Information Note on the Court’s case-law
September 1994
Hentrich v. France (on the merits) - 13616/88
Judgment 22.9.1994
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Peaceful enjoyment of possessions
Pre-emption by Revenue, on account of sale price being too low, of real property acquired by private individuals: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.GOVERNMENT'S PRELIMINARY OBJECTIONS (failure to exhaust domestic remedies)
At all stages of the domestic proceedings applicant expressly relied on the relevant provisions of the Convention and indicated in substance the complaints made at Strasbourg.
Submissions based on incompatibility of Article 668 of General Tax Code with Article 1 of Protocol No. 1: not new complaints.
Complaints relating to the proceedings: Government had not convinced the Court that argument which applicant had failed to adduce in the Court of Cassation would have had any chance of success - no decision to this effect cited.
Conclusion: objections dismissed (unanimously).
II.ARTICLE 1 OF PROTOCOL NO. 1
Exercise of right of pre-emption: deprivation of property within meaning of second sentence of first paragraph of Article 1.
A.Purpose of interference
Notion of public interest necessarily extensive and States have margin of appreciation to frame and organise their fiscal policies and to make arrangements to ensure that taxes are paid - prevention of non-payment of higher registration fees: legitimate objective in the public interest - not necessary to decide whether right of pre-emption could legitimately be designed also to regulate property market.
B.Lawfulness of interference
System of right of pre-emption does not lend itself to criticism except where its exercise is discretionary and procedure is not fair.
In case before the Court, pre-emption had operated arbitrarily and selectively and had been scarcely foreseeable and was not attended by basic procedural safeguards: absence of adversarial proceedings complying with principle of equality of arms - lack of precision and foreseeability of Article 668 of General Tax Code - changes in French legal system in this field.
C.Proportionality of interference
Fair balance has to be struck between protection of right of property and requirements of general interest - proportionality to be assessed by having regard to degree of protection from arbitrariness and to risk run by any purchaser that he will be deprived of his property.
Right of pre-emption exercised only rarely and scarcely foreseeably - other suitable methods available to discourage tax evasion - impossible for applicant to mount an effective challenge to the measure, which imposed an individual and excessive burden on her.
Conclusion: violation (five votes to four).
III.ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION
A.Fairness of proceedings
Equality of arms entails obligation not to place one of the parties at a substantial disadvantage vis-à-vis his opponent - proceedings in question had not afforded applicant opportunity to challenge authorities' arguments and to put forward her case.
Conclusion: violation (unanimously).
B.Length of proceedings
(a) Period to be taken into consideration
Starting-point: institution of proceedings in Strasbourg tribunal de grande instance.
End: delivery of Court of Cassation's judgment.
Total: seven years and nearly three months.
(b) Applicable criteria
Reasonableness of length of proceedings to be determined with reference to the criteria laid down in Court's case-law and in light of the circumstances of case - overall assessment called for in case under review.
Delays in Court of Appeal (four years) due to backlog of business - understandable wish on part of Court of Cassation to hear similar cases together could not justify length of proceedings - lapse of time not reasonable, regard being had to what was at stake.
Conclusion: violation (unanimously).
C.Presumption of innocence
Implementation of pre-emption measure not tantamount to declaration of guilt.
Conclusion: no violation (unanimously).
IV.ARTICLE 13 OF THE CONVENTION
Requirements less strict than, and in this instance absorbed by, those of Article 6 § 1.
Conclusion: unnecessary to examine complaint (unanimously).
V.ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 1 AND ARTICLES 6 AND 13 OF THE CONVENTION
Unnecessary to consider complaint.
Conclusion: unnecessary to rule on complaint (unanimously).
VI.ARTICLE 50 OF THE CONVENTION
A.Damage
Non-pecuniary damage: judgment constituted sufficient satisfaction (unanimously).
Pecuniary damage: question not ready for decision and reserved (unanimously).
B.Costs and expenses
Costs incurred in French courts and before Convention institutions - applicant's claim allowed.
Conclusion: respondent State to pay specified sum to applicant (unanimously).
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This summary by the Registry does not bind the Court.
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