Information Note on the Court’s case-law 40

March 2002

APBP v. France - 38436/97

Judgment 21.3.2002 [Section I]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adversarial trial

Judgment of Conseil d’Etat quashing appeal decision and dealing with merits without reopening debate: no violation

Facts : This case concerns supplementary corporation-tax assessments and penalties imposed on the applicant company. The applicant unsuccessfully appealed to the Administrative Court. On appeal, the Administrative Court of Appeal granted it a partial exemption from the deductions at source sought by the tax authorities and the penalties imposed. The Minister for the Bud get appealed against the Administrative Court of Appeal’s judgment. The Conseil d’Etat quashed the judgment and, in a decision on the merits of the case taken pursuant to the 31 December 1987 Act, declared the applicant liable for the tax deducted at sourc e (from which it had obtained relief on appeal) and the relevant penalties. The applicant complained to this Court that the Government Commissioner had made submissions proposing a different solution to the dispute to which the applicant had not been able to reply and that the Conseil d’Etat had quashed the Court of Appeal’s judgment and then examined the case on the merits without re-opening the proceedings in order to hear the applicant’s observations. It criticised the fact that the Government Commission er was present at the deliberations and thus able to reply to questions put by the bench. It called into question the effectiveness of the system of addressing a note to the court in deliberations.

Law : Article 6 § 1 - Regarding the failure to communicate the Government Commissioner’s submissions prior to the hearing and the inability of the applicant to make submissions in reply at the hearing, in Conseil d’Etat proceedings the Government Commissioner makes submissions for the first time, orally, at a publ ic hearing of the case, which is when the parties to the proceedings and the judges and the public first learn of the contents and nature of those submissions. The applicant could not infer from the right to equality of arms a right to receive, prior to th e hearing, submissions which had not been communicated to the other party to the proceedings, the rapporteur, or the judges sitting on the bench designated to hear the case. With regard to the parties’ inability to reply to the Government Commissioner’s su bmissions at the end of the hearing, counsel could, if they wished, ascertain from the Government Commissioner prior to the hearing the general thrust of his submissions and the parties could reply by sending a note to the court while it was deliberating. If, in his oral submissions at the hearing, the Government Commissioner referred to a ground which had not been raised by the parties, the case was adjourned in order to allow the parties to submit their arguments. In the present case the applicant had not made use of the possibility of sending a note to the court during its deliberations. Its failure to do so could not be justified merely by its doubts as to the effectiveness of that practice.

Conclusion : no violation (unanimously).

With regard to the Government Commissioner’s presence at the deliberations, the Court referred to its judgment in the case of Kress v. France of 7 June 2001. In the Court’s opinion, the benefit for the trial bench of this purely technical assistance was to be weighed against the higher interest of the litigant, who had to have a guarantee that the Government Commissioner would not be able, through his presence at the deliberations, to influence their outcome. That guarantee was not afforded by the current F rench system.

Conclusion : violation (unanimously).

With regard to the Conseil d’Etat’s decision to try the merits of the case without remitting it to the lower court, the right to an adversarial criminal trial encompassed, both for the prosecution and for the defence, the possibility not only to submit evidence which was necessary to the su ccess of their claims, but also to study and challenge any document or observation submitted to the judge with a view to influencing his or her decision. Furthermore, the fairness of proceedings had to be assessed in the light of the entirety of those proc eedings. In the present case the question submitted to the Conseil d’Etat had been argued before the Administrative Court and in the defence pleadings submitted by the applicant to the Conseil d’Etat . Moreover, the Conseil d’Etat ’s judgment was based on do cuments on the case file which had been submitted to the trial court and court of appeal and was limited to correcting the error in law made by the Administrative Court of Appeal and, accordingly, to re-establishing the legal and factual position which had been established in inter partes proceedings before the Administrative Court. No breach of the principle of adversarial proceedings had therefore been established.

Conclusion : no violation (unanimously)

Article 41 - The Court awarded 3,000 euros for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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