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EUROPEAN COURT OF HUMAN RIGHTS

Council of Europe Strasbourg (67000, France)

ASSOCIATION LES TMOINS DE JHOVAH V. FRANCE


APPLICATION
24 February 2005

(While the preferred language for procedures is FRENCH, Applicant is also filing an English translation of the application as well as two supporting affidavits to assist the Court.)

Submitted under Article 34 of the European Convention on Human Rights and Articles 45 and 47 of the Rules of Court.

Represented by Philippe Goni, attorney in France, Richard Daniel, barrister in England and Dr. Reinhard Kohlhofer, attorney in Austria

2.

THE PARTIES

A. 1.

Applicants Name: Permanent address: Telephone:

Association Les Tmoins de Jhovah 11 rue de Seine, 92100 Boulogne-Billancourt, France

+ 33 (0)1 46 94 86 01 + 33 (0)1 46 94 86 02

Fax
B. 2. Representatives Name of representatives Occupation: Permanent address: Telephone: Fax: 3. Name of representative Occupation Permanent address:

Me Philippe Goni Advocate 12 rue du Dbarcadre 75826 Paris Cedex 17, France +33 (0)1 56 68 91 33 +33 (0)1 45 74 41 75 Richard Daniel Barrister Chapel Cottage Winfarthing Diss, Norfolk, IP22 2EE, UK

Telephone Fax 4. Name of representative Occupation Permanent address: Telephone Fax

+44 (0)1953 860978 +44 (0)8701 244449 Dr. Reinhard Kohlhofer Advocate Fasangartengasse 35 A-1130 Vienna, Austria +43 (0)180 222 91-0 +43 (0)180 222 91-14

Please send all correspondence to the following address: 12 rue du Dbarcadre, BP 617, 75826 Paris Cedex 17, France C. 4. High Contracting Party

FRANCE

3.

The Parties .......................................................................................................................2 A. Applicants ..................................................................................................................2 B. Representatives ..........................................................................................................2 C. High Contracting Party ..............................................................................................2 II Statement of facts.............................................................................................................5 A. Synopsis .....................................................................................................................5 B. Jehovahs Witnesses ..................................................................................................5 1. Internationally............................................................................................................5 2. In France ............................................................................................................6 C. The Fight Against Sects Within the French Context..............................................7 D. The Proceedings.......................................................................................................13 1. The audit ..........................................................................................................13 2. The Administrative and Judicial Proceedings..................................................16 E. Relevant Law and Internal Application ...................................................................17 1. Freedom of Association ...................................................................................17 2. Religious Freedom ...........................................................................................18 3. Financial Aspects of the Exercise of Freedom of Association and of Religion 19 i. Financial Resources Common to all Associations.....................................19 ii. Exceptional Financial Resources Specific to Certain Associations...........19 4. The Taxation System for Gifts from Hand to Hand ........................................20 i. The Taxation System for Gifts from Hand to Hand to Individuals ...........20 ii. The Taxation System for Gifts from Hand to Hand to Associations (since 2003) ....................................................................................................................21 5. General Principles Applying to Tax Penalties .................................................21 6. Protection of Private Information ....................................................................22 7. Council of EuropeCommittee of Ministers....................................................22 i. Undertaking by France...............................................................................22 ii Exercise of Discretionary Powers..............................................................23 III. Violations of the European Convention on Human Rights ...............................................24 A. Summary of European Convention Rights Violated ...............................................24 B. Violation of Article 9 of the Convention .................................................................24 1. Prescribed by law.............................................................................................27 2. Legitimate purpose...........................................................................................28 3. Necessary in a democratic society ...................................................................28 C. Violation of Article 14 taken in conjunction with Article 9 of the Convention ......29 1. Difference in treatment ....................................................................................29 2. Legitimate and reasonable aim of the different treatment ...............................30 D. Violation of Article 11 of the Convention ...............................................................31 E. Violation of Article 14 taken in conjunction with Article 11 of the Convention ....33 F. Violation of Article 1 of Protocol 1 of the Convention ...........................................35 1. Applicants property ........................................................................................35 2. Interference with peaceful enjoyment of possessions and the deprivation of property ....................................................................................................................36 3. Justification for the interference and the deprivation ......................................37 i. In the public interest...................................................................................37 ii According to the law..................................................................................37 iii. Proportionality ...........................................................................................38

4. G. Violation of Article 1 of Protocol 1 taken in conjunction with Article 14 of the Convention38 H. Violation of Article 6 of the Convention .................................................................38 1. Application to taxation.....................................................................................38 2. Right to be heard..............................................................................................39 3. The right to remain silent.................................................................................41 I. Violation of Article 18 of the Convention in conjunction with Protocol 1, Article 1 ........42 J. Violation of Article 13 of the Convention ...............................................................44 K. Conclusion ...............................................................................................................44 IV. Applicant's Compliance with Article 35 1 of the European Convention .......................46 V. Object of Application..........................................................................................................47 VI. Other International Authorities Dealing With This Case or Having Done So ..................48 VII. Exhibits Attached .............................................................................................................49 VIII. Preferred Language for Procedures.................................................................................50 IX. Declaration and Signature..................................................................................................51

5.

II

STATEMENT

OF FACTS

A.

Synopsis

1. The association Les Tmoins de Jhovah (Applicant) is a legal entity that Jehovahs Witnesses in France have used since 1947. Applicant presents this controversy to this Court because the High Contracting Party, France, has embarked upon, by means of an arbitrary measure, the confiscation of the headquarters of the religion of Jehovahs Witnesses of France, religious centre belonging to Applicant. The manifest intent behind this effort is to wipe out both the headquarters and Applicant. 2. After the release of the Parliamentary Report of 1995, no. 2468 entitled Les sectes en France, known as the Gest/Guyard Report, a campaign organised by the State resulted in exceptional measures being taken against religious minorities arbitrarily designated as sects. Among other things, the State introduced a new administrative doctrine on tax matters which was applied, almost exclusively, to Jehovahs Witnesses. Thus, a fiscal audit spanning four years resulted in an arbitrary, unforeseeable and retroactive taxation at the rate of 60%, with penalties of 80%, on all modest religious contributions received by Applicant. Voluntary religious contributions are its only means of financial support. The tax demanded by the State exceeds all of Applicants assets. This measure was confirmed by the Court of Cassation (Cour de cassation). 3. In this case, the States action flouts the solemn commitment made by France to allow associations to receive donations in order to ensure their existence (Committee of Ministers on 26 February 2001, in Union des Athes v. France, Comm. Rep., 7 June 1994, no. 14635/89). 4. Furthermore this application demonstrates that the State has blatantly violated the European Convention. B. Jehovahs Witnesses 1. Internationally

5. Jehovahs Witnesses are known for their Christian evangelizing work which is based on the Holy Bible:
The Lord sent them forth by twos in advance of him into every city and place to which he himself was going to come. Then he began to say to them: The kingdom of God has come near to you. (Gospel according to Luke 10:1, 2, 9) (Exhibit A,

Item 1) 6. Every year, Jehovahs Witnesses celebrate the Lords Evening Meal, or Last Supper. Worldwide, about 17,000,000 worshipers gather together for this event, including

6. more than 250,000 in France (mainland and overseas departments and territories) (Exhibit A, Item 2a). 7. Jehovahs Witnesses are members of a Christian religion. This Court has already described them as a movement whose religious rites and practices are widely known and authorised in many European countries (Commission Report in Manoussakis v. Greece, 25 May 1995, no. 18748/91, 48; Commission Report in Pentidis, Katharios et Stagopoulos v. Greece, 27 February 1996, no. 59/1996/678/868, 47; Kokkinakis v. Greece, 25 May 1993, no. 3/1992/348/421, 32; Hoffman v. Austria, 23 June 1993, no. 15/1992/360/434; Palau-Martinez v. France, 16 December 2003, no. 64927/01, 38). 2. In France

8. Christian Witnesses of Jehovah have been present in France since the end of the 19th Century (Exhibit A, Item 4). Their faith is based entirely on the Holy Bible as explained in the Charter of the Worship of Jehovahs Witnesses (Exhibit A, Item 5). 9. At the end of World War II, after a period of severe repression, Jehovahs Witnesses created the association Les Tmoins de Jhovah on 1 September 1947. This notfor-profit association was officially registered on 16 September 1947 by the Minister of the Interior (Exhibit A, Item 6a & b). Article 2 of the Statutes of the association reads as follows:
The purpose of the Association is to lend support to the exercise and maintenance of the worship of Jehovahs Witnesses. It will in particular promote the publishing, printing and distribution of its teachings by means of books, magazines, public lectures and all other printing or audio-visual methods. It will cover the expenses and look after the upkeep of its ministers, preachers and missionaries. It can also lend aid and assistance to all associations pursuing an identical purpose in France or abroad. It may purchase or rent land or properties, or build in order to achieve the associations set purposes, and generally speaking make any real-estate or movable transaction connected with its purpose. The Association will function in conformity with the present statutes and must remain in harmony with the form of worship of Jehovahs Witnesses. (Exhibit A, Item 7)

10. Over the decades and in accordance with its chartered purpose, the association Les Tmoins de Jhovah obtained various buildings required for its operation. These facilities constitute the Bethel of Jehovahs Witnesses of France. Formerly located in Paris (in 1947), Bethel is now located in Louviers (Exhibit A, Item 8). The Biblical word Bethel comes from a Hebrew term meaning House of God. This is the name that Jehovahs Witnesses use to designate the temporal headquarters of their religious activities. Bethel is made up of several consecrated buildings, which all belong to Applicant. The 330 members

7. of the Religious Order of Bethelites (founded in 1931), of whom 35 are more than 60 years old, live and work in these facilities (Exhibit A, Items 9a & b brochure and video). 1 11. The Bethel in Louviers is essential and indispensable to the practice of the religion of Jehovahs Witnesses in France. The liturgy necessary for their public worship is prepared at Bethel. Bethel also provides assistance to all congregations and their religious ministers. The French edition of the semi-monthly magazine The Watchtower (La Tour de Garde), the main religious periodical of Jehovahs Witnesses, and other Biblical research for publication are prepared at Bethel. Everything related to the worship of Jehovahs Witnesses is coordinated from Bethel. The National Consistory of Jehovahs Witnesses and the other national organs are located at Bethel (Exhibit A, Items 2a & b). 12. The existence of Bethel is made possible by the religious contributions received from the faithful. All activities of Jehovahs Witnesses are carried out on a voluntary basis; this is also true for the financial support of worship. They do not practice tithing or pass collection plates. Each individual decides for himself the amount, as well as the frequency of his religious contributions. In connection with such offerings for worship, the apostle Paul stated: Let each one do just as he has resolved in his heart, not grudgingly or under compulsion, for God loves a cheerful giver (The Second Epistle to the Corinthians 9:7). These contributions are generally small amounts, similar to the two small coins of the widow in the Gospels (Gospel according to Luke 21:2). They are deposited in contribution boxes made available in their places of worship. These are voluntary offerings to Jehovah 2 (Leviticus 23:37, 38). These sacred contributions form a part of their worship to Jehovah God, in addition to prayer, congregating for worship, and evangelizing. Today, Jehovahs Witnesses are convinced that through their religious contributions they honour Jehovah (Proverbs 3:9). Any contribution is thus held to be sacred (Exhibit A, Items 11 & 12). C. The Fight Against Sects Within the French Context

13. During the 1990s, tragic events occurred involving fanatical groups: in the United States, the Davidians (in 1993); in Switzerland, Canada and France, the Order of the Solar Temple (in 1995); and in Japan, the Aum Shinrikyo group (in 1995). Such morally as well as criminally reprehensible acts created a concern for the authorities. 14. Reactions differed from country to country. In France, according to sociologists, historians and commentators, private groups and influential persons, known for their hatred of minority religions, exploited this legitimate anxiety to incite the authorities to embark on a campaign to blacklist and repress religious minorities (Exhibit A, Items 13a, b, c & d). The partisan activism of these movements enabled them to set off a real hysteria on the issue of sects. This hysteria quickly won over the major media. Religious minorities,

The Greek Ministry of Education and Religions noted that the Bethel located in Greece is a holy and sanctified place dedicated to Gods Worship , where people whose exclusive mission is to have a religious life live together in accordance with organised religious rules of conduct regulating life in a community (Exhibit A, Item 10). 2 The Dictionnaire de la langue franaise by Paul-mile Littr explains: Jehovah: Name of God in Hebrew.

8. and in particular Jehovahs Witnesses, were portrayed as anti-social, criminals and a danger for society. 3 According to the Protestant magazine Rforme:
The media, the authorities and public opinion joined forces after a few sensational and dramatic cases, such as that involving the Order of the Solar Temple, to provoke a kind of French hysteria with regard to sects, in which everything was lumped together and mixed up. A panic which leads some, including at times the authorities, to view all groups not springing from the major confessions recognised by the Republic as potential sects, even if officially it recognises no form of worship. (Exhibit A, Item 13c)

15. It was in this context that the French National Assembly created an Inquiry Commission assigned to study the phenomenon of sects on 29 June 1995 (Exhibit A, Item 15c, p. 5 & 6). On 22 December 1995, after only 21 hours of in-camera hearings, the Commission released its report (no. 2468) entitled Les sectes en France, known as the Gest/Guyard Report. A version of the report for the general public was published and distributed in bookshops, becoming according to one of its authors a best-seller of National Assembly Reports. 4 16. Instead of defining the term sect, the Parliamentary Commission opted for the common definition which public opinion assigns to the notion. Relying on this unscientific basis, it compiled a list of 173 groups which were targeted as supposed dangerous sects. Jehovahs Witnesses were included in this black list (Exhibit A, Item 15 a, b & c). Regarding the risks associated with drawing up such a list, Mr Ren Rmond, of the French Academy states:
This is a hazardous and often arbitrary list which is comparable to a law placing people under suspicion [loi des suspects]. (Exhibit A, Item 15a)

17. Even though a parliamentary report has no legal effect and cannot serve as the basis for any criminal or administrative proceedings in France, the Gest/Guyard Report has had and continues to have very real and farreaching effects. Right from the beginning, this report triggered a massive anti-sect campaign by the French authorities. Jehovahs Witnesses, because they appeared on the black list, have suffered repressive measures with explicit reference to the Gest/Guyard Report (see paragraph 14 above and paragraphs 27-30 below). 5 18. On 8 February 1996, Government spokesman and Minister Delegate to the Budget, Mr Alain Lamassoure, publicly supported praise given to the tax department, whose actions on several occasions have resulted in a certain repression of the activity of sects [emphasis added] (Exhibit A, Item 16).
3

A sociological study on Jehovahs Witnesses in France, conducted in October 1998 by SOFRES (one of the main French polling agencies), completely contradicted these assertions and highlighted the high level of social integration by families of Jehovahs Witnesses (Exhibit A, Item 14). 4 Please note declaration of Mr. Jean-Marie Bockaert (Exhibit A, Item 2a). 5 To illustrate the grievous effects of this report, and as an example among others, note this decision that the vice-chairman of the Lyon Urban Community officially sent to an association for public worship of Jehovahs Witnesses from this region: As you well know, your association is considered to be a sect and appears as such in the report made by the National Assemblys parliamentary commission of inquiry: Consequently, your use of municipal halls is henceforth refused (Exhibit A, Item 26).

9. 19. In commenting on the repression of the activity of sects, Mr Lamassoure also referred to procedures in progress against groups targeted by the Gest/Guyard Report. At that very moment, Applicant was undergoing a tax audit. The audit, which began in November 1995, lasted for an exceptionally long period18 months. It resulted in a repressive, discriminatory and unforeseeable taxation, which is the object of the present application. 20. In the meantime, the authorities continued to amalgamate Jehovahs Witnesses and dangerous sects. 21. On 29 February 1996, the Minister of Justice sent to all Public Prosecutors of France a circular containing the black list of sects that had been published in the Gest/Guyard Report. Because Jehovahs Witnesses were included on this list, the circular associated their name with a host of penal infractions such as fraud, homicide, wilful or unintentional injury, refusal of assistance to persons in danger, sexual assaults, procuring, corruption of minors, illegal confinement of minors, physical abuse, torture, fraudulent abuse of a persons state of ignorance or weakness, endangerment of minors, drug trafficking. This same circular urged Public Prosecutors, representing public authority, to consult anti-sect organisations, which are strictly private organisations (Exhibit A, Item 17). 22. On 9 May 1996, the French government issued a decree to set up an Interministerial Observatory on Sects. Its purpose was to improve ways to combat sects through mobilisation of all governmental agencies (Exhibit A, Item 18). On 7 October 1998, this entity was replaced by the Inter-ministerial Mission to Fight Against Sects (Mission interministriel de lutte contre les sectes). 23. Certain members of these anti-sect governmental agencies were well known for their militant stance (Exhibit A, Item 19a, b, c & d). Mr Alain Vivien, shortly before becoming chairman of the Inter-ministerial Mission to Fight Against Sects, was the chairman of one of the most virulent anti-sect associations, which are private organisations (Exhibit A, Item 13a, pages 92 & 93). 24. Mr Jean-Pierre Brard, a Member of Parliament, who has been associated with all the above-mentioned agencies, openly slandered Jehovahs Witnesses. His conviction for stating that Jehovahs Witnesses ran their activities on the same basis as international organised crime was upheld by the Criminal Chamber of the Court of Cassation (Exhibit A, Item 20). On 30 June 1998, referring to their tax audit, he stated: The protest of Jehovahs Witnesses is highly revealing. As soon as you touch their money, they squeal like pigs being slaughtered (Exhibit A, Item 21). Two days later he added: Fraud is perhaps the least serious of the violations [viols] committed by Jehovahs Witnesses (Exhibit A, Item 22). Mr Brard has been the vice-chairman of the Parliamentary Inquiry Commission of 1995, rapporteur of the second Parliamentary Inquiry Commission of 1999 (see footnote no. 7 below), and participates in the inter-ministerial missions dedicated to the fight against sects. Furthermore, since 1988 Mr Brard has an important role in fiscal matters in his position as a member of the Commission of Finance of the National Assembly (Exhibit A, Item 19d). His loathing of Jehovahs Witnesses is public knowledge.

10. 25. On 1 December 1998, the Ministry of Justice issued a circular that made reference to the work of the Commission of Inquiry of the National Assembly of 1995. This new circular was widely distributed to all Public Prosecutors and Judges of both civil and penal jurisdictions in France. Noting the insufficient number of complaints against sects, the Minister recommended an exchange of information between the legislative branch and associations fighting against the sect phenomenon. According to this circular:
Denunciations or charges brought by member victims are still too few, and often too vague. In view of this, close contact with associations fighting against the sect phenomenon should be maintained to the extent that they are in a position to furnish an evaluation on the organisations involved. [emphasis added] (Exhibit A, Item 23)

26. Other similar directives were issued by several State ministries in the context of this anti-sect campaign (Exhibit A, Items 24a, b, c & d). 6 27. The marginalisation of Jehovahs Witnesses has been observed on all levels of French society. It has led to measures of repression aimed at Applicant and at Jehovahs Witnesses as a group. It has also resulted in outright discrimination of Jehovahs Witnesses as individuals. For example, Mr Barriga Fonseca, a French resident for 35 years, was recently denied naturalisation by the Labour Ministry simply because he is one of Jehovahs Witnesses. His wifes application was also rejected, on the grounds that she is married to one of Jehovahs Witnesses (Exhibit A, Item 25). Numerous other Jehovahs Witnesses have also been victims of harassment and discrimination (for examples, see Exhibit A, Item 2b and supporting documents, and Exhibit A, Item 3). 28. Another impact of the Gest/Guyard Report has been that projects by Jehovahs Witnesses to build places of worship have met with virulent opposition by anti-sect groups. Influenced by anti-sect campaigns, individuals have expressed their fears of having a socalled dangerous sect anywhere near them. The most recent case, which broke out in November 2004, continues to rage in the east of France (see videos and news reports, Exhibit A, Items 27a, 27b). 29. This anti-sect campaign has also triggered many child custody battles in which parents were, and continue to be, penalised for being Jehovahs Witnesses. Recently, this Court examined such a case (Palau-Martinez, cited above), in which Applicant mother challenged a 1998 decision of the Court of Appeal of Nmes. The discrimination against the mother, one of Jehovahs Witnesses, was evident for this Court ( 38): There is therefore no doubt, in the Courts view, that the Court of Appeal treated the parents differently on the basis of the applicants religion. 30. In the context of the repression of sects, the Tax Department sent a directive entitled Les sectes to all its officers in December 2001 (Exhibit A, Item 28). Even though the

Worried about these developments, sociologist Rgis Dericquebourg deemed necessary to point out that Nazism persecuted Jehovahs Witnesses, tried the final solution for sects with Heydrich, created the Commission of directives for the study of sects (in 1937), which was already an inter-ministerial body, and also drew up a list of sects (Exhibit A, Item 38).

11. Gest/Guyard and the Guyard/Brard Reports 7 have no legal effect and cannot serve as the basis for any criminal or administrative proceedings, the official directive nevertheless relied on these reports. It referred to the black list and mentioned Jehovahs Witnesses by name. 31. It is, to say the least, very surprising to observe that the State took the initiative, in December 2001, to publish this directive that mentions Jehovahs Witnesses by name. In fact, on 23 June 2000, the Conseil dtat, Frances highest administrative court, ruled that the activity of associations belonging to Jehovahs Witnesses did not pose a threat to public order and that, as a result, these associations were entitled to benefit from the prerogatives granted to associations for public worship (associations cultuelles) (Exhibit A, Item 29). 32. Even before the December 2001 directive appeared, France had taken a solemn commitment before the Committee of Ministers of the Council of Europe in Union des Athes, cited above (Exhibit D, Item 19; see paragraph 90 below). 33. In the preamble of the December 2001 directive, the Tax Department stated that in the field of taxation, no specific legislation has been introduced over the last few years to address the phenomenon of sects. However, the directive did refer to a new administrative doctrine with regards to the taxation of gifts from hand to hand 8 at the rate of 60%. It states on page 2:
In the field of taxation, no specific legislation has been introduced over the last few years. However, the new administrative doctrine with regards to, on the one hand, the rules governing associations and the corresponding evolutions in case law and, on the other hand, the taxation of gifts from hand to hand, has modified the way to handle tax matters of these sectarian movements. [emphasis added] (Exhibit A, Item 28)

34. To illustrate how this new administrative doctrine should be applied to the issue of gifts from hand to hand, the directive makes specific reference to the 4 July 2000 ruling by the Nanterre Regional Court which involved Applicant (see paragraph 60 below). This decision, which was the first of its kind and widely criticised, upheld the retroactive and unforeseeable 60% taxation (not including penalties) of thousands of religious contributions 9 made by Jehovahs Witnesses from 1993 to 1996. The total amount of taxes and penalties claimed by the State far exceeds the value of Applicants assets. The inescapable result is the associations insolvency, which will drastically interfere with Jehovahs Witnesses freedom of worship. This taxation, which results from a new administrative doctrine, and that appeared in a directive about the repression of sects dated 2001, was unforeseeable at the time of the tax audit ordered in 1995 (see paragraph 44 below). This is the first time that such a measure has been upheld by French case law. Applicant is left with no alternative but to

A second parliamentary report entitled Les sectes et largent (Sects and Money) was filed at the National Assembly on 10 June 1999, by the Inquiry Commission on the financial, patrimonial and fiscal situation of sects (Exhibit A, Item 39). 8 In connection with gifts from hand to hand (dons manuels) the Tax Departments directive gives the following definition: Even if there is no maximum limit or ceiling identifying a gift from hand to hand as such, it can only consist of a transfer of an asset or of a sum of money of little value, not from an intrinsic point of view, but based on the donors financial means. (Exhibit A, Item 28, page 11) 9 The French dictionary Le Grand Robert defines an offrande (religious contribution) as a gift offered to the divinity or its representatives.

12. request the intervention of this Court to put a stop to what the State is attempting to accomplish (Exhibit A, Items 30a, b & c). 35. This taxation of religious contributions, which was upheld by the Regional Court of Nanterre and then by the Court of Appeal of Versailles on 28 February 2002 (see paragraphs 60 & 61 below), resulted in strong criticism by legal specialists (Exhibit A, Item 31a, b & c). For example, Professor Maurice-Christian Bergers stated:
It is essential to note that the audit of the association Les Tmoins de Jhovah discovered no irregularities in its book-keeping which, therefore, was serious and sincere. The assessment is thus based on a rather strange evaluation by the Tax Department that is purely qualitative [This] solution that may seem convincing (but hardly so to tax specialists) was arrived at through a combination of minor distortions of certain concepts. What makes these distortions even harder to accept is that they set aside the ratio legis of administrative documents and circulars that are favourable, in the present case, to the taxpayer. When these questionable interpretations are added together, the end result is dramatic: the rules affecting the taxation of associations are under direct challenge. (Exhibit A, Item 32)

36. Following these vigorous criticisms, Parliament modified the law in 2003 in order to prevent the application of this new administrative doctrine to associations which do not appear on the black list. This legislative modification became effective on 13 May 2003. On this very day, 13 May 2003, after an unjustifiably long delay, the Versailles Court of Appeal decision was officially served on Applicants attorney (and to Applicant itself on 19 May 2003). It is difficult to view these events as mere coincidences, since the net result is that, while other associations learned that the new administrative doctrine did not apply to them, Applicant was notified on the very same day that it was obliged to pay the tax in question (see paragraph 61 below; Exhibit C, Item 7a & b). 37. Following these events, the editor Francis Lefebvre (the main French specialist on tax matters), in an article entitled Le fisc et largent des sectes (The Tax Department and the Money of Sects) summarised the case in the following terms:
We return to the rollercoaster case of Jehovahs Witnesses which caused so much public debate that it has required the intervention of Parliament. Now that the wheat has been separated from the weeds, sects are still at risk of having the gifts they receive taxed at 60%. Allowing for exceptions, other associations are not liable for tax. (Exhibit A, Item 33)

38. When the Court of Cassation confirmed the taxation measure in the present case (see paragraph 62 below), editor Francis Lefebvre considered that the decision by the Court of Cassation was in our view, simply a solution of opportunism basically targeting in practice sects and added that the solution, in any case, is open to criticism on grounds of principles (authors emphasis) (Exhibit A, Item 34a). It is thus a well-known fact that the taxation of gifts from hand to hand has been applied exclusively in the context of the battle against sects, and this has been confirmed by other eminent commentators (Exhibit A, Item 34b).

13. 39. Moreover, in the National Assembly on 1 April 2003, the rapporteur for the Finance Commission (which is a parliamentary body responsible for tax matters), Mr Laurent Hnart, who is also a Member of Parliament, acknowledged the existence of a tax repression aimed at sects:
In practice, the Tax Department does not generally tax associations, apart from those that are likely to display sectarian characteristics. The discussion of this amendment could be the opportunity for the government to confirm this practice. (Exhibit A, Item 35)

40. Likewise, on 1 April 2003, also in the National Assembly, Member of Parliament Mrs Martine Lignires-Cassou stated:
Mr Gudon [another Member of Parliament] has previously explained that associations receiving gifts from hand to hand might have a 60% tax imposed on them. This provision was initially taken to fight sects. [emphasis added] (Exhibit A, Item 36)

41. Senator Mr Jean-Louis Masson expressed concern about the legality of this taxation that was aimed at Jehovahs Witnesses:
He [Senator Jean-Louis Masson] is surprised that, in France, the Haut-de-SeineSouth Tax Department should have levied a tax on the religious contributions made to Jehovahs Witnesses. To his knowledge, no comparable tax has been levied on other religious associations and churches. He wonders whether this decision is in conformity with the declaration of the European Court of Human Rights. He also fears that this decision might constitute a precedent that could affect other religious associations. (Exhibit A, Item 37)

42. Thus, as stated by Government spokesman Mr Alain Lamassoure in his 1996 address, tax matters have effectively become an instrument in the repression of the activities of minority religions. As set forth above and hereafter, Applicant is the most outstanding example of a minority religion facing such repression. D. The Proceedings 1. The audit

43. Starting on 28 November 1995, Applicant was audited during an exceptionally long 18-month period (Exhibit B, Item 1). 10 During their investigation, the auditors demanded all Applicants accounting records and legal documents. The investigation brigade initially spent 12 months carefully examining these documents with the aim of finding proof of some sort of commercial activity. However, they could not find any lucrative activity. This was acknowledged in 1999 by the Guyard/Brard Parliamentary Report entitled Les sectes et largent:
As a reminder, it should be pointed out that few sectarian movements have been able to prove the altruistic nature of their operation, and, among the tax inspections of the

10

In France, an audit usually lasts around six months. In some exceptional cases, it may last 12 months.

14.
largest sects, only the audit of Jehovah's Witnesses failed to prove the lucrative nature of the activities engaged in. (Exhibit A, Item 39, p. 222)

44. Having failed to identify any commercial activity whatsoever in the files of Applicant, the Tax Department went against its long-standing administrative practice based on a century-old customary practice,11 which considers that small contributions to associations do not have to be taxed. Thus, more than one year after the beginning of the audit, on 24 January 1997, the Tax Department sent Applicant a formal notice indicating its intention to impose retroactively a 60% tax on ALL religious contributions received by Applicant (Exhibit B, Item 2). Such an excessive taxation of a religious association is unprecedented in the modern history of the French Tax Department and was completely unforeseeable. 45. In the 24 January 1997 notice, Applicant was ordered to officially declare to the tax collection office, within one month, all contributions received and posted in its books for yearly periods of 1993, 1994, 1995 and 1996. If Applicant had agreed to make such a declaration, this would have been tantamount to admitting liability for a 60% tax on all religious contributions received. At the same time, it would have been obliged to immediately pay the corresponding (exorbitant) tax. 12 Such a request, however, from the Tax Department was totally new and unexpected. It was severely criticised by tax experts (Exhibit A, Items 30a, 32, 34b). The only choice left to Applicant was not to respond to this arbitrary demand. 46. The Tax Department did not hesitate to mobilise teams of inspectors to inventory four years worth of religious contributions. Around 20 investigators, in teams of four at a time, came in turn to Applicants offices from 24 January until 18 March 1997, to enter into their computers thousands of pieces of data including personal information. By peremptorily recording ALL the names of donors who had contributed to the association Les Tmoins de Jhovah, in violation of their privacy, the authorities have established a file containing the name and religious identity of thousands of citizens. 13 47. Representatives of the Tax Department tallied all the religious contributions from Jehovahs Witnesses in France for 1993, 1994, 1995 and 1996. In the end, on 26 June 1997, a document totalling 1,092 pages listing all the religious contributions was sent to Applicant, with an official notice to declare them as gifts from hand to hand so that these contributions could be taxed at the rate of 60% (Exhibit B, Item 4). 48. On 14 May 1998, Applicant was notified that a 60% tax was being imposed retroactively on ALL religious contributions received between 1993 and 1996. The amount of the tax demanded was a staggering 150,347,916 French francs (FRF) that is 22,920,392 euros (EUR). This tax applies to the religious contributions made by a quarter of a million individuals over a period of four years (Exhibit B, Item 5).

Regarding the customary practice of not taxing gifts from hand to hand made to associations, see Exhibit B, Item 14. 12 The relevant declaration form (Form no. 2735) stipulates: Payment in euros of the claimed tax should be joined to the declaration. [emphasis added] (Exhibit B, Item 3) 13 To some Jehovahs Witnesses, these events are reminiscent of nominative lists drawn up during World War II (Exhibit A, Item 40; see also Exhibit A, Item 3).

11

15. 49. Added to this exorbitant amount was a total of FRF 120,278,333 (that is EUR 18,336,314) as an 80% penalty for failure to declare, or in other words to acquiesce to the arbitrary taxation. The end result is a sanction totalling 108% on all religious contributions received. Furthermore, 9% interest for late payment accrues annually to this amount, that is more than EUR 2,000,000 per year (Exhibit B, Item 6). More than 250,000 French citizens were stunned to see that the State had confiscated the totality of their religious contributions for the relevant years (Exhibit B, Item 7). 50. There is no dispute that the religious contributions received during this period of four years by Applicant were made up of hundreds of thousands of very small sums. With a community of around 250,000 believers, the average contribution per person and per month for the period in question amounts to less than four euros (see statement by Applicants auditor, Exhibit B, Item 8). 51. Families and individuals, some of very humble means, all of whom are deeply attached to their religion, contributed to financially support the religious activities of the association Les Tmoins de Jhovah (owner of Bethel, the temporal headquarters of their faith), only to see this act of worship trampled (Exhibit B, Item 9). 52. Among the contributions taxed at the rate of 108% were FRF 7,223,785 (EUR 1,101,259) specifically earmarked as humanitarian aid for refugees of the 1994 Rwanda genocide (Exhibit B, Item 10). 53. On 5 June 1998, just 15 days after sending official notification of the tax, the Tax Department petitioned for and obtained from the Regional Court of Nanterre authorisation to proceed with a protective lien on Bethels immovables and a protective seizure on Bethels movables; all this without Applicant being notified or heard (Exhibit B, Item 11). Later, the authorities permanently confiscated EUR 4,590,295 belonging to Applicant, which included the value of the above-mentioned movables seized in 1998 (Exhibit B, Item 12). 54. Throughout this ordeal, complaints were duly sent by Applicant and the National Consistory of Jehovahs Witnesses in France to the Government (for example, Exhibit B, Items 13a & 13b). 55. The retroactive 60% taxation of religious contributions amounts to a de facto confiscation of all of Applicants assets. For the purpose of comparison, in the context of commercial activity, taxation is levied only on profits after expenses. Furthermore, in France, the higher band of corporate tax is about 35% of profits, which is an average of around 5% to 10% on annual turnover. However, in the present case, the 60% tax applied to all of Applicants resources. Additionally, it was applied retroactively. The enforcement of this tax measure, which resulted from a new administrative doctrine, was unforeseeable. The contributions received from the faithful had already been spent on religious activities. It was obvious that it was impossible for Applicant to pay this tax. 56. The French authorities were aware that such a tax would drive into insolvency the association Les Tmoins de Jhovah, created in 1947, which is the owner of the religions temporal headquarters (see paragraph 63 and accompanying footnote below).

16. 2. The Administrative and Judicial Proceedings

57. Applicant complained to the Tax Department about the taxation procedures in progress on several occasions. In their reply dated 13 March 1998, the Tax Department referred to the application of a legal system requiring prefectural or ministerial authorisation (Exhibit C, Item 1). 14 58. On 28 January 1999, an official complaint was filed with the Tax Department on the grounds that the taxation was unfair, illegal and discriminatory (Exhibit C, Item 2). This complaint was dismissed on 29 September 1999 (Exhibit C, Item 3). 59. On 23 November 1999, Applicant petitioned the Regional Court of Nanterre to rule on the Tax Departments position. It argued particularly that repression by means of taxation constitutes a violation of the European Convention on Human Rights (Exhibit C, Item 4). 60. On 4 July 2000, the Regional Court of Nanterre rejected Applicants claim (Exhibit C, Item 5). This decision was appealed on 8 August 2000. (Exhibit C, Items 6a & b). 61. On 28 February 2002, the Court of Versailles dismissed Applicants appeal. This decision was not officially notified to Applicant until 13 May 2003, after a long delay of fifteen months under very unusual circumstances (Exhibit C, Item 7a & b). 15 62. Applicant appealed to the Court of Cassation, citing in particular violations of domestic law and of the European Convention on Human Rights (Exhibit C, Items 8a & b). On 5 October 2004, the Court of Cassation dismissed the appeal (Exhibit C, Item 9). 63. As soon as the Trial Court issued its decision on 4 July 2000, Applicant questioned the Tax Department on the possible 60% re-taxation of future religious contributions. The State never replied to this request, even though the question was officially resubmitted on 2 October 2003. By not replying to these repeated requests, the State manifested it desire to compromise Applicants past and future funds. The State knew full well that it was thus making it impossible for Applicant to remove the legal restraints (protective lien and protective seizure) placed on Bethel (Exhibit C, Item 10; Exhibit B, Item 12). 16
This legal system of prior administrative authorisation based on Section 910 of the Civil Code regulates bequests and notarised gifts inter vivos. It does not concern gifts from hand to hand and even less modest contributions (see paragraph 78 below). 15 This decision was officially notified to the attorney on 13 May 2003 (and then to Applicant itself on 19 May 2003). On this very day, 13 May 2003, Parliament adopted a provision that specifically protected all general interest associations from the consequences of the Versailles decision, a ruling which had provoked a general outcry from associations. Associations of general interest include most of the associations receiving gifts from hand to hand, with the exception of those labelled sects (see paragraphs 36 and 37 above). 16 A expert opinion shows that under the crushing burden of a 60% taxation of religious contributions (not counting any future penalties and supposing that contributions from the faithful remained at pre-audit levels), it would take Applicant more than 20 years to pay the amounts claimed for 1993, 1994, 1995 and 1996, even if all contributions received were used only for this purpose. In such a hypothetical situation, it would be impossible for Applicant to function for a period of more than 20 years, since 100% of contributions would be earmarked
14

17. E. Relevant Law and Internal Application 1. 64. Freedom of Association Law of 1 July 1901:
Section 2 Associations of persons may form freely without authorisation or prior declaration. (Exhibit D, Item 1)

65. According to the provisions of this act, any association whatsoever that has a licit purpose (regardless of whether its goals are political, educational, cultural, or religious) can be freely formed and exist. 66. Law of 9 December 1905:
Section 18 Associations formed to pay for the costs, maintenance and public practice of a religion must be set up in harmony with Section 5 and those that follow of Title 1 of the 1 July 1901 Act. Furthermore, they will be subject to the terms of the present act. (Exhibit D, Item 2)

67. Originally, in harmony with Section 18 of the 9 December 1905 Act, Parliament attempted to confine religious associations within the restrictive framework of the 9 December 1905 Act. 68. The obligation for religious organisations to register as associations in harmony with the 9 December 1905 Act was modified in 1907 to allow religious organisations to register pursuant to the more general framework of the 1 July 1901 Act, if they so desired. 17 69. Law of 2 January 1907:
Section 4 Independently of associations subject to the terms of Section IV of the 9 December 1905 Act, public practice of a religion may be provided either by means of associations governed by the 1 July 1901 Act (Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 12 and 17) or by means of assemblies held on private initiative in compliance with the 30 June 1881 Act combined with Article 25 of the 9 December 1905 Act. [emphasis added]
for the payment of these taxes (Exhibit C, Item 11). In contrast, note the States flexibility with regards to the concerns of other associations (Exhibit C, Item 12). 17 The 2 January 1907 Act was adopted following opposition from the Catholic Church to the restrictive provisions of the 9 December 1905 Act. This opposition was especially ferocious because, as stated by a Member of Parliament during the preliminary debates on the 2 January 1907 Act: Article 1 of the 1905 Act guarantees freedom of worship. Unfortunately, the following articles seem to have as their sole purpose to render it impossible to put the stated principle into application. Thus, as stated subsequently by the Minister of Religious Affaires to Parliament: We bring you freedoms in the 1901 Act, which were not part of the 1905 Act. (Exhibit D, Item 3)

18.
Section 6 The provisions of the 9 December 1905 Act and of the decrees having the value of public administration regulations for their application are maintained, inasmuch as they are not contrary to the present act. (Exhibit D, Item 4)

2. 70.

Religious Freedom Declaration of the Rights of Man and of the Citizen, 26 August 1789:
Article 10 No one may be troubled on account of his opinions, even on religious issues, provided that the expression of these opinions does not disturb the peace as established by law. (Exhibit D, Item 5)

71.

Constitution of 27 October 1946:


Preamble In the wake of the victory by free people over regimes which tried to subjugate and degrade the human being, the French people proclaim once more that every human being, regardless of race, religion or creed, possesses inalienable and sacred rights. It solemnly reaffirms the rights and freedoms of man and the citizen laid down in the 1789 Declaration of Rights and the basic principles recognised by the laws of the Republic. 18 (Exhibit D, Item 6)

72.

Constitution of 4 October 1958


Article 1 France is an indivisible, secular, democratic and social Republic. France shall ensure equal treatment of all citizens before the law, regardless of their origin, race or religion. All creeds shall be respected. (Exhibit D, Item 7)

73.

Law of 9 December 1905


Section 1 The Republic ensures freedom of conscience. It guarantees the free exercise of religion subject to the sole restrictions mentioned below and established in the interest of public order. Section 2 The Republic does not recognise, remunerate or subsidise any religion. (Exhibit D, Item 2)

74. As mentioned above (see paragraph 68), the 2 January 1907 Act clarified that religious freedom may be exercised by means of associations governed by the 1 July 1901 Act (Exhibit D, Item 4).

In line with Decision no. 71-44 DC of 16 July 1971 by the Constitutional Council (Conseil constitutionnel), freedom of association also is included in the basic principles recognised by the laws of the Republic referred to in the Preamble of the Constitution of 27 October 1946 (Exhibit D, Item 10).

18

19. 3. Financial Aspects of the Exercise of Freedom of Association and of Religion i. 75. Financial Resources Common to all Associations

Law of 1 July 1901:


Section 6 (as modified by Law no. 87-571, dated 23 July 1987) Any association duly declared may without any special authorisation, take part in court proceedings, receive gifts from hand to hand 19 (Exhibit D, Item 1)

76. The 1987 modification of the 1 July 1901 Act legalised the regular and century-old customary practice whereby any properly declared association could receive gifts from hand to hand without special authorisation. 77. Already 30 years before the 23 July 1987 Act, author Marcel Planiol wrote regarding small gifts, such as the modest religious contributions received by Applicant:
Administrative case law is prone to exonerate from authorisation religious contributions or small gifts which are not a perpetual endowment and which concern a certain sum of money for immediate distribution. (M. Planiol, Trait pratique de droit civil franais, Volume 5, 1957, p. 1135) (Exhibit D, Item 8)

ii. 78.

Exceptional Financial Resources Specific to Certain Associations

Civil Code:
Section 910 Provisions inter vivos or by will for hospices, the village poor, or public interest institutions will only be valid inasmuch as they are authorised by royal decree. (Exhibit D, Item 9)

79. This system of prior administrative authorisation for bequests and notarised donations mainly affects: - public interest associations - charitable associations - officially recognised religious orders - associations for public worship (associations cultuelles).
In connection with this modification of the law introduced in 1987, with the purpose of officialising the possibility for all associations to receive gifts from hand to hand without special authorisation, the Law Commission of the National Assembly (Commission des lois de lAssemble Nationale) specified that sports, cultural, humanitarian, charitable and other associations can receive such gifts, as can political parties or sects (Exhibit D, Item 21).
19

20. 80. The application of this system of prior administrative authorisation has been determined by a series of acts. Dalloz, a publisher on legal matters, specifies:
While all associations can receive gifts from hand to hand, only certain categories of associations can receive bequests or notarised donations inter vivos. (Exhibit D, Item 11)

4.

The Taxation System for Gifts from Hand to Hand i. The Taxation System for Gifts from Hand to Hand to Individuals

81.

General Tax Code (GTC):


Section 757 (as it stands pursuant to the 30 December 1991 Act) Transactions containing either a declaration by the recipient or by his representatives or a judicial acknowledgement of a gift from hand to hand are liable for gift duty. The same rule applies where the recipient discloses a gift from hand to hand to the tax authorities. (Exhibit D, Item 12)

82. The modification of this law in 1991 added to Section 757 GTC the phrase: The same rule applies when the recipient discloses a gift from hand to hand to the tax authorities. This new provision was originally intended by Parliament only to apply to gifts from hand to hand between physical persons and not to those made to associations. Its aim was to limit families from transferring large amounts of capital through gifts from hand to hand without paying any tax. During the preliminary parliamentary debates on the 1991 Act, the rapporteur clearly specified regarding this addition to the tax legislation:
In sum, this simple solution by no means establishes the slightest obligation to make a declaration, and it does not call into question small gifts from hand to hand. 20 (Exhibit D, Item 13)

83. In 1992, the Tax Department officially confirmed that this new formulation of Section 757 GTC was not intended for gifts from hand to hand to not-for-profit associations which are, as in the past, exonerated from gratuitous-transfer tax [droits de mutation titre gratuit] (Exhibit D, Item 14). 84. The official declaration form which must be used to declare gifts from hand to hand established by Decree no. 93-507, dated 26 March 1993, is a form to be completed by physical persons only (Exhibit D, Item 15). 85. General Tax Code:
Section 635A

In connection with religious contributions or small gifts, see note 9 above. While gifts from hand to hand make up the regular financing of associations, they are generally an exceptional source of financing for an individual, hence Parliaments desire to make such gifts between individuals liable to tax.

20

21.
Gifts from hand to hand mentioned in Section 757(2) must be declared or recorded by the recipient or his representatives within one month of the date on which the recipient disclosed the donation to the Tax Department. Section 777 Gratuitous-transfer tax [droits de mutation titre gratuit] is fixed at the rates indicated in the chart below for the net share left to each party: Chart III Tax rates applicable between collaterals and unrelated persons. Between family members beyond the 4th degree and between unrelated persons: 60%. (Exhibit D, Item 12)

ii.

The Taxation System for Gifts from Hand to Hand to Associations (since 2003)

86. The Law of 1 August 2003 concerning sponsorship of associations and foundations modified Section 757 GTC by adding an additional paragraph: 21
These provisions do not apply to general interest organizations mentioned in Section 200. (Exhibit D, Item 16) 22

87. By this new paragraph, Parliament protected general interest associations from the new administrative doctrine which inaugurated the taxation of gifts from hand to hand to associations (see paragraph 33 above). During the debate over this paragraph, Senator Yann Gaillard, member of the Finance Commission, made this report on 7 May 2003:
It was the National Assemblys wish that the exoneration of transfer duties on general interest organizations with respect to gifts from hand to hand be explicitly mentioned in the law. In fact, this is a case of reviewing certain interpretations contrary to the traditional practice of exoneration that were made by the Tax Department during the combat against sects. (Exhibit D, Item 17)

5. 88.

General Principles Applying to Tax Penalties General Tax Code:


Section 1728 1. When a physical or moral person or an association, under obligation to make a declaration or to produce a notarised act containing information used to calculate the tax base or the payment of duties or taxes established or levied by the Tax Department, refrains from filling in this declaration or from presenting the act within the allotted time, the amount of the duties imposed on the taxpayer, or

Regarding the case of Jhovahs Witnesses, other associations expressed their strong concern about this unprecedented attempt to tax gifts from hand to hand received by an association. Consequently, Parliament intervened in favour of associations, with the exception of sects (Exhibit A, Item 33). N.B.: This paragraph modifying Section 757 GTC was made law by Parliament on 13 May 2003 (see paragraph 61 and note 15 above). It is part of a law concerning sponsorship of associations and foundations officially issued on 1 August 2003.
22

21

22.
resulting from the declaration or the act being produced after the deadline, is combined with interest for late payment as specified in Section 1727 and a 10% surcharge. The surcharge mentioned in 1 is increased to: 40% when the document has not been produced within 30 days of reception of a formal demand sent by recorded delivery to produce the document within this time limit; 80% when the document has not been produced within 30 days of reception of a second formal demand notified in the same manner as the first. (Exhibit D, Item 12)

3.

6. 89. freedoms.

Protection of Private Information Law no. 78-17, dated 6 January 1978, concerning data processing, files and
Section 4 Nominative information as meant by the present law is data, in whatever form, enabling the physical persons to whom they apply to be identified, either directly or indirectly, irrespective of whether the processing is done by a physical or moral person. Section 31 It is forbidden to put onto computer or store in a computers memory, without the explicit permission of the person concerned, nominative data which directly or indirectly indicate a persons racial origins, political, philosophical, or religious opinions, trade-union membership, or morals. (Exhibit D, Item 18)

7.

Council of EuropeCommittee of Ministers i. Undertaking by France

90. In a case involving a refusal by French authorities to authorise a bequest to an association because it did not qualify as an association for public worship under the 1905 Act (Union des Athes, cited above), the Commission found violations of Article 11 in conjunction with Article 14. The Committee of Ministers of the Council of Europe, in the context of enforcing the decision of the Commission, highlighted the undertaking by the French Government to maintain a long-tolerated practice regarding gifts from hand to hand to any recognised associations, thereby reducing the differences between the legal arrangements governing different types of association. The French Government took the following undertaking:
Act No. 87-571 on the development of sponsorship entitles registered associations such as the Applicant to receive donations. In this way, the Act provided a legal basis for the long-tolerated practice of gifts from hand to hand, thereby reducing the differences between the legal arrangements governing different types of association. ... Gifts from hand to hand may take the form of cash, cheques, bearer securities, giro transfers, furniture or life-insurance policies. There are no limits to the amount that

23.
may be given. Gifts of this kind do not require notarised deeds or official authorisation. ... [The] Government of France considers that authorities or courts presented in future with similar problems to that encountered by the Applicant will pursue this progressive interpretation of the law and give full effect to the decision of the Committee of Ministers, taken in the light of the Commissions report on the case. (Exhibit D, Item 19)

ii

Exercise of Discretionary Powers

91. On 11 March 1980, the Committee of Ministers adopted Recommendation no. R (80) 2, entitled Concerning the Exercise of Discretionary Powers by Administrative Authorities. This Recommendation contained basic principles to be followed by administrative authorities of Member States in the exercise of their discretionary powers:
II Basic Principles An administrative authority, when exercising a discretionary power: 1. does not pursue a purpose other than that for which the power has been conferred; 2. observes objectivity and impartiality, taking into account only the factors relevant to the particular case; 3. observes the principle of equality before the law by avoiding unfair discrimination; 4. maintains a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose which it pursues; 5. takes its decision within a time which is reasonable having regard to the matter at stake; 6. applies any general administrative guidelines in a consistent manner while at the same time taking account of the particular circumstances of each case. (Exhibit D, Item 20)

24.

III. VIOLATIONS

OF THE

EUROPEAN CONVENTION RIGHTS

ON

HUMAN

A.

Summary of European Convention Rights Violated

92. Applicant submits that all the discriminatory measures to which it has been submitted over the past years in question blatantly violate the provisions of the European Convention on Human Rights (the Convention), namely: i) ii) iii) iv) v) vi) vii) viii) ix) B. 93. Article 9; Article 14 in conjunction with Article 9; Article 11; Article 14 in conjunction with Article 11; Article 1 of Protocol 1; Article 14 in conjunction with Article 1 of Protocol 1; Article 6; Article 18 in conjunction with Article 1 of Protocol 1. Article 13.

Violation of Article 9 of the Convention Article 9Freedom of thought, conscience and religion:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest ones religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

94. An entity representing a religion, such as the association Les Tmoins de Jhovah, can exercise on behalf of its adherents the rights guaranteed by Article 9 of the Convention (see Chaare Shalom Ve Tsedek v. France [GC], no. 27417/95, 72, ECHR 2000-VII) (Metropolitan Church of Bessarabia and Others v. Moldova, 13 December 2001, no 45701/99, 101). 95. When State intervention, through exorbitant taxation, threatens the very existence of a religious association, the analysis of Article 9 must be made in light of the

25. guarantees of Article 11. As stated by this Court in Hasan and Chaush v. Bulgaria, 26 October 2000, no. 30985/96, 62:
Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Seen in this perspective, the believers right to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention.

96. Applicant exists for the sole purpose of lending support to the exercise and maintenance of the worship of Jehovahs Witnesses in France. It owns Bethel from which spiritual direction is given to local congregations. Bethel is the temporal headquarters of Jehovahs Witnesses in France and is crucial to their functioning and public worship (see paragraph 11 above). By arbitrary and exorbitant taxation which, if successful, would force it into insolvency, the State is seriously encroaching on Applicants right to religious freedom, as well as that of the faithful. 23 97. A taxation measure can, in some instances, interfere with the rights guaranteed by Article 9. The Commission ruled accordingly in a slightly different context (church tax), in its report in Darby v. Sweden, 9 May 1989, no 11581/85. Though this Court ruled on other grounds, it did not contradict the Commissions earlier finding on this issue. 98. This, however, does not mean that on the basis of Article 9, a church has an automatic right to be exempt from taxation. As stated by this Court in Alujer Fernandez and Caballera Garcia v. Spain, 14 June 2001, no. 53072/99, page 7:
In addition, freedom of religion does not entail Churches or their members being given a different tax status to that of other taxpayers. However, the conclusion of agreements between the State and a particular Church establishing a special tax regime in favour of the latter does not, in principle, contravene the requirements of Articles 9 and 14 of the Convention, provided that there is an objective and reasonable justification for the difference in treatment and that similar agreements may be entered into by other Churches wishing to do so.

99. Similarly, a religious association cannot rely on Article 9 to avoid payment of legitimate income tax on commercial activity (Association Sivananda de Yoga Vedanta v. France, 16 April 1998, no. 30260/96). 100. However, the tax in question in the present case is not such a tax. The State has never asserted that the tax demanded from Applicant was based on any commercial activity. Even though the tax auditors tried hard throughout their thorough investigation to find traces of any such activity, they were forced to conclude that Applicant did not carry on commercial activities of any kind (see paragraph 43 above; Exhibit A, Item 39). 101. Unable to impose a business tax on Applicant, the authorities contravened, in a totally unexpected fashion, the regular administrative practice and long-standing custom of
Applicant is capable of possessing and exercising the right to freedom of religion (see Finska frsamlingen i Stockholm and Teuvo Hautaniemi v. Sweden, 11 April 1996, no. 24019/94).
23

26. exempting from taxation gifts from hand to hand received by not-for-profit associations. As a result, an unforeseeable 60% tax was applied retroactively to ALL religious contributions received over a four-year period by Applicant. 102. In Holy Monasteries v. Greece (9 December 1994, no. 13092/87, 13984/88, 87), this Court stated that the provisions held to be contrary to Article 1 of Protocol No. 1 (P1-1) in no way concern the objects intended for the celebration of divine worship and consequently do not interfere with the exercise of the right to freedom of religion. The opposite is true in the present case. The consequences of the operation undertaken by the Tax Department directly affect the objects intended for the celebration of divine worship. 103. Thus, the religious contributions made by the faithful are of a holy nature and are part and parcel of the worship rendered to Jehovah God (see paragraph 12 above). Yet, all these religious contributions have been, de facto, confiscated by the State through the taxes and penalties imposed. 104. Furthermore, due to these measures, the confiscation of Applicants assets, which are dedicated to the practice of the religion of Jehovahs Witnesses in France and which make up Bethel (House of God), is inevitable. 105. In addition, the four years worth of religious contributions had already been used in the day-to-day running of the association to contribute to the public worship and the exercise of the religion of Jehovahs Witnesses. The State knew full well after its in-depth audit that it would be impossible for Applicant to pay the crushing tax burden of EUR 45,439,309, to which must be added an additional EUR 2,000,000 per year in interest. The amount the State is claiming far exceeds Applicants assets. This tax measure is clearly intended to force it into liquidation. In fact, even the forced sale of all of Applicants assets would not suffice, in any case, to assume this exorbitant tax burden. As a result, the pursuit of its activities and its very existence are threatened (see paragraph 63 above). 106. All these events must be placed in the context of the fight against sects in France (see paragraph 14 above). 107. Within this context, the State has not hidden its determination to use taxation as a weapon to repress groups appearing on the black list in the Gest/Guyard Report. For example:
- Government Spokesman and Minister Delegate to the Budget, Mr Alain Lamassoure, publicly supported praise given to the tax department, whose actions on several occasions resulted in a certain repression of the activity of sects. [emphasis added] (Exhibit A, Item 16) - In December 2001, the Tax Department sent an internal directive entitled Les sectes to all its officers. Based on the Parliamentary Reports, the directive referred specifically to the black list and to Jehovahs Witnesses. It introduced its new administrative doctrine targeting sects and cited Applicants case as an example (Exhibit A, Item 28).

27. 108. Members of the Parliamentary Commissions did not hide their satisfaction with the repressive measures taken against Jehovahs Witnesses by the Tax Department (Exhibit A, Item 41). 109. For State interference to be compatible with Article 9 of the Convention, it must cumulatively (1) be prescribed by law, (2) pursue a legitimate purpose and (3) be necessary in a democratic society. None of these conditions are met. 1. Prescribed by law

110. As stated by this Court in Wingrove v. The United Kingdom (25 November 1996, no. 17419/90, 40), to meet this criterion, the law:
must be formulated with sufficient precision to enable those concernedif need be, with appropriate legal adviceto foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

111. It was impossible for Applicant to foresee between 1993 and 1996, that the State would (1) apply in 1997 what it now calls a new administrative doctrine, and (2) impose retroactively an exorbitant tax on all religious contributions received. Such a taxation of religious contributions had never been imposed before on an association. The unexpected action of the State against Applicant was severely criticised by tax law experts, since Applicant depended exclusively on the generosity of the faithful (see paragraphs 34 and 35 above). 112. Furthermore, the application of this new administrative doctrine is left up to the discretion of tax officers. Until now, Applicant is one of the few not-for-profit associations, of more than 1,000,000, that has been hit with such a crushing tax. It is also one of the only religious associations to have been specifically targeted. As stated by this Court: A law which confers a discretion must indicate the scope of that discretion. (Silver and others v. The United Kingdom, 25 March 1983, nos. 5947/72; 6205/73, 88) (Regarding the requirement of even-handed application of administrative directions when exercising discretionary powers, see paragraph 91 above, as well as Recommendation No. R (80) 2 adopted by the Committee of Ministers of the Council of Europe.) There are no official documents which indicate the scope of that discretion. On the contrary, all indications are that tax officers can use this new administrative doctrine at their own discretion. 24 113. The retroactive and unforeseeable taxation of religious contributions to Applicant was never prescribed by law.

24

The specialised journal Juris-Associations stated in its issue of 15 December 2004: The Tax Administration itself determines which taxpayers are audited. To subject a tax measure to the initiation of a tax audit inevitably implies an unforeseeable application of the Tax law which seems to interfere with the principle of equal treatment of every citizen as regards the tax system. Therefore, a dangerous breach has been made, the Tax Administration being henceforth able to create the basis for the taxation. (authors emphasis) (Exhibit A, Item 44)

28. 2. Legitimate purpose

114. The tax inspection with all its consequences was openly presented as a weapon against sects, as evidenced by the Parliamentary debates in 2003 on the modification of Section 757 GTC (1 August 2003 Act) of the tax law on gifts from hand to hand (see paragraph 87 above). Why was the 2003 modification necessary? 115. There are over 1,000,000 not-for-profit associations in France registered under the 1 July 1901 Act. The taxation of Applicant raised fears that the State would apply its new administrative doctrine to all associations, making it impossible for them to exist. The 2003 modification was meant to reassure associations that only sects would be taxed in such an exorbitant fashion (see paragraphs 35 to 40 and note 15 above). 116. Can it be asserted that the purpose of this repressive taxation against Applicant is being pursued on the grounds of public order? No, since the French courts, and in particular the Conseil dtat, ruled during the same time period that associations for public worship used by Jehovahs Witnesses for their places of worship did not pose a threat to public order (Exhibit A, Items 29). 117. 3. Consequently, resorting to this taxation was not legitimate. Necessary in a democratic society

118. Applicant does not dispute the States right to raise taxes for general interest purposes. Jehovahs Witnesses are known as citizens who pay their taxes 25 in imitation of Christ who said to pay back Caesars things to Caesar (Gospel of Luke 20:25), and in line with the Apostolic teaching to render to all their dues, to him who calls for the tax, the tax (Pauls letter to the Romans 13:7) (Exhibit A, Item 42). 119. However, in the present case, this discretionary tax of 108% can in no way be construed as being in the general interest. Quite the opposite, this is a flagrant injustice, whose goal is to do away with Applicant and it religious headquarters. 120. The State has never produced any evidence to show how such disproportionate taxation is necessary in a democratic society. What could be the pressing social need for such draconian repressive measures against Jehovahs Witnesses in France? There is none. 121. By its repressive measures against Applicant and the faithful, the State has flouted the general principle established in Kokkinakis v. Greece (25 May 1993, no. 3/1992/348/421, 31):
As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It
In Germany, the newspaper Mnchner Merkur said of Jehovahs Witnesses: They are the most honest and the most punctual tax payers in the Federal Republic. In Italy, the newspaper La Stampa observed: They are the most loyal citizens anyone could wish for: they do not dodge taxes or seek to evade inconvenient laws for their own profit. (Exhibit A, Items 45 a & b)
25

29.
is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

122. The very existence of Bethel, the temporal headquarters of Jehovahs Witnesses, is thus threatened. Once the enforcement procedures have been completely carried out, Bethel buildings will have to be abandoned and the 250,000 faithful will be deprived of necessary spiritual assistance. Furthermore, the religious in the Christian Community of Bethelites will no longer be able to worship and say prayers in Bethel, and take part in the activities inherent to their calling. 123. C. 124. State action in this case is a blatant violation of Article 9 of the Convention. Violation of Article 14 taken in conjunction with Article 9 of the Convention Article 14Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as religion 125.

Discrimination occurs when, without an objective and reasonable justification, persons in relevantly similar situations are treated differently (Fredin v. Sweden (no. 1), 18 February 1991, no. 12033/86, 60). 126. As mentioned above, the State has violated Applicants right to religious freedom. This has been done within the context of a witch hunt. 1. Difference in treatment

127. As stated by this Court: For a claim of violation of this Article (art. 14) to succeed, it has therefore to be established, inter alia, that the situation of the alleged victim can be considered similar to that of persons who have been better treated (Spadea and Scalabrino v. Italy, 28 September 1995, no. 12868/87, 45). 128. In the present case, Applicants legal status is identical to that of other not-forprofit and/or religious associations. Applicants legal status is very similar to that of the Catholic Churchs diocesan associations. Yet, these diocesan associations have never had to pay taxes on religious contributions. 129. Other religious associations that enjoy identical legal status as Applicant, such as Muslim religious associations, have never as yet been subjected to such an abusive tax (Exhibit A, Item 43). 130. The second Parliamentary Report cites the tax audit of Jehovahs Witnesses as an example of combating sects. Taxation is used here as a weapon of repression.

30. 131. Even if all the associations appearing on the black list of the Gest/Guyard Report had been taxed in exactly the same way as Applicant (which is not the case), the taxation in question would nevertheless be discriminatory. The more than 1,000,000 other not-for-profit associations in France benefit from the same legal status under the 1 July 1901 Act. Yet, they have never had this tax imposed on them. 132. The difference in treatment has been admitted to by various members of Parliament. In the National Assembly, the rapporteur for the Finance Commission, Laurent Hnart, stated that in practice, the Tax Department does not generally tax associations, apart from those that are likely to display a sectarian characteristics (see paragraph 39 above). MP Mrs Martine Lignires-Cassou stated regarding the 60% taxation of gifts from hand to hand, this provision was initially taken to fight sects (see paragraph 40 above). Senator Yann Gaillard, member of the Finance Commission, mentioned certain interpretations that go against the traditional practice of tax exemption, which may have been applied by the Tax Department during the fight against sects (see paragraph 87 above). As for Senator JeanLouis Masson, he expressed concern that no such tax has been imposed on other religious associations or churches. He also questioned the Government on the conformity of this measure with the provisions of the European Convention of Human Rights (see paragraph 41 above). 133. These Members of Parliament were perturbed by the new interpretation of Section 757 GTC and its potentially disastrous effect on the hundreds of thousands of not-forprofit associations financed by contributions. The Minister of Finance replied that the situation of Applicant, an entity which is not representative of associations in general was an exception (Exhibit A, Item 37). 2. Legitimate and reasonable aim of the different treatment

134. The stated purpose of this new administrative doctrine is to repress the activity of sects (see paragraph 19 above). 135. However, the State has at its disposal a vast array of civil and criminal laws that it may use against illegal activities. Applicant has not engaged in any illegal activity. 26 Consequently, the State did not have a legitimate reason to act against it, a fortiori, by using taxation in a deviant fashion. Thus, State action could not have a legitimate aim. 136. The State cannot offer any reasonable justification for its different treatment of Applicant. The facts of the present case meet the criteria to determine discrimination as set out by the Commission (see Geillustreerde Pers N.V. v. the Netherlands, D&R 8 (1977), 6 July 1976, p. 5 (14-15)), and later by this Court:
For the purposes of Article 14 (art. 14), a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. (Abdulaziz, Cabales and

It is very revealing to note that while the criminal law provides for the crime of tax fraud, the State never claimed at any time during the proceedings that Applicant was guilty of such fraud.

26

31.
Balkandali v. The United Kindgom, 28 May 1985, nos. 9214/80; 9473/81; 9474/81, 72)

137. The difference of treatment sustained by Applicant is so disproportionate that it cannot be deemed reasonable. As the evidence reveals, Applicant is threatened with extinction simply because it is directly linked to the religion of Jehovahs Witnesses. 138. Article 9. D. 139. It follows that there has been a breach of Article 14 taken in conjunction with

Violation of Article 11 of the Convention Article 11Freedom of assembly and association


1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

140. Inherent in the rights guaranteed by Article 11 is the right of citizens to form associations and act collectively. As stated by this Court:
That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which it would be deprived of any meaning. (Sidiropoulos and others v. Greece, 10 July 1998, no. 26695/95, 40)

141. The right of association in the present case involves a religious association, Les Tmoins de Jhovah, created in 1947. This association was created for the sole purpose of giving spiritual assistance to Jehovahs Witnesses in France. It was specifically chartered to lend support to the exercise and maintenance of the worship of Jehovahs Witnesses. Thus, Article 11 must, in the present case, also be considered in the light of Article 9. (Young, James and Webster v. The United Kingdom, 13 August 1981, nos. 7601/76; 7806/77, 57). 142. By using taxation as a means of repression and by acting in a retroactive and unforeseeable fashion, the State is interfering with Applicants freedom of association, since it threatens its very existence. 143. Not-for-profit associations depend on generosity from private sources. This is a question of vital importance. The confiscation of all these contributions, as in the present case, or denying an association the right to receive them, flouts the right guaranteed in Article 11. In Union des Athes, cited above, the association in question was refused the right to receive a small bequest. On the other hand, it had not been denied the right to receive gifts

32. from hand to hand. Given how essential it is for not-for-profit associations to receive financial support, the Commission stated:
The Commission notes that financial support, whether or not it comes from individuals, is doubtless a far from negligible help for any association wishing to advance its ideas or values. It follows that the legal impossibility which prevented the Union des Athes from receiving a bequest of 2,000 francs, falls under the application of Article 11 (art.11) of the Convention. (Union des Athes, cited above, 67)

144. In the present case, the State has in effect, through taxation, confiscated all religious contributions (exactly 108%, including penalties) received by Applicant from Jehovahs Witnesses in France over a four-year period (1993-1996). A substantial part of this amount (EUR 4,590,295) has already been taken. The remainder (more than EUR 40,000,000) continues to be demanded by the Tax Department. Since the assessment was unforeseeable and retroactive, Applicant could not have prepared itself to bear this crushing burden. Even if the State had previously announced its intention of taxing religious contributions at such a level, it would have been impossible for Applicant to imagine paying this tax, because doing so would have left it without the financial support essential to its existence. 145. To illustrate, assuming that Applicant were to endeavour to pay the amounts demanded by the State, it would take more than 20 years provided that (1) it continue to receive contributions from the faithful at the same level as prior to the tax audit and (2) that these be used entirely to pay the taxes. Under this hypothetical, Applicant would not have any financial support left over for its activities for more than 20 years. The logical and inescapable conclusion: it is mathematically impossible to pay this tax (Exhibit C, Item 11). 146. In Union des Athes, cited above, the Commission opined that the right to a specific source of income, in that case a bequest, was not indispensable for the effective exercise of the right of association, since the Union des Athes had other sources of income such as gifts from hand to hand:
Whereas, in the present case, the Commission considers that the right to a specific source of income, in this case via a testamentary gift, is not indispensable as such to the efficient exercise of freedom of association by Applicant, since it has other means at its disposal such as receiving membership fees or gifts from hand to hand, which do not need prior authorisation and can be of a large amount. (Union des Athes, cited above, 68)

147. In the present case, the situation of Applicant is much worse. ALL contributions received from the faithful over a period of four years have in been de facto confiscated, and all its possessions have been placed under a protective lien by the State. Thousands of citizens have seen the State seize all their religious contributions that, in themselves, constituted an act of worship. 148. The State, using taxation as a weapon, is attempting to destroy Applicant in violation of its rights under Article 11. If the State is allowed to proceed, Jehovahs Witnesses in France will no longer have their religious centre, Bethel.

33. 149. Finally, arguments demonstrating that this interference by the State (1) is not prescribed by law, (2) does not have a legitimate aim, and (3) is not necessary in a democratic society, as developed in connection with Article 9 (see paragraphs 110 to 122 above), apply mutatis mutandis to the right of Applicant guaranteed by Article 11 of the Convention. 150. E. It follows that there has been a violation of Article 11. Violation of Article 14 taken in conjunction with Article 11 of the Convention

151. The same arguments developed above under Article 14 in conjunction with Article 9 apply mutatis mutandis to the right of association guaranteed to Applicant under Article 14 when considered in conjunction with Article 11 (see paragraphs 124 to 137 above). 152. In Union des Athes, cited above, the Commission found a violation of Article 14 taken in conjunction with Article 11 for reasons that apply to the present case. 153. In its Report, the Commission took note of the fact that one of the main differences in French law concerning associations resides in the fact that some are authorised to receive gifts free of charge, while others are not (Union des Athes, cited above, 74). Thus, the Commission found that in France, associations with the same legal status were treated differently. 154. In the present case, the same distinction exists. The trial court found against Applicant on the grounds that it did not show that it has obtained authorisation from the Ministry or the Prefect to receive gifts from hand to hand exempted from the free-transfer tax (Exhibit C, Item 5). As for the Court of Cassation, it considered that the Association did not have a ministerial or prefectural authorisation contemporaneous with the taxable event (Exhibit C, Item 9). According to the Commission, the State should have allowed the Union des Athes to receive the testamentary gift which it claimed without insisting on the need for a prefectural authorisation. Similarly, the State should not have insisted that Applicant was obliged to obtain a ministerial or prefectural authorisation in order to receive and keep religious contributions. 155. However, the distinction is here amplified by the fact that it applies to gifts from hand to hand which according to the law are free from any special authorisation (see paragraph 75 above). In Union des Athes, the issue involved a bequest that, according to French regulations, required a procedure of prior administrative authorisation. Nevertheless, even in that case the Commission did not consider that there was an objective justification for the difference in treatment. That is all the more so with regards to Applicant, since it involves gifts from hand to hand dispensed by law of any special authorisation. 156. Furthermore, the whole debate around the notion of ministerial or prefectural authorisation seems surreal when one takes into account that Applicant, namely the association Les Tmoins de Jhovah, was created following an authorisation decree from the Minister of the Interior, dated 16 September 1947 (Exhibit A, Item 6b). We can question the reasonableness of the States requirement of administrative authorisations demanded from an association created by a ministerial authorisation decree in order for this

34. association to continue to freely receive and keep gifts from hand to hand that can supposedly be received without special authorisation. 157. But the discrimination by the State is blatant when one considers that, in practice, associations whether they are religious or not can receive gifts from hand to hand without any tax whatsoever being imposed. This is the case with the Catholic Churchs diocesan associations. This is also true of the numerous Muslim religious associations having the same legal status as Applicant (Exhibit A, Item 43). 158. Thus what the State guarantees to some, it refuses to the association Les Tmoins de Jhovah. 159. In Union des Athes, which concerned a bequest of FRF 2,000 (approximately EUR 300), the Commission specified: The Commission, in its view, can see no objective and reasonable justification for maintaining a system that penalises to such a degree associations that are not for public worship (Union des Athes, cited above, 78). In the present case, the negative consequences for Applicant are far more extensive. Not only has it been adversely affected without objective and reasonable justification, but the State is clearly seeking to put it out of existence. To an extent, this is a case of specific targeting (surgical hit) to rid the associative landscape of a particular group that, despite the large number of faithful, is deemed not representative of the associative world (Exhibit A, Item 37). 160. In Union des Athes, the Commission found a violation of Article 14 in conjunction with Article 11. As a result of this case, the Government undertook to maintain its long-standing practice of allowing gifts from hand to hand to be made to any registered association without special authorisation, thereby reducing the legal arrangements governing different types of associations:
[The] Government of France considers that authorities or courts presented in future with similar problems to that encountered by the Applicant will pursue this progressive interpretation of the law and give full effect to the decision of the Committee of Ministers, taken in the light of the Commissions report on the case. [emphasis added] (Exhibit D, Item 19)

161. Faced with these unequivocal assurances from the French Government as to their future conduct in such cases involving similar associations, the Committee of Ministers of the Council of Europe adopted their Final Resolution (ResDH(2001)5 Human Rights Application no. 14635/89; Union des Athes against France; Adopted by the Committee of Ministers on 26 February 2001 at the 741st meeting of the Ministers Deputies). (Exhibit D, Item 19) 162. While the State was giving these assurances to the Committee of Ministers, it was confiscating of all Applicants religious contributions. It appears that the State has not been consistent with its undertakings. Simply put, the State is not authorised to treat Applicant differently from other associations with the same legal status, given the provisions of Article 14 and the undertakings given to the Committee of Ministers. Thus, the French

35. Government as High Contracting Party has not fulfilled its undertakings both to the Court and to the Committee of Ministers. 27 163. Article 11. F. 164. It follows that the State is guilty of violating Article 14 in conjunction with

Violation of Article 1 of Protocol 1 of the Convention Article 1 of Protocol 1Protection of property


Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

165. The application of this article, as well as the examination of its application, is based on three distinct, yet closely linked provisions that this Court has established:
The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. (our emphasis) (Gasus Dosier- und Frdertechnik GmbH v. the Netherlands, 23 February 1995, no. 15375/89, 55)

1.

Applicants property

166. This case falls within the field of application of Article 1 of Protocol 1. As this Court ruled, the payment of taxes or other contributions or penalties provided for in paragraph 2 of this Article establishes that the duty to pay tax falls within its field of application (Darby v. Sweden, cited above, 30). 167. With regards to the first provision, the notion of possessions has been broadly interpreted by this Court. In the present case, the State has never contested that Applicant owned the religious contributions it received. Nor has it ever contested that Applicant was the owner of the assets confiscated, as well as of the Bethel buildings placed under a protective lien by the State, in 1998.

In 2004, the State persists in setting-up a system that discriminates between associations. For example, Section 10 of the 9 December 2004 Act allows the Government to take simplification measures to adjust the legal system of associations, foundations and religious orders. However this law specifically excludes sectarian groups from this provision (Exhibit D, Item 23).

27

36. 2. of property Interference with peaceful enjoyment of possessions and the deprivation

168. The State has clearly interfered with Applicants right to peaceful enjoyment of its possessions. It has confiscated everything: (1) the sum of EUR 4,590,295 in 2003 (representing the value of movables seized in 1998) and (2) all its immovables placed under protective lien. It justifies its actions by claiming that all religious contributions received by Applicant over a period of four years (i.e. its only source of financing) are liable to taxes and penalties at a rate of 108%. In other words, Applicant must turn over all religious contributions it received (and which have already been spent for the needs of its religious activities) during the four years which preceded the audit. 169. Since this taxation results from a new administrative doctrine adopted after the period in question, it was impossible for Applicant to plan ahead to pay such an excessive tax (EUR 45,439,309 plus EUR 2,000,000 in interest per year). The amount demanded in tax is greater than the value of all the assets owned by Applicant. Since it is impossible for Applicant to make such a payment, should the measure be upheld by this Court, the confiscation of all its assets will become final and irreversible. 170. It follows that Applicants right to peaceful enjoyment of its possessions has been violated by the State. As determined by the Commission: The financial obligation resulting from taxes and rates may infringe upon the guarantee set out in this provision if it imposes on the person or entity in question an excessive burden or fundamentally interferes with its financial situation (Travers and others v. Italy, 16 January 1995, no. 15117/89, 4). 171. The right to the peaceful enjoyment of its possessions is further interfered with by the protective lien placed upon all its immovables. Applicant is no longer able to sell, devise, donate or otherwise dispose of the property (Brumarescu v. Romania, 28 October 1999, no. 28342/95, 77). 172. Given that the ruling by the Court of Cassation is final and enforceable under domestic law, it is now inevitable that the State will complete enforcement measures against Applicant, which will lead to its liquidation. The 330 members of the Religious Order of Bethelites (many of whom have lived in Bethel for decades) will be deprived of their home. This too is a flagrant case of interference with the right to peaceful enjoyment of possessions and of deprivation of property. 173. Finally, the State has already deprived Applicant of its right to property when it confiscated EUR 4,590,295 in 2003. 174. Thus, as the Court of Cassations ruling stands, the reality of the situation is that State action will result in the permanent dispossession of Applicant (Sporrong and Lnnorth v. Sweden, 23 September 1982, nos. 7151/75; 7152/75, 63).

37. 3. Justification for the interference and the deprivation i. In the public interest

175. Protocol 1, Article 1, of the Convention accords the State a very broad margin of appreciation in making the initial assessment both of the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken. This Court will only intervene to the extent that that judgment be manifestly without reasonable foundation (James v. United Kingdom, 21 February 1986, no. 8793/79, 46). 176. There is no evidence that the arbitrary, retroactive and unforeseeable tax on all of Applicants religious contributions results from a problem of public concern. 177. Embarking on the repression of religious minorities by using tax law in a deviant fashion as a weapon can hardly be described as being in the public interest. 178. Applicant considers that the tax measure applied in the present case serves no public interest whatsoever. ii 179. According to the law

The taxation of religious contributions was not explicitly provided for by law.

180. In 1995, it was impossible for Applicant or for any tax-law specialist to foresee the gradual elaboration, followed by the Tax Departments application of a new administrative doctrine. This tax measure was applied arbitrarily and selectively and was scarcely foreseeable (Hentrich v. France, 22 September 1994, no. 13616/88, 42). 181. As stated by this Court in Spacek v. Czech Republic (9 November 1999, no. 26449/95, 54):
The Court considers that when speaking of law, Article 1 of Protocol No. 1 alludes to the same concept to be found elsewhere in the Convention, a concept which comprises statutory law as well as case-law. It implies qualitative requirements, notably those of accessibility and foreseeability [emphasis added]

182. In its December 2001 directive, the Tax Department explained to its officers that sectarian movements could now be hit with a new type of taxation (Exhibit A, Item 28). The directive specified that the taxation of gifts from hand to hand was the result of a new administrative doctrine. The only court decision cited by the Tax Department in support of this new doctrine was the judgement handed down by the trial court in the present case. As such, it is apparent that Applicant was used as a guinea-pig in 1997, in the implementation of a totally new measure that became administrative doctrine much later, in 2001. 183. What is more, the application of this new administrative doctrine is left to the discretion of the Tax Department. There are no objective guidelines whatsoever as to how and in what circumstances it is to be applied.

38. 184. Prior to this case, there had never been such a tax. It was, therefore, impossible to foresee the application of this tax. iii. Proportionality

185. Under certain very limited circumstances, Article 1 of Protocol 1 allows for deprivation of possessions or for interference with the right to the peaceful enjoyment of ones possessions by the State. However, any such deprivation or interference in property rights must achieve a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights (Gasus Dosier- und Frdertechnik GmbH, cited above, 62). 186. In the present case, the arbitrary and unforeseeable application of these tax measures to Applicant does not in any way serve the demands of the general interest of the community. Quite the contrary, the State is guilty of targeting Applicant because it was not deemed to be representative of the associative world. In other words, this tax was levied on Applicant because it emanates from a religious minority (Exhibit A, Item 37). 187. The taxation (including penalties) at 108% of all the religious contributions received by Applicant is a disproportionate and unjustifiable burden. 188. In light of Article 1 of Protocol 1, the State may not resort to selective and unforeseeable tax measures that result in depriving Applicant of all its possessions, thereby compromising its existence. 189. G. It follows that there has been a violation of Protocol 1, Article 1. Violation of Article 1 of Protocol 1 taken in conjunction with Article 14 of the Convention

190. Arguments set out in paragraph 124 to 138 above under Article 14 taken in conjunction with Article 9, and under Article 14 taken in conjunction with Article 11 apply mutatis mutandis to the violation of Article 14 taken in conjunction with Article 1 of Protocole 1. H. 191. Violation of Article 6 of the Convention Article 6 1Right to a fair trial In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 1. Application to taxation

192. This provision does indeed apply to the present case. While the civil aspect of taxation litigation does not generally fall under Article 6 1, tax penalties do fall within the criminal aspect of this provision. This principle was recognised for the first time by the Court

39. in Bendenoun v. France (26 January 1994, no. 3/1993/398/476), a case involving tax surcharges. It has since been confirmed on several occasions (see for example, J.B. v. Switzerland, 3 May 2001, no. 31827/96, penalties for having refused to supply necessary information to determine taxation; Janosevic v. Sweden, 23 July 2002, no. 34619/97, tax surcharge for incorrect reporting of income). 193. The State notified Applicant that it was imposing an 80% surcharge pursuant to Section 1728 (3) GTC. This is a provision of general application used by the State, which is intended not as pecuniary compensation for damage but essentially as a punishment for refusal by Applicant to produce a bizarre declaration leading to the contested tax (Bendenoun v. France, cited above, 47). The legal rule allowing for the tax surcharge has both a deterrent and punitive purpose (ztrk v. Germany, 21 February 1984, Series A no. 73, p. 18, 53). The sanction imposed is considerable since it increases the amount demanded (EUR 22,920,392) by 80% and has resulted in a protective lien and mortgage on all of Applicants assets, as well as the confiscation by the State of EUR 4,590,295. 28 Thus, the criteria set out by this Court to identify a criminal charge are indeed met in the present case. 194. Furthermore, the State considers that the protection afforded by Article 6 of the Convention can be applied in the context of tax litigation in civil courts, as in the present case. As stated by the Court of Cassation on 14 June 1996 (Bull. Civ., no. 5, p. 9):
The right of every individual to a fair trial, guaranteed by Article 6 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms can be raised before all civil jurisdictions ruling on taxation matters. (Exhibit D, Item 22) 2. Right to be heard

195. The European Court, under the heading of the right to a fair trial, considers that, for a legal decision to be fair and the effective, the parties to litigation must have really been heard. The court has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Van de Hurk v. the Netherlands, 19 April 1994, no. 16034/90, 59). Any decision must also be properly motivated. This Court has accordingly ruled that an argument which could have a determining impact on the outcome of the litigation requires a specific and explicit answer (Ruiz Torija v. Spain, 9 December 1994, no. 18290/91, 30; Hiro Balani v. Spain, 9 December 1994, no. 18064/91, 28; Higgins and others v. France, 19 February 1998, no. 20124/92, 43). 196. As shown below, Applicant was not effectively heard by the domestic courts which dismissed without proper consideration of Convention arguments that were advanced. 197. The Trial Court dismissed all of Applicants Convention claims (particularly Articles 9, 11 and 14) for the only reason that the tax measures applied, which merely reflect a provision applicable to all taxpayers, cannot be regarded as limitations within the meaning of the Convention on the exercise of these rights and freedoms (Exhibit C, Item 5). The Trial Court refused to take into consideration the evidence and arguments which clearly showed that the State was using a tax provision (Section 757 GTC) as a means of repression.
28

This sum confiscated by the Tax Department primarily represented the value of movables seized in 1998.

40. Furthermore, during the trial, it was abundantly shown that by this retroactive and unforeseeable taxation, the State was interfering with the fundamental right to the exercise of freedom of religion not only of Applicant, but also of the more than 250,000 faithful. 198. In addition, the Trial Court refused to apply the tax provision in question (Section 757 GTC) in line with the legislative intent as expressed during debates in Parliament (see paragraph 82 above). If the court had taken into account the legislative intent that was in harmony with the Convention, the arbitrary tax measure against Applicant would have been quashed and its rights guaranteed by the Convention would have remained intact. 199. The Court of Appeal also refused to apply the provisions of the Convention. It stated that the judge does not have the power to reform the law, regardless of how inadequate it may be (Exhibit C, Item 7a, p. 13). However, in so far as it was one of the only associations to be targeted by an unforeseeable and retroactive tax, Applicant was only requesting that these tax provisions (Section 757 GTC) be read in harmony with the Convention. 200. The Trial Court and the Court of Appeal both were obliged to apply the Convention, France having ratified it on 3 May 1974, giving it supra-legislative force (Article 55 of the Constitution). Since then, judges can review the conformity of a law with the Convention and declare the law in question inapplicable if it is incompatible with the Convention. They can also interpret the law in such a way as to make it compatible with the Convention. The domestic courts in question both failed in this obligation (Exhibit D, Item 7). 201. The Court of Cassation did not correct in any way whatsoever the assessment of the lower courts on this issue and did not proceed with any review of Convention conformity. 202. For all these reasons, Applicant considers that these arguments based on Convention violations were not heard, nor seriously examined, even though they were very relevant to, and even more important than, the highly technical debate surrounding the interpretation and application of taxation laws by the State, a debate which does not satisfy the requirement of judicial stability and foreseeablity required by the European Court as a founding principle of the rule of law. 203. Furthermore, the decisions handed down by the domestic courts were not properly motivated. This is made clear by an examination of the abundant doctrinal literature, critical of the Tax Department and favourable to the arguments of Applicant that was totally ignored (Exhibit A, Items 30a, b, c; 31 a, b, c; 32; 34a & b). 204. Additionally, the Court of Cassation refused to rule on an essential ground of appeal. Both at the first hearing and on appeal, Applicant argued that the modest religious contributions it received were earmarked for its day-to-day expenses. If this argument had been retained, the judge would have recognised the fact that these contributions were indeed modest and would have drawn the necessary legal conclusions (Exhibit C, Items 4, 6b, 8a & b).

41. 205. The Court of Cassation, however, refused to consider this ground of appeal by Applicant on the erroneous basis that:
there is no indication either in its conclusions, or in the ruling, that the Association argued before the court that because of the regularity, the sums collected were by their very nature earmarked for the running cost and functioning of the Association. It thus follows that the third part of the ground is new, mixing fact and law, in that it invites the judge to rule on the regularity of payments received by the Association [emphasis added] (Exhibit C, Item 9).

206. The Court of Cassation thus chose to ignore the evidence and arguments submitted during the proceedings on this issue. However, in its pleadings before the Trial Court, Applicant had explained:
In the course of correspondence with the Directorate of the Tax Department, as well as with the highest State authorities, the Applicant emphasised that the religious contributions made by the countrys 250,000 Jehovahs Witnesses and associates are the Associations only source of income. By deciding to impose a 60-percent tax on contributions that form the sole financial resources of the Association Les Tmoins de Jhovah, the Tax Department has thereby irremediably compromised the Associations very existence. The operation of the Association Les Tmoins de Jhovah as an association and its financial operations in terms of its budgetary and accounting structure have depended exclusively on the funds for worship contributed by Jehovahs Witnesses and interested persons since 1947, when the Association was registered at the Paris police headquarters. [emphasis added] (Petition to Trial Court, pages 14 & 23, Exhibit C, Item 4)

207. Applicant developed similar arguments before the Court of Appeal (see submissions to Court of Appeal, pages 13, 28 and 30) (Exhibit C, Item 6b). 208. In fact, since the beginning of litigation, the issue of how Applicant functioned (its financing through the regular support of the faithful via modest religious contributions) was at the heart of the debate. By dismissing this argument as new, the Court of Cassation chose to ignore a key argument which could have had a determining impact on the outcome of the litigation. In so doing, it made a manifest error of appreciation (Dulaurans v. France, 21 Mars 2000, no. 34553/97, 37 & 38). 3. The right to remain silent

209. This Court has also upheld rights which are implicit to a fair trial, in particular the right to remain silent and the privilege against self-incrimination (Funke v. France, 25 February 1993, no 10828/84, 44). This right applies to criminal matters falling under Article 6 1 and this Court has ruled that it can apply to taxation procedures (J.B. v. Switzerland, cited above, 64 & 65). As with all guarantees relating to a fair trial, the right against self-incrimination applies even before the beginning of judicial procedures. This would also encompass the Tax Department procedures which resulted in the taxation with penalties of Applicant. In the present case, the whole taxation measure is based on the declaration of gifts from hand to hand, something that Applicant refused to do in harmony with the commonly accepted interpretation of these tax provisions in connection with associations (Exhibit A, Item 30a, b, c, 31 a, b, c, 32 & 34b).

42. 210. The States claim against Applicant rests on (1) its new interpretation of an alleged obligation to make a self-declaration of gifts from hand to hand and (2) whether this obligation applied to the modest religious contributions in question. On this basis, the State notified Applicant that it should itself declare all the modest religious contributions received in order for the tax debt to be created in this particular case. Since Applicant always maintained that it disagreed with this new and unprecedented interpretation, it refused to make the declaration to which, in addition, should have been joined the payment of the exorbitant contested tax (Exhibit B, Item 3). 29 211. To achieve their goal, officers of the Tax Department, using Applicants accounting records, thus proceeded to draw up a systematic list identifying donors without their knowledge. They compiled computerised files containing the names and contributions of donors, thereby revealing their religious identity. Arbitrarily claiming that the information gathered in these files constituted a declaration, they proceeded to tax the religious contributions mentioned therein. 212. Thus, it was through an abuse of its prerogatives that the Tax Department achieved its goal by totally disregarding the legal provisions of the French law on data processing, files and freedoms, as well as the provisions of Section 226 (19) of the Penal Code (see paragraph 46 above). 30 Even the General Attorney, the State representative of the Court of Cassation, agreed with Applicant in noting that the Tax Department could not proceed in such a way without having been authorised to do so (Arguments of Attorney General, Exhibit C, Item 13; see also Exhibit C, Item 8a, pp. 11-13). Thus on the basis of an illegal action by the Tax Department, Applicant was deprived of its right against selfincrimination. 213. All these steps were orchestrated within the context of the repression of a religious minority which appeared on the black list. Domestic courts could easily have ended this abuse, in particular by applying the provisions for the protection of private information to annul this abusive assessment by the Tax Department. 214. In the final analysis, Applicant was heavily penalised for having refused to incriminate itself. 215. It follows that Article 6 1 has been violated since Applicant did not benefit from a fair trial and that its right against self-incrimination was flouted. I. 216. Violation of Article 18 of the Convention in conjunction with Protocol 1, Article 1 Article 18Limitation on use of restrictions on rights

It is interesting to note that until this case, jurisprudence had never imposed on any association the obligation to declare gifts from hand to hand that it had received. Likewise, the modest gifts from hand to hand given to associations had never been subject to such a tax (see arguments developed before domestic courts, Exhibit C, Items 4, 6b, 8a & b). 30 See Council of Europe, Directive 95/46/CE and Convention STE 108 regarding protection of privacy (Exhibit D, Item 24a & b).

29

43.
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

217. The right to the peaceful enjoyment of ones property guaranteed by Article 1 of Protocol 1 is restricted, among other things, by the power of the State to legitimately impose and collect taxes. 218. The States power of taxation is limited to specific purposes. Article 13 of the Declaration of the Rights of Man and of the Citizen, dated 26 August 1789, specifies:
For the maintenance of the public force and for administrative expenses, a contribution from the public is indispensable; it must be equally distributed among all citizens, in proportion to their ability to pay. (Exhibit D, Item 5)

219. In the present case, as early as 1996 the State announced its intention to use taxation as a measure of repression. Government spokesman and Minister Delegate to the Budget, Mr Alain Lamassoure, officially supported those who praised the tax department whose actions on several occasions resulted in a certain repression of the activity of sects [emphasis added] (see paragraph 18 above). In his comments, Mr Lamassoure referred in particular to the tax audit of Applicant, which was in progress at that time. 220. The December 2001 directive issued by the Tax Department for its officers advised its officers that the new administrative doctrine with regards to taxing gifts from hand to hand was a measure that could be used to address the phenomenon of sects (Exhibit A, Item 28). 221. Members of Parliament publicly stated that the taxation of gifts from hand to hand was only intended for those associations likely to display sectarian characteristics and that this measure was initially taken to combat sects (see paragraphs 39 & 40 above). 222. After a detailed analysis of the Nanterre Regional Trial Court decision in the present case, Professor Nathalie Peterka concluded that the implicit purpose of the taxation of Applicant was to fight against the phenomenon of sects (Exhibit A, Item 34b). 223. The measures taken by the State in the present case are a misuse of its powers to collect tax. Rather then serving a legitimate purpose (raising State revenue for the general interest), the purpose of this tax is to force the association Les Tmoins de Jhovah to cease its activities. 224. All the details mentioned above strongly suggest that the imposition of a tax amounting to EUR 45,439,309 is a repressive measure aimed at liquidating the association Les Tmoins de Jhovah and to shut down Bethel (Gusinskiy v. Russia, 19 May 2004, no. 70276/01, 76). 225. The legitimate use of tax, which is an authorised limitation on the right of peaceful enjoyment of ones possessions, as set forth in the second paragraph of Article 1 of Protocol 1, should not be used to destroy lawfully constituted associations, whether religious

44. or not. Neither may it be used as a weapon in a crusade against minority religions. This cannot be the purpose of a taxation measure. 226. It follows that the State has violated Article 18 taken in conjunction with Article 1 of Protocol 1. J. 227. Violation of Article 13 of the Convention Article 13Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

228. As stated by this Court in Klass and others v. Germany, (Series A, no. 28, 28 September 1978, 64) it cannot be a prerequisite for the application of Article 13 that the Convention be in fact violated. Thus Article 13 (art. 13) must be interpreted as guaranteeing an effective remedy before a national authority to everyone who claims that his rights and freedoms under the Convention have been violated. 229. This Court has also found that a domestic remedy will not be effective if the threshold for review by the national judge of the alleged violation of the Convention appears to be ineffective when compared to the one used by the European Court (Smith and Grady v. The United Kingdom, 27 September 1999, nos. 33985/96 and 33986/96, 138). 230. Applicant submits that all three domestic courts which examined the present case limited the scope of their review too much to guarantee an effective remedy. The overly limited scope of their review is demonstrated in paragraphs 195 to 208 above, which set out arguments applying mutatis mutandis to the violation of Article 13. 231. It follows that by denying Applicant an effective remedy, the State has violated Article 13 of the Convention. K. Conclusion

232. The key issue of the present case for Applicant is the recognition of its fundamental rights in connection with religious freedom. Recently, within the framework of official celebrations for the centenary of the law on the separation of Church and State, Mr Jean-Pierre Raffarin, Prime Minister of the French Republic, reasserted the recognition of such rights:
Laicism (lacit) does not mean opposition to religions. Laicism is not a system of public atheism. Our responsibility is to avoid judging the role of religious faiths in our country incorrectly. The right kind of laicism is one that does not style itself as anti-religious militancy, but as a system to protect freedom of conscience. In a secular system, all religions have their place, with equal rights, irrespective of their status, age or number of adherents. (Exhibit A, Item 46)

45.

46.

IV. APPLICANT'S COMPLIANCE WITH ARTICLE 35 1 EUROPEAN CONVENTION

OF THE

233.

Final decisions:
Regional Court of Nanterre trial decision dated 4 July 2002 (Exhibit C Item 5). Court of Appeal of Versailles decision dated 28 February 2002 and notified on 13 May 2003 (Exhibit C, Item 7a). Court of Cassation decision dated 5 October 2004 (Exhibit C, Item 9).

47.

V. OBJECT
234.

OF

APPLICATION

Applicants ask this Court to: a. DECLARE that repression of legitimate religious activity by means of confiscatory taxation is a violation by the French State of Applicants rights and freedoms as guaranteed by the Convention under: i. Article 6 taken alone; ii. Article 9 taken alone; iii. Article 11 taken alone; iv. Article 1 of Protocol 1 taken alone; v. Article 13 taken alone; vi. Article 14 in conjunction with Articles 9, 11 and with Article 1 of Protocol 1; vii. Article 18 in conjunction with Article 1 of Protocol 1. b. ORDER that the French State replace Applicant in the same situation as it was prior to the violations of the Convention, in harmony of the principle of restitutio in integrum, as set out in Papamichalopoulos and others v. Greece, (31 October 1995, no. 14556/89, 40); c. ORDER that the State annul the contested taxation measure and restitute to
Applicant the EUR 4,590,295 confiscated during the tax audit, plus interest;

d. THAT the State remove all liens and mortgages against Applicants property; e. THAT the State compensate for the evident moral prejudice suffered by Applicant to the sum of EUR 250,000; f. THAT the Government of France pay for all legal costs in this case before national instances, with interest; g. THAT the Government of France pay for all legal costs of the Application before this Court; h. And such further and other relief as this Court may deem appropriate and just.

48.

VI. OTHER INTERNATIONAL AUTHORITIES DEALING WITH THIS CASE OR HAVING DONE SO

235. Applicant has not submitted to another international authority the complaints in the present application for investigation or settlement.

49.

VII. EXHIBITS ATTACHED

236.

Attached to the following Application are the following exhibits:

Exhibit A, Items 1 to 46 Exhibit B, Items 1 to 14 Exhibit C, Items 1 to 13 Exhibit D, Items 1 to 24b

50.

VIII. PREFERRED LANGUAGE

FOR

PROCEDURES

237.

Applicant and its attorneys choose the French language.

51.

IX. DECLARATION

AND

SIGNATURE

238. We declare in good conscience that the facts contained in the present Application are exact to the best of our knowledge.

239.

Applicant agrees to have it name published.

Paris, 24 February 2005 ____________________________________ Philippe Goni, advocate