.D. and K.D. be summoned.
On 22 November 2000 the Bregenz District Administrative Authority convicted the applicant under Section 366 (1) of the Trade Act (Gewerbeordnung) and issued a fine in the amount of 16, 500 Austrian schillings (ATS). It found him guilty of having repeatedly and continuously overstretched the capacity of the sewerage plant at issue, by exceeding the maximum admissible amount of inflow as set out in the operating permit.
On 12 December 2000 the applicant lodged an appeal.
Having held an oral hearing in which it had heard K. and S., two experts, the Vorarlberg Independent Administrative Panel (Unabhängiger Verwaltungssenat), on 11 May 2001, discontinued proceedings. It found that the pollution was due to technical problems which were outside the applicant's sphere.
On 16 January 2002 the Vorarlberg Regional Governor lodged a complaint with the Administrative Court (Amtsbeschwerde). The applicant did not comment on the Governor's appeal.
By a decision of 25 February 2004 the Administrative Court quashed the decision and remitted the case to the IAP. It found that the significant breach of the inflow limits constituted sufficient reason to believe that the actual deviation from the operating licence's limits was apt to constitute an environmental risk which the regulations under the Trade Act aimed to keep to a minimum. This was tantamount to an unlawful change to the operation of the plant. Following the Administrative Court's decision the applicant did not lodge another request for taking of evidence.
Thereupon the IAP, on 17 May 2004, partially allowed the applicant's appeal. While, following the legal opinion of the Administrative Court, it upheld the applicant's conviction by the District Administrative Authority, it reduced the fine imposed on the applicant to 600 Euros (EUR) (ATS 8,256). As a reason for this reduction the IAP, referring explicitly to Article 6 of the Convention, found that the proceedings had lasted an unreasonably long time.
On 7 July 2004 the applicant lodged a complaint with the Constitutional Court.
By a decision of 19 November 2004 the Constitutional Court refused to deal with the case for lack of prospect of success and, upon the applicant's request, remitted the case to the Administrative Court.
On 4 July 2005 the latter dismissed the applicant's complaint, the judgment being served on the applicant's counsel on 3 October 2005.
Section 366 § 1 of the Trade Act, in so far as relevant, reads as follows:
“The following constitutes an administrative criminal offence, subject to a maximum fine of EUR 3,600:
(...)
(3) Any change to an existing operation of a plant for which an operating permit had been granted or operation thereof.”


ITEMID: 001-101202
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: No violation of P1-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant, Benet Czech, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague.
6. In April 2001 criminal proceedings were instituted against Mr B., who was manager of the applicant company until July 2001 and its sole shareholder until October 2008, on suspicion of having committed tax evasion (zkrácení daně, poplatku a jiné povinné platby). According to the Government the damage caused to the State exceeded CZK 200,000,000 (EUR 8,000,000). Mr. B was replaced as manager and shareholder by Mrs. B.
7. On 13 September 2001 the prosecuting authorities seized CZK 8,861,401.13 (EUR 319,942) and USD 41,677.80 (EUR 29,769) deposited in the applicant company's bank accounts on the suspicion that these assets represented the profits of Mr B.'s criminal activities.
8. Mr B. was prosecuted for acts which are not related to the business pursued by the applicant company. On 4 June 2009 Mr B. was acquitted by the Prague Municipal Court (městský soud), and on 30 April 2010 the Prague High Court (vrchní soud) upheld the judgment. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses, including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties, and requested legal assistance from the competent authorities of 16 countries.
9. On 15 November 2002 the applicant company requested that the seizure be lifted. Its request was dismissed by the Prague High Prosecutor (vrchní státní zástupce) on 17 March 2003. In his view, the investigation so far confirmed that there was a reasonable suspicion that the assets represented the profits of Mr B.'s alleged criminal activities.
10. The applicant company appealed to the Prague High Court which dismissed its complaint on 2 July 2003.
11. On 19 September 2003 the applicant company lodged a constitutional appeal (ústavní stížnost) in which it alleged that the reasoning of the High Court's decision was insufficient. It further complained of an excessive length of the seizure of its assets.
12. On 23 February 2005 the Constitutional Court (Ústavní soud) declared the applicant company's constitutional appeal inadmissible for being manifestly ill-founded. It held that unjustified prolonged seizure of assets could in principle constitute a disproportionate interference with property rights. Nevertheless it did not find that the seizure which had lasted over three years to that date was,, disproportionate. It found the challenged decisions to be neither arbitrary nor in any other way unconstitutional. The decision was served on the applicant company's lawyer on 28 February 2005.
13. On 9 October 2006 the Prague High Prosecutor dismissed a further request of the applicant company to lift the seizure, at least in part. The Prague High Court (vrchní soud) upheld the decision on 21 November 2006. On 30 January 2008 the Constitutional Court, however, quashed that decision finding a violation of the applicant company's right to property. The court held that the length of the seizure, over six years, was already unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. Consequently on 11 March 2008 the Prague High Prosecutor lifted fully the seizure of the applicant company's bank accounts.
14. Pursuant to Article 9, prosecuting authorities shall assess on their own preliminary issues arising in course of proceedings; should a final and binding decision on such an issue be already adopted by a court or another State authority, prosecuting authorities shall be bound by it unless it concerns an issue of guilt of accused.
15. Article 42 provides for rights of a concerned person. According to it anyone whose property was seized, or ought to be seized pursuant to a motion, must be provided with an opportunity to comment on the given case, may attend a hearing, raise own motions, consult the case file within the meaning of Article 65, and file appeals provided for by this law.
16. Article 79a provides for a seizure of financial instruments deposited on a bank account. Under paragraph 1, if the facts indicate that the financial instruments on a bank account are destined for the commission of a crime, or have already been used for such purposes, or represent the profit from criminal activities, a president of a chamber and a prosecutor, or the police authority at the pre-trial stage of criminal proceedings, are empowered to seize them.
17. Pursuant to Article 79a(3), the State authority listed in paragraph (1) lifts or reduces the seizure if such a measure is no more necessary, or it is not necessary to maintain it at the given amount.
18. Under Article 79a(4) the owner of a bank account, whose assets are seized, has the right to request at any time that the seizure be lifted or reduced. A decision on such a request must be given without delay. If the request is dismissed, the owner of the bank account can lodge a new request that does not contain new reasons no sooner than 14 days after the dismissal became final.
19. Article 79a(5) provides that decisions adopted pursuant to paragraphs (1), (3) and (4) may be appealed by a complaint.