Resolution CM/ResDH(2009)49[1]
Execution of the judgment of the European Court of Human Rights
Schmidt against France
(Application No. 35109/02, judgment of 26 July 2007, final on 31 March 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 judgment in this case, transmitted by the Court to the Committee once it had become final;
Recalling that the violations of the Convention found by the Court in this case concern first, the lack of effectiveness of an appeal on points of law, which was not dealt with urgently even though the proceedings at issue related to parental rights (violation of Article 6, paragraphs 1, and 13 combined), and, secondly, the lack of communication of the report of the reporting judge of the Cour de cassation (violation of 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 judgment;
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;
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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
- of 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 this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2009)49
Information about the measures to comply with the judgment in the case of
Schmidt against France
Introductory case summary
This case concerns the ineffectiveness of an appeal on points of law introduced by the applicants relating to the grant of parental authority in respect of the child who had been removed from their care from 1993 to 2000 (mother) and to 2001 (father) (combined violation of Articles 6, paragraph 1, and 13). The European Court found that the Cour de cassation had given its judgment in 2002, about three years after the application. By that time, parental rights had already been restored to the applicants. The Cour de cassation therefore concluded that the appeal was without grounds and that it was unnecessary to rule on it. The European Court underlined the fact that if the Cour de cassation had passed judgment faster, it would have enabled the applicants to reduce the period for which they were subject to measures of ‘education assistance’, if the decision had been favorable, and would also have eased their anxiety with regard to the fate of the child, had the decision had not proved favorable.
The case also concerned an infringement of the right to a fair trial before the Cour de cassation on account of the failure to communicate the reporting judge’s report to the parties (violation of Article 6, paragraph 1).
I.Individual measures
The proceedings at issue are no longer relevant as the applicants have been awarded care of their child.
The European Court also considered that the non-pecuniary damages were sufficiently redressed by the finding of violations.
II.General measures
1) Effectiveness of the appeal to the Court of cassation
The European Court recalled that “proceedings relating to the award of parental responsibility required urgent handling as the passage of time could have irremediable consequences for relations between children and the parent who did not live with them”.
A number of measures (recruitment, budgetary and procedural measures...) have already been taken to avoid excessive length of proceedings in civil cases (see final resolution CM/ResDH(2008)39 in case C.R. and 9 other similar cases).
Furthermore, given the specific nature of the violation in this case, it seemed important that the Cour de cassation should have knowledge of the judgment in order to be able to take it into account in its practice. This is why, in line with the French authorities’ practice of systematically disseminating judgments of the European Court to the courts and to the sections of the Ministry of Justice concerned, this judgment was sent out to the Cour de cassation.
2) Fairness of the proceedings
The case presents similarities to that of Slimane-Kaid (Application No. 29507/95) and other similar cases closed by Final Resolution CM/ResDH(2008)13. Reports of the reporting judge are now communicated both to the public prosecutor and to the parties.
Conclusions of the respondent state
The government considers that the no individual measures are necessary, that the general measures adopted will prevent new, 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 2 April 2009 at the 1051st meeting of the Ministers’ Deputies
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