AS TO THE ADMISSIBILITY OF
Application No. 31398/96
by Olaseni Aderibige ADESINA
against France
The European Commission of Human Rights sitting in private on
13 September 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 January 1996
by Olaseni Aderibige ADESINA against France and registered on 6 May
1996 under file No. 31398/96 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Nigerian citizen, born in 1952 and residing
in Paris (France).
The applicant has lodged two previous applications with the
Commission.
In his first application, No. 16964/90, he complained under
Article 6 of the Convention of the proceedings concerning the eviction
from his flat of which he was a tenant.
On 5 September 1986, a real estate agency introduced proceedings
before the Nanterre tribunal de grande instance in order to obtain the
applicant's eviction from his flat.
This request was not notified to the applicant.
By a provisional order (ordonnance de référé) of 12 September
1986 the President of the Nanterre tribunal de grande instance decided
that the applicant was occupying a flat without any right (ni droit ni
titre) and ordered his eviction from this flat. It was stated in this
order that the applicant and his lawyer were present at the hearing of
the same day.
This order was notified to the applicant on 14 October 1986.
The applicant, who was not notified the date of this hearing and
was therefore not present at the hearing nor represented by his lawyer,
appealed against the eviction order to the Versailles Court of Appeal.
The appeal was filed with the Court of Appeal on 23 October 1986.
By a decision of 15 December 1986 the President of the Nanterre
tribunal de grande instance rectified the provisional order of
12 September 1986 as follows:
The applicant was neither present nor represented by a
lawyer at the hearing of 12 September 1986;
"Having heard the parties' representatives" shall be
replaced by "having heard the plaintiff's representative";
The words "deciding in a public hearing and in the presence
of both parties" ("statuant publiquement et
contradictoirement") shall be replaced by "deciding in a
public hearing and by a decision deemed to have been given
in proceedings in which both sides were represented"
("statuant publiquement et par décision réputée
contradictoire")
By a letter of 20 January 1987 the applicant's lawyer, Mr. B,
informed the applicant that the date for the conclusion of the pre-
trial proceedings was fixed on 8 March 1988 and the date of the
hearing on 2 May 1988.
When the applicant appeared a few months later at his lawyer's
law firm to pay the lawyer's fees he was informed that by a judgment
of 10 July 1987 the Versailles Court of Appeal had dismissed his appeal
on the ground that he had failed to submit any grounds of appeal. The
operative part of the judgment reads: "Deciding in a public hearing and
in the presence of the parties. Confirms the provisional order (...)"
("Statuant publiquement et contradictoirement. Confirme l'ordonnance
(...)"). The applicant learned also that on 25 May 1987 his lawyer had
resigned from representing him.
By a letter of 25 January 1988 Mr. C., a lawyer at the State
Council (Conseil d'Etat) and at the Court of Cassation informed the
applicant that an appeal on points of law would have no chance of
success. According to him, it would be preferable that the applicant
tried to have his rights recognised in proceedings on the merits.
Other lawyers consulted by the applicant confirmed that an appeal
on points of law would have no prospects of success.
The applicant complained under Article 6 of the Convention that
he was denied a fair hearing before the French courts. He complained
in particular that the Nanterre tribunal de grande instance had
modified its order after its notification to the parties, particularily
after an appeal had been lodged. He also complained that the Court of
Appeal had given a judgment prior to the date of the hearing which had
been previously indicated to the parties and without any notification
as to the change of this date. According to him, he was not responsible
for not knowing the date of the hearing before the Versailles Court of
Appeal. He alleged that the judgment of the Versailles Court of Appeal
of 10 July 1987 was smuggled out of the court room. He complained
furthermore that the obligation under the French Code of Civil
Procedure to be represented by a lawyer in the proceedings before the
Court of Cassation constituted a violation of his right of access to
court.
By a decision of 29 May 1991 a Committee of three members, set
up by the European Commission of Human Rights pursuant to Article 20
para. 3 of the Convention, declared the application inadmissible as
being manifestly ill-founded.
In a second application, No. 29239/95, the applicant criticised
the decision of the Committee of three members of 29 May 1991 and
submitted supplementary information on the contested proceedings.
On 18 January 1996 a Committee of three members declared the
second application inadmissible under Article 27 para. 1 (b) of the
Convention as being essentially the same as Application No. 16964/90
and containing no relevant new information.
The facts of the present application concern the same facts as
the applicant's two previous applications.
In addition the applicant submits, as "relevant new information",
under Article 27 para. 1 (b) of the Convention, documents by which he
intends to show that his former lawyer was never present at the hearing
before the Versailles Court of Appeal, that the French police was
involved in his case and that this was the reason for denying him a
residence permit, that his former lawyer, Mr. B, knew his address and
received on 28 September 1987 a chèque of 2000 FF from him and that he
handed to his former lawyer a notice of forceful expulsion issued by
the Ministry of the Interior on 18 November 1986.
The applicant refers also to numerous letters he has sent to the
Secretary General of the Council of Europe, copies of which have been
sent to the Commission's Secretariat, and which should enable the
Commission "to understand thoroughly the real details of the basic
documents as regards the previous relevant arguments". He stresses that
his presence to support all documents and relevant arguments before the
Commission is not a mere necessity but a priority.
COMPLAINTS
In his present application the applicant again complains under
Article 6 of the Convention of the fairness of the above court
proceedings and the denial of his right of access to court.
THE LAW
The applicant complains that he was denied the right to a fair
hearing in the proceedings before the Nanterre tribunal de grande
instance and the Versailles Court of Appeal. He furthermore complains
of the obligation under French law to be represented by a lawyer before
the Court of Cassation. He alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention.
The Commission notes that the applicant complains of the same
matters in the present application which it has already examined and
rejected in Applications Nos. 16964/90 and 29239/95.
The Commission points out that, by virtue of Article 27 para. 1
(b) (Art. 27-1-b) of the Convention, it may not deal with the present
application unless it contains "relevant new information".
The applicant has submitted certain further information
concerning the factual circumstances of the case. However, the
Commission finds nothing in this information which could alter the
basis on which its previous decisions, in particular the decision on
Application No. 16964/90, were taken and does not see any reason to
reopen the case.
Accordingly the Commission finds that the applicant has not
submitted any "relevant new information" in relation to the above
complaints. It follows that the application must be rejected pursuant
to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary to the Commission President of the Commission
Full & Egal Universal Law Academy