JOINT PARTLY DISSENTING OPINION OF JUDGES SPANO, KJØLBRO, TURKOVIĆ, YUDKIVSKA, PEJCHAL, MOUROU-VIKSTRÖM AND FELICI

1. We are unable to subscribe to the Court’s reasoning and its finding “that there has been no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings” (point 2 of the operative provisions).

2. In our view and for the reasons explained below, the Court has not applied the existing case-law of relevance to the present case, and, to the extent that it is to be understood as a further development or clarification of the case-law, we have principled objections to the reasoning in this part of the judgment, which in our opinion creates confusion regarding the application of well-established principles.

3. In our view, the Court has failed to take sufficient account of the core of the complaint brought before it, the existing case-law on Article 7 of the Convention, the link between Articles 6 and 7, the need to interpret the two sets of rights in a harmonious manner and the possible negative consequences for the Court’s case-law flowing from this judgment.

The core of the complaint brought before the Court in the present case

4. In 1995 the tax authorities presented the applicant company with a claim relating to the 1993 fiscal year, including supplementary tax (the taxes due) and tax surcharges (the penalty imposed).

5. The applicant company objected to the claim and the dispute was brought before the domestic courts. The core of the applicant company’s objection was that the claim was time-barred. More specifically, the applicant company argued that the tax authorities’ demand for payment of 24 October 2000 did not interrupt or suspend the running of the five-year limitation period and that, consequently, the claim was time-barred.

6. While the dispute was pending before the domestic courts the Miscellaneous Provisions Act was enacted on 9 July 2004, and entered into force on 25 July 2004.

7. On 6 February 2007 the Antwerp Court of Appeal ruled in favour of the tax authorities and against the applicant, not basing its ruling on section 49 of the Miscellaneous Provisions Act. The judgment was appealed against, and before the Court of Cassation the tax authorities relied exclusively on section 49 of the Miscellaneous Provisions Act (see paragraph 23 of the judgment).

8. The Court of Cassation applied section 49 of the Miscellaneous Provisions Act and ruled in favour of the tax authorities and against the applicant company, applying the provision in question retrospectively and finding that the demand for payment of 24 October 2000 had interrupted the limitation period and that, consequently, the claim for supplementary tax and tax surcharges had not become time-barred (see paragraph 27 of the judgment).

9. In our view, there can be no doubt that had it not been for the enactment and retrospective application of section 49 of the Miscellaneous Provisions Act, the supplementary tax and the tax surcharges would have been declared time-barred in the applicant company’s case. This would have been in accordance with the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003.

10. This follows clearly from the reasoning of the Court of Cassation (see paragraph 27 of the judgment) to the effect that section 49 of the Miscellaneous Provisions Act “must be applied retrospectively by the courts, in accordance with the legislature’s wishes” and that the legislature’s aim in adopting a retrospective measure was “to protect the rights of the Treasury in the context of pending proceedings in which tax debts disputed on the basis of the position taken in the case-law were about to become, or had already become, time-barred.”

11. This understanding of domestic law and practice is also confirmed by the reasoning of the Constitutional Court in its judgment of 7 December 2005 (see paragraph 47 of the judgment), to the effect that the purpose of the legislative interference was to counteract the retrospective effects of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003 and that it was justified due to exceptional circumstances.

12. This is also confirmed by the Government’s written observations before the Grand Chamber, in which the Government do not call into question the retrospective application of section 49 of the Miscellaneous Provisions Act in the applicant company’s case, explaining that the passing of the Act was a response by the legislature aimed at counteracting the change in the Court of Cassation’s case-law resulting from the judgments of 10 October 2002 and 21 February 2003. In fact, the Government argue extensively that the legislative interference with retrospective effect was justified by exceptional circumstances and pursued the purpose of restoring legal certainty.

13. This understanding of domestic law and practice was also the basis on which the Chamber decided the case. Thus, the Chamber stated that the applicant company “could legitimately expect that its tax debt would be declared time-barred in accordance with the case-law of the Court of Cassation” arising out of the judgments of 10 October 2002 and 21 February 2003. The Chamber also stated that section 49 of the Miscellaneous Provisions Act “settled, finally and with retrospective effect, the issue of interruption of the limitation period in ongoing tax proceedings”. More specifically, the Chamber stated that the supplementary taxes “had become time-barred”, that it was “solely due to the retrospective application of the provisions” that the claim had not been declared time-barred, and that the limitation period “had already expired” (see paragraphs 63, 64, 65 and 67 of the Chamber judgment).

14. The majority also seem to acknowledge this understanding of domestic law and practice (see paragraph 99 of the judgment).

15. From this we conclude the following: had it not been for the legislature’s enactment of section 49 of the Miscellaneous Provisions Act, the tax authorities’ claim for supplementary tax and tax surcharges would have been declared time-barred, as the demand for payment of 24 October 2000, in the light of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, did not interrupt or suspend the running of the limitation period. More specifically, the very purpose of passing the Act was to prevent that from happening, and the Act was applied to pending cases and with retrospective effect.

16. In formulating the question to be decided by the Court in the present case, it is important to distinguish between supplementary tax and tax surcharges.

17. As rightly concluded by the Court, and not contested by the Government, Article 6 of the Convention does not apply to supplementary tax (see paragraphs 66 and 71 of the judgment), but does apply to tax surcharges that constitute criminal charges within the meaning of the Court’s case-law (see paragraphs 70 and 71 of the judgment). Not only is the Court’s case-law clear on this point, but according to domestic law a claim for supplementary tax is “subject to an increase based on the nature and seriousness of the offence” (see paragraph 35 of the judgment). In other words, the tax surcharge is imposed “based on the nature and the seriousness of the offence”.

18. From this we conclude that nothing would have prevented the legislature from enacting section 49 of the Miscellaneous Provisions Act and applying it with retrospective effect to claims for supplementary tax, as the latter fall outside the scope of Article 6 of the Convention, under both its civil and criminal limbs. Moreover, in the present case there may have been exceptional circumstances justifying such a legislative intervention to protect the general interest. However, that is not what the Court was called upon to decide in the present case.

19. On the contrary, the legal issue to be decided by the Court was the following. Did the enactment of section 49 of the Miscellaneous Provisions Act and its retrospective application in the applicant company’s case, resulting in a criminal sanction (tax surcharges) being imposed on the applicant company even though the claim had become time-barred as a consequence of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, violate the applicant company’s rights under Article 6 of the Convention? In other words, did the legislative intervention, restoring the applicant company’s criminal liability for tax surcharges after the offence had become time-barred, violate the applicant company’s rights under Article 6 of the Convention?

The existing case-law on Article 7 of the Convention

20. The answer to the legal question articulated above, concerning the restoration of criminal liability for an offence that has already become time ‑ barred, would, in our view, be clear and straightforward if the question were to be assessed under Article 7 of the Convention.

21171. Based on existing case-law, restoring criminal liability for an offence that has become time-barred will violate Article 7 of the Convention, and it makes no difference whether criminal liability is restored by means of a legislative intervention, as in the present case, or by means of a change in the case-law.

22. Depending on the domestic legal system in question, statutes of limitation may be regarded as substantive or procedural rules. In some legal systems, if a crime has become time-barred the accused cannot be held criminally responsible for the offence and will be acquitted. In other legal systems, if a crime has become time-barred, the accused cannot be prosecuted for the offence and the proceedings will have to be discontinued. Irrespective of whether statutes of limitation are seen as substantive or procedural rules, the outcome is, in practical terms, the same for the accused, who cannot be held criminally responsible for the offence.

23. The Court has ruled that amending statutes of limitation and extending the limitation period for an offence will not violate Article 7 of the Convention even if such legislative intervention is applied with retrospective effect, provided that the offence in question had not already become time ‑ barred when the new legislation was adopted.

24. In Coëme and Others v. Belgium (nos. 32492/96 and 4 others, § 149, ECHR 2000-VII), the Court ruled that immediate application of new statutes of limitation, extending the limitation period for an offence, did not violate Article 7 of the Convention. In reaching its conclusion, the Court stated as follows:

“The extension of the limitation period brought about by the Law of 24 December 1993 and the immediate application of that statute by the Court of Cassation did, admittedly, prolong the period of time during which prosecutions could be brought in respect of the offences concerned, and they therefore detrimentally affected the applicants’ situation, in particular by frustrating their expectations. However, this does not entail an infringement of the rights guaranteed by Article 7, since that provision cannot be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation ” (emphasis added).

25. In Kononov v. Latvia ([GC], no. 36376/04, §§ 232 and 233, ECHR 2010), the Court had to assess whether the criminal conviction of the applicant for a crime for which no statute of limitation applied amounted to an ex post facto extension of a national limitation period which would have applied when the offence was committed, and consequently whether his prosecution amounted to a retrospective application of criminal law. In assessing the complaint, the Court formulated the question as follows: “The essential question to be determined by the Court is whether at any point prior to the applicant’s prosecution, such action had become statute-barred ...” In reaching the conclusion that there had been no violation of Article 7 of the Convention, the Court stated: “In sum, the Court concludes, firstly, that any prescription provisions in domestic law were not applicable ... and, secondly, that the charges against the applicant were never prescribed under international law ... It therefore concludes that the prosecution of the applicant had not become statute-barred ” (emphasis added).

26. In our view, it was already clear from the cases cited that States could enact legislation extending limitation periods, and could apply such provisions with retrospective effect, provided that the offence in question had not already become time-barred when the new provisions were enacted, as this would imply restoring or reviving criminal liability for crimes that had already become time-barred, in violation of Article 7 of the Convention.

27. If there were any doubts as to the Court’s case-law on this issue, they were dispelled by the Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture ([GC], request no. P16-2021-001, Armenian Court of Cassation, 26 April 2022), in which the Court stated as follows:

“72. The Court further reiterates that, as it has held on several occasions, limitation may be defined as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence was committed. Limitation periods, which are a common feature of the domestic legal systems of the Contracting States, serve several purposes, which include ensuring legal certainty and finality and preventing infringements of the rights of defendants, which might be impaired if courts were required to decide on the basis of evidence which might have become incomplete because of the passage of time (see Coëme and Others , cited above, § 146).

73. In the aforementioned case, the Court was called upon to determine whether legislative changes extending a limitation period, which had not yet expired, posed a problem under Article 7. The Court accepted that the extension of the limitation period had indeed prolonged the period of time during which prosecutions could be brought in respect of the offences concerned and therefore detrimentally affected the applicants’ situation, in particular by frustrating their expectations. However, this did not entail an infringement of the rights guaranteed by Article 7, since that provision could not be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences had never become subject to limitation ... In reaching that conclusion, the Court attached importance to the fact that the domestic court had followed the generally recognised principle that, save where expressly provided to the contrary, procedural rules apply immediately to proceedings that are under way (the tempus regit actum principle) ...

75. Thus, as can be seen from the rulings summarised above, legislative changes extending a limitation period which had not yet expired have not been found to constitute a failure to comply with Article 7 of the Convention.

76. However, in contrast to those cases, the Court found a violation of Article 7 in a recent case in which the applicants had been convicted of an offence which was time ‑ barred (see Antia and Khupenia v. Georgia , no. 7523/10, §§ 38-43, 18 June 2020). In doing so, the Court, while reiterating the definition and purpose of limitation periods stated at paragraph 72 above, observed that in this context, the main question before it, subject to its power of review under Article 7, was whether there was a valid legal basis for the applicants’ conviction in view of the expiry of the statute of limitation in respect of the relevant offence.

77. In other words, as can be deduced from the Court’s findings above, where criminal responsibility has been revived after the expiry of a limitation period, it would be deemed incompatible with the overarching principles of legality ( nullum crimen, nulla poena sine lege ) and foreseeability enshrined in Article 7 ... It follows that where a criminal offence under domestic law is subject to a statute of limitation, and becomes time-barred so as to exclude criminal responsibility, Article 7 would preclude the revival of a prosecution in respect of such an offence on account of the absence of a valid legal basis. To hold otherwise would be tantamount to accepting ‘the retrospective application of the criminal law to an accused’s disadvantage’ ...

78. In the present context, the Court is not presented with a legislative extension of a limitation period before its expiry in a case pending for adjudication, but with a situation where the requesting court is to determine whether to apply a ten-year limitation period, pursuant to Article 75 § 1(3) of the CC and Article 35 § 1(6) of the CCP, or an already existing provision in Article 75 § 6 of the CC specifying an exception whereby no limitation period is to apply in the circumstances described therein. ... it is first and foremost for the national court to determine, within the context of its domestic constitutional and criminal law rules, whether rules of international law having legal force in the national legal system, in the present instance pursuant to Article 5 § 3 of the Constitution ..., can provide for a sufficiently clear and foreseeable legal basis within the meaning of Article 7 of the Convention to conclude that the criminal offence in question is not subject to a statute of limitation” (emphasis added).

28. The Court delivered the following opinion:

“Where a criminal offence is subject to a statute of limitation pursuant to the domestic law and the applicable limitation period has already expired, Article 7 of the Convention precludes the revival of a prosecution in respect of such an offence . It is first and foremost for the national court to determine whether rules of international law having legal force in the national legal system can provide for a sufficiently clear and foreseeable legal basis within the meaning of Article 7 of the Convention to conclude that the criminal offence in question is not subject to a statute of limitation” (emphasis added).

29. The above-mentioned case-law leads us to the following conclusion: where a criminal offence is subject to a statute of limitation pursuant to the domestic law and the applicable limitation period has already expired, Article 7 of the Convention precludes the revival of a prosecution in respect of such an offence.

The link between Articles 6 and 7 of the Convention

30. It may be argued that the above-mentioned case-law concerned complaints under Article 7 of the Convention and, therefore, that the outcome of those cases might have been different had the complaints been assessed under Article 6 of the Convention.

31. Admittedly, there is a difference between Article 7 of the Convention, providing substantive guarantees in criminal cases, and Article 6 of the Convention, providing procedural guarantees in criminal cases.

32. However, it is a well-established principle that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see, for example, Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 54, ECHR 2012; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 136, ECHR 2012 (extracts); Marguš v. Croatia [GC], no. 4455/10, § 128, ECHR 2014 (extracts); and Merabishvili v. Georgia [GC], no. 72508/13, § 293, 28 November 2017).

33. Furthermore, in many cases, the Court has emphasised the link between Article 6 and Article 7 in criminal cases, in particular with regard to the notion of a “criminal charge”. By way of illustration, in Gestur Jónsson and Ragnar Halldór Hall v. Iceland ([GC], nos. 68273/14 and 68271/14, § 112, 22 December 2020), the Court stated as follows:

“The Court has already held that the proceedings in question did not involve the determination of a ‘criminal charge’ within the meaning of Article 6 of the Convention and that this provision did not apply to those proceedings under its criminal limb. In these circumstances and for reasons of consistency in the interpretation of the Convention taken as a whole, the Court does not find that the fines complained of under Article 7 are to be considered a ‘penalty’ within the meaning of this provision ..., which accordingly did not apply.”

34. More importantly, in a case where the Court had to assess a complaint under Article 6 of the Convention concerning a legislative intervention with retrospective effect extending a limitation period, it relied on its case-law under Article 7 of the Convention. Thus, in Chim and Przywieczerski v. Poland (nos. 36661/07 and 38433/07, §§ 205 and 206, 12 April 2018), the Court found that the legislature’s enactment of legislation extending limitation periods in the course of criminal proceedings against the applicant did not amount to a violation of Article 6 of the Convention. In its reasoning, the Court reiterated its earlier case-law, as follows:

“In this connection, the Court reiterates that in Coëme and Others v. Belgium , it examined a complaint under Article 7 of the Convention about the immediate application of a law extending limitation periods. It found that the provision had not been violated ’since it could not be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation ’ ...” (emphasis added).

In the applicants’ case, the offences had not become time-barred when the new legislation entered into force and the Court concluded as follows:

“Having regard to those findings, which may be respectively applied to the second applicant’s complaint under Article 6 § 1, and in the absence of arbitrariness, the Court finds that the application of the 2005 Amendment extending limitation periods to the case against the second applicant cannot be interpreted as a violation of the right to a fair hearing” (emphasis added).

35. From this we conclude, without hesitation, that Article 6 of the Convention cannot be interpreted in a manner that would permit the introduction of new legislation with retrospective effect extending limitation periods for criminal offences that have already become time-barred under domestic law, thereby restoring or reviving criminal liability, as this would amount to a violation of, and therefore be inconsistent with, Article 7 of the Convention.

The majority’s reasoning and its possible negative consequences for the Court’s case-law

17236. In reaching the conclusion that there has been no violation of Article 6 of the Convention, the Court relies on several arguments. However, in our view, those arguments cannot, separately or in combination, justify the finding of no violation.

37. The Court relies on a line of case-law to the effect that tax surcharges differ from the hard core of criminal law and that, therefore, the guarantees of Article 6 of the Convention do not necessarily apply with their full stringency (see paragraphs 76 and 122 of the judgment).

38. We do not call into question this line of case-law, but, in our view, it is not relevant to the present case. In all the cases cited by the Court, the complaint under Article 6 concerned procedural guarantees, not legislative interventions restoring criminal liability for offences that had become time ‑ barred. Thus, Jussila v. Finland ([GC], no. 73053/01, ECHR 2006-XIV) concerns the right to a public hearing, Segame SA v. France (no. 4837/06, ECHR 2012 (extracts)) concerns access to a court and scope of review, and Chap Ltd v. Armenia (no. 15485/09, 4 May 2017) concerns the examination of witnesses. It is not surprising that the application of Article 6 may be more flexible in respect of cases that are criminal within the autonomous meaning of Article 6 but at the same time do not belong to the “hard core of criminal law”, in particular as regards the manner in which such cases are processed and the procedural guarantees applicable. However, it is quite a different matter to find that the nature of the criminal charge can justify restoring criminal liability for offences that have already become time-barred.

39. The Court also relies on case-law concerning legislative interference with retrospective effect on pending proceedings and on the “compelling grounds” test (see paragraphs 92-94 of the judgment).

40. Here again, we do not call into question the line of case-law relied on, but we would argue that for several reasons it does not justify the findings made by the majority. Firstly, the case-law relied on has developed primarily in relation to civil disputes but has also, in a few cases, been applied to criminal cases.

41. The cases of Biagioli v. San Marino ((dec.), no. 8162/13, 8 July 2014) and Chim and Przwieczerski (cited above) are of little relevance to the present case as they both concerned legislative interference extending the limitation periods in cases where the criminal offence, unlike in the present case, had not already become time-barred.

42. Nor can Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009) support the Court’s finding in the present case. In that case, the applicant had opted for summary proceedings in a criminal case in order to obtain certain advantages, in particular a reduced sentence. This entailed waiving certain procedural guarantees that would otherwise have applied, including the right to a public hearing, the examination of witnesses and the production of evidence. However, owing to a legislative intervention with retrospective effect applying the new provisions to cases where the accused had already opted for summary proceedings, the advantages of the applicant’s choice were removed. In that case the Court, not surprisingly, found that there had been a violation of Article 6 of the Convention, emphasising that the legislative intervention had frustrated the applicant’s legitimate expectations. The Court stated, inter alia , as follows:

“139. ... It is contrary to the principle of legal certainty and the protection of the legitimate trust of persons engaged in judicial proceedings for a State to be able to reduce unilaterally the advantages attached to the waiver of certain rights inherent in the concept of fair trial. As such a waiver is made in exchange for the advantages mentioned, it cannot be regarded as fair if, once the competent domestic authorities have agreed to adopt a simplified procedure, a crucial element of the agreement between the State and the defendant is altered to the latter’s detriment without his consent. In that connection, the Court notes that, although the Contracting States are not required by the Convention to provide for simplified procedures ..., where such procedures exist and have been adopted, the principles of fair trial require that defendants should not be deprived arbitrarily of the advantages attached to them.”

43. Secondly, in analysing whether the Government have sufficiently demonstrated that the grounds for a legislative intervention in pending judicial proceedings meet the very high threshold required to constitute “compelling grounds” for the purposes of Article 6 of the Convention, we find it axiomatic that any grounds advanced for measures that directly breach Article 7 cannot be considered “compelling” for these purposes. The approach taken by the majority in fact creates a direct clash between the protections afforded by the two Articles.

44. In the present case the Court, applying the “compelling grounds” test (see paragraphs 101, 102 and 123 of the judgment), identifies the “relevant grounds” and assesses their “compelling nature” (see paragraph 108 of the judgment). The Court recognises three grounds as being relevant: (1) the aim of combatting large-scale tax fraud (see paragraph 104 of the judgment); (2) the aim of avoiding arbitrary discrimination between taxpayers (see paragraph 105 of the judgment); and (3) the aim of restoring legal certainty (see paragraphs 106 and 107 of the judgment).

45. We have already explained above why the application of this line of case-law is problematic with regard to the specific legal question to be answered in the present case. In addition, we would reiterate that all the cases referred to by the Court (see paragraph 107 of the judgment) concern legislative interventions in pending civil and not criminal cases, and as such are not directly relevant to the present case.

46. The Court relies on the retrospective effects of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003 on administrative practice and case-law concerning the issue of interruption of the limitation period, highlighting the fact that the Court of Cassation ruled for the first time on the issue (see paragraphs 109-112 of the judgment). We fail to see the relevance of this argument. The issue to be decided by the domestic courts was whether or not the demand for payment dated 24 October 2000 interrupted or suspended the running of the limitation period. This depended on an interpretation of domestic law. In the above-mentioned judgments, the Court of Cassation took a position on the correct interpretation of domestic law and reached the conclusion that a demand for payment did not interrupt the running of the limitation period. Once the Court of Cassation had interpreted domestic law in a final ruling, the applicant company could legitimately expect that this case-law would also be applied to its case. In other words, the applicant company could legitimately expect that the tax authorities’ claim had become, and would be declared, time-barred (see also paragraph 99 of the judgment).

47. The Court also relies on the timing of the legislative interference, emphasising that it occurred a relatively short time after the Court of Cassation’s judgment of 10 October 2002 (see paragraph 113 of the judgment). Again, we fail to see the relevance of this argument. What is decisive is not whether the legislature intervened shortly after the judgment of 10 October 2002, but whether the applicant company’s criminal liability for tax surcharges had become time-barred when the Miscellaneous Provisions Act was enacted.

48. The Court also relies on the argument that the legislature was not bound by the Court of Cassation’s judgment of 10 October 2002 and that it had the power to amend legislation (see paragraph 114 of the judgment). Obviously, we agree that the legislature was not bound by the Court of Cassation’s judgment of 10 October 2002 and could amend the relevant legislation on statutes of limitation and interruption of the running of limitation periods. However, as this case is about tax surcharges that constitute criminal charges within the meaning of Article 6 of the Convention, the legislature could, in our view, only do so in respect of cases where the claim had not already become time-barred.

49. The Court further argues that legal certainty was not undermined, that the legislative intervention restored legal certainty, that the judgments of 2002 and 2003 were an unexpected development in the case-law of the Court of Cassation, and that the Miscellaneous Provisions Act re-established previous administrative practice (see paragraph 117 of the judgment). In addition, the Court argues that the applicant company could not have expected that the claim relating to its tax debt, and consequently also the claim relating to the tax surcharges, would be declared time-barred (see paragraph 118 of the judgment). With all due respect, how can it reasonably be argued that a judgment of the Court of Cassation, the highest court of the land, taking a clear position on a legal issue for the first time is itself the source of legal uncertainty? On the contrary, the legal position was made clear after the Court of Cassation judgment of 10 October 2002, not the other way around. In the present case the applicant company argued that the tax authorities’ claim had become time-barred, arguing, in particular, that the demand for payment of 24 October 2000 had not interrupted the running of the limitation period, a view confirmed by the Court of Cassation in its judgments of 2002 and 2003. Once the highest domestic court has taken a final position on the correct interpretation of domestic law, the principle of legal certainty actually requires such a final ruling to be complied with and applied, even though this does not prevent the legislature from intervening, even with retrospective effect, provided that such a legislative intervention does not restore or revive criminal responsibility for offences that have already become time-barred.

50. The Court also observes that the expiry of the limitation period had not been established by a judicial decision, still less one with res judicata effect (see paragraph 121 of the judgment). Again, the expiry of a limitation period for a criminal charge, resulting in the offence becoming time-barred, may occur at various stages of the proceedings. If a criminal offence has become time-barred before proceedings have been instituted, this would normally have as a consequence that no criminal proceedings are instituted. If the statute of limitation expires while the criminal proceedings are pending, this would normally lead to the discontinuation of the proceedings or the acquittal of the accused. We fail to see how the protection offered by statutes of limitation can be dependent upon whether there has been a final judicial decision on the matter, something which would significantly reduce the protection. Nor is there anything in the advisory opinion referred to by the Court (see paragraph 121 of the judgment) to support the view that it is decisive or important whether the expiry or otherwise of a limitation period has been established by a judicial decision.

51. Finally, the Court observes that the present case concerns Article 6 of the Convention, not Article 7, and that tax surcharges differ from the hard core of criminal law (see paragraph 122 of the judgment). We have already addressed this argument above.

Concluding remarks

52. For the reasons outlined above, we are of the view that the enactment of section 49 of the Miscellaneous Provisions Act and its retrospective application in the applicant company’s case, resulting in a criminal sanction (tax surcharges) being imposed on the applicant company even though the claim had become time-barred as a consequence of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, amounted to a violation of the applicant company’s rights under Article 6 of the Convention.

53. The existing case-law under Article 6 and Article 7 clearly supports this conclusion. The Court’s reliance on the “compelling grounds” test and the argument that tax surcharges differ from “the hard core of criminal law”, invoked in order to justify the finding of no violation of Article 6, lead to the unfortunate outcome that a legislative intervention with retrospective effect restoring criminal liability for offences that have become time-barred – something that would amount to a violation of Article 7 of the Convention – can, nevertheless, be in conformity with Article 6 of the Convention. Article 6 is thereby interpreted in a manner that renders it inconsistent with Article 7 of the Convention.

[1] See, in particular, B. Vanermen, “De verjaring van betwiste directe belastingen: het Hof van Cassatie beantwoordt een aantal van de resterende vragen” (“The time-barring of contested direct tax debts: the Court of Cassation answers some of the outstanding questions”), comments on the Court of Cassation judgment of 17 January 2008, Tijdschrift voor Fiscaal Recht (Journal of Taxation Law), 2008, (786), 790.

[2] See, for example, J. Van Besien, “Artikel 443ter, § 1, 2de lid WIB 1992 versus beginsel van artikel 2251 B.W. Conclusie achteraf, was het allemaal niet nodig geweest?” (“Article 443 ter § 1, subparagraph 2, of the 1992 Income Tax Code and the principle of Article 2251 of the Civil Code. With hindsight, was it all unnecessary?”, comments on the Ghent Court of Appeal judgment of 12 October 2010, Tijdschrift voor Fiscaal Recht (Journal of Taxation Law), 2011, 645.