Information Note on the Court’s case-law 40
March 2002
Louerat v. France (dec.) - 44964/98
Decision 7.3.2002 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Length of criminal proceedings: lack of effectiveness of the appeal provided for by Article 175 § 1 of the Code of Criminal Procedure
Effectiveness of the appeal provided for in Article L. 781 § 1 of the Code of Organisation of the Judiciary, introduced after the lodging of the application
The applicants were the managers of three companies whose object was the construction and sale of private houses. The tax authorities lodged a complaint for tax evasion against the applicants in their capacity as managers of these companies. The applicants were charged in 1991 and committed for trial in June 1992 for fraudulent evasion of corporation tax and value-added tax. They were sentenced in November 1994 to thirty months’ imprisonment, eighteen months of which were suspended, and a suspended term of six months’ imprisonment respectively, and ordered to pay the evaded tax and related penalties. In a judgment delivered in absentia in November 1995, the Orléans Court of Appeal upheld that judgment. In January 1997 the applicants applied to that court to set the judgment aside and rehear the case. The Orléans Court of Appeal upheld the judgment, but reduced the first applicant’s sentence to two years, eighteen months of which were suspended. In May 1998 the Court of Cassation quashed the judgment in part. Two of the applicants’ companies had brought concurrent proceedings in the Administrative Court challenging their obligation to pay various taxes and related penalties. In May 1999 one of the companies won and the other, whose application had been dismissed, lodged an appeal. That appeal is currently pending. In 1992 the applicants brought administrative proceedings seeking an exemption from the contributions payable in addition to income tax and proceedings seeking remission from a tax penalty imposed on one of the companies. Those applications were dismissed in various decisions of May 1999. In April 1992 the applicant lodged five applications with the Administrative Court concerning the payment of various taxes and related penalties in respect of one of the companies. Those proceedings are apparently still pending on appeal.
Admissible under Article 6 § 1 (reasonable time): the remedy provided for in domestic law by Article 175 § 1 of the Code of Criminal Procedure did not in theory relate to the issue of the exhaustion of domestic remedies for the purposes of Article 35 § 1, but rather to the examination of the applicant’s conduct in the light of the complaint of the excessive length of the proceedings and, accordingly, was a matter for examination of the merits of the complaint. The application was lodged before the remedy provided for in Article L. 781 § 1 of the Code of Judicial Organisation and referred to by the Government became an effective domestic remedy to be used for the purposes of Article 35 § 1.
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