Resolution CM/ResDH(2010)123[1]
Execution of the judgment of the European Court of Human Rights
Pieri and Djaoui against France
(Application No. 7091/04, judgment of 26 July 2007, final on 26 October 2007
Application No. 5107/04, judgment of 4 October 2007, final on 4 January 2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violation of the Convention found by the Court in these cases concerns an infringement of the right to a fair trial owing to the Government Commissioner’s presence in the deliberations of the Conseil d’Etat (Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2010)123
Information on the measures taken to comply with the judgments in the cases of Pieri and Djaoui against France
Introductory case summary
These cases concern infringement of the right to a fair trial owing to the Government Commissioner’s presence at the deliberations of the Conseil d’Etat (violations of Article 6, paragraph 1).
In the Djaoui case, the applicant had obtained by court ruling of 2001 the removal of a ban on engaging in the occupation of surveyor, following which he had unsuccessfully applied for re-registration with the Expert Surveyors’ Association. He challenged this refusal in the contested proceedings before the Conseil d’Etat, which dismissed his appeal in 2003.
In the Pieri case, the contested proceedings before the Conseil d’Etat concerned the applicant’s claims for a disability pension, of which he had been refused the benefit by a judgment which became final in 2003.
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Djaoui (5107/04)
-
-
1 500 euros
1 500 euros
Paid on 6/03/2008
b) Individual measures
1) Djaoui case: In his claim for just satisfaction in respect of the alleged material damage, the applicant sought an amount which he said corresponded to the financial losses caused by the forced termination of his activity (loss of goodwill, loss of means, employees’ severance pay). The European Court nevertheless dismissed these claims on the ground that it could see no causal link between the alleged damage and the violation. Furthermore, before the Committee of Ministers, the applicant made no request by way of individual measures.
The European Court also found that the non-pecuniary damage sustained by the applicant because of the violation was adequately covered by the Court’s finding of a violation.
2) Pieri case: In his claim for just satisfaction in respect of the alleged material damage, the applicant sought an amount which he said corresponded to the disability pension which he was allegedly denied by the national proceedings at issue. The European Court held that it could not speculate as to the likely outcome of the contested proceedings had the violation not occurred, and consequently dismissed this claim.
The applicant could if he wished lodge a fresh pension claim. According to the French authorities, given the general measures adopted, a similar violation would be improbable if new proceedings went as far as the Conseil d’Etat.
Concerning possible pecuniary damage on which neither the Court nor the Committee of Ministers was able to speculate, the applicant had the possibility of referring to the appropriate administrative authority any compensation claim in respect of the material time. It might be the case that, in order to reach a decision, the administration would be prompted to reassess the applicant’s situation and to take a new decision which would be appealable before the administrative courts. The French authorities emphasise that these courts apply the Convention directly and will take account of this judgment.
Lastly, the European Court held that the non-pecuniary damage incurred by the applicant was adequately remedied by the finding of a violation.
II.General measures
The present cases are comparable to that of Kress and to other similar cases, the examination of which was concluded having regard to the general measures adopted subsequent to the time-span of the present cases. For the details of the measures adopted, see Final Resolution CM/ResDH(2007)44 (before the Conseil d’Etat, the parties are now entitled to request that the Government Commissioner -renamed Public Rapporteur- should not be present at the deliberations, and are duly informed of this possibility).
Conclusions of the respondent state
The government considers that the measures taken in these cases will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies
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