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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PARDO v. FRANCE (REVISION) - 13416/87 [1996] ECHR 26 (10 July 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/26.html
Cite as: 22 EHRR 563, [1996] ECHR 26, (1996) 22 EHRR 563
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In the case of Pardo v. France (revision of the judgment of
20 September 1993) (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 Rule 58
para. 4 of Rules of Court A (2) as a Chamber composed of the following
judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mrs E. Palm,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 26 March, 22 April and
24 June 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 25/1992/370/444. 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) (1 October 1994) 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 European Commission of Human Rights ("the Commission")
submitted to the Court under Rule 58 of Rules of Court A a request for
the revision of the judgment delivered on 20 September 1993 in the case
of Pardo v. France (Series A no. 261-B - "the original judgment"). The
request was lodged on 18 September 1995; it bore the signature of
Mr Trechsel, the President of the Commission, and was accompanied by
two documents.
2. The Chamber to be constituted to examine the admissibility of
that request included ex officio Mr L.-E. Pettiti, the elected judge
of French nationality (Article 43 of the Convention and Rule 58
para. 4 of Rules of Court A) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)). On 5 December 1995, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr F. Gölcüklü, Mr F. Matscher,
Mr A. Spielmann, Mrs E. Palm, Mr R. Pekkanen, Mr G. Mifsud Bonnici and
Mr K. Jungwiert, (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43). Subsequently, Mr L. Wildhaber, substitute
judge, replaced Mr Pekkanen, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).
3. On 26 September 1995 the Registrar communicated the request to
the Government of the French Republic ("the Government") and to the
applicant and invited them to submit any written comments within the
time-limit laid down by the President (Rule 58 para. 3), which was
fixed as 31 January 1996.
The Registrar received written comments from the applicant on
24 January 1996 and from the Government on 9 March 1996 after the
time-limit initially accorded had been extended to 15 March 1996.
On 14 June 1996 the applicant lodged observations in reply to
the Government's comments. On 24 June 1996 the Court decided not to
take cognisance of them as they had not been submitted within the
time-limit laid down.
4. In the meantime, relying on Rule 24 para. 2, on 30 January 1996
the applicant had requested the Court to declare the drawing of lots
effected on 5 December 1995 void and in the alternative challenged all
the judges appointed as a result. He had also asked that his request
be examined by the plenary Court.
5. On 26 March 1996, the Court decided to reject the applicant's
three requests. In respect of the first two, it considered that
Rule 24 para. 2 was not directed at the participation of a judge in the
examination of a case in which he had been involved at an earlier stage
in the procedure before the Court. As regards the third request, it
found that the decision whether to relinquish jurisdiction was a
discretionary one, except where the condition for compulsory
relinquishment was satisfied and that was not the case here.
The Court also decided to dispense with a hearing in the case
(Rule 58 para. 3).
THE REQUEST FOR REVISION
6. The case of Pardo v. France originated in an application
against France lodged with the Commission under Article 25 of the
Convention (art. 25) by a French national, Mr Ernest Pardo. The
applicant complained, inter alia, of a breach of his right to a fair
trial guaranteed under Article 6 para. 1 of the Convention (art. 6-1).
He claimed that, as a party in commercial litigation in the
Aix-en-Provence Court of Appeal, he had not had the opportunity to
present oral argument on the merits, despite the fact that the
President had announced that there would be a further hearing at a
later date. In its report of 1 April 1992 (Article 31) (art. 31) the
Commission expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 of the Convention (art. 6-1).
7. On 4 August 1992 the Government brought the case before the
Court, which held a hearing on 22 March 1993. Prior to that hearing
and in accordance with its usual practice, the registry had, on
16 March 1993, sent by fax to the participants in the proceedings a
provisional list of questions that the President of the Court intended
to suggest asking at the hearing. At its preparatory meeting preceding
the hearing the Chamber approved the list of questions, whose final
text, which was handed to those appearing before the Court shortly
afterwards, was as follows:
"1. The Court requests the Government to provide copies of the
registrar's notes and the record of the hearing of
9 November 1984 in the Aix-en-Provence Court of Appeal
(Government's memorial, p. 2; Commission's report, para. 33).
2. Could the applicant produce, if he possesses it, the letter
of 25 March 1985 written by Mr de Chessé, to which Mr Davin's
attestation refers (Commission's report, para. 21;
Government's memorial, p. 2)?
3. ...
4. Giving judgment on the trustee's appeal, the Court of
Appeal referred to various documents. Can the Government
verify whether documents were lodged with the Court of Appeal
by the applicant himself and, if they were, whether they were
new documents or documents which had already been communicated
to the parties (Government's memorial, p. 3)?
5. ..."
8. In the course of the hearing on 22 March 1993, the Government
produced the record of the hearing (plumitif) of 9 November 1984
(question 1; original judgment, p. 31, para. 28). The applicant was
not able to supply a copy of the letter that his lawyer, Mr de Chessé,
had sent on 25 March 1985 to Mr Davin (question 2; original judgment,
p. 26, para. 16, and p. 31, para. 28). As regards question no. 4, the
Government stated as follows at the hearing :
"Your Court [asked] us for the fourth question at the
beginning of this hearing, whether we could check on the
nature of the evidence lodged. Now unfortunately this is not
possible for two reasons linked to our procedure, civil
procedure in France. Indeed in civil matters, and this
obviously does not apply to criminal affairs, the case files
are destroyed five years after the final decision and indeed
this happened in the Pardo case. But even assuming that this
period of time had not elapsed and that we still had the case
file, there would be no documents in it because in civil
matters all documents are returned to the parties at the end
of the proceedings."
(Verbatim Record of the hearing, p. 32, second paragraph)
9. Giving judgment on 20 September 1993, the Court held that there
had been no violation of Article 6 of the Convention (art. 6). The
judgment gives the following reasoning:
"28. The Court is confronted with a dispute concerning the
exact course of the proceedings in the Aix-en-Provence Court
of Appeal and must reach its decision on the basis of the
available evidence ...
The documents produced by the applicant do not in the Court's
view provide sufficient prima facie evidence of the accuracy
of his version of events ... Mr Davin's letter sheds little
light on the course of the hearing because it merely confirms
facts described in a letter from Mr de Chessé [of
25 March 1985], a copy of which Mr Pardo was unable to produce
...
In addition, the record of the hearing, which was produced for
the first time before the Court, constitutes a significant
element in support of the opinion that judgment was indeed
reserved at the conclusion of the hearing on 9 November 1984;
in principle that ruled out the possibility of a further
hearing. Furthermore, there is nothing to show that in the
course of the sole hearing the parties confined themselves to
expanding upon their submissions concerning the stay of the
proceedings. On the contrary, the Court of Appeal's judgment
gives the impression that the trustee's lawyer presented
argument on the merits.
As regards the documents which the applicant complained he had
not been able to lodge with the Court of Appeal, it should be
noted that, as the Government pointed out, the procedure in
question was one for which the parties had compulsorily to be
represented; consequently, the communication of such documents
between the parties had to be effected before the hearing,
through the intermediary of Mr Pardo's legal representative
(avoué) and under the supervision of the judge responsible for
preparing the case. One of the grounds of the judgment
indicates, furthermore, that, contrary to the applicant's
claims, the documents in question were in fact filed in the
proceedings before the appeal court.
29. Having regard to these considerations, the Court
cannot find a violation of Article 6 (art. 6)."
10. On 27 January 1994 the applicant made a first approach to the
Commission asking it to submit to the Court a request for the revision
of the judgment. On 11 March the Commission declined to do so. It
took the view that the conditions for making such a request to the
Court were not satisfied.
11. The applicant made a further request on 8 June 1995 and this
time he was successful. On 18 September 1995 the Commission submitted
to the Court the present request for the revision of the judgment of
20 September 1993. The request for revision was expressed in the
following terms:
"The applicant submitted to the Commission a request for
revision by a letter dated 8 June 1995 [see paragraph 16
below] and posted on 20 June 1995.
The Commission noted that the Court, prior to its hearing on
22 March 1993, had asked the participants in the proceedings
to produce certain documents (questions 1. and 4.). For the
reasons given at the hearing, these requests were not complied
with. Since then the applicant has been able to obtain
certain of these documents and in particular the letter from
Mr de Chessé to Mr Davin of 25 March 1985 [see paragraph 15
below] and the list of documents contained in the appeal file
[see paragraph 14 below].
The Commission takes the view that, as the Court asked for
these documents to be produced, they might by their nature
have had a decisive influence on its judgment.
The Commission accordingly considers that the conditions for
submitting to the Court a request for the revision of the
Pardo judgment are satisfied."
The Commission's request for revision was accompanied by a copy
of the letter sent on 8 June 1995 by Mr Kleniec, Chairman of the
Aix-en-Provence Bar Association, the applicant's new lawyer, to the
Commission (see paragraph 16 below) and a document drawn up by Mr Pardo
himself and entitled "application for revision".
12. The circumstances in which the Commission submitted the request
are as follows.
13. On 20 September 1994, Mr Kleniec asked the First President of
the Aix-en-Provence Court of Appeal for permission to inspect the file.
On 27 October 1994 the First President allowed that request.
14. On 6 February 1995 the applicant gained access to his file.
The head clerk of the Court of Appeal gave him a copy of the record of
the hearing of 9 November 1984 (see paragraph 8 above) and a copy of
the list of documents in the appeal file drawn up by the clerk of court
at the time. The contents of the list which was dated 10 May 1985 were
as follows:
"List of documents
date lodged document
Re
1 "case preparation" bundle
2 first-instance file
3 notice of appeal
3 bis " "
4 notice of acting (avoué)
5 " "
6 3.1.84 appellant's submissions
7 10.2.84 appellant's submissions
8 notice of acting (avoué)
9 " "
10 12.3.84 respondents' submissions
11 14.3.84 appellant's submissions
12 " " "
13 5.9.84 respondent's submissions
15 26.10.84 order concluding preparation
16 appellants' submissions
17 15.1.85 copy of judgment [illegible
word] on the merits
18 10.5.85 the present list
Aix-en-Provence 10.5.85
Clerk of court
[Signed:] Mary"
15. On 27 February 1995 Mr Davin communicated to Mr de Chessé a
copy of their correspondence at the time, including the letter that the
latter had sent him on 25 March 1985 and that the applicant had been
unable to produce at the hearing before the Court (original judgment,
p. 26, para. 16, and p. 31, para. 28; see paragraph 8 above). Mr Davin
was replying to a request made by Mr de Chessé on 1 February 1995, who
had taken steps to find the correspondence in question and whose own
files had been damaged by flooding.
The letter from Mr de Chessé to Mr Davin of 25 March 1985 was
worded as follows:
"As you know, the Pardo family has decided to lodge an appeal
on points of law in this case, a step which I consider to be
particularly necessary in view of the conditions in which
judgment was given.
I enclose a copy of the letter I am sending my client. I
should be grateful if you would confirm that what happened is
as I described it to Mr Ernest Pardo."
Mr de Chessé's letter to which the above-mentioned letter
referred and Mr Davin's reply of 22 April 1985 had been communicated
to the Court by the Commission on 12 February 1993 (see the original
judgment, p. 24, para. 5). The judgment of 20 September 1993
summarised these documents at paragraph 16 as follows:
"... Mr de Chessé, wrote to him on 25 March 1985 certifying
that the President had stated that the case would be adjourned
either to a much later date, if the request for a stay was
granted, or to a date in the near future when it would be the
only case on the list in view of the number of documents to be
examined. According to the lawyer, the court had had before
it only his two sets of final submissions, whereas the file of
his pleadings had comprised thirteen folders 14cm thick.
Mr Davin, the counsel for one of the other directors of the
company, also implicated in the case, confirmed, in his reply
dated 22 April 1985 to a letter which Mr de Chessé had sent to
him on 25 March, a copy of which the applicant was, however,
unable to produce, that the hearing in issue had indeed
followed the course described by the applicant's lawyer in his
letter."
16. In his letter (see paragraph 11 above), which was appended to
the Commission's request for revision, Mr Kleniec wrote:
"In accordance with Rule 58 of the Rules of Court, I hereby
submit to the European Commission of Human Rights a request
for the revision of the judgment of 20 September 1993 on
account of the prejudicial consequences of that decision for
Mr Pardo and his family.
Mr Pardo requested me to discover decisive items of evidence
that were unknown to him and to the Court when the judgment
was delivered.
...
Following my intervention, the First President of the
Aix-en-Provence Court of Appeal, after ten years of difficult
negotiations, at last, on 27 October 1994, allowed Mr Pardo
access to the documents in his case file, which had in fact
been kept in the registry of the Aix-en-Provence Court of
Appeal in accordance with an instruction from the Ministry of
Justice.
Various copies bearing the signature of the chief clerk of
that court were handed over to him on 6 February 1995, in
particular:
(a) the record of the hearing (plumitif), which, it may be
noted, was not certified by the signature of the President of
the Chamber or by the secretary, in breach of Article 728,
last sub-paragraph, of the New Code of Civil Procedure;
(b) the list drawn up by the clerk present at the hearing
(Mrs Mary) mentioning, with the date on which they were filed,
all the documents that the parties had lodged for the
attention of the Chamber. This list makes no mention of the
filing of any of the 959 documents constituting Mr Pardo's
file for the case on the merits.
Although the Court requested them to produce these documents,
at the hearing on 22 March 1993 the French Government failed
to do so, informing the Court that Mr Pardo's file had been
destroyed.
The letter from the First President of the Aix-en-Provence
Court of Appeal shows this assertion to have been erroneous.
Moreover, when questioned by my colleague, Mr de Chessé, on
1 February 1995, Mr Davin was able to find all the
correspondence that he had exchanged with the former
concerning the course of the proceedings in the
Aix-en-Provence Court of Appeal at the hearing on
9 November 1984.
This correspondence is now produced in full together with
Mr Davin's letter of 27 February 1995 in which he reiterates
his statement of 22 April 1985, confirming his position in
this regard very clearly.
This evidence shows that at the hearing in the Aix-en-Provence
Court of Appeal of 9 November 1984, the only matter raised was
an application for the stay of proceedings and that the
President had clearly indicated to the lawyers present that
the case would be adjourned either to a much later date or to
a nearer date so that the merits of the case could be examined
at a hearing exclusively devoted to it in view of the length
and the number of the documents to be examined.
The European Court had asked Mr Pardo to produce this
correspondence to which it rightly attached decisive
importance.
It was impossible for Mr Pardo to comply with this request,
although it was a legitimate one, because it was only made on
15 and 16 March 1993 and he was only informed of it on 17 and
18 March 1993. Mr Pardo therefore lacked sufficient time to
comply with the request at the hearing on 22 March.
It was this that led the Court to disregard Mr Davin's
testimony and then state that that of Mr de Chessé could not
in itself suffice to establish the facts.
Mr de Chessé is no longer the only person testifying to these
events, which circumstance could produce an entirely different
outcome to the proceedings.
Furthermore it should be noted that the evidence of these two
lawyers is such as to diminish the importance of the opinion
expressed by Mrs Jassaud, senior clerk, who certified in a
letter dated 19 March 1993, which was produced unexpectedly,
that 'judgment in the case was reserved and the proceedings
were not adjourned to a subsequent hearing'.
It may be observed that:
1. Mrs Jassaud was not present at the hearing of
9 November 1984.
2. Her statement, which was not handwritten, set against the
testimony of two lawyers, must evidently be discounted.
All the foregoing, considered in the light of the various
provisions of the New Code of Civil Procedure, invalidates the
entire reasoning of the European Court's judgment and shows
that its revision is necessary.
..."
AS TO THE LAW
17. According to Rule 58 of Rules of Court A:
"1. A Party or the Commission may, in the event of the
discovery of a fact which might by its nature have a decisive
influence and which, when a judgment was delivered, was
unknown both to the Court and to that Party or the Commission,
request the Court, within a period of six months after that
Party or the Commission, as the case may be, acquired
knowledge of such fact, to revise that judgment.
2. The request shall mention the judgment of which the
revision is requested and shall contain the information
necessary to show that the conditions laid down in paragraph 1
have been complied with. It shall be accompanied by the
original or a copy of all supporting documents ...
3. ...
4. The request for revision shall be considered by a Chamber
constituted in accordance with Article 43 of the Convention
(art. 43), which shall decide whether the request is
admissible or not under paragraph 1 of this Rule. In the
affirmative, the Chamber shall refer the request to the
Chamber which gave the original judgment or, if in the
circumstances that is not reasonably possible, it shall retain
the request and examine the merits thereof.
5. ..."
18. The Government urged the Court to find that the request was
unfounded. The two documents on which it was based - the list of
documents in the appeal file and the letter of 25 March 1985 from
Mr de Chessé to Mr Davin - did not have the probative value that
Mr Pardo ascribed to them.
19. The applicant explained that he had not been able to acquire
knowledge of the documents in his file, including the list of documents
drawn up by the clerk present at the hearing, until 27 October 1994,
after ten years of difficult negotiations. He had not been able to
produce the letter of 25 March 1985 at the Court's hearing because of
the short notice of the request and because of flood damage to
Mr de Chessé's files. This new evidence was capable of establishing
the objective proof of the accuracy of his version of events and of
undermining the whole basis of the Court's reasoning in its judgment.
20. The Court recalls in the first place that the Commission based
its request on two documents to which Mr Pardo did not secure access
until after the delivery of the judgment of 20 September 1993: the
letter of 25 March 1985, which the Chamber had - in vain - asked the
applicant to produce, and the list of documents in the appeal file, a
file that the Government wrongly believed to have been destroyed (see
paragraphs 7 and 8 above). These documents, which were lodged within
the six-month time-limit laid down in Rule 58 para. 1 of Rules of
Court A, show, according to the applicant, that the version of events
put forward by him at the time was accurate. The documents were
unknown to both the Court and the Commission and may themselves be
regarded as facts for the purposes of Rule 58 para. 1.
21. Nevertheless it is also necessary that such facts "might by
[their] nature have a decisive influence". In this connection, it
should be noted that, under the terms of the second sentence of
Rule 58 para. 4, the Chamber may only determine the admissibility of
the Commission's request. It must, accordingly, confine itself to
examining whether, prima facie, the facts submitted are of the kind
referred to in Rule 58 para. 1. The task of considering whether they
actually have a "decisive influence" lies in principle with the Chamber
which gave the original judgment (Rule 58 para. 4). A decision on the
admissibility of the request therefore in no way prejudges the merits
of the request.
However, in carrying out its examination the Court must bear
in mind that, by virtue of Article 52 of the Convention (art. 52), its
judgments are final. Inasmuch as it calls into question the final
character of judgments, the possibility of revision, which is not
provided for in the Convention but was introduced by the Rules of
Court, is an exceptional procedure. That is why the admissibility of
any request for revision of a judgment of the Court under this
procedure is subject to strict scrutiny.
22. In order to establish whether the facts on which a request for
revision are based "might by [their] nature have a decisive influence",
they have to be considered in relation to the decision of the Court
whose revision is sought. It should be noted in this connection that
a request to those appearing before the Court for documents to be
produced is not in itself sufficient to warrant the conclusion that the
documents in question "might by [their] nature have a decisive
influence". Such a request for documents, which corresponds to
consistent practice, shows no more than that the Court attaches to
those documents some interest, the full extent of which it will only
be in a position to determine during its deliberations following the
hearing.
23. In the present case the Court recalls that the original Chamber
was confronted with a dispute concerning the exact course of the
proceedings in the Aix-en-Provence Court of Appeal and in particular
the hearing on 9 November 1984. Mr Pardo complained that he had not
had the opportunity to present oral argument on the merits in the Court
of Appeal despite the fact that, so he maintained, the President of
that court had announced that the hearing would be adjourned to a later
date. The Commission essentially accepted the applicant's claims,
whereas the Government contested them (see paragraph 6 above; original
judgment, p. 30, paras. 25-27). Faced with this dispute, the Chamber
considered that it had to reach its decision on the basis of the
available evidence (see paragraph 9 above; original judgment, p. 31,
para. 28). After examining various documents produced by the
participants in the proceedings - including Mr de Chessé's letter to
the applicant of 25 March 1985, Mr Davin's letter to Mr de Chessé of
22 April 1985 and the record of the hearing -, it arrived at the
conclusion that it could not find a violation of Article 6 of the
Convention (art. 6).
24. The two documents that the Commission submitted in support of
its request for revision relate to the hearing in the Aix-en-Provence
Court of Appeal. One of them, Mr de Chessé's letter of 25 March 1985
to Mr Davin, Mr Pardo had not been able to produce, a fact to which
express reference was made in the judgment of 20 September 1993 (p. 31,
para. 28). In these circumstances, the Court cannot exclude the
possibility that the documents in question "might by [their] nature
have a decisive influence". It falls to the Chamber which gave the
original judgment to determine whether these documents actually cast
doubt on the conclusions it reached in 1993.
25. The Commission's request is accordingly admissible.
FOR THESE REASONS, THE COURT
Holds by five votes to four that the request for revision is
admissible and refers the request to the Chamber which gave
the original judgment.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 10 July 1996.
For the President
Signed: Alphonse SPIELMANN
Judge
For the Registrar
Signed: Paul MAHONEY
Deputy Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Gölcüklü, Mr Pettiti, Mrs Palm and
Mr Jungwiert is annexed to this judgment.
Initialled: A.S.
Initialled: P.J.M.
JOINT DISSENTING OPINION
OF JUDGES GÖLCÜKLÜ, PETTITI, PALM AND JUNGWIERT
As the judgment of the Court points out, revision is an
exceptional procedure and the admissibility of any request for revision
of a judgment of the Court under this procedure must be subject to
strict scrutiny.
Against this background we do not think that in the
circumstances of the case the request for revision can be considered
admissible.