Violation of Art. 6-1 in respect of access to court;Violation of Art. 6-1 in respect of length of proceedings;No violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

In DATE , as part of a large - scale investigation into taxicab operators , ORG ( skattemyndigheten ) of GPE carried out a tax audit of the applicant 's taxi firm . Having discovered in the course of the audit certain irregularities in the tax returns for DATE , ORG drafted an audit report on DATE containing a supplementary tax assessment and invited the applicant to submit comments . The applicant challenged the report and requested that further investigative measures be carried out .

Having regard to the findings of the audit and the applicant 's observations , ORG – by decisions of CARDINAL and DATE increased the applicant 's liability to income tax by MONEY ( SEK ) , to value - added tax ( mervärdesskatt ) by QUANTITY and to employer 's contributions ( arbetsgivaravgifter ) by SEK CARDINAL,CARDINAL . Moreover , as the information supplied by the applicant in his tax returns was found to be incorrect and the figure given for the turnover of the business had been revised upwards under a discretionary assessment procedure , ORG ordered him to pay tax surcharges ( skattetillägg , avgiftstillägg ) amounting to PERCENT of the increased tax liability , depending on the type of tax involved . The additional taxes levied on the applicant , including interest and surcharges , totalled CARDINAL , of which SEK CARDINAL,CARDINAL were surcharges . The amounts relating to value - added tax and employer 's contributions were payable on DATE and those relating to income tax on DATE .

Claiming that the information relied upon by ORG to calculate the turnover of his business was inaccurate , the applicant , by a letter of DATE , requested the ORG to reconsider its decisions . As he risked being declared bankrupt before his tax liability had been determined by the courts , he also requested a stay of execution in respect of the amounts assessed . The request was prompted by the fact that neither an appeal to a court nor a request for reconsideration by ORG had in itself any suspensive effect on the obligation to pay the taxes and surcharges due as a result of the impugned decisions .

NORP In letters of DATE to the applicant 's counsel ORG responded to the applicant 's request for a stay of execution as follows :

“ ... ORG considers that the prerequisites laid down in DATE , subsection CARDINAL(CARDINAL ) or ( CARDINAL ) , of LAW [ Uppbördslagen , DATE ] for granting a stay of execution have been fulfilled .

According to section DATE , subsection CARDINAL , of LAW , ORG may , in certain cases , require that security be provided for any amount in respect of which a stay of execution is sought .

Having regard to the information contained in [ the applicant 's ] tax return and considering the other circumstances in the case , ORG finds that [ the applicant 's ] ability to pay is open to serious doubt .

ORG is of the opinion that [ the applicant ] has to provide security for the amount ... in respect of which he has requested a stay of execution . Only a banker 's guarantee will be accepted as security .

You are hereby invited to provide security . This should be done no later than CARDINAL DATE .

Should you fail to provide security by the date mentioned above , ORG will reject your request . ”

By decisions of CARDINAL DATE ORG rejected the applicant 's request for a stay of execution , as no security had been furnished .

The applicant appealed against those decisions to ORG ( länsrätten ) of GPE , claiming that he should be exempted from the obligation to provide security and granted a stay of execution . Both claims rested on the contention that it would be unreasonable and amount to a violation of LAW for enforcement proceedings to be instituted against the applicant without a court having first determined whether he had any liability to pay the amounts involved .

By judgments of DATE ORG upheld ORG decisions of CARDINAL DATE . The court noted at the outset that the formal prerequisites for granting a stay of execution under section DATE , subsection CARDINAL(CARDINAL ) , of LAW had been fulfilled . However , subscribing to the reasons given by ORG , it found that the applicant could not be granted a stay of execution unless security was provided .

The applicant , who did not furnish security , lodged a notice of appeal . On DATE ORG ( kammarrätten ) in GPE refused him leave to appeal against ORG judgments . His request for leave to appeal against the appellate court 's decisions was refused by ORG ( Regeringsrätten ) on DATE .

NORP In DATE the applicant was registered as being in arrears with value - added tax and employer 's contributions and the corresponding tax surcharges and interest imposed as a result of ORG decisions . The amounts relating to income tax did not become payable until DATE .

On DATE ORG ( kronofogde - myndigheten ) of GPE , representing the ORG , filed a petition with ORG ( tingsrätten ) of ORG , requesting that the applicant be declared bankrupt . According to a statement submitted by the ORG , the applicant 's tax liability as of DATE amounted to SEK CARDINAL,CARDINAL , including penalties for late payment ( dröjsmålsavgifter ) that had accrued since the final date on which payment could have been made . That amount included SEK CARDINAL,CARDINAL , plus PERCENT in penalties for late payment , in tax surcharges . The ORG noted that an investigation had revealed that the only property owned by the applicant was some vehicles , but of insufficient value to cover the debt .

The applicant was summoned to appear before ORG on DATE . The court commenced its examination of the case but , at the insistence of the applicant – who referred to the fact that his request for a stay of execution was still pending before ORG – adjourned the bankruptcy proceedings until DATE , when it held a second hearing in the case . When heard by the court the applicant now stated that he was unable to comply with ORG condition for granting a stay of execution , namely providing security . By a decision of DATE , after rejecting the applicant 's request for a further adjournment , ORG declared the applicant bankrupt . In so doing it had regard to the fact that , under LAW , the applicant was under an obligation to pay the debt , was unable to provide the security required in order to obtain a stay of execution and had to be considered insolvent as he had been found to have no distrainable assets .

The applicant appealed to ORG ( PERSON hovrätt ) , claiming , inter alia , that ORG decision amounted to a violation of LAW , in that the enforcement proceedings had been allowed to continue irrespective of the fact that he had challenged ORG decisions regarding his liability to taxes and tax surcharges .

The applicant 's appeal was dismissed by ORG on DATE . Leave to appeal against the appellate court 's decision was refused by ORG ( ORG domstolen ) on DATE .

According to a report by the bankruptcy administrator of CARDINAL DATE , all the applicant 's vehicles , with the exception of a car that had been leased to the applicant and had no residual value , had been sold by him shortly before he was declared bankrupt . The value of the remainder of the applicant 's assets listed in the statement of affairs was estimated at SEK CARDINAL , whereas the debt came to QUANTITY .

On DATE the bankruptcy proceedings were terminated owing to a lack of assets .

In accordance with section CARDINAL of LAW ( NORP om preskription av skattefordringar ORG . , CARDINAL:CARDINAL ) , the whole debt became statute - barred on DATE , at DATE following DATE it became due .

On DATE the applicant was sentenced by ORG to DATE imprisonment for tax fraud ( skattebedrägeri ) and a bookkeeping offence ( bokföringsbrott ) . The tax fraud concerned the above - mentioned value - added tax . The conviction was based on information obtained by ORG during its audit of the applicant 's taxi firm and statements he had made in his tax returns .

The judgment was upheld by ORG on DATE . Leave to appeal to ORG was refused on DATE .

As mentioned above , on DATE the applicant requested ORG to reconsider its decisions on taxes and tax surcharges . In a letter of DATE , the applicant referred to ORG order DATE temporarily adjourning the bankruptcy proceedings ( see paragraph CARDINAL above ) and stressed the need for a speedy reconsideration by ORG . On DATE the ORG – noting that the applicant had appealed against the decisions on taxes and tax surcharges – stood by its previous decisions and refused to change them . Consequently , the matters were automatically referred to ORG for determination .

On DATE the applicant requested an oral hearing at which it was proposed that certain witnesses would give evidence . Later , asked by ORG to clarify his request , the applicant stated that an oral hearing was not required on the issue of the assessment of the tax surcharges , but was necessary so that the court could hear evidence relating to the information on which the tax decisions were based . By a letter of DATE ORG informed the applicant that it did not find a hearing necessary and ordered him to make his final observations in the case in writing .

By judgments of DATE ORG upheld ORG decisions of CARDINAL and DATE and rejected the applicant 's request for an oral hearing , considering that the information on which the impugned decisions were based was reliable and showed that the applicant 's income and the taxes in question could not be assessed in accordance with the statements made in his tax returns . Thus , ORG had had good reason to make discretionary tax assessments based on the information obtained during the audit . Furthermore , the amounts levied on the applicant could not be considered too high . With respect to the tax surcharges , ORG made extensive references to the judgments of ORG of DATE and ORG of DATE ( see paragraphs CARDINAL below ) and concluded that the NORP provisions on tax surcharges were in conformity with the Convention . It considered that there had been sufficient reasons to impose the surcharges in question and that no legal basis for remitting them had been shown . In that connection , it dismissed the applicant 's argument that the allegedly excessive length of the proceedings constituted by itself a reason to remit the surcharges .

The applicant has appealed to ORG , where the dispute is at present pending .

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in LAW ( Taxeringslagen , CARDINAL:CARDINAL ) , the CARDINAL ORG ( NORP om mervärdeskatt , ORG , replaced by PERSON , CARDINAL ) and ORG from Employers Act ( NORP om uppbörd av socialavgifter PERSON arbetsgivare , CARDINAL:CARDINAL ) . Issues concerning taxation and the imposition of tax surcharges were regulated in a very similar manner in the various acts . In the following section , therefore , reference is made only to the provisions of LAW . LAW and parts of ORG DATE were replaced by LAW ( Skattebetalningslagen , DATE ) as from DATE . As no essential changes have been made by either the enactment of LAW or amendments to LAW , the following account describes both the present system and the one applicable at the material time .

Income tax , value - added tax and employer 's contributions are all determined by county tax authorities , to which taxpayers are obliged to submit information relevant to the assessment of taxes . For the purpose of securing timely , sufficient and correct information , there are provisions stipulating that , under certain circumstances , the tax authorities may impose penalties on the taxpayer in the form of tax surcharges .

These surcharges were introduced into NORP legislation in DATE . The new provisions entered into force on DATE at the same time as a new Act on tax offences . According to the preparatory documents ( Government Bill CARDINAL ) , the main purpose of the reform was to create a more effective and fairer system of penalties than the old CARDINAL , which was based entirely on criminal penalties determined by the ordinary courts following police investigation and prosecution . Unlike penalties for tax offences , the new surcharges were to be determined solely on objective grounds , and , accordingly , without regard to any form of criminal intent or negligence on the part of the taxpayer . It was thought that the old system did not function satisfactorily , since a large number of tax returns contained incorrect information whereas relatively few people were charged with tax offences . Now that the new system has been introduced only serious tax offences are prosecuted .

A tax surcharge is imposed on a taxpayer in CARDINAL situations : if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect ( LAW , section CARDINAL , of LAW ) or if , following a discretionary assessment , the tax authority decides not to rely on the tax return ( LAW , section CARDINAL ) . It is not only express statements that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority can not base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so ( LAW , section CARDINAL ) . In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time - limit . The surcharge amounts to PERCENT of either the income tax which the tax authority would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment . The corresponding provisions on value - added tax and employer 's contributions stipulate that the surcharge comes to PERCENT of the supplementary tax levied on the taxpayer . In certain circumstances , the rates applied are PERCENT or PERCENT , respectively , for the various types of tax .

Notwithstanding the fact that the taxpayer has furnished incorrect information , no tax surcharge will be imposed in certain situations , for example where the tax authority has corrected obvious miscalculations or written errors by the taxpayer , where the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities , such as a certificate of income from the employer , or where the taxpayer has corrected the information voluntarily ( LAW , section CARDINAL ) .

NORP Moreover , in certain circumstances , a tax surcharge will be remitted . Thus , taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted where the failure appears excusable by reason of the nature of the information in question or other special circumstances , or where it would be manifestly unreasonable to impose a surcharge ( LAW , section CARDINAL ) . The phrase “ the nature of the information ” primarily covers situations where a taxpayer has had to assess an objectively complicated tax question . According to the preparatory documents ( Government PERSON , p. CARDINAL ) , the expression “ manifestly unreasonable ” refers to situations in which the imposition of a tax surcharge would be disproportionate to the fault attributable to the taxpayer or would be unacceptable for other reasons . If the facts of the case so require , the tax authorities must have regard to the provisions on remission , even in the absence of a specific claim to that effect by the taxpayer ( LAW , section CARDINAL ) . In principle , however , it is up to the taxpayer to show due cause for the remission of a surcharge .

If dissatisfied with a decision concerning taxes and tax surcharges , the taxpayer may , before DATE after DATE , request the tax authority to reconsider its decision ( LAW , sections DATE ) . A decision concerning surcharges may also be reviewed at the taxpayer 's request after the expiry of this time - limit , if the decision on the underlying tax issue has not yet become final ( LAW , LAW ) . The tax authority may also , on its own motion , decide to review its own earlier decision . A review to the taxpayer 's disadvantage must be made before DATE following the assessment year unless the taxpayer , inter alia , has submitted incorrect information during the course of the tax proceedings or has failed to file a tax return or to furnish required information , in which case the time - limit normally expires at DATE after DATE ( LAW , sections CARDINAL and CARDINAL - CARDINAL ) .

The tax authority 's decision may also be appealed against to a county administrative court . As with requests for reconsideration , an appeal has to be lodged before DATE after DATE ( LAW , sections CARDINAL and CARDINAL ) , unless it concerns a tax surcharge based on a tax decision that has not yet become final ( LAW , section CARDINAL ) . Following the appeal , the tax authority must reconsider its decision as soon as possible and , if it decides to vary the decision in accordance with the taxpayer 's request , the appeal will become void ( LAW , section CARDINAL ) . If the decision is not thus amended , the appeal is referred to the county administrative court . If special reasons exist , an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment ( LAW , section CARDINAL ) . Further appeals lie to an administrative court of appeal and , subject to compliance with the conditions for obtaining leave to appeal , ORG .

A tax surcharge is connected to the tax in respect of which it has been imposed in that a successful objection to the underlying tax has an automatic effect on the tax surcharge , which is reduced correspondingly ( LAW , LAW ) . The tax surcharge may , however , be challenged separately , if grounds for reduction or remission exist ( see above ) .

If the proceedings before a county administrative court or an administrative court of appeal concern a tax surcharge , the appellant has the right to an oral hearing ( LAW , section CARDINAL ) .

At the material time , the collection of taxes and tax surcharges was regulated by LAW , ORG DATE and ORG from Employers Act . The provisions of these Acts relevant to the present case were very similar and , for this reason , only the provisions of LAW are set out below . Since DATE tax collection has been regulated by LAW , which contains essentially the same rules as LAW .

A request for reconsideration or an appeal against a decision concerning taxes and tax surcharges has no suspensive effect on the taxpayer 's obligation to pay the amounts in question ( section CARDINAL of LAW and LAW , LAW , of LAW ) .

However , the tax authority may grant a stay of execution in respect of taxes and surcharges provided that CARDINAL of the following CARDINAL conditions is met : ( CARDINAL ) if it may be assumed that the amount imposed on the taxpayer will be reduced or remitted ; ( CARDINAL ) if the outcome of the case is uncertain ; or ( CARDINAL ) if payment of the amount in question would result in considerable damage for the taxpayer or would otherwise appear unjust ( section CARDINAL(CARDINAL ) of LAW ) . According to the preparatory documents , the second condition will be satisfied not only where an outcome favourable to the taxpayer is just as likely as an unfavourable one , but also in cases where it is more probable than not that the proceedings will result in the taxpayer 's claims being rejected . However , a stay will not to be granted if the request for reconsideration or the appeal has little prospect of success ( Government PERSON , p. CARDINAL ) . An example of a situation where “ considerable damage ” might result is the forced sale of the taxpayer 's real estate or business or other property of great importance to his financial situation and livelihood ( ibid . , pp . CARDINAL ) .

If , in cases where the second or third condition just referred to is applicable , it may be assumed DATE due to the taxpayer 's situation or other circumstances DATE that the amount for which a stay of execution is requested will not be duly paid , the request can not be granted unless the taxpayer provides a bank guarantee or other security for the amount due . Even in these cases , however , a stay may be granted without security if the relevant amount is relatively insignificant or if there are other special reasons ( section CARDINAL(CARDINAL ) ) .

The application of section DATE of LAW was examined by ORG in a judgment of DATE ( Case no . DATE , published in PERSON ( RÅ ) DATE ref . CARDINAL ) . In that case , ORG ( PERSON ) and ORG had found that the applicant company DATE which had appealed against ORG decision to impose on it certain energy taxes and interest in the total amount of MONEY CARDINAL,CARDINAL,CARDINAL – could not be granted a stay of execution . ORG noted , however , that there was some uncertainty as regards the main issue in the case – whether the income in question was at all taxable – and that the tax levied constituted a considerable sum . For these reasons , it found that it would be unreasonable to demand payment of the amount before a court had determined the applicant company 's tax liability . Noting that security in principle had to be provided by the company , ORG nevertheless took account of the fact that ORG was expected to determine the tax - liability issue within a short time and that special reasons therefore existed for not requiring security . Accordingly , the applicant company was granted a stay of execution without security until DATE after ORG judgment .

A taxpayer may request the tax authority to reconsider its decision concerning the stay - of - execution issue and may appeal against its decision to a county administrative court . The procedure is essentially identical to that followed in regard to requests for reconsideration and appeals concerning the main tax issues ( sections CARDINAL , CARDINAL and CARDINAL of LAW – see paragraphs DATE above ) . Further appeals to an administrative court of appeal and ORG are subject to leave to appeal being granted ( section CARDINAL ) .

The enforcement offices are under an obligation to levy execution on a debtor upon request , even if the tax authority 's decision concerning tax and tax surcharges is not final ( LAW , section CARDINAL , and LAW , section CARDINAL , of LAW ( ORG ) taken in conjunction with sections CARDINAL and CARDINAL of LAW ; the latter provisions have been replaced by similar provisions in LAW ) . If the debtor does not have enough distrainable property , the enforcement office may request a district court to declare him or her bankrupt . The debtor will normally be considered insolvent if it is discovered during attempts to levy distress in DATE preceding the presentation of the bankruptcy petition that his or her assets are insufficient to pay the debt in full ( LAW , section CARDINAL , of LAW ( PERSON , CARDINAL:CARDINAL ) ) . If the bankrupt 's estate is not sufficient to defray all the existing and expected bankruptcy expenses and other liabilities that the bankrupt has incurred , the bankruptcy proceedings will be terminated ( LAW , LAW , of LAW ) .

If a bankruptcy petition is based on a tax debt determined by a decision that is not yet final , the court examining the petition is required to make an independent assessment of the alleged debt , having regard to the evidence adduced in the bankruptcy proceedings . The court accordingly has to make a prediction about the outcome of the pending tax assessment proceedings ( judgment of ORG of DATE , Case no . ORG CARDINAL ) .

As taxes and tax surcharges are payable even if the tax authority 's decision is not final , the decision may be varied or quashed after the relevant amounts have been paid . If so , the amount overpaid is refunded with interest ( LAW , LAW , and LAW , sections CARDINAL and CARDINAL , of LAW ) . If distress has been levied on the taxpayer 's property or he or she has been declared bankrupt on account of the tax debt , the distress warrant or bankruptcy decision will be set aside on appeal . Should the warrant or decision have become final , the taxpayer may , upon request , have the case reopened and the warrant or decision quashed ( LAW of LAW ( PERSON ) ) . Any property that has been distrained upon will , if possible , then be restored to the taxpayer ( LAW , section CARDINAL , of LAW ) . The same applies to property forming part of a bankrupt 's estate to the extent that it is not required for the payment of the bankruptcy expenses and other liabilities ( LAW , LAW , of LAW ) . If the taxpayer 's property has been sold and the amount obtained from the sale has been used to pay off the alleged tax debt , the taxpayer will receive financial compensation . In addition , it is open to the taxpayer to bring an action for damages against the ORG for the financial loss caused by the distress or the bankruptcy ( LAW , section CARDINAL , of LAW ( ORG , CARDINAL:CARDINAL ) ) , on the ground that the authorities or the courts have acted wrongfully or negligently .

Criminal proceedings may be brought against a taxpayer who has furnished incorrect information to a tax authority or who , with the object of evading tax , has failed to file a tax return or similar document . If the taxpayer has acted with intent and his actions have resulted in his being charged too little tax , he will be convicted of tax fraud . The possible sentence ranges from a fine for petty offences to imprisonment for a maximum of DATE for cases of aggravated tax fraud ( sections CARDINAL to CARDINAL of LAW ( Skattebrottslagen , CARDINAL:CARDINAL ) ) . If the taxpayer is considered to have been grossly negligent in submitting incorrect information , he may be convicted of making a negligent misrepresentation to the tax authorities ( vårdslös skatteuppgift ) ( section CARDINAL ) . A criminal charge under LAW is brought in accordance with the rules governing criminal proceedings in general which means , inter alia , that there can only be a criminal conviction on prosecution and trial by the courts of general jurisdiction .

NORP Under NORP law , the fact that a tax surcharge has already been imposed on the same grounds as those forming the basis of the criminal charge is no bar to criminal proceedings . Moreover , a decision to impose a surcharge has no binding force or any other effect that might prejudice the determination of the criminal charge . However , it was the intention of the legislature that the trial court would be aware when considering the criminal charge that a surcharge had been imposed ( Government PERSON , pp . CARDINAL and CARDINAL ) .

In a judgment delivered on DATE ORG considered whether a person could be convicted for a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings ( Case no . B CARDINAL - CARDINAL , published in Nytt juridiskt arkiv CARDINAL , p. CARDINAL ) . Having noted that , under NORP law , a surcharge is not considered a criminal penalty and thus does not prevent trial and conviction for a tax offence relating to the same act , ORG went on to examine the matter under LAW . It first considered , in the light of ORG case - law , that there were weighty arguments for regarding LAW as being applicable under its criminal head to proceedings involving a tax surcharge . Even assuming this to be the case , it held , however , that the principle of non bis in idem , as set forth in LAW No . CARDINAL to the LAW , did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied .

On DATE ORG delivered CARDINAL judgments in which it examined the applicability of LAW to the tax surcharges imposed under the NORP tax system . In CARDINAL of the judgments ( Case no . DATE , RÅ DATE ref . CARDINAL ) , noting the criteria established by ORG for determining whether an offence qualified as “ criminal ” , ORG gave an extensive opinion on the application of these criteria to the surcharges in question . It stated , inter alia , the following :

“ The NORP legislature has described the tax surcharge as an administrative sanction akin to a penalty ... The rules on oral hearings in LAW , section DATE , of LAW should be seen as a manifestation of the desire to bring taxation procedure into line with the legal safeguards laid down in LAW . Also , according to case - law ( RÅ DATE ref . CARDINAL ) , the rules on voting in LAW of LAW [ in the criminal - procedure part of the LAW ] are applicable in cases concerning surcharges under LAW ( CARDINAL:CARDINAL ) . The tax surcharge appears to have been considered a predominantly criminal sanction in other contexts as well . For example , it was stated in the preparatory documents to the legislation establishing the rule prohibiting ex post facto laws in LAW , section CARDINAL , subsection CARDINAL , of ORG [ Regeringsformen ] – which covers penalties , other criminal sanctions and other special legal effects of a criminal offence – that the proposed rule also applied to administrative sanctions akin to penalties such as tax surcharges , charges for the late payment of taxes and late - payment fees under various tax laws . ... However , under NORP law , there is no requirement of intent or negligence on the part of the taxpayer for the imposition of a tax surcharge . Also , the surcharge , to a certain extent , has the character of a conditional fine [ vitesfunktion ] and can be remitted on purely objective grounds . Moreover , it can not be converted into a prison sentence . Therefore , it has been considered that the surcharge is not to be classified as a penalty under the NORP legal system but rather as an administrative tax sanction . Accordingly , its classification as such under the NORP legal system does not constitute sufficient reason for regarding it as a criminal sanction within the meaning of the Convention .

With respect to the other CARDINAL criteria applied by ORG in this connection – that is , the nature of the offence and the nature and degree of severity of the sanction – the following should be taken into account . The NORP rules on tax surcharges are general and concern all taxpayers . The purpose of the system of administrative sanctions is to exert pressure on taxpayers , by means of a considerable financial sanction , to observe the obligations prescribed by the laws on taxes and charges . It should also be noted that the NORP tax surcharge , in its present form , replaced earlier procedures of a purely criminal nature . As regards the characteristics that have been established by ORG as referring to the nature and degree of severity of the sanction , it should be borne in mind that a surcharge is levied in proportion to the tax avoided by the provision of incorrect information . This means that surcharges may in principle come to very large amounts without any upper limit .

In ORG opinion , the last - mentioned aspect strongly indicates that Article CARDINAL is to be regarded as applicable to the NORP tax surcharge . In a recently delivered judgment , ORG also stated , in the light of ORG case - law , that ' there are weighty arguments for regarding LAW as being applicable also to NORP proceedings concerning tax surcharges ' [ ORG judgment of CARDINAL DATE , see paragraph CARDINAL above ] . CARDINAL consideration that might still cause some doubt is that the NORP surcharge differs from the NORP one with regard to CARDINAL of the CARDINAL factors to which ORG attached importance in its final assessment in ORG v. GPE , judgment of DATE , Series A no . CARDINAL ] : it can not be converted into a prison sentence . Furthermore , contrary to the NORP rules , the NORP rules on surcharges lack a subjective element in the real sense ...

However , the fact that the NORP tax surcharge can not be converted into a prison sentence is not , in ORG opinion , a strong argument against finding Article CARDINAL to be applicable . There is no doubt that a fine imposed under criminal law falls under LAW , irrespective of whether or not it can be converted into a prison sentence . Moreover , the judgment in GPE must be taken to indicate that financial sanctions other than a fine may also fall under LAW , at least if they are of some significance . Furthermore , following ORG judgments in PERSON ... and PERSON [ Lauko and PERSON v. GPE , judgments of DATE , Reports of Judgments and Decisions CARDINAL-VI , pp . PERSON and DATE , respectively ] , both of which concerned fines imposed in respect of minor offences , it must now be regarded as established that the imposition of a prison sentence is not a prerequisite for an act to be viewed as a criminal offence within the meaning of the ORG . Nor , in the circumstances , can an independent or even significant meaning be attached to the lack of subjective elements ( instead , there is reason to make a separate assessment as to the compatibility of strict liability with the presumption of innocence ... ) .

In view of the foregoing ORG finds , having regard to all the circumstances , that the NORP tax surcharge is to be regarded as falling under LAW . ... ”

ORG went on to examine the compatibility of the tax surcharges with the presumption of innocence under LAW . It gave the following opinion :

“ It is probable that , in determining whether strict criminal liability is compatible with the Convention , ORG will apply essentially the same test as it did in Salabiaku [ Salabiaku v. GPE , judgment of DATE , Series A no . CARDINAL-A ] with respect to liability established on the basis of presumptions . This means that liability must not arise entirely automatically on proof of the objective elements . Instead , in order for there to be no conflict with the presumption of innocence , the individual must have the possibility of some form of defence based on subjective circumstances .

As has been mentioned above , a tax surcharge is imposed by means of an administrative procedure without any requirement of intent or negligence . An appeal against a decision concerning a surcharge lies to an administrative court . If intent or gross negligence is established , liability under criminal law may be imputed following trial and conviction by a court of general jurisdiction .

Taxation in GPE is largely based on information given by the individual and certification by him or her of information received from other sources . The purpose of the tax surcharge is to emphasise , inter alia , that the individual is required to be meticulous in fulfilling the duty of filing a tax return and the related obligation to submit information . In principle , carelessness is not acceptable . Furthermore , the taxpayer must normally have an understanding of what information is of relevance to the examination of a claim in order to avoid the risk of incorrect information being considered to have been given and a surcharge imposed . In other words , the taxpayer is required to have a certain knowledge of the tax rules .

Inaccuracies and failures of the kind that may cause the imposition of a tax surcharge occur in a very large number of cases . The requirements of foreseeability and uniformity in the imposition of surcharges have therefore been regarded as calling for surcharges to be levied in accordance with relatively simple and standardised rules . However , the rules and regulations must also meet demands for a reasonably nuanced assessment ... and provide guarantees of legal certainty . Therefore , a surcharge is not imposed automatically when incorrect information is submitted . Firstly , certain types of inaccuracies are excluded and , secondly , authorities and courts must consider whether there are grounds for remitting the surcharge , even if no specific claim to that effect has been made .

The following may be stated with particular reference to the grounds for remitting surcharges . The requirements of understanding and meticulousness must be proportionate to the taxpayer 's ability and capacity to comprehend the tax rules and apply them to the existing situation . The rules on remission are aimed at preventing the imposition of a tax surcharge as a result of , for example , excusable ignorance or a misunderstanding as to the content of a tax rule . They are also supposed to prevent a surcharge from being imposed where other excusable mistakes are made in discharging the duty to file a tax return . The rules on remission are , moreover , drafted in such a way as to allow the authorities and courts a certain latitude in assessing questions of remission , having regard to the subjective position of the taxpayer . Indeed , the grounds for remission – in conjunction with the rules providing , on objective grounds , for surcharges not to be imposed or to be set aside in particular circumstances – may in certain cases allow of considerations that lead to greater exemption from surcharges than would be the case if the imposition of surcharges were conditional on the taxpayer having acted intentionally or negligently . Although the grounds for remission are not entirely comparable to the conditions for accountability which the subjective elements represent in criminal law , they must , when taken together with the cases in which surcharges are excluded on purely objective grounds , be considered as affording the taxpayer , where appropriate , sufficient scope for avoiding the imposition of surcharges to prevent a conflict with the presumption of innocence as set out in LAW arising . In general , however , this requires that the courts , in applying the rules on surcharges , should indeed make a nuanced and not too restrictive assessment in each individual case as to whether there are grounds for setting aside or remitting the tax surcharge . ”

ORG also considered that the NORP tax surcharge complied with the general requirement under LAW to be proportionate . It held that a system of sanctions against breaches of the obligation to submit tax returns and information to the tax authorities served an important public interest . Moreover , it noted , inter alia , that the requirement of proportionality was reflected in the rules on surcharges as , under LAW , section CARDINAL , of LAW , surcharges were to be remitted in cases where they would be “ manifestly unreasonable ” ( see paragraph CARDINAL above ) .

In the other judgment delivered on DATE ( Case no . DATE ) ORG was called upon to examine whether the enforcement of a tax surcharge prior to a court examination of a taxpayer 's liability to pay the surcharge in question conflicted with the presumption of innocence under LAW . It made the following assessment :

“ The Article stipulates that the presumption of innocence shall be observed until guilt has been proved according to law . It does not follow from the wording of the LAW that a criminal sanction that has been imposed can not be enforced before the decision has become final . There are , furthermore , examples both in GPE and in other NORP countries of regular criminal sanctions being enforceable notwithstanding the fact that the decision has not become final ...

Moreover , there is nothing in the case - law of ORG to support the view that LAW prevents the enforcement of decisions concerning criminal sanctions that have not become final . In this connection , it should be pointed out that ORG expressly accepted the immediate enforcement of tax surcharges in GPE v. GPE [ no . CARDINAL/CARDINAL , Commission decision of DATE , unreported ] .

The conclusion of ORG is that LAW does not prevent enforcement on the ground that a decision concerning tax surcharges has not become final .

It remains to be determined whether the enforcement of an administrative authority 's decision on surcharges requires the matter to have been examined by a court .

It follows from LAW that everyone charged with a criminal offence has a right to have his or her case determined by a court . However , the rules in LAW are not considered to preclude the examination by an administrative authority of issues falling under LAW , provided that the individual may subsequently bring the matter before a court that fully affords the legal safeguards laid down in the LAW ...

In ORG opinion , it is unclear to what extent the presumption of innocence should be taken to require that a decision by an administrative authority concerning a criminal sanction against which an appeal has been made should not be enforced before a court has examined the appeal . It appears that the question has not been determined by ORG . However , it seems reasonable to assume that enforcement may not take place if it would make it impossible for the original legal position to be restored in the event that the subsequent judicial examination resulted in the authority 's decision being varied .

As far as tax surcharges are concerned , a taxpayer may appeal to a court against an administrative authority 's decision to impose such a surcharge . If the taxpayer 's appeal is successful , any amount that has been paid will be refunded with interest . It is also possible for the taxpayer to request a stay of execution in connection with the appeal . It is unlikely that any enforcement measures will be taken pending the court 's examination of the application for a stay ( see Government PERSON , p. CARDINAL ) . Under the rules applicable in the instant case , a stay may be granted if it can be assumed that the amount imposed on the taxpayer will be reduced or that he will be relieved of the obligation to pay the amount , if the outcome of the case is uncertain or if payment of the amount imposed would result in considerable damage for the taxpayer or otherwise appears unjust . In certain cases , a stay can be granted only on condition that security is provided ( section DATE , subsections CARDINAL and CARDINAL , of LAW ; there are now largely corresponding rules in ... LAW ) .

The rules on stays of execution provide the taxpayer with the opportunity to have a preliminary examination by a court of the final outcome of the case concerning tax surcharges . If the taxpayer refrains from using this option or if the court , following an examination , finds that it can not be assumed that the taxpayer 's appeal on the merits will be successful , or even that the outcome is uncertain and that , moreover , there is no reason to expect considerable damage to result from payment of the surcharge , it can not , in the view of ORG , be contradictory to LAW to require immediate enforcement . ”


Violation of Art. 11;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON is a NORP national who lives at FAC ) . He practises as a lawyer ( avocat ) .

On CARDINAL DATE a number of GPE independence movements and trade unions held a public demonstration at GPE - Terre to protest against CARDINAL court decisions whereby prison sentences and fines were imposed on CARDINAL militants for criminal damage to public buildings . The applicant , who was Vice - Chairman of ORG of GPE at the time , took part and carried a placard .

ORG of the GPE - Terre police drew up a report on DATE and sent it to the local public prosecutor . The report , which had CARDINAL appendices , gave the following account :

" While at the station ,

I was informed in a radio message that the demonstration being held DATE by various independence movements in the Champ d’Arbaud , GPE - Terre , from TIME , whose progress we were monitoring , had taken the form of a procession in town . Demonstrators had set off at TIME and were marching through the streets of the town chanting slogans hostile to the police and the judiciary . During the procession graffiti were daubed in paint on various buildings , in particular the NORP d’émission CARDINAL - mer , known as the ‘ Central Treasury’ .

The group of CARDINAL people which had left the Champ d’Arbaud had joined another group of CARDINAL people , at the rue Schoelcher , forming a compact group of CARDINAL people headed by the leaders , who announced over loudspeakers the slogans to be chanted . The following were recognised among these leaders :

ORG ) ; PERSON , leader of ORG for an GPE ) , a former member of the GLA , who came out of prison after DATE ; PERSON , presumed head of the ORG ( ORG ) , against whom criminal charges had been brought and who had been released from ORG DATE ; PERSON of ORG , recently ( DATE ) sentenced by ORG to CARDINAL days’ imprisonment and a fine of MONEY ; the sister of PERSON , another person given the same sentence on DATE by ORG ; PERSON , another member of ORG , convicted by ORG DATE along with PERSON , ... and others , known to be particularly fanatical and determinedextremists , including one PERSON , etc ... This processionwas now in the Cours Nolivos and was entering FAC and would soon be arriving in front of the policestation .

At this point I reported what was happening to the Chief Constable ( call - sign ‘ Polaire’ ) , who was at FAC with CARDINAL squads of riot police which we had agreed to deploy at the bottom of the boulevard LOC in order to bar access to ORG and prevent any damage to the building and to the département council building .

At TIME eleven the demonstrators reached the police station and assembled in front of it .

While I made the necessary arrangements for countering any attack on the building , the demonstrators took up their position in front of the police station and were addressed by CARDINAL leaders from outside the district who were unknown to the police officers present . The speakers , who spoke in NORP , urged the police officers to move up and join them . There followed a violent tirade against Police Officer Beaugendre , who was accused of betrayal , after which the crowd of demonstrators rhythmically chanted ‘ BEAUGENDRE - MAKO ! ORG JOU OU KE PAYE’ ( DATE you will pay ) .

The following were identified among the demonstrators : PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON ’s family ( see report no . CARDINAL ) and PERSON ( see report no . CARDINAL ) and PERSON , a barrister ; the CARDINAL last - mentioned displayed a banner with the words ‘ LAWYERS - DOCTORS’ ( see report no . CARDINAL ) . The majority of demonstrators , however , including the most worked up and the most aggressive ones , were people from outside GPE - Terre , most of them from FAC , it seemed , and consequently unknown to the police .

The demonstrators left the police station at TIME and headed in the direction of ORG and the council building . My Chief Constable , who was continuously kept informed of events , then told me that he had abandoned the idea of blocking the lower end of the boulevard Eboué with a police line - as we had agreed , with the aim of preventing the demonstrators from approaching the CARDINAL danger spots , ORG and the council building - because the demonstrators’ numerical superiority was too great .

The procession then went along the boulevard LOC and eventually reached the Champ d’Arbaud , where it dispersed after having made CARDINAL lengthy halts during which further speeches were made and slogans chanted by the crowd , firstly in front of ORG in order to insult the judges and then outside the prison in order to demonstrate their solidarity with the imprisoned militants . After the demonstrators had gone past , it was found that they had taken advantage of these stops to paint offensive and insulting graffiti in green , red and black on the walls of the administrative buildings .

The investigation that was immediately undertaken failed to identify those responsible for defacing the buildings . According to information received , most of the graffiti were the work of girls who were not from GPE - Terre , no doubt to avoid recognition as far as possible . CARDINAL of them was claimed to be a teacher from FAC , but this could not be positively established . The intelligence service ( PERSON généraux ) confirmed that the persons responsible for the graffiti were among the demonstrators who arrived by coach from FAC . They did not know their identities .

I am accordingly sending you this report as it stands at present .

The case is receiving my ORG full attention , however .

Any new development or information making it possible to identify the perpetrators would immediately be followed up and I would not fail to keep you informed . "

A judicial investigation was commenced on DATE into the commission by a person or persons unknown of offences of criminal damage to public buildings and insulting the judiciary .

On DATE , ORG at ORG wrote to the Chairman of GPE as follows :

" Please find enclosed a photocopy of a police report of DATE from which it appears that PERSON , of GPE , took part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under LAW . " [ See paragraph CARDINAL below . ]

" Would you kindly let me have your opinion of this case after hearing your colleague ’s explanations . "

In a letter of CARDINAL DATE the Chairman of the Bar informed ORG of the outcome of his investigations , as follows :

" ... PERSON [ had ] not [ been ] carrying a banner with another person but [ had been ] carrying a placard on his own which bore the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act’ .

No act , gesture or words insulting to the judiciary [ could ] be attributed to him .

His participation in a demonstration [ had ] therefore [ been ] confined to protesting at the use of the ‘ Security and Freedom’ Act .

And he concluded :

" This being so , having regard to :

( a ) the facts : even assuming the worst as regards PERSON , the report by [ the ] Chief Superintendent ... does not accuse him of any insulting gesture , act or words ; and

( b ) the provisions of LAW , it does not seem to me that my colleague PERSON can have incurred any liability in exercising his right to join a demonstration which had not been prohibited , carrying a placard with the words ‘ Trade Union of the Guadeloupe Bar against the Security and Freedom Act’ .

After a postponement , the applicant was summoned to appear before the investigating judge on DATE in order to give evidence as a witness , and at the interview he stated that he had nothing to say on the matter .

On CARDINAL DATE the judicial investigation ended with a discharge order on the ground that no evidence had been obtained which would make it possible to identify those responsible for the graffiti or for the insulting or threatening words uttered during the demonstration .

On DATE ORG sent the Chairman of the Bar a complaint against the applicant , which read as follows :

" Further to my letter of DATE and our conversation of CARDINAL May last , I wish to bring to your attention , LAW CARDINAL of the Decree of CARDINAL DATE , " - see paragraph CARDINAL below - " the conduct of PERSON , whose name appears on the roll of the members of GPE .

In my earlier letter I sent you a photocopy of a police report of CARDINAL DATE which gave an account of PERSON participation in a demonstration at GPE - Terre on DATE .

The aim of the demonstration was to protest against CARDINAL court decisions , the first of which was given on DATE by ORG against PERSON and the other of which was given on DATE by the GPE - Terre tribunal de grande instance against PERSON and PERSON , who were charged with offences of criminal damage to public buildings .

During the demonstration , a number of particularly offensive graffiti were daubed in paint on the walls of ORG calling CARDINAL of the judges who had taken part in CARDINAL of the decisions a fascist and calling all the judges ‘ MAKO’ [ pimps ] .

The demonstrators even chanted death threats on numerous occasions against police officers who witnessed the events .

The GPE - Terre investigating judge opened an investigation into the commission by a person or persons unknown of offences of criminal damage to public buildings , insulting the judiciary and aiding and abetting .

All the persons reported as having taken part in the demonstration were interviewed and they stated either that they had not seen anyone paint the graffiti or , at the very least , that they did not know who the people responsible were .

Only PERSON refused to answer the questions .

As the proceedings ended with a discharge order , I am sending you attached a photocopy of the record of his examination as a witness , the date of which had been delayed for DATE in order to suit his convenience .

This attitude therefore strengthens , in my opinion , the view that PERSON , who was acquainted with the purpose of the demonstration ( cf . photocopies of the leaflets distributed during it ) , wanted , by taking part in it , to associate himself in exemplary fashion with a political organisation ’s criticisms of the judiciary in GPE and that , at all events , neither the death threats nor the insulting graffiti directed against judges before whom he argued cases surprised him on this occasion or even shocked him as a barrister .

His refusal to reply to the investigating judge as a witness displays , moreover , an attitude of contempt for justice .

In these circumstances I consider that there has been in this case a breach under LAW - see paragraph CARDINAL below - " and I accordingly would ask you to kindly bring disciplinary proceedings against PERSON before ORG .

At a disciplinary hearing held LAW no . CARDINAL of DATE ( see paragraph CARDINAL below ) , ORG adopted the following decision on DATE :

At the request of ORG , the Chairman of the Bar has already given an opinion dated DATE as to the first series of charges against Mr PERSON . It appears both from that opinion and from further explanations obtained from Mr PERSON that he took part in the relevant demonstration in response to a call by ORG of GPE , of which he is one of the leaders , in order to protest against the use of the direct - committal procedure " - obviating the need for a preliminary judicial investigation - " and the continuation in force of the so - called LAW , which has since been repealed . It does not appear from the judicial investigation that PERSON committed a breach of LAW in connection with taking part in the aforesaid demonstration or that any disciplinary sanction can consequently be imposed on him .

The inquiries made into these events have , moreover , been brought to an end with a discharge order that has now become final .

As regards the second series of charges against Mr Ezelin , it appears both from the judicial investigation and from PERSON explanations that his refusal to make a statement to the investigating judge was prompted by anxieties based on LAW - see paragraph CARDINAL below - " and a concern to comply with LAW , " - see paragraph CARDINAL below - " as some of the persons summoned by the investigating judge in connection with the events on which his evidence was being sought had previously consulted him as a lawyer .

It is true , as Mr PERSON maintained , that in a letter of CARDINAL DATE ORG informed the Chairman of the Bar that Mr Ezelin ‘ [ had taken ] part in a public demonstration against the judiciary in circumstances likely to entail criminal liability under LAW Code’ .

PERSON , having been informed of this charge , was thus justified in relying on the provisions of LAW .

While it may seem regrettable that PERSON did not make clearer to the judge his reasons for refusing to make a statement , it does not appear to the board that this refusal may be regarded as contempt for justice and the judiciary . Moreover , if it had been deemed sufficiently serious to amount to obstructing the normal course of the proceedings in question , the investigating judge would not have failed to avail himself of the provisions of LAW - see paragraph CARDINAL below - " nor the prosecution to make the appropriate applications before the discharge order was made closing the investigation proceedings in connection with which PERSON had been summoned as a witness .

Consequently , having regard to the evidence , to PERSON explanations and to his usual excellent professional conduct , the board considers that there is no occasion to impose any disciplinary sanction on PERSON ,

For these reasons ,

ORG , acting in its disciplinary capacity and at first instance ,

Decides

There is no occasion to impose any disciplinary sanction on Mr PERSON on account of the matters of which it was seised by ORG on DATE .

The board recommends the Chairman of the Bar to remind both PERSON and the whole of the Bar of the traditional rules of good behaviour and sound judgment in all activities in which their status as avocats may be involved .

ORG appealed to ORG against this decision . At the hearing he asked the ORG to impose on the applicant the disciplinary penalty of a warning .

On DATE ORG reversed ORG decision and imposed the disciplinary penalty of a reprimand on PERSON , a heavier penalty than a warning :

It is established that on DATE PERSON took part in a demonstration in the streets of GPE - Terre .

The police report and appended documents make it clear beyond contradiction that the acknowledged purpose of the demonstration , which was organised by the independence movements in the département , was to protest noisily against the recent sentences of CARDINAL militants to CARDINAL days’ imprisonment and a FRF CARDINAL fine for damage to administrative buildings . "

[ There followed a summary of the report reproduced in paragraph CARDINAL above . ]

" It is not alleged that PERSON took part in this demonstration any more actively than by his constant presence and by carrying a placard .

Following those events a judicial investigation was opened into the commission by a person or persons unknown of offences of damage to public buildings , insulting the judiciary and aiding and abetting . PERSON was summoned as a witness by the investigating judge , together with a number of other persons recognised by the police officers . After he had taken the oath , his examination is recorded as follows :

‘ You explain to me the circumstances of the events which have given rise to this case . I have nothing to say on the matter .

After an intervention : I repeat that I have nothing to say on the matter .

Question : Were you present at the demonstration which took place on DATE in the streets of GPE - Terre ? If so , did you see anybody painting anything on the walls of various buildings in the town ?

Answer : I have nothing to say on the matter .

Read , confirmed and signed together with me and the registrar.’

It appears from the foregoing that PERSON , avocat at ORG and member of ORG , participated in the whole of the demonstration which took place in the aforementioned , undisputed circumstances .

During this demonstration serious threats were continually made against a police constable and insults uttered against various other persons , including a judge of ORG , a well - known regional figure and the judiciary as a whole , and the walls of ORG and of the département council building opposite were covered with particularly offensive and insulting graffiti directed against the same persons .

It is beyond doubt that PERSON , who formed part of the procession , notably when it halted in front of the police station , FAC and the prison , could not have failed to see these insulting and offensive graffiti being painted in very large letters on all the walls of ORG - the place of work of judges and barristers alike - and of the council building , and that he could not have failed to hear the threats and insults that were unceasingly directed against the same people .

He was there in his capacity as an avocat , since he carried a placard announcing his profession , and at no time did he dissociate himself from the ORG offensive and insulting acts or leave the procession .

Such misconduct on the part of a member of the Bar publicly proclaiming his profession can not be justified - as has been submitted on his behalf - by personal beliefs or trade - union instructions , and it amounts to a breach of discretion under LAW .

Furthermore , PERSON , when examined as a witness by the investigating judge , refused to give evidence about matters of which he had knowledge , without giving any reason .

He thus contravened the provisions of LAW paragraph , of LAW , which are binding on all citizens and of whose requirements he could not , as a lawyer , be unaware .

Seeing that Mr PERSON contravened a statutory provision and showed a lack of discretion , he rendered himself liable to the disciplinary sanctions listed in LAW . " [ See paragraph CARDINAL below . ]

" Having regard to the unanimously favourable opinion of his professional conduct , the ORG considers that the penalty should be a reprimand .

For these reasons ,

Having regard to sections CARDINAL et seq . of Act no . CARDINAL of DATE and ORG et seq . of Decree no . CARDINAL ,

Sitting in public as a full court ,

Sets aside the decision taken on DATE by ORG GPE at ORG , sitting as a disciplinary board ,

Sentences PERSON , of that Bar , to the disciplinary penalty of a reprimand ; and

Awards costs against him .

... . " ( Gazette du Palais , DATE , jurisprudence , pp . CARDINAL )

The applicant appealed on points of law . He argued in particular that the disciplinary sanction imposed on him infringed Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of the Convention .

On DATE ORG ( ORG ) delivered a judgment dismissing the appeal . It said , inter alia :

ORG ... did not hold [ Mr Ezelin ] liable in virtue of a collective responsibility for criminal offences committed by other demonstrators but stated that during the demonstration , whose purpose was to protest noisily against recent criminal sentences , insults had been uttered and offensive graffiti daubed on all the walls of ORG , directed against the judiciary as a whole and against a judge of ORG by name and a well - known figure in the département who practised as a barrister . ORG added that PERSON , who was at the demonstration as an avocat and had heard the threats and insults and seen the offensive graffiti daubed on the walls of FAC , the place of work of judges and barristers alike , did not at any time express his disapproval of these excesses or leave the procession in order to dissociate himself from these criminal acts . It was entitled to infer from this that the behaviour was a breach of discretion amounting to a disciplinary offence . ...

... LAW lays a duty on any person heard as a witness to give evidence ; and by LAW , any infringement of statutes or regulations constitutes a disciplinary offence , irrespective of the investigating judge ’s power to fine a witness who refuses to give evidence . ORG found that in reply to the questions put by the investigating judge , and in particular the question : ‘ Were you present at the demonstration in the streets of GPE - Terre on DATE , PERSON said merely : ‘ I have nothing to say on the matter’ . It added that PERSON gave no reason to explain this attitude . It was entitled to infer from this that PERSON , who had thus refused to give evidence without justifying his refusal on the basis of LAW or of professional confidentiality , had committed a breach of the law and of discretion vis - à - vis the investigating judge and that these amounted to a disciplinary offence . ORG thus justified its decision in law , and none of the limbs of the ground of appeal is well - founded ... . " ( ORG , DATE , pp . CARDINAL and DATE )

The following provisions of NORP law need to be set out :

CARDINAL .

" Anyone who by his acts or by means of the written or spoken word has publicly attempted to bring discredit on any action or decision taken by a court , in a manner likely to impair the authority or independence of the judiciary , shall be liable to imprisonment for not DATE and not DATE and a fine of MONEY and not MONEY or to CARDINAL of these CARDINAL penalties . "

CARDINAL .

" An investigating judge in charge of an investigation and judges and senior police officers ( officiers de police judiciaire ) acting on judicial warrants shall not , with the intention of preventing the exercise of the rights of the defence , examine as witnesses persons against whom there is substantial , consistent evidence of guilt . "

" Anyone summoned to be examined as a witness shall be required to appear , to take the oath and to give evidence , subject to the provisions of LAW [ duty of professional confidentiality ] .

If a witness fails to appear , the investigating judge may , on an application by the public prosecutor , have the witness brought before him by the police and impose on him a fine of not MONEY and not MONEY . If the witness subsequently appears , however , he may , if he apologises and provides an explanation , be excused this penalty by the investigating judge , after the public prosecutor has made submissions .

The same penalty may , on an application by the prosecutor , be imposed on a witness who , although he has appeared , refuses to take the oath and to give evidence .

CARDINAL .

" An avocat must not , in any matter , make any disclosure in breach of professional confidentiality . He must , in particular , respect the confidentiality of judicial investigations in criminal matters by refraining from communicating any information from the file and from publishing letters or other documents concerning a current investigation . "

" ORG sitting as a disciplinary board shall proceed against and punish offences and misconduct by an avocat or a former avocat where at the material time he was entered on a Bar roll , list of trainees or list of honorary avocats . "

" Any contravention of statutes or regulations , infringement of professional rules or breach of integrity , honour or discretion , even relating to non - professional matters , shall render the avocat responsible liable to the disciplinary sanctions listed in LAW . "

" The disciplinary penalties shall be :

A warning ; A reprimand ; Suspension for a period not exceeding DATE ; Striking off the roll of avocats or list of trainees or withdrawal of honorary status .

A warning , a reprimand and suspension may , if so provided in the decision in which the disciplinary penalty is imposed , entail loss of membership of ORG for a period not exceeding DATE .

ORG may further order , as an ancillary penalty , that any disciplinary penalty shall be publicly displayed on the Bar ’s premises . "

" The Chairman of the Bar , either on his own initiative or on an application from ORG or on a complaint by any party affected , shall inquire into the conduct of the avocat concerned . He shall then either discontinue the proceedings or refer the matter to ORG .

If he has received a complaint , he shall inform the complainant . If the facts were reported to him by ORG , he shall notify the latter .

PERSON are bound by the oath they take when entering upon their duties . The wording of the oath is given in LAW of DATE :

" I swear , as an avocat , to defend and counsel in a dignified , conscientious , independent and humane manner . "

Before that LAW came into force , the oath was worded as follows :

" I swear , as an avocat , to defend and counsel in a dignified , conscientious , independent and humane manner , with respect for the courts , the public authorities and the rules of the Bar , and neither to say nor to publish anything contrary to statute , regulations , morals , the security of the ORG , or public order . " ( LAW )

An avocat who took the oath before LAW of DATE came into force is deemed to have taken it in its current form .

In a judgment of CARDINAL DATE ORG ( ORG ) held that the avocat ’s oath " also [ bound ] him in all circumstances not to deviate from the respect due to the courts and to the public authorities ; ... " . ( ORG périodique DATE , ORG , no . DATE , note by J.A. )

Moreover , in a judgment of DATE ( ORG , PERSON ) ORG held that an avocat , while being entitled to protest at any infringement of the rights of the defence , must refrain from any expression which would reflect on the honour or discretion of a judge .


Preliminary objection allowed (Article 35-1 - Six month period)

András Sajó;Dean Spielmann;Elisabeth Steiner;Erik Møse;Françoise Tulkens;Helen Keller;Ireneu Cabral Barreto;Ján Šikuta;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Vincent A. De Gaetano

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

He suffered a personal injury while doing his military service . He was hospitalised on DATE and subsequently underwent several operations on his right knee . He is now permanently disabled .

On DATE the applicant submitted a claim to ORG for compensation in respect of his permanent disability .

Following tacit dismissal of the claim by the administrative authorities , the applicant brought an action for damages in ORG on DATE in respect of the disability suffered during his military service . He claimed MONEY ( TRY – QUANTITY ( ORG ) ) in respect of pecuniary damage and the same sum in respect of non - pecuniary damage .

CARDINAL expert reports ordered by ORG were added to the case file . The first , dated DATE , established a PERCENT disability . The second , dated DATE and communicated to the applicant on CARDINAL May CARDINAL , assessed the applicant ’s pecuniary damage at more than TRY CARDINAL ( approximately EUR CARDINAL,CARDINAL ) .

Having held a public hearing on DATE , ORG delivered its judgment on DATE . It ruled in favour of the applicant and awarded him the full amount of his claim in respect of pecuniary damage , namely , TRY CARDINAL . It awarded him a further TRY CARDINAL in respect of non - pecuniary damage . The court considered in particular that the conclusions of the expert report of DATE were relevant and satisfied the criteria established by its case - law .

On DATE the applicant applied to ORG for additional compensation in respect of his permanent disability . He claimed that he had only become aware of the extent of his pecuniary damage for the first time on CARDINAL DATE , when he received the report of CARDINAL April CARDINAL assessing his pecuniary damage at TRY CARDINAL .

On DATE , following tacit dismissal of the claim by the administrative authorities , the applicant lodged a fresh claim with ORG for additional compensation , namely , TRY CARDINAL ( approximately EUR CARDINAL ) , on the basis of the expert report of DATE . He argued that he had received the expert report of DATE on CARDINAL May CARDINAL , whereupon he had become aware of the true extent of the damage he had suffered .

By a judgment of CARDINAL DATE ORG considered the applicant ’s fresh claim to be an application to have the initial amount amended ( ıslah ) and dismissed it for being out of time . The court stated in particular :

“ The claimant has clearly sought an amendment of the initial amount . The purpose of an amendment is to rectify a procedural act . Having regard to the judgment of ORG published in ORG of DATE , we must conclude that , in civil law , injured persons are entitled to seek additional compensation once an expert report has been issued . However , in the proceedings before ORG , the time - limits of DATE and DATE from the date of referral to the administrative authorities apply . Under section CARDINAL ) of ORG , the amount claimed can not be rectified once those deadlines have passed . Consequently , this claim must be rejected for being out of time ... ”

CARDINAL judge ( out of CARDINAL ) expressed a dissenting opinion . He stated in particular :

“ The amount of damage in personal injury cases is established only upon production of an expert report . Moreover , the date on which such reports are confirmed is taken into account when calculating the time - limits for referral to the administrative authorities and for bringing an action ...

The claim for additional compensation based on the expert report was lodged within the relevant time - limit because the applicant did not become aware of the extent of the damage until after that report had been issued .... ”

On DATE the applicant lodged an application for rectification of the judgment .

By a judgment of DATE , served on the applicant on DATE , ORG rejected that application .

Section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL ) and Article CARDINAL of the Code of Civil Procedure provide that if the dies ad quem of a time - limit is a public holiday , that time - limit will be extended to the following DATE .

Article CARDINAL § CARDINAL of LAW , entitled “ General Rule of Interpretation ” , states that a treaty shall be interpreted “ in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose . ”

LAW on the Calculation of Time - Limits , opened for signature on DATE in GPE , came into force on CARDINAL DATE . It was drawn up with a view to establishing uniform NORP rules for calculating time - limits on the basis of responses obtained from governments . It applies both domestically and internationally , as clearly stated in the preamble thereto which affirms that “ the unification of rules relating to the calculation of time - limits , both for domestic and international purposes ” , will contribute to the attainment of greater unity between ORG member GPE ( see the explanatory report ) . Currently , CARDINAL of the CARDINAL signatory States have ratified that Convention . GPE has neither signed it nor acceded to it .

DATE provides as follows :

“ DATE , DATE and official holidays shall count when calculating a timelimit . However , where the dies ad quem of a timelimit before the expiry of which an act shall be performed is a DATE , a DATE , an official holiday or DATE which shall be considered as an official holiday , the timelimit shall be extended to include the first working day thereafter . ”

Article CARDINAL of Council Regulation ( ORG , PERSON ) no . CARDINAL of DATE determining the rules applicable to periods , dates and time limits ( ORG no . L CARDINAL of CARDINAL/CARDINAL/CARDINAL ) provides as follows :

“ Where DATE of a period expressed other than in TIME is a public holiday , DATE or DATE , the period shall end with the expiry of TIME of the following DATE . ”


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the FAC ( Wojewoda Kielecki ) granted the applicant ’s neighbour permission to build a fish pond . The applicant submitted that the pond was built in breach of the permit and that it dammed the water on his plot of land . In consequence , he could not use his land for agricultural purposes .

The applicant appealed against this decision but the appeal was finally dismissed on DATE by ORG ( PERSON ) .

On DATE the FAC initiated , upon the applicant ’s request , proceedings for annulment of the permit .

On DATE the FAC ordered the applicant ’s neighbour to carry out work on the pond . The applicant appealed .

On DATE the Minister of the Environment ( Minister PERSON ) quashed the impugned decision and remitted the case .

On DATE and CARDINAL DATE the GPE Governor held hearings in the case .

On DATE the FAC Governor dismissed the applicant ’s request for the permit to be annulled .

The applicant appealed , but on DATE the Minister of the Environment upheld the decision .

The applicant lodged a complaint with ORG .

On DATE ORG quashed the decision and remitted the case .

On DATE the FAC held a hearing and on DATE he gave a decision in which he again refused to annul the permit .

The applicant ’s appeal was dismissed on DATE by the Minister of the Environment .

On DATE the applicant lodged a complaint with ORG .

On DATE ORG quashed the impugned decision and remitted the case .

On DATE the GPE Governor transferred the case to the Mayor of ORG Starosta ) . On DATE an expert inspected the pond .

On DATE the applicant wrote a letter to the GPE Governor about the manner in which the authorities had been handling his case and submitted that a further delay in the proceedings could result in him lodging a case with ORG . On DATE the Governor replied to his letter , apologising for the fact that the proceedings had been lengthy . However , he considered that the delays had occurred at the judicial stage before ORG .

On DATE the Mayor of PERSON held a hearing .

On DATE the applicant complained to the Mayor of PERSON about the length of the proceedings .

On DATE the Mayor held hearings . On CARDINAL DATE an expert inspected the pond .

On DATE the Mayor of PERSON gave a decision granting permission to keep the pond and to dam the water .

The applicant appealed and on DATE the FAC Governor quashed the impugned decision and remitted the case .

On DATE the Mayor of PERSON gave a decision granting permission as before .

On DATE the PERSON Governor again quashed the decision and remitted the case .

On DATE the Mayor held a hearing .

On DATE the Mayor of PERSON carried out an inspection of the property .

It is impossible to establish the course of the proceedings thereafter .

Under LAW DATE ( “ the LAW ” ) an administrative authority should give a decision on the merits of a case within DATE . If that time - limit has not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new timelimit .

Pursuant to LAW , if the case has not been handled within the time - limits referred to in ORG and DATE , a party to administrative proceedings can lodge an appeal with the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent future such delays .

Until DATE , under LAW , a party to administrative proceedings could , at any time , lodge a complaint with ORG about the fact that an administrative authority had failed to issue a decision .

On DATE , the Law of CARDINAL DATE on ORG ( “ the DATE LAW ) entered into force . Under section CARDINAL of the DATE ORG was competent to examine complaints of inactivity on the part of an authority .

Section CARDINAL of the Act provided :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law . ”

Section CARDINAL of the CARDINAL Act set out the requirement of the exhaustion of available remedies before lodging a complaint with ORG . Accordingly , a complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the abovementioned LAW .

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity was legally binding on the authority concerned . If the authority did not comply with the decision , the court could , under section CARDINAL , impose a fine on it and might itself give a ruling on the right or obligation in question .

LAW was repealed and replaced by LAW DATE on ORG ( “ the DATE Act ” ) which entered into force on DATE . LAW of LAW contains provisions analogous to section CARDINAL of LAW . It provides that administrative courts examine complaints about inactivity on the part of authorities obliged to issue an administrative decision or to carry out enforcement proceedings . Under section CARDINAL , if a complaint is wellfounded , an administrative court shall oblige the authority concerned to issue a decision , to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by law .