Resolution CM/ResDH(2007)161[1]
Execution of the judgments of the European Court of Human Rights
in 9 cases against France regarding the right to a fair tial before the Conseil d'Etat (Participation of the Government Commissioner in the deliberations
- case law Kress)
Farange S.A., Application No 77575/01, judgment of 13 July 2006, final on 13 October 2006 ; Cosson, Application No 38498/03, judgment of 18 July 2006, final on 18 October 2006 ; Bassien-Capsa, Application No 25456/02, judgment of 26 September 2006, final on 26 December 2006 ; Courty and other, Application No 15114/02, judgment of 3 October 2006, final on 3 January 2007 ; Bonifacio, Application No 18113/02, judgment of 10 October 2006, final on 10 January 2007 ; Assad, Application No 66500/01, judgment of 14 November 2006, final on 14 February 2007 ; SCI Les Rullauds, Application No 43972/02, judgment of 9 January 2007, final on 9 April 2007 ; Eisenchteter, Application No 17306/02, judgment of 16 January 2007, final on 16 April 2007 ; Seidel no 3, Application No 21764/03, judgment of 13 July 2007, final on 13 October 2007
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 violations of the Convention found by the Court in these cases concerns the lack of a fair trial due to the participation of the Government Commissioner in the deliberations of the Conseil d'Etat, that the case of Farange S.A., Assad and SCI les Rullauds also concern the excessive length of proceedings before administrative courts (violations of Article 6, paragraph 1) and finally that the case of Assad also concerns the absence of an effective remedy whereby a complaint may be lodged against the excessive length of proceedings before administrative courts (violation of Article 13) (see details in appendix) ;
Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with France's 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(2007)161
Information about the measures to comply with the judgments in
9 cases against France regarding the right to a fair trail before the Conseil d'Etat
(Participation of the Government Commissioner in the deliberations
- case law Kress)
Introductory case summary
These cases concern the lack of a fair trial due to the participation of the Government Commissioner in the deliberations of the Conseil d'Etat or, in the case of Seidel no3, in the deliberation of an administrative court of appeal (violations of Article 6, paragraph 1).
The case of Farange S.A., Assad and SCI les Rullauds also concern the excessive length of proceedings before administrative courts (violations of Article 6, paragraph 1).
Finally the case of Assad also concerns the absence of an effective remedy whereby a complaint may be lodged against the excessive length of proceedings before administrative courts (violation of Article 13).
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and no of application
Pecuniary
damage
Non-pecuniary
damage
Costs and expenses
Total
Paid on
Farange S.A.
77575/01
-
6000 €
6000 €
12000 €
23/10/2006
Cosson
38498/03
-
-
1500 €
1500 €
23/10/2006
Bassien-Capsa
25456/02
-
-
2000 €
2000 €
16/03/2007
Courty et autre
15114/02
-
-
839,94 €
839,94 €
26/03/2007
Bonifacio
18113/02
-
-
2000 €
2000 €
16/03/2007
Assad
66500/01
-
15000 €
500 €
15500 €
16/03/2007
SCI Les Rullauds
43972/02
-
6000 €
2000 €
8000 €
2/08/2007
Eisenchteter
17306/02
-
-
500 €
500 €
7/06/2007
Seidel no3
21764/03
-
-
500 €
500 €
02/05/07
b) Individual measures
Having regard to the reasons put forward by the Court in support of its decisions on the just satisfaction and taking into account to the circumstances of these cases, the applicants do not seem to suffer from very serious consequences of the violation, within the meaning of Recommendation Rec(2000)2 of the Committee of Ministers on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights. Therefore, no measure appeared to be necessary.
II.General measures
On the participation of the Government Commissioner in the deliberations of the Conseil d'Etat and ordinary courts and administrative courts of appeal
The French Government modified the Code of Administrative Justice by a Decree of 1 August 2006, published in the Official Journal on 3 August 2006 and which entered into force on 1 September 2006.
This decree lays down a distinction between the Conseil d'Etat, which guarantees the consistency of administrative case-law, and ordinary courts and administrative courts of appeal:
•The Government Commissioner will no longer intervene in deliberations in proceedings before courts and administrative courts of appeal.
•In proceedings before the Conseil d'Etat it will be open to parties to request that the Commissioner does not take part in deliberations (see Article R. 733-2 which may be translated as follows: “The Government Commissioner is present at deliberations, unless any party requests that he is not. He does not take part. Requests [that the Government Commissioner should not be present at deliberations] must be submitted in writing and may be made at any point in the proceedings prior to the deliberations”). Parties are informed of this right in the summons, which quotes the terms of the Decree of 1 August 2006. If no such request is submitted, the Government Commissioner will be present at the deliberation in the interest of the consistency of administrative case-law and the greater legal security of the parties (see Resolution CM/ResDH(2007)44 in the case of Kress et five other cases).
On the length of proceedings before administrative courts and on the absence of an effective remedy to lodge a complaint against the excessive length of proceedings
Measures have already been taken, in particular with the adoption of the Law No. 2002-1138 of 9 September 2002, which provides, inter alia, the recruitment of staff, the creation of new courts, and provision of budgetary resources and which, through the adoption of procedural measures enables administrative courts both to reduce their backlogs more quickly and to reduce the flow of incoming cases (see ResDH(2005)63 in the case of Sapl).
It should also be recalled that in the case of Broca and Texier-Micault (judgment of 21 October 2003), the European Court found that a remedy now exists in French law whereby a complaint may be lodged against the excessive length of proceedings before administrative courts.
III.Conclusions of the respondent state
The government considers that the 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 19 December 2007 at the 1013th meeting of the Ministers’ Deputies
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