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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> HENTRICH v. FRANCE (ARTICLE 50) - 13616/88 [1995] ECHR 21 (3 July 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/21.html
Cite as: [1995] ECHR 21, 21 EHRR 199, (1996) 21 EHRR 199
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In the case of Hentrich v. France (1),
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 (2),
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr A.B. Baka,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 25 April and
28 June 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 23/1993/418/497. 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.
2. 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 AND FACTS
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 July 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. 13616/88) against the French Republic
lodged with the Commission under Article 25 (art. 25) by a French
national, Mrs Liliane Hentrich, on 14 December 1987.
2. In a judgment of 22 September 1994 ("the principal
judgment", Series A no. 296-A), the Court found that there had
been breaches of Article 1 of Protocol No. 1 (P1-1), as the
applicant had not been able to mount an effective challenge to
the pre-emption of her property by the Revenue, and of
Article 6 para. 1 (art. 6-1) of the Convention, for want of a
fair hearing and owing to the length of the proceedings (ibid.,
pp. 18-23, paras. 34-61, and points 2, 3 and 4 of the operative
provisions). On the other hand, it held that there had been no
breach of Article 6 para. 2 (art. 6-2) of the Convention and that
it was unnecessary to consider separately the complaints based
on Articles 13 and 14 (art. 13, art. 14) of the Convention
(ibid., pp. 23-24, paras. 62-66, and points 5 and 6 of the
operative provisions).
The Court held that its judgment constituted in itself
sufficient just satisfaction as to the alleged non-pecuniary
damage and that the respondent State was to pay the applicant,
within three months, 56,075 French francs (FRF) in respect of
costs and expenses (ibid., pp. 24-25, paras. 67-75, and
points 7 and 8 of the operative provisions).
3. As the question of the application of Article 50
(art. 50) was not ready for decision in respect of pecuniary
damage, the Court reserved it and invited the Government and the
applicant to submit in writing, within three months, their
observations on the matter and, in particular, to notify the
Court of any agreement they might reach (ibid., p. 25, para. 71,
and point 9 of the operative provisions).
4. The negotiations for an agreement proved unsuccessful and
the Registrar received a memorial on 3 January 1995 in which the
Government replied to the claims made by the applicant in the
principal proceedings (ibid., p. 24, para. 68). Mrs Hentrich
submitted her observations and proposals on 4 January. In an
order of 12 January the President requested the parties to make
further submissions. Memorials in reply were submitted by the
Agent of the Government on 11 February and by the applicant on
13 February.
5. On 9 March 1995 the Secretary to the Commission informed
the Registrar that the Delegate had no observations to make.
6. On 6 April 1995 counsel for Mrs Hentrich filed
supplementary documents and observations, which were communicated
to the Government and the Delegate of the Commission on 18 April.
On 15 June 1995 the Government submitted further
observations, which the Registrar sent to the applicant and the
Delegate of the Commission on 23 June 1995.
AS TO THE LAW
7. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a 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."
In reliance on this provision the applicant sought
compensation for pecuniary damage and reimbursement of costs and
expenses.
8. The conditions for applying Article 50 (art. 50) have
been satisfied, as the negotiations that followed the principal
judgment did not result in reparation for the breach found.
A. Pecuniary damage
9. Both in her memorial of 20 December 1993 and at the
hearing, Mrs Hentrich estimated the value of the land in issue
at FRF 1,000,000.
In her view, the value could not now be less than
FRF 2,875,550, in other words FRF 425 per square metre, the sum
she now sought. She also claimed compensation of FRF 200,000 for
loss of enjoyment. Lastly, she sought payment of interest at the
statutory rate on the two amounts in question from
22 September 1994.
10. The Government noted that in its principal judgment the
Court held that, "given the violation found of Article 1 of
Protocol No. 1 (P1-1), the best form of redress would in
principle be for the State to return the land" (Series A
no. 296-A, p. 25, para. 71). They stated, however, that the
French State could not, as its national law currently stood, take
the measure recommended by the Court. Having become part of the
private property of the State, the "pre-empted" land was subject
to the provisions of the Code of State Property and it was
impracticable to transfer it, let alone without requiring any
payment.
The Government offered to pay the applicant compensation
of FRF 130,000. They arrived at that figure by taking the
current market value of the land as lying between FRF 700,000 and
FRF 800,000 and deducting the payments made in 1981, that is to
say FRF 205,688.29, and the additional tax, that is to say
FRF 29,000. After adjustment and capitalisation of the interest,
they assessed the latter two sums at FRF 703,377.77 and
FRF 93,000 respectively.
11. In its principal judgment the Court held that, failing
return of the land in question, "the calculation of pecuniary
damage must be based on the current market value of the land"
(ibid.).
Making its assessment of the damage flowing from the loss
of the property and of the enjoyment of it on an equitable basis,
as required by Article 50 (art. 50), the Court adopts a figure
of FRF 1,000,000, from which the sums received by Mrs Hentrich
in 1981, which she did not challenge, fall to be deducted. The
Court accordingly awards her compensation of FRF 800,000 under
this head.
B. Costs and expenses
12. Mrs Hentrich also sought reimbursement of the additional
costs and fees incurred as a result of the Article 50 (art. 50)
proceedings, namely FRF 20,000. She further claimed payment of
interest at the French statutory rate from the date of delivery
of the principal judgment on the still unpaid sum of FRF 56,075
awarded in that judgment in respect of the costs and expenses
relating to the principal proceedings.
13. The Government made no submissions on any of these
points.
14. Noting that the applicant's claims have not been
disputed, the Court allows them except as regards the fixing of
interest, which is payable solely on the sum of FRF 56,075
awarded in the principal judgment and only from 22 December 1994.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that the respondent State is
to pay the applicant, within three months, 800,000 (eight
hundred thousand) French francs in respect of pecuniary
damage;
2. Holds unanimously that the respondent State is to pay the
applicant, within three months, 20,000 (twenty thousand)
francs in respect of costs and expenses relating to the
proceedings under Article 50 (art. 50);
3. Holds unanimously that the respondent State is to pay the
applicant, within three months, statutory interest from
22 December 1994 on the sum of 56,075 francs awarded in
the principal judgment;
4. Dismisses by eight votes to one the remainder of the
claim for just satisfaction.
Done in English and in French, and notified in writing on
3 July 1995 pursuant to Rule 55 para. 2, second sub-paragraph,
of Rules of Court A.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Vincent BERGER
Head of Division
in the registry of the Court
In addition to a joint declaration by Mr Ryssdal,
Mr Pettiti, Mr Valticos and Mr Baka, the dissenting opinion of
Mr Martens is annexed to this judgment (Article 51 para. 2
of the Convention and Rule 53 para. 2 of Rules of Court A)
(art. 51-2).
Initialled: R. R.
Initialled: V. B.
JOINT DECLARATION BY JUDGES RYSSDAL, PETTITI, VALTICOS AND BAKA
(Translation)
We voted against the finding that there had been a breach
of Article 1 of Protocol No. 1 (P1-1). Nevertheless, having
regard to the principal judgment, we have voted with the majority
on Article 50 (art. 50) of the Convention.
DISSENTING OPINION OF JUDGE MARTENS
To my regret I cannot agree with the majority of my
colleagues. In my opinion this is not a case where the decision
as to just satisfaction may be taken on the basis of equity
alone.
The parties were deeply divided both as to the relevant
legal principles and as to the facts. Their estimates of the
actual value of the seized land differed widely and were,
moreover, essentially unsupported by any documents.
In such circumstances the Court should not shelter behind
"equity" but rule on the legal issues and invite experts to
provide it with the data which would enable it to assess the
value of the land, if need be in equity. Deciding in equity,
like any other judicial decision, requires a clear and reliable
view of the facts.
Apart from this general consideration, the need for
consistency in the case-law should have prompted the Court to
follow the course I have just suggested. In its
Papamichalopoulos and Others v. Greece judgment of 24 June 1993
(Series A no. 260-B) the Court was faced with similar problems
of just compensation and had recourse to experts.
It would seem that the majority is of the opinion that
the present case may be distinguished from Papamichalopoulos.
They apparently distinguish it on the basis that the applicant,
both in her memorial and at the hearing concerning the merits,
estimated the current value of the land in issue at
FRF 1,000,000. That estimate was referred to in paragraph 68 of
the judgment. But in my view, this mere estimate, which is
rather casual and at any rate wholly unsupported, cannot serve
as a proper starting-point for an assessment in equity or for
distinguishing the present case from that of Papamichalopoulos.
Consequently, I have voted against the first and fourth
paragraphs of the operative provisions of the judgment. I could
not approve of assessing the value of the land at
22 September 1994 at FRF 1,000,000 since in my opinion it is
quite conceivable that the real value is either considerably
higher or considerably lower. In neither case is the Court's
starting-point just. Moreover, I cannot agree with deducting
only the nominal amount received by the applicant in 1981. Since
the Court has held that she is entitled to the value of the land
at 22 September 1994, it seems unjust towards France not to
deduct the amount received adjusted at exactly the same date.
Finally, unlike the majority, I think that the applicant is
entitled to statutory interest on the difference from
22 September 1994.