RESOLUTION DH (98) 86

CONCERNING THE JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS OF 22 SEPTEMBER 1994, OF 3 JULY 1995 AND OF 3 JULY 1997 IN THE CASE OF HENTRICH AGAINST FRANCE

(Adopted by the Committee of Ministers on 22 April 1998 at the 626th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),

Having regard to the judgments of the European Court of Human Rights in the Hentrich case delivered on 22 September 1994, on 3 July 1995 and on 3 July 1997 and transmitted the same days to the Committee of Ministers;

Recalling that the case originated in an application (No. 13616/88) against France, lodged with the European Commission of Human Rights on 14 December 1987 under Article 25 of the Convention by Ms Liliane Hentrich, a French national, and that the Commission declared admissible the complaints that she did not have effective access to a court, that she was deprived of her right to a fair hearing within a reasonable time within the meaning of Article 6, paragraph 1 of the Convention, that there had been an unjustified and arbitrary interference with her right of ownership in breach of Article 1 of Protocol No. 1, that she was a victim of discriminatory treatment and that the pre-emption measure implied that she would be guilty of tax fraud contrary to Article 6, paragraph 2 of the Convention;

Recalling that the case was brought before the Court by the Commission on 12 July 1993;

Whereas in its judgment of 22 September 1994, the Court: _ held, by five votes to four, that there had been a breach of Article 1 of Protocol No. 1;

_ held, unanimously, that for lack of a fair trial there had been a breach of Article 6, paragraph 1 of the Convention;

_ held, unanimously, that there had been a breach of Article 6, paragraph 1, of the Convention on account of the length of the proceedings;

_ held, unanimously, that there had been no breach of Article 6, paragraph 2, of the Convention;

_ held, unanimously, that it was unnecessary to consider separately the complaints based on Articles 13 and 14 of the Convention;

_ held, unanimously, that this judgment in itself constituted sufficient just satisfaction in respect of the alleged non-pecuniary damage;

_ held, unanimously, that the respondent State was to pay the applicant, within three months, 56 075 French francs in respect of costs and expenses;

_ held, unanimously, that the question of Article 50 was not ready for decision as regards pecuniary damage; Whereas in its judgment of 3 July 1995, the Court :

_ held by eight votes to one, that the respondent State was to pay the applicant, within three months, 800 000 French francs in respect of pecuniary damage;

_ held, unanimously, that the respondent State was to pay the applicant, within three months, 20 000 French francs in respect of costs and expenses relating to the proceedings under Article 50;

_ held, unanimously, that the respondent State was to pay the applicant, within three months, statutory interest from 22 December 1994 on the sum of 56 075 French francs awarded in the principal judgment;

- dismissed, by eight votes to one, the remainder of the claim for just satisfaction;

- Whereas in its judgment of 3 July 1997 the Court rejected, by eight votes to one, the request for interpretation concerning a question on default interest;

- Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 54 of the Convention;

- Having invited the Government of France to inform it of the measures which had been taken in consequence of the judgments of 22 September 1994 and of 3 July 1995, having regard to France's obligation under Article 53 of the Convention to abide by it;

- Whereas, during the examination of the case by the Committee of Ministers, the Government of France gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

- Having satisfied itself that on 7 February 1995, the Government of France paid the applicant the sum provided for in the judgment of 22 September 1994 and that the default interest due was paid on 1 December 1995.

- Having taken note of the fact that on 1 December 1995, after the date-limit set, the Government of France paid the applicant the sums provided for in the judgment of 3 July 1995 but that, having regard to the specific circumstances of the case, no default interest was due;

- Declares, after having taken note of the information supplied by the Government of France, that it has exercised its functions under Article 54 of the Convention in this case.

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Appendix to Resolution DH (98) 86

Information provided by the Government of France

during the examination of the Hentrich case

by the Committee of Ministers

Jurisdiction to hear appeals against pre-emption decisions under Article 668 of the General Tax Code was vested in the ordinary courts.

Initially, the ordinary courts reviewed only the formal correctness of pre-emption decisions (Lyons Court of Appeal, judgment of 14 April 1947); subsequently they satisfied themselves that pre-emptions did not have a speculative purpose and that they did not disclose any misuse of power ( Cour de Cassation , 5 February 1957). (See, in particular, the European Court of Human Rights' judgment of 22 September 1994, paragraph 23).

In four leading judgments delivered on 16 June 1987, the Cour de Cassation changed its case-law according to which the judge could not, because of the discretionary nature of the right of pre-emption, review the Revenue's assessment that a declared price was too low. The Cour de Cassation declared then that the reasons given for decisions to exercise a pre-emption right must be in writing and contain a statement of the considerations of law and fact on which the decisions were based. (See also the European Court of Human Rights' judgment of 22 September 1994, paragraph 23).

This jurisprudence change in case-law nevertheless left unresolved the problem that the law made no distinction between pre-emption of a property acquired with fraudulent intent and pre-emption of a property acquired without such an intent.

However, the Revenue has not exercised its right of pre-emption since June 1997, that is, before the European Court of Human Rights rendered its judgment.

Finally, Article 113 of the Budget Act for 1997 No. 96-1181 of 31 December 1996 repealed the pre-emption right provided for in Article 18 of the code of tax procedures.

Having regard to the above-mentioned considerations, the Government considered that the risk of new violations of a similar nature to those found in this case no longer exists. It therefore considers that it has exercised its functions under Article 53 of the Convention in this case.