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THE FACTS
The applicants are all French nationals. Their details are set out in a list appended to this decision. The applications were lodged by the applicants acting on their own behalf and in their capacity as the heirs of their deceased parents.
They were represented before the Court by Mr Laurent Pettiti, a lawyer practising in Paris.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
The applicants or their ascendants were the owners of immovable property in Algeria, but were dispossessed after Algeria became independent.
1. The nationalised property and the compensation paid
(a) Application nos. 48754/99, 49720/99, 49721/99 and 49723/99
Mrs Georgette Teytaud, Mrs Marie-Louise Lambelin and their mother, Mrs Bertrande Saint-Pierre, jointly owned, as part of the family estate, four parcels of agricultural land (two in Misserghin with surface-areas of 1,052 hectares and 1,027 hectares, and two in Bou-Tlelis with surface-areas of 471 hectares and 1,628 hectares) and two properties in Oran, one a nine-roomed house and the other a twelve-roomed house. Mrs Bertrande Saint-Pierre also owned a property that was let out to tenants and a wine wholesalers in Oran.
These properties were valued by the French authorities using a scale laid down by a law of 5 April 1970. The first applicant’s share was put at 1,493,204 French francs (FRF) at the 1962 value of the franc, the second applicant’s share at FRF 1,520,798 and their mother’s share at FRF 1,111,246. Pursuant to a law of 16 July 1987 the properties were revalued at FRF 1,647,727, FRF 1,682,220 and FRF 1,375,688 respectively (at the 1962 value). In “real terms” the “1998 value” of the properties would be FRF 12,351,362, FRF 12,609,921.12 and FRF 10,001,251 respectively.
The annual compensatory payments allegedly received by each of the first two applicants since 1979 amount to FRF 3,314,646. Their mother has allegedly received FRF 3,121,840 (at the 1998 value).
(b) Application nos. 49724/99, 49725/99, 49726/99, 49728/99 and 49729/99
Mr Georges Raoux jointly owned, as part of the family estate, a house at Ain El Turck. The property was valued by the French authorities, using the scale laid down by the law of 5 April 1970, at FRF 85,500 (at the 1962 value). Pursuant to the law of 16 July 1987 it was revalued at 106,875 “francs at the 1962 value”, which the applicant said came to 640,908 “francs at the 1998 value”. The annual compensatory payments he has allegedly received since 1979 amount to FRF 230,697 “francs at the 1998 value”.
Further, Mr Albert Raoux, the father of Georges Raoux and Mrs Jeanne-Marie Faure, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 495 hectares at Parmentier – and two buildings at Oran (which was also matrimonial property). These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 4,564,795 (at the 1962 value). Pursuant to the law of 16 July 1987 these properties were revalued at 5,100,394 “francs at the 1962 value”, which the applicants said came to 38,232,533 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 19,116,276.
The annual compensatory payments received by Georges Raoux and his father since 1979 allegedly amounted to 1,294,601 “francs at the 1998 value” and by Jeanne-Marie Faure and her father to 1,115,407 “francs at the 1998 value”.
In addition, the applicants’ mother, Mrs Marie-Louise Raoux, owned two parcels of agricultural land – 513 hectares at Sainte Barbe du Tlélat (which was matrimonial property) and 255 hectares at El Akra – and three buildings at Oran, two of which were matrimonial property while the third was owned jointly as part of the family estate. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 2,239,924 (at the 1962 value). Pursuant to the law of 16 July 1987 the properties were revalued at 2,606,915 “francs at the 1962 value”, which the applicants said came to 19,541,434 “francs at the 1998 value”. As the property was jointly owned by the brother and sister as part of the family estate, each was entitled to FRF 9,770,717.
The annual compensatory payments received by Georges Raoux and his mother since 1979 allegedly amounted to 762,204 “francs at the 1998 value” and by Jeanne-Marie Faure and her mother to 618,393 “francs at the 1998 value”.
(c) Application no. 49727/99
Mrs Gabrielle Raoux jointly owned, as part of the family estate, a house situated at Ain El Turck, a flat and a plot of building land in Oran, and two parcels of agricultural land – 189 hectares at Nazereg Flinois and 200 hectares at Tircine. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 286,747 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 328,522 “francs at the 1962 value”, which the applicant said came to 2,462,600 “francs at the 1998 value”. The annual compensatory payments she had allegedly received since 1979 amounted to FRF 1,401,732 “francs at the 1998 value”.
(d) Application no. 49730/99
Mr Michel Faure’s father owned 216.97 hectares of land at Ain-Tedeles, and two building plots and a house at Mostaganem. These properties were valued by the authorities, using the scale laid down by the law of 5 April 1970, at FRF 1,417,741 (at the 1962 value). Pursuant to the law of 16 July 1987 they were revalued at 1,637,359 “francs at the 1962 value”, which the applicant said came to 12,273,643 “francs at the 1998 value”. The annual compensatory payments allegedly received by the applicant’s father since 1979 amounted to FRF 3,322,847 “francs at the 1998 value”.
2. The proceedings issued by the applicants
Acting on their own behalf or, as applicable, as the heirs and assigns of their ascendants, the applicants sent a demand to the Secretary of State for Social Affairs in December 1992 for the payment of the balance of the value of the nationalised properties, together with interest.
They submitted that by virtue of the “Évian Accords” and unilateral undertakings given in writing by the French Government, the French State had an obligation to pay “just and fair” compensation to persons who had been dispossessed of their property. They added inter alia that there had been a violation of Article 1 of Protocol No. 1 and of Article 14 of the Convention, as they had received only partial compensation,.
In June 1993 they applied to the Paris Administrative Court for an order setting aside the Secretary of State’s decision, which was deemed to have been a refusal as he had not replied within four months. The Administrative Court dismissed their applications on 8 June 1994.
The applicants appealed to the Paris Administrative Court of Appeal, which dismissed their appeals on 27 June 1996 on the following grounds:
“... Neither the Government’s declarations of 19 March 1962 regarding Algeria, known as the “Évian Accords”, nor the leaflet “the Évian Accords and the pieds-noirs [Algerian born Frenchmen]”, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, nor the declarations made at the time by members of the French Government, which were confined to comments on the aforementioned accords, contained, contrary to what has been submitted in the appeal, clauses or promises affording French nationals living in Algeria a guarantee that the French State would compensate them for any loss resulting from their being wrongfully divested of their property by the Algerian State. It follows that the court must reject the argument that the State has engaged its responsibility and failed to comply with its undertakings because compensation has been paid for only part of the loss of the property in issue.
The loss sustained ..., which directly originated from the action of a foreign State, cannot give rise to liability on the part of the French State on the basis of the rule that public burdens shall be borne equally (principe de l’égalité devant les charges publiques).
In accordance with the final paragraph of section 4 of the Law of 26 December 1961 on the Admission and Resettlement of French Overseas Nationals, the Law of 15 July 1970 referred to above instituted a national levy to raise compensation for French nationals who had been dispossessed of their property, notably in Algeria. The amount of compensation paid to such persons pursuant to that statute has been increased by the Laws of 2 January 1978 and 16 July 1987 referred to above, the amount being limited, however, by the latter statute to 1,000,000 or 2,000,000 francs depending on the circumstances. [Although it has been submitted] that the payment of compensation for only part of the loss contravenes both the principles of national solidarity and payment of compensation of loss in full and the right to the protection of property guaranteed by the Constitution, the Preamble to the Constitution of 27 October 1946 and the Declaration of the Rights of Man and of the Citizen of 26 August 1789 to which it refers, it is not for the administrative courts to determine the constitutionality of those statutory provisions. By instituting a national levy to provide compensation in the form of an advance on the sums owed to French nationals by the Algerian State for the dispossession of their property, by making the share of the compensation fund apportioned to each dispossessed person proportional to the value of the property which he or she had lost and by imposing a general limit on the amount of that share in the light of the resources which the nation could reasonably devote to it, the aforementioned statutes do not contain any provision that is incompatible with France’s international obligations under, on the one hand, Article 1 of Protocol No. 1 to the Convention... relating to unlawful interference with private property by any of the States that have signed the Convention or, on the other hand, Article 14 of the Convention or Article 26 of the International Covenant on Civil and Political Rights, which prohibit any discrimination between individuals....”
The applicants appealed to the Conseil d’État, alleging, inter alia, a violation of Article 1 of Protocol No. 1 and Article 14 of the Convention. They also maintained that, in violation of Article 6 of the Convention and of their right to a fair hearing, the Administrative Court of Appeal had not acted as an independent and impartial tribunal, as it had “regarded itself as being bound in practice by the interpretation of the Minister of Foreign Affairs”, as reproduced in the Moraly judgment delivered by the Conseil d’État on 31 January 1969.
On 25 November 1998 the Conseil d’État dismissed the appeals on points of law for the following reasons:
“The ground of appeal based on the interpretation of the declarations made by the Government on 19 March 1962 regarding Algeria, known as the ‘Évian Accords’:
An examination of the impugned judgment, which contains sufficient reasons, shows that for the purposes of interpreting those provisions of the aforementioned accords which were relied on, the Administrative Court of Appeal did not regard itself as being bound by the interpretation the Minister of Foreign Affairs may have given and, therefore, did not infringe either the provisions of Article 6 of the ... Convention ..., or, in any event, the first sub-paragraph of Article 14 of the International Covenant on Civil and Political Rights. Further, in finding that the said declarations did not contain any clause or promise guaranteeing French nationals living in Algeria compensation from the French State for any loss sustained in the event of their being wrongfully divested of their property by the Algerian State, the Administrative Court of Appeal has not erred in law. It was entitled in law to deduce from that finding that the State’s responsibility could not be engaged on the ground that it had failed to comply with the terms of the said declarations.
The ground of appeal based on the State’s promises:
The Administrative Court of Appeal did not misconstrue the scope of the leaflet entitled ‘the Évian Accords and the pieds noirs’, which was published and distributed in 1962 by the High Commission of the Republic in Algeria, by holding that it contained no undertaking or promise by the French State to pay compensation in full for losses sustained by French owners dispossessed of their property in Algeria should the Algerian State fail to pay compensation.
The ground of appeal based on the fact that the compensation award ... contravened various principles and French international obligations:
Firstly, the loss sustained ..., which directly originated from the action of a foreign State, cannot, as the Administrative Court of Appeal rightly held, result in the responsibility of the French State being engaged on the basis of the rule that public burdens shall be borne equally.
Secondly, the administrative courts have no jurisdiction to decide whether the system of lump-sum partial compensation set up by the Laws ... of 15 July 1970, 2 January 1978 and 16 July 1987 infringe quasi-constitutional rules and principles and the Administrative Court of Appeal rightly declined to examine that issue.
Thirdly, the Administrative Court of Appeal did not err in law in holding that the decision of the French State (which, as has been explained above, was under no obligation to take the place of the defaulting Algerian State in compensating the dispossessed French owners in full) to award partial compensation when the direct cause of the damage was the act of a foreign state could not have infringed Article 1 of Protocol No 1 to the ... Convention ..., Article 14 of the Convention, or, in any event, Article 26 of the International Covenant on Civil and Political Rights....”
B. Relevant domestic law and practice
1. Law no. 61-1439 of 26 December 1961 on the Admission and Resettlement of French Overseas Nationals
Section 1
“French nationals who have been or have considered themselves compelled by political events to leave a territory in which they were settled and which was previously under French sovereignty or administration, or was a French protectorate, are eligible for assistance from the State...
Such assistance shall take the form of a series of measures designed to integrate the repatriated French nationals into the nation’s economic and social structures.
These measures shall consist, in particular, of return allowances, temporary subsistence allowances, reduced-rate loans and resettlement and regrading subsidies, measures facilitating access to work and schools, and welfare payments and exceptional relief for repatriated persons...”
Section 4, sub-paragraph 3
“The amount of compensation for conclusively proved wrongful divestment and loss of property belonging to the persons referred to in the first sub-paragraph of section 1 and the procedure for its assessment and payment shall be laid down, in the light of the circumstances, in separate legislation...”
2. The Évian Accords
On 19 March 1962 the French and Algerian Governments signed various declarations of principle (“the Évian Accords”).
The “Declaration of Principles governing Economic and Financial Cooperation” stated, inter alia:
Article 12
“Algeria shall secure without discrimination free and quiet enjoyment of pecuniary rights acquired in its territory prior to self-determination. No one shall be deprived of these rights without fair compensation determined beforehand.”
Article 13
“As part of the agrarian reform, France shall provide Algeria with special aid for the repurchase of all or part of the property rights of French nationals.
On the basis of a repurchase scheme to be devised by the competent Algerian authorities the form the aid will take shall be determined by agreement between the two countries that will reconcile the implementation of Algeria’s economic and social policy with the need to stagger France’s financial assistance over a reasonable period.”
In a referendum of 8 April 1962 the French people approved a bill providing that “the President of the Republic may enter into all such agreements as shall be drawn up in accordance with the Government’s declarations of 19 March 1962” and “may decide on ... any statutory or regulatory measures relating to the application of the Government’s declarations of 19 March 1962”.
In a judgment of 31 January 1969 in the Moraly case, the Conseil d’État, interpreting the declarations in the same way as the Minister of Foreign Affairs had done, held that they did not contain “any provision intended to secure French residents in Algeria who alleged that their rights [had] been infringed, a right to compensation from the French State for the damage sustained”.
3. The leaflets of the High Commission of the Republic in Algeria
A leaflet entitled “The Évian Accords and the pieds noirs”, published in 1962 by the High Commission of the Republic in Algeria, stated, inter alia, as follows:
“... [After Algeria becomes independent] your landed property will be protected. For those of you who are farmers your land may only be expropriated under a repurchase scheme and in exchange for fair compensation with financing guaranteed by aid from France...
All these commitments will be honoured. You are assured of that by the cooperation that has been established between France and Algeria through the Évian Declarations...”
Another leaflet, likewise published in 1962 by the High Commission and entitled “the Évian Declarations and Rights and Guarantees for Europeans”, indicated that, as the declarations had been approved by the Algerian people, they were “binding on the Algerian State”.
4. The laws determining contributions to the scheme for repatriation from Algeria
Pursuant to the third sub-paragraph of section 4 of the Law of 26 December 1961, Law no. 70‑632 of 15 July 1970 established a national levy to provide compensation for French nationals who had been dispossessed of property situated in a territory that had previously been under French sovereignty or administration or had been a French protectorate. Section 1 of the Law provided: “This levy shall constitute an advance payment on the sums owed by the foreign states or by persons who have benefited from the dispossession”.
Law nos. 78-1 of 2 January 1978 and 87-549 of 16 July 1987 provided for the payment of additional compensation. The Law of 1978 also stipulated: “The amount of compensation shall be restricted to 1,000,000 francs per household... [and] 500,000 francs per person dispossessed”. The Law of 1987 provided for the grant of additional compensation calculated on the basis of a revaluation coefficient and limited to FRF 1,000,000 or FRF 2,000,000, depending on the circumstances.
COMPLAINTS
1. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants complained that the French Government had not respected the “the Évian Accords” or complied with the undertakings given in the leaflets published by the High Commission and had not paid them compensation in full for the property of which they had been divested by the Algerian State. They added that the Accords – which they said had been approved by referendum on 8 April 1962 – had established a right to fair compensation that could be described as a possession within the meaning of Article 1 of Protocol No. 1.
2. The applicants complained that they had been discriminated against when compared to repatriated persons whose properties had been valued at less than FRF 1,000,000, who had received compensation in full. They alleged a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1 to the Convention.
3. Under Article 6 § 1 of the Convention the applicants said: “The fact that, in accordance with a practice that is no longer followed, the court that heard the case automatically applied the provision as it had been interpreted by the minister, deprived the applicants of the right to a fair hearing by an independent court with full jurisdiction”.
THE LAW
1. The applicants complained of a violation of their right to quiet enjoyment of their possessions and referred to Article 1 of Protocol No. 1 to the Convention, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
They maintained that the French State’s obligation to guarantee payment of compensation arose from the special nature of the “Évian Accords”, which resulted from the fact that they had been approved in a general referendum. They added that the leaflets published by the High Commission of the Republic in Algeria also contained a firm undertaking by the French Government to guarantee the financing of the compensation to be paid to repatriated persons.
The Court reiterates that that Article in essence guarantees the right of property and comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest; it is contained in the second paragraph (see, among other authorities, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, § 64; and the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, § 61).
Firstly, as regards the applicants’ complaint concerning the deprivation of the properties themselves, the Court notes that they were dispossessed by the Algerian State, which is not a party to the Convention.
Consequently, the applicants’ complaint in that connection is incompatible ratione personae with the provisions of the Convention and is dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
Secondly, the Court must examine whether the “Évian Accords” signed by the French Government in 1962 and the leaflets published by the High Commission conferred on the applicants title to a substantive interest protected by Article 1. The Court points out that only “a debt sufficiently established to be enforceable” may constitute a “possession” within the meaning of the aforementioned Article (see the Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59).
The Court observes that the “Évian Accords” stipulated that no one would be deprived of their pecuniary rights without “fair compensation determined beforehand” and that “[a]s part of the agrarian reform, France shall provide Algeria with special aid for the repurchase of all or part of the property rights of French nationals”. No concrete measure was taken to implement the “Accords”. Algeria has not paid any compensation to the French nationals affected by the nationalisations and France has not given any aid for the acquisition of property rights held by French nationals.
The Court notes that the purpose of the law voted by referendum on 8 April 1962 was to permit the President of the Republic to legislate thereafter in accordance with the “Accords”. It did not, however, establish any right to compensation. Like the Conseil d’État, the Court considers that the “Accords” concerned did not confer on French nationals living in Algeria a right to compensation from the French State for damage sustained as a result of the nationalisation of their property.
The Court considers that the leaflets published by the High Commission were mere declarations of intent and did not guarantee repatriated persons a right to compensation either.
Accordingly, the Court finds that the right alleged by the applicants to compensation from the French authorities – which was not substantiated by the aforementioned “Accords” or leaflets – does not constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention, as construed by the Convention institutions. The impugned decisions could not therefore have resulted in the applicants being deprived of possessions which they owned.
It follows that this aspect of the complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicants alleged that they had been discriminated against by the provisions of the Laws of 1978 and 1987 that provided for compensation to be capped. They relied on Article 14 of the Convention taken together with the aforementioned Article 1 of Protocol No. 1.
Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court reiterates that Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law, provided that there is an objective or unreasonable justification for the difference in treatment.
Adopting the reasoning of the Administrative Court of Appeal, the Court finds that the capping provisions were objectively or reasonably justified by the need to restrict public expenditure, especially bearing in mind that compensation was being paid as a result of divestment by the action of a foreign state.
It follows that this part of the application is manifestly ill-founded and must be dismissed pursuant to the provisions of Article 35 §§ 3 and 4 of the Convention.
3. The applicants complained that the administrative courts had automatically applied the Minister of Foreign Affairs’ interpretation of the rule, as reproduced in the Moraly judgment, which meant that they had not had a fair hearing by an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention.
The relevant provisions of Article 6 § 1 are as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
The Court has not found any reference to the Minister’s interpretation in the judgments of either the Paris Administrative Court of Appeal or the Conseil d’État. The fact that those courts came to the same conclusion as that drawn by the Minister and subsequently the Conseil d’État in its Moraly judgment does not mean that they considered themselves bound by the terms of the Minister’s interpretation. Indeed, the Court notes that the applicants themselves referred to a “former” practice, which suggests that the applicants’ complaint in fact concerns a past practice of which they cannot now claim to be victims.
This part of the application is therefore manifestly ill-founded and must be dismissed pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously,
Decides to join the applications;
Declares them inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
List of the applicants
Name
of the applicant
Date of
birth
Place of
birth
Georgette Teytaud,
née Saint-Pierre
1921
Sorat (Ariège)
Marie-Louise Lambelin,
née Saint-Pierre
1920
Oran (Algeria)
Georges Raoux
1925
Oran (Algeria)
Jeanne-Marie Faure,
née Raoux
1921
Oran (Algeria)
Gabrielle Raoux,
née Traverse
1930
Saïda (Algeria)
Michel Faure
1946
Oran (Algeria)
Full & Egal Universal Law Academy