Legal summary
April 2024
Tamazount and Others v. France - 17131/19, 19242/19, 55810/20 et al.
Judgment 4.4.2024 [Section V]
Article 6
Civil proceedings
Article 6-1
Access to court
Conseil d’État’s declaration of lack of jurisdiction, based on acts of State doctrine, limited to compensation claims lodged by children of Harkis on grounds of State liability for failure to protect Harkis in Algeria at time of Algerian independence and systematically repatriate them to France: no violation
Article 34
Victim
Amount awarded to each applicant as compensation by domestic courts constituted inappropriate and insufficient redress for violations found by those courts as to applicants’ living conditions in a Harki reception camp in France: victim status maintained
Article 35
Article 35-3-a
Ratione temporis
Jurisdiction ratione temporis as from 3 May 1974, upon entry into force of Convention and Protocol No. 1 in respect of France, with regard to living conditions in Harki
Facts – The applicants – four members of the Tamazount family and a fifth applicant, Mr Mechalikh – are children of Algerian “Harkis” who fought alongside the French army during the Algerian War of Independence (1954-1962).
All the applicants claimed that the French State had committed acts of negligence by failing to protect the Harkis and their families from the massacres and reprisals perpetrated against them in Algeria when that country had achieved independence and to organise their systematic repatriation to France. They sought compensation for the damage resulting from these acts of negligence in the French administrative courts. At last instance, the Conseil d’État found that the acts and omissions relied on by the applicants constituted acts of State which involved the relations between France and Algeria and that it therefore lacked jurisdiction to rule on any potential acts of negligence on the part of the State. Before the Court, the applicants submitted that their right of access to a court under Article 6 § 1 of the Convention had been infringed.
In addition, the applicants from the Tamazount family complained about their living conditions in a Harki reception camp located in Bias, France (“the camp”), until its decommissioning in 1975. The domestic courts found these conditions to have been inhumane and that restrictions had been imposed on the individual freedoms of the camp’s residents. They awarded each of the applicants a total of 15,000 euros (EUR) as compensation. Before the Court, the four applicants argued that they had been the victims of a violation of Articles 3 and 8 of the Convention and of Articles 1 and 2 of Protocol No. 1.
Law – Article 6 § 1:
(1) Applicability – Under French law, in accordance with the well-established case-law of the Conseil d’État, the State’s liability could be engaged for negligence and the right to damages was recognised, provided the conditions were met for such liability to be incurred.
The acts of State doctrine, under which the courts themselves curtailed their own jurisdiction, had long been applied by the French administrative courts. Nevertheless, acts of State were not precisely defined and their scope could change over time.
At the time that the applicants had lodged their appeals on points of law, the Conseil d’État had already held, in November 1968 and June 2016, that it lacked jurisdiction to rule on alleged acts of negligence on the part of the French State in the context of Algerian independence for failing to compensate claimants for their loss of assets in that country. However, in the present cases, the applicants’ claims had raised separate and novel issues, namely whether or not they were entitled to hold the French State liable for negligence on account of a failure to protect the Harkis and their families in Algeria and to organise their systematic repatriation to France.
The Court therefore considered that there had been, from the start of the proceedings brought by the applicants, and absent any sufficiently similar precedents in the case-law, a genuine and serious dispute as to the existence of the civil right which the applicants had sought to assert on the basis of State liability for negligence.
Conclusion: Article 6 § 1 applicable under its civil limb.
(2) Merits – The Conseil d’État’s finding that it lacked jurisdiction, based on the acts of State doctrine, had deprived the applicants of a decision on the merits of the right to compensation they had sought to assert on the basis of State liability for negligence and had, in consequence, restricted their right of access to a court.
This restriction had pursued the legitimate aim of preserving the separation of powers between the executive and the judiciary, and, as a result, the courts’ inability to call into question diplomatic or military decisions taken in the context of relations between France and Algeria following the “Evian Accords”, which had opened the way for Algerian independence.
As to the question whether the restriction had been proportionate to the aim pursued, despite the lack of criteria by which an act of State could be defined in a general manner, the acts of State doctrine was interpreted narrowly by the administrative courts, which had developed the concept of an act which was dissociable from the conduct of the State’s diplomatic or foreign relations. That concept had been used to reduce the list of acts of State in the international domain, such that the courts’ lack of jurisdiction in such matters was not all-encompassing.
As to that doctrine’s application in the present cases, the Conseil d’État had considered that a decision on the merits of the compensation claims lodged on the basis of State liability for negligence would necessarily have required it to review the legality of acts and decisions on the part of the French Government that came within the purview of the exercise of the Government’s sovereign power in determining foreign policy and in the conduct of relations with Algeria in the wake of its new-found independence. It had examined whether the impugned acts and omissions on the part of the French authorities, taking into account the domestic policy considerations they had emphasised, could be dissociated from the context of French diplomacy and international relations. However, it had taken the view that it was appropriate to regard Algeria – from the moment negotiations with a view to concluding the Evian Accords had begun – as a nascent State whose relations with France had fallen within the framework of diplomacy. Thus, the domestic authorities’ acts and omissions, on which the applicants had relied, could not be dissociated from the relations between France and Algeria, for which State liability could not be established on grounds of negligence, in accordance with the acts of State doctrine.
It was primarily for the national authorities, notably the courts, to interpret and apply domestic law, including where that law referred to rules of general international law or international agreements. The Court’s role was confined to ascertaining whether the effects of such an interpretation were compatible with the Convention.
The Court had also considered, concerning the application of the acts of State doctrine to repatriation requests from French nationals held in Syria, that it was not its task to interfere with the institutional balance between the executive and the courts of the respondent State, or to make a general assessment of the situations in which the domestic courts would refuse to entertain jurisdiction.
Thus, concerning political decisions relating to the conduct of diplomatic or international relations, in particular those involving the engagement of military forces, the Court saw no reason to substitute its own assessment for that of the Conseil d’État when it came to interpreting domestic law, or to hold that the position adopted by that court had been arbitrary or manifestly unreasonable.
Secondly, the administrative courts had not declared an absolute lack of jurisdiction in the present case since they would have had jurisdiction to adjudicate any claims brought by the applicants on grounds of the State’s strict liability. The Conseil d’État had recognised that it was possible for the State to incur such liability on the basis of the equality of citizens vis-à-vis public burdens, to ensure that any loss arising from international agreements was compensated for, on condition that such loss was serious and individual in nature and could not therefore be regarded as a burden that would normally be borne by the persons concerned. It had also accepted that the “Evian Accords” constituted an international agreement.
That being stated, the Court could not speculate as to whether it was clear from the evidence that had been submitted to the domestic courts that the conditions for establishing the State’s strict liability had been met such that those courts ought to have examined that liability of their own motion; nor could it speculate on the chances of success of an action on grounds of the State’s strict liability, had such an action been brought by the applicants.
The Court found, however, that the potential establishment of the State’s strict liability rendered the unaccountability for acts of State merely relative: the Conseil d’État’s declaration that it lacked jurisdiction had only concerned one aspect of State liability, being confined to an assessment of potential negligence, and could not be regarded as having established a general and absolute immunity that prevented the courts from ruling on any and all harmful consequences of acts of State.
Lastly, the Court took the view that the administrative courts’ decision that they lacked jurisdiction, based on the separation of powers and the courts’ refusal to examine the legitimacy of acts and decisions of State in the exercise of its sovereign powers in determining foreign policy, had not been inconsistent with a political acknowledgment on the part of the executive or legislative authorities, which were not subject to the same self-restraint, that there had been certain shortcomings.
Thus, in the light of the circumstances of the case as a whole, the Conseil d’État’s declaration that it lacked jurisdiction, on the basis of the acts of State doctrine, being limited to the applicants’ claims that the State was liable for negligence on account of a failure to protect the Harkis and their families in Algeria and to repatriate them systematically to France, could not be considered to have overstepped the margin of appreciation afforded to States in limiting an individual’s right of access to a court.
Conclusion: no violation (unanimously).
Articles 3 and 8 and Article 1 of Protocol No. 1:
The Court considered that the complaint by the four applicants from the Tamazount family that the national authorities had acted disgracefully with regard to their educational needs was covered by the issues raised under Articles 3 and 8 of the Convention. Accordingly, it decided to examine their complaints solely under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1.
(1) Admissibility –
(a) Jurisdiction ratione temporis – The Court had jurisdiction to hear the applicants’ complaints from 3 May 1974, the date on which the Convention and Protocol No. 1 had come into force in respect of France. Nevertheless, it could take into account relevant facts prior to that date in order to assess the context and the situation complained of as a whole.
(b) Victim status – The question whether the applicants could still claim to be the victims of the violations in issue was closely linked with considerations, going to the merits of their complaints, as to the nature of the violations at stake and as to whether the compensation they had been awarded had afforded them appropriate and sufficient redress. The preliminary objection was joined to the merits.
(2) Merits –
(a) Nature of Convention violations found by national authorities – First, the domestic courts had fully recognised the suffering endured by the applicants in the camp. They had found that the living conditions to which Harkis and their families had been subjected there had constituted an offence against human dignity for which the State could be held liable. The courts had then extended that finding to the restrictions imposed on the individual freedoms of the persons concerned on account, in particular, of the inspection of their letters and parcels, the allocation of their social benefits to the financing of the camp’s expenses and the children’s education outside the ordinary school system.
Secondly, after the decisions had been delivered in the domestic proceedings, the Law of 23 February 2022 had acknowledged the “responsibility of the Nation” for the inhumane reception and living conditions to which the Harkis and their families had been subjected and for the infringement of their individual freedoms.
Thus, the Court was bound to find that the day-to-day living conditions of the camp’s residents had not been compatible with respect for human dignity and had moreover involved infringements of their individual freedoms. Furthermore, the domestic decisions showed that the national courts had, in substance, found a violation of Articles 3 and 8 of the Convention and of Article 1 of Protocol No. 1.
b) Redress afforded by national authorities for Convention violations – Each of the applicants had been awarded a total of EUR 15,000 by the domestic courts for periods ranging from seven to fourteen years, all complaints and heads of damage combined. That amount had been based on the scale used by the domestic courts in cases of inhumane detention conditions, corresponding roughly to EUR 1,000 per year of detention, with a supplement to take account of harm specific to inadequate schooling.
The Court was mindful of the difficulty of putting a precise figure on the damage sustained by the applicants and of the limits of the analogy with inhumane detention conditions, given the particularities of the historical context. The national authorities were best placed, having regard to the principle of subsidiarity, to set the amount awarded as compensation for the non-pecuniary damage sustained as a result of conditions that had been incompatible with human dignity.
However, applying the general principles derived from its case-law, the Court considered that the sums awarded by the domestic courts had not afforded the applicants appropriate and sufficient redress for the violations found. Concerning the violation of Article 3 of the Convention, the sums awarded had been modest by comparison with what the Court generally awarded in cases concerning inhumane detention conditions. It inferred from this that the sums in question had not covered the damage sustained in connection with the other violations in issue.
In the light of the above, despite the important work of memory undertaken and the solemn acknowledgment given by France’s highest executive authorities, the domestic authorities had not, in setting the amount of compensation paid to the applicants, taken sufficiently into account the specificity of their living conditions in the camp in order to remedy the Convention violations found and, consequently, the payment of that compensation had not deprived them of their victim status in that regard.
Conclusion: preliminary objection dismissed (victim status); violation for the period from 3 May 1974 to 31 December 1975 (unanimously).
Article 41: EUR 5,694 for Mr Abdelkader Tamazount, EUR 4,250 for Mr Aïssa Tamazount, EUR 5,858 for Ms Zohra Tamazount, EUR 3,716 for Mr Brahim Tamazount, in respect of pecuniary and non-pecuniary damage.
(See also Markovic and Others v. Italy [GC], 1398/03, 14 December 2006, Legal summary; H.F. and Others v. France [GC], 24384/19 and 44234/20, 14 September 2022, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
To access legal summaries in English or French click here.
For non-official translations into other languages click here.