Resolution CM/ResDH(2010)155[1]
Execution of the judgment of the European Court of Human Rights
Silvester’s Horeca Serv against Belgium
(Application No. 47650/99, judgment of 4 March 2004, final on 4 June 2004)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the lack of access to a court in that an administrative tax decision concerning the applicant company could not be reviewed by a judicial body with full jurisdiction (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)155
Information about the measures to comply with the judgment in the case of
Silvester’s Horeca Serv against Belgium
Introductory case summary
The case concerns the judicial review of administrative tax fines imposed on the applicant company in June 1987. In February 1988 the applicant company appealed against an order to pay 9,181,500 BEF for contravening the VAT legislation. In the course of proceedings, in November 1988, it was granted a reduction in the amount of fines by the Minister of Economic Affairs. However, in October 1996 the Brussels Court of Appeal declared the payment of the full fine enforceable and stated that it was not empowered either to rule on whether the fines should have been imposed or to authorise reductions.
The European Court considered that in this case the administrative tax decisions could not be reviewed by a judicial body with full jurisdiction and therefore the applicant company had not had access to a court (violation of Article 6§1).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
5 000 EUR
1 500 EUR
6 500 EUR
Paid on 12/05/2004
b) Individual measures
No action has ever been taken to collect the debt. By letter of 02/06/2005, the Belgian authorities indicated that the applicant company’s infringement of the VAT legislation was now time-barred and that the applicant’s lawyers had been informed by letter of 12/04/2005 from the Minister of Economic Affairs that, accordingly, no claim would be made upon the applicant company to pay a tax fine.
Consequently, no individual measure seems to be required.
II.General measures
At the material time the limitation of judicial powers in reviewing appeals against administrative tax decisions stemmed from Belgian case-law. However, as the European Court noted in its judgment, this case-law has evolved since the payment order in the applicant’s case was declared enforceable by the Court of Appeal, and full jurisdiction has been granted to courts in such cases.
The Belgian authorities consider that, in view of the Court’s findings regarding the development in Belgian case-law, no other general measure is required. The decision was nevertheless published on the public web site of Belgian case-law Juridat ().
III.Conclusions of the respondent state
The government considers that the change in case-law acknowledged by the Court will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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