In the Clerc case*,
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* Note by the Registrar: The case is numbered 24/1989/184/244. The
first number is the case's position on the list of cases referred to
the Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the
Court since its creation and on the list of the corresponding
originating applications to the Commission.
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The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court*, as a Chamber composed of the
following judges:
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* Note by the Registrar: The amendments to the Rules of Court which
entered into force on 1 April 1989 are applicable to this case.
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Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr R. Macdonald,
Mr S. K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 24 April 1990,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 12 October 1989, within the
three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12393/86) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a national of that State,
Mr Louis Clerc, on 28 August 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 § 1 (art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 § 3 (b)). On 25 November 1989, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mr Thór Vilhjálmsson, Mr F. Matscher,
Mr J. Pinheiro Farinha, Sir Vincent Evans and Mr N. Valticos
(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).
Subsequently Mr Macdonald and Mr Martens, substitute judges, replaced
Mr Pinheiro Farinha and Mr Valticos, who were unable to take part in
the consideration of the case.
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5). Having consulted - through the Registrar - the Agent
of the French Government ("the Government") and the lawyer for the
applicant, he decided that there was no need for memorials to be filed
(Rule 37 § 1). On 20 December 1989 he provisionally directed that the
oral proceedings should open on 25 April 1990.
5. Between 1 December 1989 and 20 April 1990 the Government, the
applicant's lawyer and the Registrar communicated with each other in
writing or by telephone on a number of occasions in pursuit of a
friendly settlement.
6. On 20 April 1990 the Government and the applicant's lawyer
informed the Registrar of the terms of an agreement concluded between
them. The Delegate of the Commission was consulted and raised no
objection.
7. On 24 April 1990 the Court decided to dispense with a hearing
in the case, having satisfied itself that the conditions for this
derogation from its usual procedure had been met (Rules 26 and 28).
AS TO THE FACTS
8. Mr Louis Clerc, a French national, is currently living in
retirement in Perpignan (Pyrénées-Orientales).
9. Following an administrative inquiry which lasted from
28 June 1971 to November 1973, an investigating judge of the Toulouse
tribunal de grande instance began an investigation on 4 April 1974
into the persons criminally liable, by reason of their positions, for
the acts of nine civil-engineering firms suspected of having, in
relation to a call for tenders, infringed Ordinance no. 45-1483 of
30 June 1945 by taking concerted action inimical to free competition.
These persons included the applicant, who at the relevant time was the
manager of one of the companies involved.
The defendants were eventually acquitted by the Montpellier Criminal
Court, on 27 April 1987, and no appeal was lodged. Before then the
proceedings had taken a number of different turns. On
16 December 1976 a judgment of the Indictment Division (chambre
d'accusation) of the Toulouse Court of Appeal upholding a discharge
order issued by the investigating judge on 3 June 1975 had been
quashed; on 10 November 1977 the applicant's appeal on points of law
against a judgment delivered on 17 June 1977 by the Indictment
Division of the Montpellier Court of Appeal following committal
proceedings had been dismissed; on 30 July 1980 an expert's report,
ordered by the aforementioned Indictment Division, had been filed; and
on 26 May 1986 Mr Clerc's appeal on points of law against the
Indictment Division's decision on 12 March 1985 to commit him for
trial at the Criminal Court had been dismissed.
PROCEEDINGS BEFORE THE COMMISSION
10. In his application of 28 August 1986 to the Commission
(no. 12393/86), Mr Clerc alleged that the time taken by the
proceedings against him had not been reasonable as required by
Article 6 § 1 (art. 6-1) of the Convention.
11. The Commission declared the application admissible
on 8 September 1988. In its report of 12 July 1989 (made under
Article 31) (art. 31) the Commission expressed the unanimous opinion
that there had been a breach of Article 6 § 1 (art. 6-1). The full
text of the Commission's opinion is reproduced as an annex to this
judgment*.
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* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (vol. 176-C of Series A of
the Publications of the Court), but a copy of the Commission's report is
obtainable from the registry.
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AS TO THE LAW
12. On 20 April 1990 the Registrar received faxes from the French
Ministry of Foreign Affairs and from the lawyer for the applicant which
reported that a friendly settlement had been reached between them entailing
payment of the sum of 100,000 French francs in respect of all heads of
damage combined; they requested the Court to strike the case out of the
list under Rule 49 § 2 of the Rules of Court.
The Delegate of the Commission was consulted and raised no objection.
13. The Court takes formal note of the friendly settlement reached
by the Government and the applicant. In view of its responsibilities
under Article 19 (art. 19) of the Convention, it would nonetheless be
open to the Court to disregard this settlement if a reason of public
policy appeared to necessitate such a course (Rule 49 § 4), but the
Court can discern no such reason.
In this connection it would point out that in several previous cases
it has had to review the reasonableness of the length of criminal
proceedings (see the following judgments: Wemhoff, 27 June 1968;
Neumeister, 27 June 1968; Ringeisen, 16 July 1971; Eckle,
15 July 1982; Foti and Others, 10 December 1982; Corigliano,
10 December 1982; Baggetta, 25 June 1987; Milasi, 25 June 1987;
and B. v. Austria, 28 March 1990 - Series A nos. 7, 8, 13, 51, 56,
57, 119 and 175). In so doing, it has specified the nature and scope
of the obligations undertaken in the matter by the Contracting States.
Accordingly, it is appropriate to strike the case out of the list.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under
Rule 55 § 2, second sub-paragraph, of the Rules of Court on
26 April 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy