ITEMID: 001-111373
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SEGAME SA v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant is a limited company under French law with its registered office in Paris.
6. The applicant company ran an art gallery in Paris. In judgments of 13 September and 8 November 1993, the Paris Commercial Court ordered its judicial reorganisation, followed by its compulsory liquidation. On 21 December 2004, there being no more outstanding debts, the court terminated the liquidation proceedings.
7. From 27 October 1993 to 12 April 1994 the tax authorities inspected the applicant company’s accounts for the period from 1 January 1991 to 8 November 1993. On 6 May and 5 October 1994 they sent them two supplementary tax assessments – one for 1991 and one for 1992 and 1993 – inter alia for supplementary tax on precious metals, jewellery, works of art, collectors’ items and antiques (hereinafter “the tax on works of art”), in accordance with the provisions of Articles 302 bis A to 302 bis E of the General Tax Code (since 1993, Articles 150 V bis to 150 V sexies of the same code).
8. In addition to the additional tax, the applicant company was charged interest for late payment and a fine was imposed under Article 1788 ter of the General Tax Code (Article 1770 octies since 1993), equal at that time to 100% of the unpaid tax. On 25 January 1995 the company was served with a demand to pay a total of 15,927,514 French francs ((FRF) – 2,428,133 euros (EUR)), of which the fine accounted for half (FRF 7,963,757 or EUR 1,214,066.93).
9. On 24 December 1997 the applicant company, represented by its court-appointed administrator, lodged a complaint with the Director of Revenue seeking relief from all the surcharges and fines demanded. It alleged on the one hand that the tax on works of art could be likened either to a value-added tax, which was contrary to Directives 77/388/EEC and 94/5/EC of the Council establishing special provisions applicable, inter alia, to works of art and collectors’ items, or to a capital-gains tax, with an effect equivalent to an export restriction or an internal taxation, both of which were prohibited by Articles 34 and 95 of the Treaty of Rome. The applicant company also argued that the fines, which could be likened to criminal convictions within the meaning of the European Convention on Human Rights, should have been imposed by a court.
10. On 8 June 1998 the Director of Revenue rejected the complaint, stating that the tax concerned was not comparable to a value-added tax and did not hinder the free movement of goods, in so far as it applied to sales made either in France or in any other European Community member State. The Director of Revenue also pointed out that the Court, in its Bendenoun v. France judgment (24 February 1994, Series A no. 284) had acknowledged that the system of administrative penalties was compatible with Article 6 § 1 of the Convention, provided that their application was subject to court supervision.
11. On 31 July 1998 the applicant company brought an action before the Paris Administrative Court seeking exemption from the supplementary tax on works of art demanded of it for the years 1991 to 1993 and from the related penalties, based on the same grounds as its earlier complaint.
12. By a judgment of 4 November 2004, the court rejected the action. Concerning the conformity of the tax penalty with Article 6 § 1 of the Convention, it pointed out that the courts responsible for tax matters had full power of review over the facts concerned and their classification by the authorities, and decided in each case, in the light of the results of that review, either to uphold or apply the tax penalty effectively incurred in the amount provided for by law, without being able to adjust it to the circumstances of the particular case, or, if they considered that the authorities had not established that the infringements of the General Tax Code had been made out, not to fine the taxpayer. The court accordingly deemed that Article 6 § 1 did not necessarily require the tax court to have the power to adjust the amount of the penalty to suit the particular circumstances of the case.
13. On 10 January 2005 the applicant company lodged an appeal with the Paris Administrative Court of Appeal.
14. During those proceedings, order no. 1512 of 7 December 2005 reduced the fine provided for under Article 1788 of the General Tax Code (which became Article 1770 octies in 1993) from 100% to 25% of the unpaid tax.
15. On 13 February 2006 the tax authorities reduced the fine by EUR 910,549.93, and on 6 July 2006 the additional tax on works of art demanded was reduced by EUR 28,735.12 because of a mistake in the calculation.
16. The applicant company used the same arguments before the Court of Appeal as it had before the Administrative Court.
17. By a judgment of 24 November 2006, the Administrative Court of Appeal, having taken note of the reductions and ruled that there was no need for it to take those amounts into account, upheld the judgment on the whole but reduced the price the tax authorities had placed on one work acquired by the applicant company. After careful consideration it rejected the applicant company’s formal and substantive arguments that the tax was at variance with Community law, for example, or that it should not have been applied to the acquisition of certain works. The court also rejected the argument under Article 6 § 1 of the Convention concerning the fine, for similar reasons to those given by the lower court, pointing out that the Administrative Court had full jurisdiction as required by Article 6 § 1, which did not require the court to be able to lower the rate of a fine when the legislation provided for a single rate.
18. The applicant company appealed to the Conseil d’Etat on points of law, alleging, inter alia, that the tax was incompatible with Community law and the fine incompatible with Article 6 § 1 of the Convention, in so far as the court had no power to adjust it to reflect the seriousness of the taxpayer’s conduct according to a statutory scale.
19. By a judgment of 27 June 2008, the Conseil d’Etat rejected the appeal. Regarding the fine, it held as follows:
“Considering ... on the one hand that, in order to make the rate of the fine proportionate to the offence, the order of 7 December 2005 fixed it at 25%, and on the other hand that the tax court, having exercised its full power of review over the facts of the appeal and the classification adopted by the authorities, decides, in each case, depending on the results of that review, either to uphold the surcharge imposed by the authorities or to cancel it if it considers that the taxpayer has not infringed the rules applicable to works of art, and that it therefore has full jurisdiction as required under the provisions of paragraph 1 of Article 6 of the Convention ..., which do not imply that even where the legislation provides for a single rate for the fine in question the court must be able to adjust it and apply a rate lower than that provided for by law; accordingly, in not setting aside the fine provided for in Article 1761 of the General Tax Code in the present case, the court did not commit any error of law.”
20. On 5 April 2005 the applicant company lodged two appeals with the Conseil d’Etat challenging the interpretation by the Minister of the Economy, Finance and Industry (“the Minister”) of the tax law found in the basic administrative documents (in its successive versions of 15 October 1989 and 15 June 1993), whereby the Minister defined the base of the tax on works of art as their selling price, including commission.
21. The applicant company pointed out that Parliament alone had the power to create a tax and determine the key details of its establishment and collection, and submitted that the Minister, in whose name the administrative documents concerned had been drafted, had overstepped his powers.
22. During the proceedings the tax was completely rewritten and the numbering changed, by Article 33 of the Budget Amendment Act 2005, adopted on 30 December 2005 and effective from 1 January 2006. On that occasion the provisions concerning the base of the tax, previously found in the administrative documents, and those concerning the collection of the tax, previously found in the regulatory part of the General Tax Code, were incorporated in the legislative part of the Code.
23. By a judgment of 10 February 2006, the Conseil d’Etat joined the appeals and rejected them. It considered, based on the impugned provisions of the General Tax Code, that the law “implicitly but necessarily” intended to base the tax on works of art on the selling price and, for want of further clarification on this point, the selling price taken into account as a base for the tax should be understood to include all the costs borne by the purchaser. That being so, the Conseil d’Etat considered that, in basing the tax on works of art on the selling price including commission, the Minister had correctly interpreted the impugned provisions and had not laid down any new rules or overstepped his authority.
24. On 21 June 2005 the applicant company lodged two appeals with the Conseil d’Etat to set aside the decisions by which the Prime Minister had implicitly rejected its requests to revoke the regulations governing the means of collecting the tax on works of art, issued pursuant to the Law of 19 July 1976 introducing the said tax. It contended that the provisions in question were of a legal nature and had been introduced by an authority which had no law-making powers. It further alleged that the legal provisions concerning the persons to whom the tax applied were confusing and unclear, in breach of the principle, enshrined in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty.
25. By a judgment of 5 May 2006, the Conseil d’Etat joined the appeals and rejected them. It considered that the regulatory authority had simply laid down the procedure for collecting the tax, in conformity with the provisions of the Law of 19 July 1976, and had not overstepped its authority or the terms of its remit. It further considered that the argument concerning the principle, enshrined in Article 7 of the Convention, that only the law can define a crime and prescribe a penalty could not be relied on in favour of setting aside the refusal to revoke the regulations in issue.
26. The fixed-rate tax on works of art is a particular way of taxing capital gains. It was introduced by Article 10 of the Law of 19 July 1976 on the taxation of capital gains and the creation of a fixed-rate tax on precious metals, jewellery, works of art, collectors’ items and antiques. Until 1993 it was embodied in Articles 302 bis A to 302 bis E of the General Tax Code, then until 31 December 2005 in Articles 150 V bis to 150 V sexies of the same code. The relevant parts of those Articles read as follows.
“I. Subject to the specific provisions applicable to business profits, ... the sale of jewellery, works of art, collectors’ items and antiques shall be subject to a 7% tax when the value exceeds FRF 20,000; when the price is between FRF 20,000 and 30,000, the base of the tax shall be reduced by a sum equal to the difference between FRF 30,000 and the said price.
...
These provisions shall also be applicable to sales made in another member State of the European Economic Community.
...”
“The tax provided for in Article 150 V bis shall be borne by the seller. It shall be paid by the intermediary taking part in the transaction or, failing that, by the buyer, within thirty days and under the same guarantees as turnover tax. However, where the sale is made in another member State of the European Community, the tax shall be paid by the seller, under the same conditions.
The tax shall not be levied where the seller is a professional dealer in the goods concerned.”
“The seller of jewellery or other objects mentioned in the second line of paragraph I of Article 150 V bis may opt, by a declaration made at the time of the sale, for the scheme defined in Articles 150 A to 150 T provided that he is able to show proof of the date and price of acquisition. The conditions of this option are fixed by decree of the Conseil d’Etat.”
27. The Budget Amendment Act 2005 (Law no. 2005-1720 of 30 December 2005), which took effect on 1 January 2006, changed those provisions. Among other things it covered the person legally liable for the tax on works of art, the base on which the tax was assessed and how it was collected. Henceforth, Article 150 VK paragraph 1 of the same code reads:
“The tax shall be borne by the seller or the exporter. It shall be paid by the intermediary resident in France for tax purposes who takes part in the transaction and under his responsibility or, failing that, by the seller or the exporter.
...”
28. Failure to pay the tax on works of art gives rise to a fine. At the material time Article 1788 of the General Tax Code (which became Article 1770 octies in 1993) provided:
“Breaches of Articles 150 V bis to 150 V sexies shall give rise to a tax penalty equal to the unpaid tax and collected in the same manner as turnover tax.”
Order no. 2005-1512 of 7 December 2005 on the simplification of taxation and the harmonisation and adjustment of penalties reduced the fine provided for in Article 1770 octies from 100% to 25% of the unpaid tax. Article 1770 octies became Article 1761 § 2 of the General Tax Code.
29. Traditionally a distinction is made between a full administrative-law action (before an administrative court having full jurisdiction) and an appeal for judicial review seeking to have an administrative decision set aside. In the latter type of appeal the power of the administrative court is limited: it can only set aside a decision retroactively because of a legal flaw, without ruling on the merits. In a full administrative-law action, on the other hand, the powers of the administrative court are much broader: not only can it set aside or uphold an administrative decision, but it can also vary it, replace it with its own decision and rule on the rights of the interested party. It can also order the administrative authorities to pay damages. What is more, when the administrative court has full jurisdiction it examines the lawfulness of the decision referred to it in the light of the legal and factual circumstances at the time when it gives judgment (not, as in appeals for judicial review, at the time when the administrative decision was taken).
Full administrative-law actions include appeals to establish the liability of the State in contractual or extra-contractual matters, actions concerning fiscal or electoral matters (municipal and district), appeals against administrative sanctions, and various other actions.
30. In the realm of tax litigation, the administrative courts have jurisdiction in matters concerning direct taxes and turnover tax, while cases concerning indirect taxes are a matter for the ordinary courts. As a result, the administrative courts have the power to cancel the taxes and related penalties demanded by the tax authorities and can also fix the sum to be paid, within the limits of the applicable legal provisions. As regards penalties, the administrative courts can replace a higher rate with a lower rate when several rates are applicable depending on the taxpayer’s conduct.
31. On the question of the power of the courts to vary the rate of tax penalties, the French Supreme Courts have adopted different solutions.
32. Where fines are imposed in the event of late payment of the differential tax on motor vehicles (Article 1840 N quater of the General Tax Code – repealed on 1 March 2005), the Court of Cassation, in a judgment of 29 April 1997, declined to apply the Article in question as being contrary to Article 6 § 1 of the Convention in so far as “it did not provide for a full administrative-law action against the administrative decision enabling the court to rule on the principle and the amount of the fine” (Cass. com., Ferreira, Bulletin 1997 IV no. 110).
33. That approach was subsequently confirmed (Cass. com., 17 November 1998, Dupuis, no. 9621749; Cass. com., 15 June 1999, Lise, Bulletin 1999 IV no. 130). In the judgment of 15 June 1999 mentioned above, the Court of Cassation held as follows:
“Article 1840 N quater ... is incompatible with Article 6 § 1 of the Convention ... only in so far as the court before which proceedings are brought challenging a penalty imposed on a taxpayer by the tax authorities cannot rule on the principle and size of the fine, so the task of the court, before which the [individual concerned] argued that he had paid the tax immediately after being ordered to pay it, was to assess the proportionality of the penalty with the taxpayer’s conduct ...”
The Court of Cassation explained in a judgment of 1 July 2003 (Cass. com., Gallotte, no. 00-13966), concerning a 40% supplementary tax demand for failure to declare a gift:
“Article 6 § 1 ... opens up the right to appeal to a court having full jurisdiction to ensure that a fine imposed by the tax authorities is proportionate to the taxpayer’, and ... the trial court can exercise the power thus vested in it only if the party challenging the fine enables it to assess the principle and the amount of the fine ...”
34. The Conseil d’Etat initially ruled on Articles 1728 and 1729 of the General Tax Code, which provide for different penalties depending on the taxpayer’s conduct and its classification in law (Article 1729, as it stood at the material time, provided for a 40% increase in the fine if the taxpayer had acted in bad faith, and 80% if there was deception).
In an opinion of 5 April 1996 concerning Article 1729, the Conseil d’Etat stated:
“[T]he law ... making penalties proportionate to the taxpayer’s conduct provided for the surcharge applied to vary according to the legal classification given to the conduct concerned. The relevant court, having fully exercised its power of review of the authorities’ classification of that conduct, must apply the relevant surcharge rate provided for by law, without being able to vary it in consideration of the seriousness of the offence committed by the taxpayer.” (CE, Houdmond opinion, Revue de jurisprudence fiscale (RJF) 5/96, no. 607)
35. In another case concerning the possibility of varying the penalties provided for in Article 1729, the Conseil d’Etat gave the following explanation in an opinion of 8 July 1998:
“[T]he relevant court, having fully exercised its power of review of the facts and the authorities’ classification thereof, decides in each case, depending on the results of the review, either to uphold or apply the surcharge effectively incurred at the rate provided for by law, without being able to vary it in consideration of the seriousness of the offence committed by the taxpayer, or, if it considers that the authorities have failed to establish that the taxpayer is guilty of deception or of acting in bad faith, only to charge interest for late payment. The provisions of paragraph 1 of Article 6 of the Convention ... do not oblige it to proceed otherwise ...” (CE, Fattell opinion, RJF 1998, no. 970; see also CE, 24 September 2003, Société Paolo Nancéienne, RJF 12/03, no. 1393)
36. The Conseil d’Etat used the same reasoning in respect of Article 1728 of the General Tax Code, which provides for different rates of fine depending on the seriousness of the taxpayer’s failure to comply with the obligations concerning tax returns (CE, 8 March 2002, SARL Clinique de Mazargues, RJF 2002, no. 671, and CE, 6 June 2007, Lemarinier, RJF 2007, no. 1042).
37. Subsequently, the Conseil d’Etat transposed this approach to penalties which, although they appeared in a separate Article of the General Tax Code, were part of a series of repressive measures that included penalties provided for in other Articles of the Code (see, for example, regarding the 5% fine provided for in Article 1788 septies (now Article 1788 A 4) of the Code in the event of failure to declare an immediately deductible value-added tax, CE, 30 November 2007, Société Sideme, RJF 2008, no. 172; regarding the 50% fine provided for in Article 1740 ter (now Article 1737) of the Code in the event of concealment or falsification of the identity or address of suppliers or clients, CE, 26 May 2008, Société Anonyme Norelec, RJF 2008, no. 981, and for the 150% fine (reduced to 100% in 2005) imposed under Article 1730 of the Code for obstructing a tax assessment, CE, 5 March 2009, Gonzales-Castrillo, Droit fiscal 2009 no. 10).
38. In two decisions of 17 March 2011, following two preliminary questions of constitutionality concerning the 40% tax surcharge provided for in Articles 1728 and 1729 of the General Tax Code (for, respectively, non-declaration after receipt of notice and bad faith on the part of the taxpayer), the Constitutional Council declared the Articles in question to be in conformity with the Constitution, in the following similar terms in both decisions:
“The principle of the individualisation of penalties that results [from Article 8 of the Declaration of 1789] implies that a tax surcharge, when imposed as a penalty, may be applied only if the authorities, subject to judicial review, expressly ordered it taking into account the particular circumstances in each case; it cannot, however, prevent the law from laying down rules to ensure the effective repression of offences;
...
The impugned provision instituted a financial penalty the nature of which is directly linked to that of the offence; the law itself adjusted the penalties according to the seriousness of the offence; the court decides in each case, having fully exercised its power of review of the facts and the authorities’ classification thereof, either to maintain ... the surcharge effectively incurred at the rate provided for by law, or to replace it by another rate provided for in the other provisions of the Article ... if it considers it legally justified [(Article 1728)], or, if it considers that the authorities have failed to establish that the taxpayer is guilty of deception or of acting in bad faith, it may decide only to charge interest for late payment [(Article 1729)]; it thus has the power to make the penalties proportionate to the taxpayer’s conduct; the rate of 40% is not manifestly disproportionate ...”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83638
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ÇARALAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Erdal Fırat Çaralan, is a Turkish national who was born in 1981 and lives in Istanbul. He was represented before the Court by Mr K.T. Sürek, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a member of a political party, the Labour Party (Emeğin Partisi), at the time of the events giving rise to the present application.
On 17 October 2000 the applicant was taken into police custody after having distributed leaflets of the Labour Party concerning collective labour agreements. On the same day, he was released without being brought before a judge.
On an unspecified date the Eyüp public prosecutor imposed a fine of 22.815.000 Turkish Liras (TRL) on the applicant for illegally distributing leaflets. The applicant did not pay the due amount.
Subsequently, on 26 February 2001 the Eyüp public prosecutor filed a bill of indictment with the Eyüp Magistrate’s Court charging the applicant of having illegally distributing leaflets under Article 534 § 1 of the Criminal Code.
On 28 February 2001 the Eyüp Magistrate’s Court found the applicant guilty as charged and, by issuing a penal order (ceza kararnamesi), sentenced him to a fine of TRL 34,220,000. When issuing the penal order, the court did not hold a public hearing; it decided solely on the content of the case file.
On 19 April 2001 the applicant filed an objection against the decision of 28 February 2001. In his petition, he maintained that the Labour Party was not required to obtain authorisation or to submit a copy of the leaflet in question to the authorities for information purposes prior to the distribution of leaflets as, according to Article 44 of Law no. 2908, the political parties were not required to do so. He further contended that he was deprived of the opportunity to submit his defence submissions to the Eyüp Magistrate’s Court in violation of Article 6 of the Convention. The applicant finally submitted that his criminal conviction infringed his freedom of expression, in violation of Article 10 of the Convention.
On 13 June 2001 the Eyüp Criminal Court dismissed the applicant’s objection holding that the decision of 28 February 2001 was lawful.
The decision of 13 June 2001 was not served on the applicant.
On 21 May 2002 the applicant found out about the content of the decision of 13 June 2001 and paid the fine.
Subsequently, on 29 November 2006 the Eyüp public prosecutor applied to the Ministry of Justice and requested that a written order be issued pursuant to Article 309 of the New Criminal Code to quash the judgment of the Eyüp Criminal Court dated 13 June 2001. On 16 January 2007 the Ministry of Justice issued a written order and instructed the Chief Public Prosecutor at the Court of Cassation to ask the Court of Cassation to set aside the said judgment.
On 27 March 2007 the Court of Cassation quashed the judgment of the Eyüp Criminal Court. It held that, according to Article 44 of Law No. 2908 political parties were not required to obtain prior authorisation to distribute leaflets, and as a result the applicant’s conviction was not in line with the domestic law. It concluded that the applicant should be acquitted. The case file was remitted to the Eyüp Magistrate’s Court. After a re-examination of the case, on 15 May 2007 the Eyüp Magistrate’s Court acquitted the applicant of the charges against him and decided that he should be reimbursed for the fine he had paid in 2002. Furthermore, his conviction was erased from the judicial records.
At the material time, Article 534 § 1 of the Criminal Code, Article 44 of Law no. 2908 and the relevant provisions of the Code of Criminal Procedure provided as follows:
Article 534 § 1 of the Criminal Code
“Persons who sell or distribute printed or handwritten documents and pictures in public places without having obtained a prior authorisation, in circumstances where a prior authorisation from the competent authority is required, shall be liable to a fine of a maximum of 30 Turkish liras.”
Article 44 of Law no. 2908
“Associations shall not publish or distribute leaflets, written statements or similar publications without a prior resolution by their executive board. The leaflets, written statements and similar publications shall contain the forenames, surnames and signatures of the president and members of the executive board which passed the resolution.
A copy of the resolution by the association’s executive board to publish and of the leaflet, written statement or similar publication shall be lodged for information purposes with the highest ranking local authority and the public prosecutor’s office for the area. The latter shall deliver in exchange a receipt recording the time and date the documents were lodged. No leaflet, written statement or similar publication may be distributed or communicated to the press until 24 hours after it has been lodged.
...
The aforementioned provisions are not applicable in respect of political parties.”
“The judge at the magistrates’ court may issue a penal order and decide on the merits of the case concerning the offences within the jurisdiction of the magistrates’ court without holding a hearing.
With such a penal order only a fine or an imprisonment for a maximum of three months or the temporary suspension of exercising a profession or a seizure measure or some of them or all of them can be imposed (...)”
“If the judge at the magistrates’ court finds it disadvantageous to deliver the sentence without a hearing, he will then decide a date for the hearing.”
“If it is a prison sentence that has been delivered by a penal order, upon the filing of an objection a hearing shall be held.
(...)
If it is a fine or temporary suspension of the practice of a profession or a confiscation measure or some or all of them that is served by a penal order, upon the filing of an objection the president of the criminal court or the judge shall examine the objection under Articles 301, 302 and 303 [of the present code]. (...)”
“Apart from the exceptions prescribed by law the decision upon an appeal shall be delivered without a hearing. The public prosecutor shall be heard if necessary.
If the appeal is granted, the authority that examines the appeal shall also decide on the merits of the case.”
“Decisions rendered upon objection are final. However, if the authority orders the suspect’s detention on remand, the latter can file an urgent objection.”
In a judgment given on 30 June 2004 the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that lack of a public hearing before the Criminal Court of First Instance that examines the objections against the penal orders, would be in breach of the right guaranteed under Article 6 of the Convention, as well as Article 36 of the Constitution.
Finally, Article 309 of the New Code of Criminal Procedure (no. 5271), concerning references to the Court of Cassation by written order of the Ministry of Justice (Kanun yararına bozma) provides:
“Where the Ministry of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, it may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”


ITEMID: 001-93792
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VELJANOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1962 and lives in Ohrid.
5. On 16 September 1994 she brought before the Ohrid Court of First Instance (“the first-instance court”) a compensation claim against the Ohrid Health Centre (“the hospital”) for pecuniary and non-pecuniary loss sustained as a result of an alleged medical negligence during a 1991 surgery.
6. On 1 December 1994 the first-instance court ordered the applicant to propose, within ten days, an expert so that to assess whether she had received proper care in the hospital.
7. On 27 February 1995 the applicant made a proposal, while the hospital consented with Mr V.Dz. being the expert on 19 April 1995.
8. On 8 May 1995 the first-instance court ordered the expert to produce his opinion, which he did on 3 October 1995. On this latter date, the applicant increased the value of her claim.
9. On 14 November 1995 the applicant requested additional expert examination. As on 7 March 1996 the expert requested exclusion, the court ordered the applicant to propose a new expert within fifteen days. She proposed a new expert on 17 December 1996. The expert submitted his report only on 5 November 1997, while being ordered to do so on 6 March 1997.
10. After three hearings being adjourned on the applicant’s request and four hearings on the hospital’s request, the first-instance court ruled partly in favour of the applicant on 17 March 1998.
11. On 20 October 1998 the Bitola Court of Appeal upheld the parties’ appeals and remitted the case for a renewed consideration.
12. Hearings scheduled for 30 June and 9 November 1999 respectively, were adjourned due to the absence of witnesses.
13. On 26 May 1999 the first-instance court requested an additional expert examination by Mr V.Dz.. On 9 November 1999 the court withdrew this request due to the expert’s repeated absence from hearings.
14. On 14 December 1999 the first-instance court dismissed the applicant’s claim. On 17 May 2000 the Bitola Court of Appeal upheld the applicant’s appeal and referred the case back for a fresh consideration.
15. On 16 December 2000 the first-instance court ordered the Forensic Institute to draw up the third expert report.
16. On 27 March 2002 the Forensic Institute informed the court that the applicant had failed to attend medical examinations fixed for 6, 14 and 25 March 2002, respectively.
17. On 23 April 2002 the first-instance court dismissed the applicant’s claim relying, inter alia, on her failure to undergo medical examination. This decision was upheld by the Bitola Court of Appeal’s and the Supreme Court’s decisions of 5 February 2003 and 28 January 2004, respectively. This latter decision was served on the applicant on 10 April 2004.
VIOLATED_ARTICLES: 6


ITEMID: 001-57563
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF RASMUSSEN v. DENMARK
IMPORTANCE: 2
CONCLUSION: No violation of Art. 14+6;No violation of Art. 14+8
JUDGES: C. Russo
TEXT: 8. The applicant, Mr. Per Krohn Rasmussen, is a Danish citizen, born in 1945. He currently works as a clerk and resides in Nyborg.
He was married in 1966. During the marriage, two children were born, a boy in 1966 and a girl, Pernille, on 20 January 1971. The applicant had grounds, even before the latter's birth, for assuming that another man might be the father; however, in order to save the marriage, he took no steps to have paternity determined.
9. In June 1973, Mr. Rasmussen and his wife applied for a separation (separation ved bevilling), which they obtained on 9 August. In accordance with their agreement, Mrs. Rasmussen retained custody of the children and the competent authority issued a decision to the effect that Mr. Rasmussen should pay maintenance for them from 1 September 1973. He in fact did so from that date until 1 June 1975.
10. In March 1975, the applicant, who had previously still nurtured hopes of preserving the marriage, took some steps to institute proceedings to challenge his paternity of Pernille. To this end, he applied for legal aid. However, he did not pursue the matter since, on 28 April 1975, he and his wife signed an agreement whereby she waived all claims for maintenance for the child and he undertook to refrain from bringing any such proceedings.
11. In June 1975, the applicant and his wife applied for a divorce (skilmisse ved bevilling), which was granted on 16 July. On this occasion, he reaffirmed before the authorities that the mother should have sole custody of the children and was once more ordered to pay maintenance for them. He did not raise any objection.
12. On 16 January 1976, four days before Pernille's fifth birthday, the applicant's former wife wrote to him asserting that she was not bound by the agreement of 28 April 1975. She later lodged with the public authorities a renewed petition for maintenance, which was granted by order effective from 1 March 1976. Since then, Mr. Rasmussen has regularly paid the maintenance.
13. On 27 January 1976, Mr. Rasmussen sought leave from the Eastern Court of Appeal (Østre Landsret) to institute proceedings out of time to determine the paternity of the girl (see paragraph 19 below).
In accordance with the normal procedure, the police, at the Court of Appeal's request, interviewed Mr. Rasmussen and his former wife in March 1976 and recorded their statements in a report.
14. The Court of Appeal refused the application on 12 April 1976, for the reason that the statutory conditions for granting leave at that time were not satisfied (see paragraph 19 below).
The applicant did not appeal against the decision within the statutory time-limit. However, on 27 July 1976, he petitioned the Ministry of Justice for leave to appeal out of time to the Supreme Court (Højesteret), but this was refused on 3 September 1976.
15. On 20 November 1978, Mr. Rasmussen applied again to the Court of Appeal for leave to institute paternity proceedings. His former wife opposed the application, on the ground that such proceedings would have a detrimental effect on the child.
By a decision of 11 December 1978, the Court of Appeal refused the application for the reason that the applicant had not brought the action contesting paternity within the time-limits provided for in section 5(2) of the 1960 Act on the Legal Status of Children ("the 1960 Act" - Lov nr. 200 af 18.5.1960 om børns retsstilling; see paragraph 19 below) and that there was no cause to grant him any exemption since the conditions laid down in section 5(3) were not met. A similar decision was given by the Supreme Court on 12 January 1979.
16. Prior to the enactment of the 1960 Act, which applied in Mr. Rasmussen's case, the status of children was regulated in the Illegitimacy Act of 1937 and the Legitimacy Act of the same year. Section 3 of the latter provided that proceedings to contest paternity of a legitimate child could be instituted by the mother, the husband, the child or a person appointed guardian of the child. No time-limit was laid down for the institution of such proceedings.
17. According to Danish case-law and legal writing, however, a husband could be estopped from contesting paternity of a child born in wedlock if, knowing that his wife had had sexual intercourse with another man during the relevant period, he had expressly or tacitly acknowledged after the child's birth that he was the father. The "doctrine of acknowledgement" (anerkendelseslaeren) was first established in 1956 by a judgment of the Supreme Court, reported in Ugeskrift for Retsvaesen (U.f.R.) 1956, p. 107. Although there was no case-law on the point, legal writers expressed the view that this doctrine applied also to mothers (see, for instance, Ernst Andersen, Aegteskabsret I, 1954, p. 95).
18. In December 1949, the Ministry of Justice set up a committee, called the "Paternity Committee", to consider, inter alia, certain aspects of the status of children born in wedlock. In June 1955, the Committee submitted its report (no. 126/1955) on the amendment of the rules regarding determination of paternity.
As to the husband's right to institute proceedings to challenge paternity of a child born in wedlock, the Committee recommended the institution of a double time-limit of six months from the time when the husband became aware of the facts affording grounds for contesting his paternity and not later than three years from the birth of the child; but that the Ministry of Justice should be empowered to grant exemption from these time-limits in special circumstances. The Committee took the view that the welfare of the child (and of the marriage) required that his status should be established as soon as possible and that the husband's interests should yield to these considerations (page 60 of the report). One of the reasons given by the Committee for this recommendation was that a paternity suit instituted by the husband several years after the child's birth would place the child in a worse position than if proceedings had been instituted earlier: the court would possibly have to give judgment in the husband's favour on the basis of the blood-group determination, while it would be difficult to obtain a paternity and a maintenance order against another man.
On the other hand, the Committee found that the child's right to institute proceedings should not be subject to any time-limit, since the views which might lead to restricting the husband's right to institute proceedings were not of relevance in the case of an action brought by the child. For the same reasons, there should likewise be no time-limit with regard to actions brought by the child's guardian or the mother (page 59 of the report).
The Committee also discussed the question whether the doctrine of acknowledgement should be embodied in legislation. However, it considered that this was a matter which was better left to the courts to decide on a case-by-case basis.
19. The Government subsequently introduced a Bill which incorporated in part the recommendations of the Paternity Committee but increased the time-limits to twelve months and five years respectively and conferred competence to grant exemption on the Courts of Appeal. This legislation entered into force, as the 1960 Act, on 1 January 1961. It provided in section 5(1) that proceedings to challenge paternity of a child could be brought by the husband, the mother, the child or a guardian of the child. Sub-sections 2 and 3 of section 5 read as follows:
"(2) Paternity proceedings must be instituted by the husband within twelve months after he becomes cognizant of the circumstances which may give grounds for his renunciation of paternity, and not later than five years after the birth of the child.
(3) However, a Court of Appeal may, on the conditions set out in section 456r, sub-section 4, of the Administration of Justice Act, grant leave to institute proceedings after the expiry of the time-limits set out in sub-section 2 above."
Section 456r, sub-section 4, of the Administration of Justice Act concerns re-opening of a paternity case after the expiry of the applicable time-limit or time-limits.
The 1960 Act did not impose any restriction on the mother's right to institute paternity proceedings, nor did it refer to the doctrine of acknowledgement (see paragraph 17 above).
20. In case-law, however, the "doctrine of acknowledgement" continued to be applied and there were Court of Appeal and Supreme Court decisions confirming the earlier view that the doctrine also applied to mothers.
21. The circumstances which, under the doctrine of acknowledgement, estop the husband from contesting paternity will, as a general rule, also militate against granting him leave to institute proceedings out of time. However, a decision to grant leave is without prejudice to the outcome of the subsequent procedure (see the Eastern Court of Appeal's judgment of 1977, U.f.R. 1977, p. 907).
22. In 1969, the Ministry of Justice set up a committee, called the "Matrimonial Committee", to consider whether the evolution of social conditions, and notably the changes in the social status of women and the resultant changes in the conception of the institution of marriage since the introduction of the 1960 Act, called for amendment of, inter alia, the provisions governing the legal status, during marriage and after separation or divorce, of children born in wedlock. In fact, the proportion of women working outside their homes has increased to about 60 per cent. As a result, men are, to a much higher degree than before, looking after the children and are more frequently granted their custody in the event of separation or divorce. Mothers are therefore now more likely to challenge paternity in order to prevent custody being given to the husband. In a report on cohabitation without marriage (samliv uden aegteskab I - no 915/1980, p. 72), published in January 1981, the Matrimonial Committee stated:
"There is consensus in the Committee that also the mother's right to institute paternity proceedings and request re-opening should be subject to a relatively short time-limit, for example corresponding to the time-limits which today apply to the father. Furthermore, the Committee is to some degree in favour of an absolute time-limit, applicable to all, for instituting and re-opening paternity proceedings."
23. On the basis of the recommendations of the Matrimonial Committee, the Government tabled a Bill before Parliament in March 1982, proposing certain amendments to the 1960 Act.
The explanatory memorandum to this Bill referred to the Rasmussen case, then pending before the European Commission. On page 4, it mentioned that the Agent of the Government had declared in evidence before the Commission that new legislation on the matter would be introduced, establishing uniform time-limits within which both men and women could contest the husband's paternity; the memorandum added that the Ministry of Justice considered such legislation "desirable in the interest of the child's needs" (af hensyn til barnets tarv).
24. On 26 May 1982, the Danish legislature passed an Act amending the 1960 Act, which entered into force on 1 July 1982.
Following this amendment, sub-sections 2 and 3 of section 5 of the 1960 Act now provide:
"(2) Paternity proceedings must be instituted not later than three years after the birth of the child. This provision shall not apply, however, where proceedings are instituted by the child after having attained the age of 18.
(3) A Court of Appeal may grant leave to institute proceedings after the expiry of the time-limit set out in the first sentence of sub-section 2 of this section where quite exceptional grounds are given as to why proceedings were not instituted at an earlier stage, in circumstances where institution of proceedings is especially warranted, and where it can be presumed that the proceedings will not cause the child any great inconvenience."
The "doctrine of acknowledgement" is still applied by the Danish courts to estop spouses from contesting paternity of a child (see the Supreme Court's judgment of 17 January 1984).
NON_VIOLATED_ARTICLES: 14
6
8


ITEMID: 001-22199
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ARVANITAKIS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant is a Greek national, who was born in 1936 and lives in Athens. He is represented before the Court by Mr Jean-Alain Blanc, a member of the Conseil d’État and Court of Cassation Bar.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1979 the applicant and P.B. formed a public company, Sogimport, whose registered office was in Dijon. On 10 January 1984 the company, which was already in financial difficulty, borrowed 1,480,000 French francs (FRF) from E.C., P.B.’s nephew. Under the terms of an agreement made on 20 October 1984 between the applicant, P.B. and E.C., P.B. undertook to reimburse his nephew the sum of FRF 1,480,000 owed by the company. The applicant undertook to guarantee P.B. the reimbursement of that same amount “that Sogimport will owe him once [P.B.] has paid that company’s debt to [E.C.]”.
As Sogimport was unable to repay P.B., the applicant paid him a total of FRF 572,500 pursuant to his undertaking. On 20 October 1987 the Dijon Commercial Court made an order for the judicial reorganisation of the company. That order was followed by an order for its liquidation on 3 December 1987. As P.B. had failed to lodge a proof of his debt with the representative of the creditors of the company, the applicant considered it to be extinguished pursuant to section 53(3) of the Law of 25 January 1985, which meant that his own obligation as guarantor of the company’s debt to P.B. was likewise extinguished. He therefore did not pay P.B. the balance of FRF 907,500 of debt that had been extinguished. Subsequently, considering himself ruined, he left France and returned to Greece.
On 28 December 1990 P.B. brought an action against the applicant in Dijon Commercial Court for payment of the sum of FRF 97,500 together with statutory interest, damages, expenses and legal costs.
On 14 February 1982 the applicant brought a counterclaim against P.B. for rescission of the agreement of 20 October 1984 and restitution of the sum of FRF 572,500 he had already paid.
In a judgment of 11 February 1993 the Dijon Commercial Court ordered the applicant to pay P.B. the sum claimed plus interest, making a total of over FRF 1,600,000. The judgment was upheld by the Dijon Court of Appeal on 1 July 1994, which held, in particular, that the applicant’s undertaking amounted not to an ordinary guarantee that had been extinguished with the primary debt, but as a first-call guarantee that remained in place despite the extinguishment of the primary debt.
On 2 August 1994 the applicant appealed against that decision to the Court of Cassation. On 16 February 1995 he lodged written submissions in which he argued that his undertaking should be classified as an ordinary guarantee.
On 3 May 1995 P.B. made an application to the President of the Court of Cassation under Article 1009-1 of the New Code of Civil Procedure for an order removing the appeal from the list for failure to comply with the impugned decision.
That application was granted by an order of 6 July 1995 removing the appeal from the list of cases pending before the Court of Cassation. The order stated:
“Although he has not complied with the orders made in the judgment, [the applicant] seeks to oppose an order being made pursuant to the provisions of Article 1009-1 of the New Code of Civil Procedure...
In the instant case, [the applicant] has failed to show that he has taken any steps apt to demonstrate his intention to comply with the decision of the courts below and has not pleaded any personal circumstances that give rise to a danger or presumption that compliance will entail manifestly unreasonable consequences.”
No sums were paid under the judgment within the time-limit of two years from the date of that order. On 1 July 1997 the applicant sought a declaration that the appeal had lapsed. On 17 December 1997 the President of the Court of Cassation made a declaration that the appeal had lapsed pursuant to Article 386 of the New Code of Civil Procedure.
New Code of Civil Procedure
“Proceedings shall lapse if none of the parties take any steps for two years.”
“Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President may, on application by the respondent and after obtaining the opinion of Principal State Counsel and the parties, order the removal of the case from the list if the appellant fails to show that he or she has to comply with the impugned decision, or unless it appears to the President that execution may entail manifestly unreasonable consequences.
The President shall grant permission for the case to be restored to the list on proof of compliance with the impugned decision.”


ITEMID: 001-73196
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 2006
DOCNAME: CASE OF MARTINIE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (ratione materiae);Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Gaukur Jörundsson;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych;Wilhelmina Thomassen
TEXT: 7. The applicant, who is a civil servant in the State education service, was born in 1948 and lives in Papeete.
8. In June 1987 the Lycée René-Cassin in Bayonne – of which the applicant had been appointed accountant by a decision of the Director of Education for Bordeaux – and the French Federation of Basque Pelota signed an agreement to set up a centre at the school which would allow young athletes to continue studying during their training: the Basque Pelota National Training Centre (Centre national d’entraînement à la pelote basque – “the CNEA”). The CNEA, which had no separate legal personality, was attached to the school’s budget. The headmaster of the school was the director and authorising officer in respect of expenditure, and the applicant, who was appointed general secretary of the centre, was the accountant. In December 1987 the headmaster instituted a fixed monthly allowance in favour of the director of the CNEA and its general secretary.
9. On an audit of the accounts submitted by the applicant for the years 1989 to 1993, the Aquitaine Regional Audit Office gave interim rulings on 3 May 1996 and 11 March 1997 ordering the applicant to produce certain supplementary evidence.
In a judgment of 17 October 1997, the Aquitaine Regional Audit Office declared that the applicant owed the school the following amounts plus interest: 191,893.09 French francs (FRF), FRF 11,407.75 and FRF 17,806.60. Those amounts corresponded to payments made by the applicant in his capacity as public accountant of the school for the years 1989 to 1993. The first sum related to the fixed monthly allowance paid to the headmaster of the school in his capacity as director of the CNEA and to the applicant himself as general secretary; the second sum concerned a cashier’s indemnity paid to the applicant himself out of funds managed by the CNEA’s separate accounting department; and the third concerned the transfer of holiday compensation into the CNEA’s separate accounting department in favour of the director of the centre and the applicant himself. In its judgment, the Regional Audit Office noted that there was no resolution by the board of governors of the Lycée René-Cassin authorising these allowances – whereas that was the only body with power to set up a system of allowances – and, referring to the relevant provisions, pointed out that “the public accountant must satisfy himself that the documents he submits in support of the payments for which he takes charge are issued by the appropriate authority”.
10. The applicant appealed to the Court of Audit, which gave judgment on 20 October 1998 upholding the main parts of the Regional Audit Office’s judgment but partly varying the total amount to be repaid, which it reduced to FRF 191,893.09.
11. In a decision of 22 October 1999, the Conseil d’Etat declared an appeal on points of law lodged by the applicant “inadmissible”. The decision is worded as follows:
“Under section 11 of the Law of 31 December 1987 reforming administrative proceedings, ‘an appeal on points of law to the Conseil d’Etat is first subjected to an admissibility procedure. Leave to appeal is refused by judicial decision if the appeal is inadmissible or not based on a genuine ground of appeal’.
In applying for the judgment of 20 October 1998 [of] the Court of Audit ... to be set aside, Mr Martinie submitted that the judgment had been given in breach of the provisions of Article 6 § 1 of the Convention ..., since he had neither been summoned to appear nor invited to submit his observations; he had not been aware of the date of the hearing fixed by the Court of Audit; and the reporting judge and counter-reporting judge had taken part in the deliberations of the Court of Audit. In his submission, the Court had misdirected itself in law in considering that only an executory resolution of the school’s board of governors could have constituted justification for the payment; the accountant could not be held liable for the expenditure paid by the [CNEA] prior to 21 February 1992, which was the date of his appointment as accountant of the ‘direct accounting department’ that had borne the irregular expenditure; and, lastly, the Court of Audit had further misdirected itself in law by ordering repayment of the sum in question to the Lycée René-Cassin.
None of these grounds justifies granting leave to appeal.”
12. On 7 June 2001, on a non-contentious application, the Minister of Finance granted the applicant partial remission of the surcharge levied by the Court of Audit, in the sum of 21,953.91 euros (EUR), with EUR 762.25 thus remaining payable by him.
13. Section 60-I of Finance Law no. 63-156 of 23 February 1963 provides that public accountants are personally and financially liable for the audits they are required to carry out of income, expenditure and assets on the terms set forth in the general public accounting rules. In that connection, Articles 12 and 13 of Decree no. 62-1587 of 29 December 1962, which lay down general rules governing public accounting, provide as follows:
“Accountants are required:
...
B – in connection with expenditure, to check
that the authorising officer or his delegate has the requisite capacity to act;
that the funds are available;
that the expenditure is accurately attributed to the appropriate heads, in accordance with its nature or purpose;
that the claims are valid according to the terms set forth in Article 13 below;
that payment has been effected in accordance with the statutory conditions for discharging the debtor.
...”
“With regard to the validity of the claims, accountants shall check
that the service has actually been rendered and the amounts accurately calculated;
that the statutory controls have been effected and the supporting documents produced.
In addition, in so far as provided by the rules specific to each public institution, public accountants shall check that the financial controllers’ stamp of approval has been affixed to the liabilities and payment authorisations issued by the main authorising officers.
Public accountants shall also check that the rules on limitation periods have been applied.”
Public accountants who have been found liable or whose liability is in issue may, in cases of force majeure, be fully or partly discharged from liability; they may also obtain remission, on a non-contentious application, in respect of amounts for which they remain liable (section 60-IX of Law no. 63-156). The Government indicated that decisions on this type of application were made by the Minister of Finance, who “differentiated between what was a personal failing and what was a case of force majeure or circumstances capable of mitigating the accountant’s liability (such as inadequacy of the resources attached to the post)”.
14. Accounts rendered by public accountants are subjected to judicial scrutiny. This task is entrusted to regional audit offices in respect of accounts rendered by public accountants of territorial authorities and their public institutions (Articles L. 211-1 et seq. of the Financial Judicature Code). They carry out a judicial inspection of the regularity of operations by accountants regarding both revenue and expenditure. The procedure is a mandatory one in which the regional audit offices give judgment clearing and settling the accounts irrespective of whether or not irregularities have been disclosed. The purpose of the inspection is not only to check that the accounts are in order, but also that the accountant has properly carried out all the necessary checks concerning, inter alia, the basis and the amount of any revenue or expenditure, and has not negligently caused a loss to the local authority.
Final judgments discharge the accountant or levy a surcharge against him, that is, require him to pay a sum back to the local authority (Article L. 231-7 of the Financial Judicature Code) and thus personally bear the financial consequences of an irregularity in management of the accounts.
This judicial scrutiny is conducted in the following stages: production of the accounts by the local public accountant; adversarial investigation; report by the investigating judge; deliberations by the regional audit office; interim ruling; accountant’s reply; deliberations by the regional audit office; final judgment (discharge or surcharge).
15. The accountant concerned or his heirs, the local authority or public institution, the Government Commissioner attached to the regional audit office (who acts as State Counsel before the regional audit office and is the correspondent of Principal State Counsel at the Court of Audit (procureur général près la Cour des Comptes) – Article L. 212-10 of the Financial Judicature Code), or Principal State Counsel at the Court of Audit may appeal to the Court of Audit against any final judgment delivered by the regional audit office (Articles L. 111-1, L. 211-1, L. 243-1 and R. 243-1 et seq. of the Financial Judicature Code).
16. The appeal is either lodged with the registry of the regional audit office, and an acknowledgment of receipt obtained, or sent to the registry by registered post with recorded delivery. Fifteen days after registration of the appeal, the Government Commissioner communicates it to the other persons having a right of appeal and simultaneously sends a copy to Principal State Counsel at the Court of Audit (Article R. 243-8 of the Financial Judicature Code). The parties have one month from the transmission of the appeal in which to consult all the documents annexed to the appeal at the registry of the regional audit office and to lodge defence pleadings. During the same period State Counsel (the Government Commissioner) can submit observations. A copy of the pleadings and observations is served by State Counsel on the appellant and the other parties, who may, within one month of transmission, lodge a reply, which is itself sent to the parties, and to which a rejoinder can be lodged within fifteen days. State Counsel may submit observations on the defence pleadings and replies lodged by the various parties. These observations are served on the interested parties (Article R. 243-9 of the Financial Judicature Code). If further documents are added to the file, the appellant and the other parties have fifteen days in which to inspect them and, if they wish, file their observations with the registry of the regional audit office (Article R. 243-10 of the Financial Judicature Code).
Once these time-limits have expired, State Counsel (the Government Commissioner) sends the appeal, a copy of the judgment, the documents produced by the appellant and the pleadings and documents produced by the other parties and the observations by State Counsel to Principal State Counsel at the Court of Audit (Article R. 243-11 of the Financial Judicature Code; since Decree no. 2002-1201 of 27 September 2002 came into force, the Government Commissioner notifies the appellant and the other parties that these documents have been sent to Principal State Counsel).
17. Principal State Counsel at the Court of Audit sends the appeal file to the Court of Audit (Article R. 112-8, paragraph 4, of the Financial Judicature Code) in a document which – the Government specify – “is customarily referred to as an ‘application’ but does not imply any personal initiative on the part of Principal State Counsel (Conseil d’Etat, 6 January 1995, Gouazé; 27 October 2000, Mme Desvignes)”.
The reporting judge at the court prepares his report on the basis of the appeal file.
Reports relating, inter alia, to surcharges and appeals against judgments delivered by regional audit offices have to be sent to Principal State Counsel, who makes written submissions on them (Article R. 112-8, paragraph 5, of the Financial Judicature Code); in doing so, he gives an opinion that the bench is free to follow or reject. He may attend the sessions of the divisions or sections and submit oral observations, but does not take part in the deliberations (Decree no. 2002-1201 of 27 September 2002, codified in Article R. 112-8 in fine of the Financial Judicature Code; the Government indicated that, prior to the entry into force of that decree, this principle had already been hallowed by usage).
In the light of the appeal file, the report and the submissions of Principal State Counsel, the counter-reporting judge – who, according to the Government, sits on the bench hearing the appeal – expresses orally, during the hearing, his opinion on the reporting judge’s proposals (Article R. 141-8 of the Financial Judicature Code).
18. Where the Court of Audit hears an appeal against a judgment of a regional audit office levying a surcharge against a public accountant, the hearings before it are not public and the parties are not informed in advance of the date of the appeal hearings (the converse situation applies where the Court of Audit gives a final ruling in a case concerning de facto management of public funds or the imposition of a fine – Articles R. 141-9 to R. 141-13 of the Financial Judicature Code, added to the Code by Decree no. 2002-1201 of 27 September 2002; Articles L. 131-2 and L. 131-13 of the Financial Judicature Code specify, moreover, that in the former case – de facto management – the judgments of the Court of Audit “are deliberated upon after hearing submissions, at their request, from the appellants and other interested parties” and that, in the latter case – imposition of a fine – the same applies in favour of the “persons concerned”).
The procedure to be followed at the hearing is set out in Article R. 141-8 of the Financial Judicature Code (as amended by Decree no. 2002-1201):
“The reporting judge shall present his report to the bench hearing the appeal. The counter-reporting judge shall express his view on each of the proposals submitted.
If the report has been sent to Principal State Counsel, the latter’s submissions shall be read out. Where Principal State Counsel, or one of the advocates-general, is present at the hearing, he shall make his submissions and take part in the proceedings.
The bench shall then deliberate. It shall give a decision on each proposal. If a vote has to be taken, the president shall ascertain, in turn, the opinion of the reporting judge, of each of the extraordinary senior members for cases they are empowered to hear under Article L. 112-5, then of each of the senior members in reverse order of seniority at that grade. The president states his opinion last. In the event of an equal number of votes, he shall have the casting vote.
However, in cases concerning de facto management or the imposition of a fine, the bench shall deliberate without the reporting judge being present.
...”
19. Where the Court of Audit rules the appeal inadmissible, its judgment is final. If it considers that the appeal is admissible, it can rule immediately on the merits or order investigative measures by an interim judgment that is served on the accountant and the interested parties. It may order production of the accounts that are the subject of the judgment being appealed and of any documents that it considers necessary to enable it to give a ruling (Article R. 131-41 of the Financial Judicature Code).
20. According to the Conseil d’Etat, when the Court of Audit scrutinises accounts rendered by public accountants, it does not determine a criminal charge or civil rights and obligations within the meaning of Article 6 § 1 of the Convention (see, inter alia, Conseil d’Etat (“CE”), 19 June 1991, Ville d’Annecy c. Dussolier, Recueil Lebon, p. 242, and CE, 3 April 1998, Mme Barthélémy, Recueil Lebon, p. 129). The position is only different when it gives a ruling in cases in which a fine may be imposed (CE, 16 November 1998, SARL Deltana et M. Perrin).
21. Decree no. 2005-1586 of 19 December 2005 is worded as follows:
“...
The first paragraph of Article R. 122-5 of the Code shall be replaced by the following paragraph:
‘Government Commissioners shall be appointed by a decision of the Vice-President of the Conseil d’Etat adopted on a proposal by the President of the Judicial Division.’
The first paragraph of Article R. 222-9 of the Code shall be replaced by the following paragraph:
‘The president shall inform the National Council of Administrative Courts and Administrative Courts of Appeal of his opinion regarding the career progression of the members of the court of which he is president.’
The first paragraph of Article R. 222-23 of the Code shall be replaced by the following paragraph:
‘In each administrative court, according to its needs, one or more judges or senior judges shall be designated, by a decision of the Vice-President of the Conseil d’Etat adopted on a proposal by the president of the court and following approval of the decision by the National Council of Administrative Courts and Administrative Courts of Appeal, to exercise the functions of Government Commissioner.’
Title III of Book VII of the Code shall now be entitled ‘Conduct of the hearing and deliberations’.
The following five Articles shall be inserted after Article R. 731-4 of the Code:
‘Art. R. 731-5 – After the Government Commissioner’s submissions have been made, any party to the proceedings may send the presiding judge of the bench a memorandum for the deliberations.
Art. R. 731-6 – Deliberations shall take place without the parties being present.
Art. R. 731-7 – The Government Commissioner shall be present at the deliberations. He shall not participate in them.
Art. R. 731-8 – In addition to the members of the court and their assistants, the following persons may be authorised to attend deliberations: judges, trainee lawyers, university professors and lecturers undergoing a period of training at the court or admitted, exceptionally, to follow its activities, be they of French or foreign nationality.
Authorisation shall be issued by the head of the court, after seeking the opinion of the presiding judge of the bench, or, at the Conseil d’Etat, by the presiding judge of the bench.
Art. R. 731-9 – Anyone who, in any capacity whatsoever, takes part in or attends deliberations shall be bound to respect the secrecy of the deliberations. Failure to do so may result in the imposition of a penalty under Article 226-13 of the Criminal Code.’
The words ‘After deliberations without the parties being present, and’ shall be deleted from Article R. 741-1 of the Code.
The following new paragraph shall be inserted after the third paragraph of Article R. 741-2 of the Code:
‘If a memorandum for deliberations is produced, this fact shall also be recorded.’
...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88424
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SINCLAIR 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 Clive Sinclair, is a British national who was born in 1948 and lives in St. Albans. He was represented before the Court by Royds Rdw, solicitors in London. 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 6 July 1994. His claim for widows’ benefits was made on 26 May 2000 and was rejected on 14 June 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 26 June 2000 the applicant made a request for reconsideration and was subsequently advised that he did not have a right of appeal. 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 applicant was not in receipt of child benefit at the time of his claim.
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.