Information Note on the Court’s case-law No. 166
August-September 2013
Gray v. France (dec.) - 27338/11
Decision 3.9.2013 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Striking out of appeal on points of law for failure to comply with decision of court below: inadmissible
Facts – In 2005, in conformity with an undertaking he had previously signed, the applicant was ordered to assume liability for judgments pronounced against a company and pay compensation, in its stead, for breach of contract and legal costs. His subsequent appeal on points of law was struck out of the Court of Cassation’s list, pursuant to Article 1009-1 of the Code of Civil Procedure, for failure to comply with the decision at the origin of the appeal. In 2010 his request to have the case reinstated on the court’s list was rejected, again for failure to comply with the decision. Asset-freezing measures in parallel proceedings revealed the amount of money the applicant had in a particular bank account.
Law – Article 6 § 1: The Court began by pointing out that it had already examined, in the case of Annoni di Gussola and Others v. France*, whether an order striking out an appeal under Article 1009-1 of the Code of Civil Procedure might restrict a person’s access to a court in such a way or to such an extent as to impair the very essence of the right of access to a court. In that judgment, after having deemed legitimate the aims pursued by the obligation to comply with a judgment enshrined in the aforesaid Article 1009-1, the Court had considered whether, in the light of the “manifestly unreasonable consequences” identified by the President of the Court of Cassation, the removal of the appeal from the list had amounted to a proportionate interference with the right of access to that court. In so doing, it had examined the personal situation of each applicant, the sums they had been ordered to pay and how effectively these factors had been taken into account by the Court of Cassation in deciding whether they could have complied with the impugned judgment. In that case the Court had found that it had clearly been impossible for the applicants even to begin to comply with the court orders. In the present case it now had to see whether the applicant’s situation had been such that it was impossible for him to pay the sum ordered by the court. In so doing, it should not focus solely on the time at which the request to strike out the appeal had been made, but rather consider the proceedings in their entirety.
It was clear from the order striking the appeal out of the list of the Court of Cassation that the applicant had not demonstrated to the court that it had been impossible for him to comply with the appellate court’s decision, or that to do so might well have entailed manifestly unreasonable consequences for him in view of his personal situation. Nor was it possible, based on the evidence in the file, to assess the applicant’s assets or the real extent of his wealth. What is more, the applicant did not claim to have been awarded legal aid. He had substantial assets, consisting at the very least of the sums deposited in the bank in respect of which the successive garnishee orders had been issued. On that point, although one such order had been served on the bank concerned by a party alien to the proceedings in issue, it only concerned part of the assets in the applicant’s account. As to the other orders to attach the assets concerned, as they had been issued on behalf of the respondent in the appeal proceedings, they were not an obstacle to the applicant’s compliance with the decision against which he had appealed. Therefore, regard being had to his financial situation, it had not been impossible for the applicant to pay the sums ordered by the court, and this might have led the Court of Cassation to consider, first, that the applicant had failed to show that he had taken any steps apt to demonstrate his intention to comply with the decision of the lower court, or that it had been impossible for him to do so, and subsequently, following the removal of the appeal from the list, to refuse to restore it to the list in the absence of such compliance.
Consequently, the decisions to strike the applicant’s appeal out of the Court of Cassation’s list and not to reinstate it had not been disproportionate to the aim pursued, and the applicant’s right of effective access to the Court of Cassation had not been hindered to the point of impairing the very essence of that right.
Conclusion: inadmissible (manifestly ill-founded).
* Annoni di Gussola and Others v. France, 31819/96 and 33293/96, 14 November 2000, Information Note 24.
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This summary by the Registry does not bind the Court.
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