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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> BEAUMARTIN v. FRANCE - 15287/89 [1994] ECHR 40 (24 November 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/40.html
Cite as: [1994] ECHR 15287/89, [1994] ECHR 40, (1995) 19 EHRR 485, 19 EHRR 485
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In the case of Beaumartin v. France*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A**, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mr A.N. Loizou,
Mr F. Bigi,
Sir John Freeland,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
and also of Mr H. Petzold, Acting Registrar,
Having deliberated in private on 24 June and 25 October 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 35/1993/430/509. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 9 September 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 15287/89) against the French Republic lodged with the
Commission under Article 25 (art. 25) by three French nationals, Mr
Pierre Beaumartin and his two sisters, Mrs Jeanne Droin and Mrs
Paule Thibout, on 19 July 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1993, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr F. Matscher, Mr A. Spielmann, Mr S.K. Martens,
Mr A.N. Loizou, Mr F. Bigi, Sir John Freeland and Mr G. Mifsud Bonnici
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently, Mr J. Makarczyk, substitute judge, replaced Mr Martens,
who was unable to take part in the further consideration of the case
(Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicants' lawyer and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicants' and the Government's memorials
on 18 February 1994. On 10 May the Secretary to the Commission
informed the Registrar that the Delegate would submit his observations
at the hearing.
On 6 November 1993 the Commission had produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 May 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-P. Puissochet, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Ms M. Merlin-Desmartis, administrative court
judge on secondment to the Department of
Legal Affairs, Ministry of Foreign Affairs, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicants
Ms C. Waquet, avocate at the Conseil d'Etat
and the Court of Cassation, Counsel.
The Court heard addresses by Mr Puissochet, Mr Soyer and
Ms Waquet, and also replies to its questions and those of several
judges.
AS TO THE FACTS
I. The circumstances of the case
6. Mr Pierre Beaumartin, a retired industrialist of French
nationality, lives in Léognan (Gironde). His sisters, Mrs Jeanne Droin
and Mrs Paule Thibout, live respectively in Bordeaux and Paris.
A. The nationalisation
7. The applicants held between them ten shares in the Société
immobilière du Karmat El Hadj, a company under Moroccan law whose sole
asset was an agricultural estate of more than 400 hectares in the
Moroccan province of Kenitra and whose share capital comprised 6,000
shares. They further owned almost all of the share capital of the
Société foncière du Quartier de l'Europe, a non-trading company
(société civile) under French law, which itself owned 5,959 shares in
the Moroccan company in addition to a building in Paris.
8. Under a dahir (royal decree) of 2 March 1973 the Moroccan
Government nationalised agricultural land belonging to foreigners.
B. The compensation proceedings
9. On 2 August 1974, following negotiations, the Moroccan and
French Governments concluded a Protocol with a view to making provision
for the financial consequences of the nationalisation of French
citizens' assets. The following provisions are relevant to the instant
case:
Article 1
"The Moroccan Government shall pay the French Government
compensation in a single lump sum and the French Government
shall be responsible for apportioning that sum among the
beneficiaries of this Protocol.
The beneficiaries shall be natural persons of French
nationality who are individual or joint landowners or members
of partnerships or companies, or who suffered the consequences
of the dahir of 2 March 1973 in any other capacity."
Article 4
"The French Government shall be responsible for apportioning
the compensation provided for in this Protocol. ..."
Article 6
"With effect from the signature of this Protocol, each
Government undertakes, subject to the other Government's
compliance with their obligations under the Protocol, to
refrain from submitting to the other Government or to an
arbitral tribunal or a court any claims made by their
nationals in respect of the assets, rights and interests
referred to in Articles 1, 2 and 5 of this Protocol or from
supporting such claims."
A decree of 3 January 1975 promulgated the text of the
agreement and charged the Prime Minister and the Minister for Foreign
Affairs with implementing it.
10. Under a decree of 6 November 1979 a committee responsible for
apportioning the Moroccan indemnity was set up. Article 3 of the
decree provided:
"The committee shall comprise
(a) a representative of the Ministry of Foreign Affairs, who
shall chair the committee;
(b) a representative of the Ministry of Justice;
(c) a representative of the Ministry of the Interior; and
(d) a representative of the Ministry of the Economy.
The Chairman and members of the committee shall be appointed
by order of the Minister for Foreign Affairs.
...
Decisions shall be taken by a majority. The Chairman shall
have a casting vote."
11. In a decision of 23 June 1980, notified on 31 July 1980, the
committee awarded the applicants, as natural persons, compensation
solely in respect of the shares they owned directly in the Société
immobilière du Karmat El Hadj, i.e. four shares in Mr Beaumartin's case
and three shares in the case of each of his sisters. On the other
hand, pursuant to the second paragraph of Article 1 of the Protocol,
it refused to pay them compensation in their capacity as majority
shareholders of the Société foncière du Quartier de l'Europe.
C. The judicial proceedings
1. In the Paris Administrative Court
12. On 26 September 1980 the applicants challenged this decision
in the Paris Administrative Court. The grounds for their application
were set out in a memorial filed on 9 February 1981. They complained
that the committee had determined the compensation to be awarded in
respect of the Moroccan property company's agricultural estate solely
on the basis of the shares they held in that company in their own
names, without taking into consideration the shares they owned in the
French property company.
The Minister for Foreign Affairs, the respondent in the
proceedings, submitted his observations in reply on 2 April 1981.
13. In an order of 15 June 1981 the Vice-President of the
Administrative Court held that the dispute fell outside that court's
jurisdiction and forwarded the application and the file to the Conseil
d'Etat.
2. In the Conseil d'Etat
14. The Minister for Foreign Affairs filed observations on
25 February 1983.
15. On 3 October 1986 the Conseil d'Etat deferred its decision on
the application until the authority empowered to interpret the Protocol
had given its opinion. It gave the following reasons:
"The outcome of this dispute depends on whether, under this
Article [1 of the Franco-Moroccan Protocol], natural persons
are entitled to claim compensation solely as members of
partnerships or companies that were the direct owners of
assets conferring a right to compensation under the
above-mentioned Protocol or whether they are also entitled to
do so as shareholders of companies themselves members of the
partnerships or companies which owned such assets. The
outcome of the dispute is accordingly contingent on the
interpretation of the Protocol. The Protocol is an
international agreement and its meaning is unclear.
Consequently, only the Minister for Foreign Affairs is
competent to interpret it."
16. In a note of 2 July 1987 the Minister replied that the Protocol
in question "was not ... intended to cover natural persons holding
shares in companies which themselves were members of the partnerships
or companies that owned the assets conferring a right to compensation",
with the result that the applicants were not entitled to compensation
under the Protocol.
17. On 13 October 1987 the applicants filed further submissions,
in which they argued that, if the Conseil d'Etat considered itself
bound by the minister's interpretation, such a decision would entail
a violation of Article 6 para. 1 (art. 6-1) of the Convention.
The respondent filed submissions on 10 November 1988.
18. In a judgment of 27 January 1989 the Conseil d'Etat dismissed
the application on the following ground: "The interpretation given by
the Minister for Foreign Affairs is binding on the Conseil d'Etat which
can only draw the legal conclusions which follow from it."
II. The French case-law relating to the interpretation of
international treaties
A. The Conseil d'Etat's position
1. The case-law applied to the instant case
19. Since 1823 (see the Veuve Murat, Comtesse de Lipona, judgment
of 23 July 1823, Recueil des arrêts du Conseil d'Etat [Reports of the
judgments of the Conseil d'Etat], p. 545) the Conseil d'Etat had held
that the interpretation of international treaties fell outside the
scope of its judicial functions. When confronted with provisions that
it considered insufficiently clear - except for Community legislation,
the interpretation of which is governed by Article 177 of the Treaty
of Rome - it relied on the official interpretation given by the
Minister for Foreign Affairs. It deemed that interpretation to be a
prerogative act that could not be dissociated from international
relations, had binding force and was not open to challenge in the
courts (see the full court's judgment of 3 July 1931 in the case of
Karl and Toto Samé, Recueil des arrêts du Conseil d'Etat, p. 722, Sirey
1932, III, p. 129).
2. The subsequent case-law
20. On 29 June 1990 the Conseil d'Etat, sitting as a full court and
endorsing the submissions of the Commissaire du gouvernement,
Mr Ronny Abraham, delivered a judgment relating to the conditions of
circulation, residence and employment of Algerian nationals and their
families in France (G.I.S.T.I. judgment, Recueil des arrêts du Conseil
d'Etat, p. 171; Actualité juridique. Droit administratif 1990, p. 621;
Revue générale de droit international public 1990, p. 879; Revue
française de droit administratif 1990, p. 923, with a note by
Mr Jean-François Lachaume; Revue critique de droit international public
1991, p. 61). It discontinued the practice - which had no equivalent
in the other member States of the Council of Europe - of referring a
preliminary question to the minister on the construction of an
international treaty containing ambiguous or unclear provisions. It
now interprets international agreements itself and, if it seeks the
opinion of the executive, it does not regard itself as bound thereby.
B. The Court of Cassation's position
21. Since a judgment of 24 June 1839 (Dalloz 1839, part one,
p. 257), the Civil Divisions of the Court of Cassation have held that
the ordinary courts are entitled to interpret clauses of a treaty
"provided that they do not raise issues liable to jeopardise good
international relations" (l'ordre public international). Otherwise,
if an instrument is unclear they still require the question to be
referred to the Minister for Foreign Affairs (judgment of 7 June 1989,
First Civil Division, Juris-classeur périodique 1990, part two,
no. 21448).
In the Criminal Division the principle of a lack of
jurisdiction entailing an obligation to seek a preliminary
interpretation continues to apply. With the exception of the European
Convention on Human Rights, "international treaties are measures taken
by the highest administrative authorities which can only be
interpreted, if necessary, by the authorities which concluded them"
(judgment of 3 June 1985, Bulletin des arrêts de la Cour de cassation
[Court of Cassation law reports], no. 212, p. 542). The official
interpretation is of general application and is binding on the courts
(judgment of 7 June 1988, Bulletin des arrêts de la Cour de cassation,
no. 257, p. 683).
On the other hand, the Social Division recently abandoned the
approach of distinguishing between international treaties and now
interprets them without seeking to establish whether issues liable to
jeopardise good international relations are raised (Caisse autonome
mutuelle de retraite des agents des chemins de fer judgment of 29 April
1993 and submissions filed by the Advocate-General, Mr Chauvy, Gazette
du Palais, 11-12 March 1994, p. 13).
PROCEEDINGS BEFORE THE COMMISSION
22. Mr Beaumartin and his sisters lodged their application with the
Commission on 19 July 1989. Relying on Article 6 (art. 6) of the
Convention, they alleged that their case had not been heard within a
reasonable time by the administrative courts and that they had not been
given a fair hearing by the Conseil d'Etat since that court held itself
to be bound by the opinion of the Minister for Foreign Affairs.
23. The Commission declared the application (no. 15287/89)
admissible on 10 January 1992. In its report of 29 June 1993
(Article 31) (art. 31), the Commission expressed the opinion that there
had been a violation of Article 6 para. 1 (art. 6-1) in respect of the
applicants' two complaints (by ten votes to five). The full text of
the Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 296-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT
24. In their memorial the Government requested the Court to
"dismiss the application on the following grounds:
1. principally, that the provisions of Article 6 (art. 6) of
the Convention ... are inapplicable to the dispute;
2. alternatively, that France has not infringed the rules of
a fair hearing laid down by those provisions".
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
25. The applicants complained of the length of the proceedings they
had brought in the administrative courts and the unfairness of those
conducted in the Conseil d'Etat. They relied on Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair ... hearing within a
reasonable time by an independent ... tribunal ..."
A. Applicability of Article 6 (art. 6)
26. The applicants and the Commission agreed that Article 6
(art. 6) was applicable in the instant case.
27. The Government took the opposite view. Referring in particular
to Mr Danelius's dissenting opinion annexed to that of the Commission,
they contended by way of primary submission - and this argument was
adduced for the first time before the Court - that the Franco-Moroccan
Protocol was an international agreement giving rise to rights and
obligations for the two Governments, which did not confer an individual
right to compensation on the persons concerned; it was the measures
subsequently taken by the French authorities that established such a
right. The Protocol merely provided a general definition of the
beneficiaries and contained no specific rule on apportionment of the
compensation.
In the alternative, they argued, as they had done before the
Commission, that the entitlements claimed, which were derived from an
international agreement freely negotiated by France in carrying out its
role of affording diplomatic protection to its nationals, were not
civil rights at all. They added that the subject-matter of the
"contestation" (dispute) did not have any direct link with the
deprivation of property suffered by the applicants, responsibility for
which measure lay with another State.
28. The Court is not persuaded by the Government's argument. The
negotiations entered into by the French Government, in the exercise of
their sovereign prerogative, with a view to obtaining reparation from
Morocco for damage sustained by French nationals whose property had
been expropriated undoubtedly fell within the scope of the State's role
of affording diplomatic protection. The first paragraph of Article 1
of the Protocol provided: "The Moroccan Government shall pay the French
Government compensation in a single lump sum and the French Government
shall be responsible for apportioning that sum among the beneficiaries
of this Protocol" (see paragraph 9 above). The Protocol therefore
already proclaimed the principle of the right to compensation of
certain categories of expropriated persons, even though it was for the
French authorities to determine, through a compensation committee set
up by decree, how the compensation was to be apportioned.
In undertaking to assume responsibility for apportionment of
the lump sum, the French Government at the same time waived their right
to submit any claims by French nationals to the Moroccan Government or
to support such claims (Article 6 of the Protocol - see paragraph 9
above). French nationals could, pursuant to the decree of
6 November 1979 (see paragraph 10 above), assert a right to a share of
the compensation received by France before the administrative committee
set up for this purpose.
The entitlement to compensation thus established in favour of
the applicants, among other persons, was unquestionably a pecuniary
right and consequently a civil one, notwithstanding the origin of the
dispute and the fact that the administrative courts had jurisdiction
(see, mutatis mutandis, the Neves e Silva v. Portugal judgment of
27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions
Périscope v. France judgment of 26 March 1992, Series A no. 234-B,
p. 66, para. 40).
The dispute brought before the administrative courts originated
in an expropriation measure and related to the principle and/or
the extent of reparation. It thus directly affected the applicants'
property right, which was a civil right; the outcome of the dispute,
which depended on the interpretation of the treaty, was directly
decisive for a right of that nature.
Article 6 para. 1 (art. 6-1) is accordingly applicable.
B. Compliance with Article 6 (art. 6)
1. The length of the proceedings
29. Mr Beaumartin and his sisters claimed that, particularly in the
Conseil d'Etat, their case had not been heard within a reasonable time.
The Government disputed this assertion, whereas the Commission
endorsed it.
30. The period to be taken into consideration began on
26 September 1980, when the application was filed in the Paris
Administrative Court. It ended on 27 January 1989, on which date the
Conseil d'Etat delivered its judgment dismissing the appeal. It
therefore lasted eight years and four months.
31. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
32. According to the Government, the applicants contributed to
delaying the case by initially instituting proceedings in a court that
lacked jurisdiction. The case was furthermore a particularly complex
one because it raised a difficult question of interpretation. Finally,
the Conseil d'Etat could not, without breaching the principle of
adversarial proceedings, set down the case for hearing until the
applicants had filed their observations in reply to the Minister for
Foreign Affairs' note interpreting the Protocol and the State, as the
respondent in the proceedings, had filed its own submissions in reply.
33. Like the Commission, the Court accepts that the applicants
prolonged the proceedings by almost nine months by erroneously bringing
proceedings in the Paris Administrative Court. They also contributed
to the length of the proceedings by not filing their pleadings until
four months after lodging their appeal. The case was, moreover, a
difficult one because of the wording of Article 1 of the
Franco-Moroccan Protocol and the procedure followed to obtain an
official interpretation.
The Court notes, however, that there were long periods during
which the proceedings in the Conseil d'Etat stagnated, for which no
explanations have been forthcoming. The respondent ministry waited
twenty months after the commencement of proceedings before filing
pleadings (see paragraph 14 above) and the court dealing with the case
took over five years to hold its first hearing (see paragraph 15
above). It follows that the Court cannot regard as "reasonable" in
this instance a lapse of time of more than eight years.
There has therefore been a violation of Article 6 para. 1
(art. 6-1) in this respect.
2. The fairness of the proceedings
34. The applicants maintained that the proceedings in the Conseil
d'Etat had not been fair. In so far as it had referred to their
opponent - the Minister for Foreign Affairs - for an interpretation of
the applicable law, the Conseil d'Etat had abdicated its judicial
duties.
35. The Commission took the view that such an interference with the
Conseil d'Etat's powers by a representative of the executive, who was
moreover a party to the proceedings, was incompatible with the
principle of the independence of the courts laid down in Article 6
para. 1 (art. 6-1).
36. The Court considers that the minister in question did not have
the status which the Commission and the applicants attributed to him.
The application to have the administrative decision set aside was filed
against the State, represented by the competent authority, the Minister
for Foreign Affairs, who had played no role in determining the amount
of the compensation. The Court will therefore examine the complaint
from the point of view of the independence of the tribunal and not from
that of the principle of equality of arms.
37. The Government acknowledged that the practice of referring
provisions for interpretation no longer had any real equivalent in the
other member States of the Council of Europe and that the Conseil
d'Etat had now discontinued it. They pointed out nevertheless that the
practice had been a longstanding one, to which recourse had been had
very rarely owing to the liberal application of the "acte clair"
doctrine. They also drew attention to the advantages of such a
practice. There were advantages from the legal point of view since it
ensured that international agreements were interpreted consistently,
which was a guarantee of legal certainty and of equality of treatment
for litigants. There were also technical advantages as the minister
was the best placed authority to inform the courts of the Contracting
Parties' mutual intention. Lastly, the Government considered this
practice quite simply to reflect an institutional balance of powers,
in particular between the judiciary, the executive and the legislature.
Relying on the Delcourt v. Belgium judgment (17 January 1970,
Series A no. 11), it requested the Court to look beyond appearances and
contended that in the instant case the reference of the preliminary
question to the minister had not violated the principle of equality of
arms. On being consulted by the Conseil d'Etat, he had himself sought
the opinion of the French negotiator of the treaty with the result that
the interpretation he gave had been completely objective and unbiased.
38. The Court does not subscribe to the Government's view. It
points out that the practice under consideration meant that, when the
administrative court encountered serious difficulties in interpreting
an international treaty, it was obliged to request the Minister for
Foreign Affairs to clarify the meaning of the impugned provision and
it then had to abide by his interpretation in all circumstances. The
Government conceded this.
The Court takes note of the recent change in French law in this
respect. At least where the administrative courts are concerned, the
power to interpret treaties is no longer vested exclusively in the
Minister for Foreign Affairs (see paragraph 20 above).
It observes, however, that in the instant case the Conseil
d'Etat referred to a representative of the executive for a solution to
the legal problem before it. It dismissed the application filed by
Mr Beaumartin and his sisters because the minister had confirmed the
interpretation adopted by the compensation committee. The Court points
out, in addition, that the minister's involvement, which was decisive
for the outcome of the legal proceedings, was not open to challenge by
the applicants, who had moreover not been afforded any possibility of
giving their opinion on the use of the referral procedure and the
wording of the question.
Only an institution that has full jurisdiction and satisfies
a number of requirements, such as independence of the executive and
also of the parties, merits the designation "tribunal" within the
meaning of Article 6 para. 1 (art. 6-1) (see, inter alia, the Ringeisen
v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, para. 95;
the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June
1981, Series A no. 43, p. 24, para. 55; and the Belilos v. Switzerland
judgment of 29 April 1988, Series A no. 132, p. 29, para. 64). The
Conseil d'Etat did not meet these requirements in the instant case.
39. In sum, the applicants' case was not heard by an independent
tribunal with full jurisdiction. There has accordingly been a
violation of Article 6 para. 1 (art. 6-1) in this respect also.
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
40. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
41. The applicants requested the Court to award them 120,000 French
francs (FRF) for the length of the proceedings and FRF 200,000 on
account of their unfairness. As to the latter claim, they alleged that
they had lost all opportunity of having their case tried or of
obtaining an interpretation of the Protocol that would be favourable
to them.
42. In the Government's opinion, although the excessive length of
the proceedings could justify compensation within a limit of
FRF 30,000, a finding of a violation would constitute sufficient
reparation for the non-pecuniary damage resulting from any infringement
of the rules on fair trial.
43. Without expressing his view on the sums claimed, the Delegate
of the Commission observed that there had been a loss of opportunity.
44. The Court cannot speculate as to the conclusions which the
Conseil d'Etat would have reached if it had not sought the minister's
interpretation of the Protocol. It considers, however, that the
applicants must have suffered non-pecuniary damage, for which the
findings of violations in this judgment do not constitute sufficient
reparation. Taking its decision on an equitable basis, as required by
Article 50 (art. 50), it awards them FRF 100,000 under this head.
B. Costs and expenses
45. The applicants also claimed reimbursement of FRF 80,000 in
respect of the costs and expenses incurred before the Conseil d'Etat
(FRF 10,000) and before the Convention institutions (FRF 70,000).
The Government left this matter to the Court's discretion.
The Delegate of the Commission expressed no opinion.
46. On the basis of the criteria it applies in this field, the
Court awards the applicants FRF 80,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that Article 6 para. 1 (art. 6-1) of the Convention is
applicable in the instant case;
2. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) on account of the length of the proceedings;
3. Holds that there has been a breach of Article 6 para. 1
(art. 6-1) in that the applicants' case was not heard by an
independent "tribunal" having full jurisdiction;
4. Holds that the respondent State is to pay the applicants,
within three months, 100,000 (one hundred thousand) French
francs for non-pecuniary damage and 80,000 (eighty thousand)
francs for costs and expenses;
5. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 24 November 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar