Information Note on the Court’s case-law No. 97
May 2007
Depauw v. Belgium (dec.) - 2115/04
Decision 15.5.2007 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Unfair to require an applicant to exhaust a remedy that had only recently been introduced into the legal system following a change in the case-law and had taken six months to acquire sufficient certainty: preliminary objection dismissed
The case concerns a series of civil and criminal proceedings that have been going on for 20 years. The applicant was awarded compensation for wrongful dismissal but was unable to claim it from the firm because it went bankrupt.
On 28 September 2006 the Court of Cassation rejected an appeal and confirmed an appeal court judgment declaring the civil liability of the Belgian Government for unreasonably lengthy proceedings in a civil case.
The applicant complains, inter alia, of the overall length of the proceedings.
Admissible: The application was not about personal negligence by judges but about delays in the processing of a case due to the negligent failure of the authorities to take the legislative and regulatory steps necessary to the proper functioning of the courts. In the past the Belgian Government had unsuccessfully filed an objection with the European Commission on Human Rights for non-exhaustion of domestic remedies, contending that the possibility, under Article 1382 of the Civil Code, of bringing a claim against the State for damages constituted an effective remedy against unduly lengthy proceedings resulting from delays in processing a case. The Government had raised the same objection in the instant case, relying on progressive interpretation by the ordinary courts and the position of the Court of Cassation in its judgment of 28 September 2006. The Court noted that that judgment referred expressly to Article 6(1) of the Convention and clearly established the principle that the State’s civil liability could be incurred if the legislature failed to organise the judicial system in such a way that the courts were able to guarantee the right to obtain a final decision on complaints concerning civil rights and obligations within a reasonable time. The remedy at issue was purely compensatory and afforded no means of speeding up proceedings which were pending. Compensation was an effective remedy within the meaning of Article 13 and Article 35(1) of the Convention only if it compensated not only for pecuniary damage but also for the non-pecuniary damage sustained when proceedings took longer than was reasonable. While it was difficult accurately to assess the length of proceedings and the consequences, particularly in terms of non-pecuniary damage, which by nature must be determined ex aequo et bono, reasonable proportion nevertheless had to be kept between the sums awarded and the sums the Court would have awarded in similar cases. First, however, the Court had to determine from what moment the remedy established by the Court of Cassation had become established “with sufficient certainty not only in theory but also in practice” to be usable and indeed mandatory henceforth for the purposes of Article 35(1) of the Convention. It would not be fair to rely on a remedy newly introduced into a Contracting State’s legal system against individuals who applied to the Court if they were not yet effectively aware of its existence. In cases like this one, where the domestic remedy was the result of progressive interpretation by the courts, fairness required a reasonable lapse of time to allow the public to become effectively aware of the domestic decision which had established the remedy. The lapse of time varied with the circumstances, particularly how well the decision concerned had been publicised. In the case of the judgment of the Court of Cassation referred to here, the Court noted that, as usual, the judgment had been available for consultation on the Belgian judiciary’s internet site two weeks after it had been delivered, and that it had promptly been circulated in legal circles and even to the public. It might therefore be considered, according to the Court, to have acquired a sufficient degree of certainty in the first quarter of 2007, six months after it was delivered. The Court accordingly deemed it reasonable to assume that the public could not have been unaware of the judgment of the Court of Cassation after 28 March 2007. It concluded that it was from that date onwards that applicants should have been required to use the remedy in question, i.e. action for damages against the state based on Article 1382 of the Civil Code for the purposes of Article 35(1) of the Convention. The present case having been brought before the Court on 12 December 2003, long before 28 March 2007, the applicant could not be penalised for not using the remedy: preliminary objection dismissed.
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This summary by the Registry does not bind the Court.
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