Information Note on the Court’s case-law 231
July 2019
Bouhamla v. France (dec.) - 31798/16
Decision 25.6.2019 [Section V]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Effectiveness of an action for damages against the State in order to challenge the non-enforcement of a judgment ordering urgent rehousing: inadmissible
Facts – Under the law on the enforceable right to housing (“the Dalo Act”), the applicant had initially obtained a decision of the Paris mediation board dated 13 June 2014, which had been transmitted to the prefect, acknowledging that his was “a priority case and that he should be rehoused urgently” together with his family.
As the prefect did not enforce the decision by making the applicant an offer of rehousing within the statutory six-month period, the applicant applied to the administrative court, which on 3 March 2015 instructed the prefect to rehouse the applicant and his family on pain of a fine payable to the national housing support fund (FNAVDL). The applicant and his family were rehoused on 31 January 2017.
Law – Article 35 § 1 (exhaustion of domestic remedies): An action for damages had not constituted a remedy capable of remedying directly the situation complained of by the applicant at the time he had lodged his application, that is to say, when he had been urgently awaiting an offer of rehousing.
However, with the rehousing of the applicant and his family on 31 January 2017, the judgment of 3 March 2015 – the non-enforcement of which was the subject of the applicant’s complaint – had eventually been enforced. Given that the continuing violation of which he had complained had come to an end on 31 January 2017, the sole purpose of an effective remedy in the circumstances of the present case was to obtain recognition and redress for the alleged violation – assuming it to have been established – for the period from 3 March 2015 to 31 January 2017.
The damage for which compensation was payable stemmed from the disruption to the applicant’s life as a result of the continuation of the situation giving rise to the mediation board’s decision. Even before the lodging of the present application, and the Conseil d’État judgments of 13 July and 16 December 2016 specifying the elements to be taken into consideration in determining the amount payable in respect of damage, the lower courts had generally taken into account a number of factors, including the length of time for which the claimant’s housing situation had continued as a result of the State’s failure to act, and the composition of the household.
Hence, an action for damages against the State for failure to implement the DALO Act enabled claimants to obtain a finding that the failure to enforce the judgment instructing the prefect to rehouse them constituted a fault capable of giving rise to State liability and subsequent compensation.
The sums awarded to redress the damage varied from one court to another depending on the specific circumstances of the case. However, it could not be said that the level of compensation was systematically unreasonable compared with the amounts awarded by the Court in similar cases.
Consequently, the remedy in question had offered reasonable prospects of success. The applicant had therefore had available to him, as of 31 January 2017, an adequate remedy by which to obtain compensation in respect of the period of non-enforcement of the judgment instructing the prefect to rehouse him. Moreover, since the limitation period for an action for damages against the State was four years from 1 January of the year following the act giving rise to the damage, it was still open to the applicant to bring proceedings.
Accordingly, the applicant should have exercised the remedy in question despite the fact that, in view of its purely compensatory nature, it had not been effective until such time as the judgment of 3 March 2015 had been enforced (in the present case, on 31 January 2017, after the application had been lodged with the Court).
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See also Tchokontio Happi v. France, 65829/12, 9 April 2015, Information Note 184, and Tsonev v. Bulgaria (dec.), 9662/13, 30 May 2017, Information Note 208)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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