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THE FACTS
The applicant is a Greek national, who was born in 1936 and lives in Athens. He is represented before the Court by Mr Jean-Alain Blanc, a member of the Conseil d’État and Court of Cassation Bar.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1979 the applicant and P.B. formed a public company, Sogimport, whose registered office was in Dijon. On 10 January 1984 the company, which was already in financial difficulty, borrowed 1,480,000 French francs (FRF) from E.C., P.B.’s nephew. Under the terms of an agreement made on 20 October 1984 between the applicant, P.B. and E.C., P.B. undertook to reimburse his nephew the sum of FRF 1,480,000 owed by the company. The applicant undertook to guarantee P.B. the reimbursement of that same amount “that Sogimport will owe him once [P.B.] has paid that company’s debt to [E.C.]”.
As Sogimport was unable to repay P.B., the applicant paid him a total of FRF 572,500 pursuant to his undertaking. On 20 October 1987 the Dijon Commercial Court made an order for the judicial reorganisation of the company. That order was followed by an order for its liquidation on 3 December 1987. As P.B. had failed to lodge a proof of his debt with the representative of the creditors of the company, the applicant considered it to be extinguished pursuant to section 53(3) of the Law of 25 January 1985, which meant that his own obligation as guarantor of the company’s debt to P.B. was likewise extinguished. He therefore did not pay P.B. the balance of FRF 907,500 of debt that had been extinguished. Subsequently, considering himself ruined, he left France and returned to Greece.
On 28 December 1990 P.B. brought an action against the applicant in Dijon Commercial Court for payment of the sum of FRF 97,500 together with statutory interest, damages, expenses and legal costs.
On 14 February 1982 the applicant brought a counterclaim against P.B. for rescission of the agreement of 20 October 1984 and restitution of the sum of FRF 572,500 he had already paid.
In a judgment of 11 February 1993 the Dijon Commercial Court ordered the applicant to pay P.B. the sum claimed plus interest, making a total of over FRF 1,600,000. The judgment was upheld by the Dijon Court of Appeal on 1 July 1994, which held, in particular, that the applicant’s undertaking amounted not to an ordinary guarantee that had been extinguished with the primary debt, but as a first-call guarantee that remained in place despite the extinguishment of the primary debt.
On 2 August 1994 the applicant appealed against that decision to the Court of Cassation. On 16 February 1995 he lodged written submissions in which he argued that his undertaking should be classified as an ordinary guarantee.
On 3 May 1995 P.B. made an application to the President of the Court of Cassation under Article 1009-1 of the New Code of Civil Procedure for an order removing the appeal from the list for failure to comply with the impugned decision.
That application was granted by an order of 6 July 1995 removing the appeal from the list of cases pending before the Court of Cassation. The order stated:
“Although he has not complied with the orders made in the judgment, [the applicant] seeks to oppose an order being made pursuant to the provisions of Article 1009-1 of the New Code of Civil Procedure...
In the instant case, [the applicant] has failed to show that he has taken any steps apt to demonstrate his intention to comply with the decision of the courts below and has not pleaded any personal circumstances that give rise to a danger or presumption that compliance will entail manifestly unreasonable consequences.”
No sums were paid under the judgment within the time-limit of two years from the date of that order. On 1 July 1997 the applicant sought a declaration that the appeal had lapsed. On 17 December 1997 the President of the Court of Cassation made a declaration that the appeal had lapsed pursuant to Article 386 of the New Code of Civil Procedure.
B. Relevant domestic law
New Code of Civil Procedure
Article 386
“Proceedings shall lapse if none of the parties take any steps for two years.”
Article 1009-1 (as worded at the material time)
“Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President may, on application by the respondent and after obtaining the opinion of Principal State Counsel and the parties, order the removal of the case from the list if the appellant fails to show that he or she has to comply with the impugned decision, or unless it appears to the President that execution may entail manifestly unreasonable consequences.
The President shall grant permission for the case to be restored to the list on proof of compliance with the impugned decision.”
COMPLAINT
Relying on Article 6 § 1 of the Commission, the applicant complained that he had been denied effective access to the Court of Cassation on an appeal on points of law against the decision of the Dijon Court of Appeal by an obstacle which, given the amounts concerned, was completely insurmountable.
THE LAW
The applicant complained that he had been denied access to the Court of Cassation on his appeal on points of law against the decision of the Dijon Court of Appeal, as, despite his limited financial means, the President of the Court of Cassation had removed his appeal from the Court of Cassation’s list pursuant to Article 1009-1 of the New Code of Civil Procedure. He alleged a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
As their main submission, the Government raised a preliminary objection of a failure to exhaust domestic remedies, arguing that for so long as the period for prosecution of the appeal had not expired the applicant retained a chance of having it restored to the Court of Cassation’s list. In particular, the Government noted that the applicant had at no stage complied with the Court of Appeal’s decision even in part, in order to demonstrate his good faith. In order to explain the complete lack of any payment during all that time he had merely repeated that he was totally unable to comply with the judgment. The Government contended that there were grounds for questioning the applicant’s impecuniosity as he had been assisted by a paid lawyer of his choice throughout the proceedings and not by counsel assigned under the legal-aid scheme. The Government noted, lastly, that oddly enough it had been the applicant, not the respondent to the appeal, who had sought a declaration through his counsel that the appeal had lapsed for want of prosecution.
The Government submitted in the alternative that the application was manifestly ill-founded. They pointed out that the Court had held that the right of access to a court was not absolute but could be subject to limitations provided that they pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the following judgments: Golder v. the United Kingdom of 21 February 1975, Series A no. 18; Ashingdane v. the United Kingdom of 28 May 1985, Series A no. 93; Lithgow and Others v. the United Kingdom of 8 July 1986, Series A no. 102; Tolstoy Miloslavsky v. the United Kingdom of 13 July 1995, Series A no. 316-B). Furthermore, as had been emphasised in particular in the last of the cited judgments, the States had a wide margin of appreciation as regards regulating access to the courts, such that the Court’s supervisory powers were even more limited. In the Government’s submission, it was not for the Court to take the place of the French authorities to decide what was the best policy for regulating access to the Court of Cassation or to review the matters which had led the President of the Court of Cassation to reach one decision rather than another.
The Government pointed out in that connection that the European Commission of Human Rights had expressed the opinion that the system instituted by Article 1009-1 of the New Code of Civil Procedure was aimed at securing the proper administration of justice (no. 27689/95 Ferville alias Kerville v. France, report of 8 September 1998) and submitted that the criteria established by the Commission in its case-law should be applied in the instant case with. Thus, the Government accepted that the amount involved was relatively high and that the applicant had made out a genuine ground of appeal in his notice of appeal. However, they emphasised that the applicant, who carried on a business activity and had, throughout the proceedings, been assisted by a lawyer for whose services he was paying, had not made the slightest payment – not even a token one – pursuant to the Court of Appeal’s judgment.
The applicant replied that the issues raised by the Government’s preliminary objection and the merits of the case were closely linked. He failed to see how, unless his financial circumstances were miraculously to improve, he would be able to pay all or even a substantial part of the judgment, so as to avoid the appeal lapsing for want of prosecution.
The applicant noted that Article 1009-1 of the New Code of Civil Procedure had been introduced in 1989 at the request of the President of the Court of Cassation. He explained that although the reform had been nobly presented as a measure moralising the judicial debate, it had essentially been conceived as a favoured means of reducing the Court of Cassation’s caseload. That aim had in fact proved illusory owing to the many unanticipated issues of fact and law to which the cases had given rise. A number of judges delegated by the President of the Court of Cassation were involved in considering applications for the removal of appeals from the list when they could have been spending that time examining the merits of the appeals.
Contrary to the view expressed by the Government, the applicant maintained that the provision in issue, which was already narrowly worded since it only made an exception for cases entailing “manifestly unreasonable consequences” was applied strictly and even harshly. Legal commentators were hostile to it. Removing appeals from the list was alien to the Court of Cassation’s role and a stopgap measure to make up for the ineffectiveness of enforcement measures in France and the excessive length of proceedings before the Court of Cassation. Further, that procedure meant that the exercise of a constitutionally guaranteed right, namely to take part in court proceedings, was made conditional on the exercise of another right – the right of enforcement – that was not constitutionally guaranteed. Lastly, the provision made money the criterion for determining access to the Court of Cassation and discriminated between litigants.
The applicant asserted lastly that he had adduced evidence of his financial circumstances showing that he was unable to pay even a part of the debt which, with interest, came to FRF 1,600,000. Firstly, the Sogimport company, of which he had been a director, had been put into compulsory liquidation and had spelled his own ruin. Secondly, he owned very few assets; their value was far less then the amount of the debt and they could not be sold as they were mortgaged. The applicant also said that the fact that he had paid for the services of a member of Conseil d’État and Court of Cassation Bar did not prove that he was in a position to pay such a large amount.
The Court considers that the issues raised by the objections are identical to those raised by the merits of the applications, since it is precisely the applicants’ inability to request the restoration of the appeals to the Court of Cassation’s list that is at the core of the applicants’ complaint (Annoni di Gussola and Others v. France, nos. 31819/96 and 33293/96, 14 November 2000, § 39).
The Court reiterates at the outset that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. Further, the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see, among other authorities, the Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 290, § 34; and Garcia Manibardo v. Spain, no. 38695/97, 15 February 2000, § 36).
The Court’s task is to examine whether in the present case the orders for the appeals to be struck out of the list pursuant to Article 1009-1 of the New Code of Civil Procedure did not restrict the access left to the applicants “in such a way or to such an extent that the very essence of the right [was] impaired”, whether they pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Ashingdane v. the United Kingdom judgment cited above, pp. 24 and 25, § 57). In other words, in the light of the “manifestly unreasonable consequences” which it is the President of the Court of Cassation’s duty to examine, the Court must determine whether the order for removal of the appeals from the list, as made in the cases in issue, amounted to a disproportionate interference with the applicants’ right of access to the Court of Cassation.
In this regard the Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. Where such courts do exist, the guarantees of Article 6 must be complied with, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations” (see the Levages Prestations Services v. France judgment of 23 October 1996, Reports 1996-V, p. 1544, § 44).
In the present case, the Court notes that the order for the removal of the appeal from the list was made on the ground that the applicant had failed to show that he had taken any steps apt to demonstrate his intention to comply with the decision of the courts below and had not alleged the existence of any personal circumstances that gave rise to a danger or presumption of “manifestly unreasonable consequences” in the event of compliance. The Court notes at the outset that it considers the aims pursued by the obligation imposed on appellants to comply with a decision are legitimate, notably: ensuring protection for judgment creditors and avoiding dilatory appeals. It must therefore examine whether the applicant’s circumstances were such as to preclude his being able at least to begin to comply with the judgment of the Court of Appeal (see the Annoni di Gussola and Others judgment cited about, §§ 55-58). Contrary to the position in the aforementioned cases, the Court is not persuaded that in the instant case the application for the removal of the appeal from the list was apt to entail manifestly unreasonable consequences. Admittedly, the applicant stated that he was ruined and that all his assets were mortgaged, but he has not produced any certificates of his income. In addition, his immovable property, despite the mortgages, appears to have a not negligible market value. Furthermore, although not regarding it as decisive, the Court notes that the applicant was assisted by counsel and paid his fees himself without the benefit of legal aid, unlike the applicants in the aforementioned case.
In the light of the foregoing, the Court agrees with the Government that the applicant could have made an offer of part payment to demonstrate his intention to comply with the judgment and procure the restoration of his appeal to the list. However, as the Government have observed, it was, somewhat paradoxically, the applicant himself who applied to the Court of Cassation for a declaration that the appeal had lapsed.
In the light of all these circumstances, the Court considers that the order striking out the applicant’s appeal from the Court of Cassation’s list was not disproportionate having regard to the aim pursued and to the fact that the applicant’s right of effective access to the Court of Cassation was not hindered to the point of undermining the very essence of his right to a court.
It follows that the application must accordingly be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.
S. DolléW. Fuhrmann
RegistrarPresident
Full & Egal Universal Law Academy