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You are here: BAILII >> Databases >> European Court of Human Rights >> GUILLEMIN v. FRANCE - 19632/92 [1997] ECHR 5 (21 February 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/5.html
Cite as: [1998] HRCD 849, (1998) 25 EHRR 435, [1997] ECHR 5
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In the case of Guillemin 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. Matscher,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr A.N. Loizou,
Mr M.A. Lopes Rocha,
Mr B. Repik,
Mr P. Kuris,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 27 September 1996 and
22 January 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 105/1995/611/699. 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 case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 8 December 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 19632/92) against the French lodged with the Commission under
Article 25 (art. 25) by a French national, Mrs Adrienne Guillemin, on
28 November 1991.
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 application 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 of the Convention (art. 6-1) and
Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that she wished
to take part in the proceedings and designated the lawyer who would
represent her (Rule 30). Having originally been designated by the
initials A.G., the applicant subsequently agreed to the disclosure of
her identity.
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. 4 (b)). On 8 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. De Meyer, Mr S.K. Martens, Mr F. Bigi,
Mr M.A. Lopes Rocha, Mr B. Repik, Mr P. Kuris and Mr E. Levits
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr F. Matscher and Mr A.N. Loizou, substitute judges,
replaced Mr Bigi, who had died, and Mr Martens, who had resigned before
the hearing (Rules 2 para. 3, 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
French Government ("the Government"), the applicant's 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 Government's memorial on 29 May 1996 and the
applicant's memorial on 3 June 1996.
On 30 August 1996 the Commission 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
25 September 1996. The Court had held a preparatory meeting
beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-F. Dobelle, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Ms C. Marchi-Uhel, magistrat, on secondment to the
Legal Affairs Department, Ministry of Foreign Affairs,
Mr E. Sévère-Jolivet, magistrat, on secondment to the
Human Rights Office, European and International
Affairs Department, Ministry of Justice, Counsel;
(b) for the Commission
Mr F. Martínez, Delegate;
(c) for the applicant
Mr M. Meyer, of the Strasbourg Bar, Counsel.
The Court heard addresses by Mr Martínez, Mr Meyer and
Mr Dobelle and also replies to questions put by one of its members.
AS TO THE FACTS
I. Circumstances of the case
6. In a decision of 7 October 1982 the Prefect of the
département of Essonne made a declaration that it was in the public
interest to acquire by compulsory purchase land needed for the
development of a residential area in the town of Saint-Michel-sur-Orge,
known as the Fontaine de l'Orme project. The land included a plot
belonging to the applicant on which stood a building used as a
secondary residence by a member of her family.
A. The expropriation proceedings
7. On 10 September 1982 the mayor of Saint-Michel-sur-Orge had
applied to the Essonne expropriations judge, who on 6 December 1982
made an expropriation order transferring the applicant's land to the
municipality and setting the amount of compensation to be paid to her.
On 28 March 1983 the applicant appealed against the order.
8. On 28 July 1983 the Evry New Town Development Corporation
(EPEVRY), which was responsible for carrying out the scheme, informed
Mrs Guillemin that she should have vacated the land by 14 July 1983.
In the same month the town council demolished the fence, the buildings,
the infrastructure for the supply of services, the vegetable garden and
the orchard on the land.
9. On 14 October 1983, on the appeal by the expropriated
applicant, the Expropriations Division of the Paris Court of Appeal
increased the amount of the expropriation compensation to
221,858 French francs (FRF), which is currently held in deposit at the
Bank for Official Deposits (Essonne Treasury).
B. Setting aside of the public-interest declaration
10. On 19 November 1982 Mrs Guillemin had brought proceedings in
the Versailles Administrative Court. On 24 October 1985 the court set
aside the public-interest declaration on the grounds that it was
ultra vires. It held that the declaration should have been made in a
decree after consultation of the Conseil d'Etat and not in a
prefectoral decision (see paragraph 23 below). The inspector appointed
to conduct the inquiry prior to the declaration in question had
recommended that the scheme should not include existing houses that had
sufficient land to make a garden for family use, as was the case with
the applicant's property.
11. The town council appealed on 26 December 1985 and lodged a
pleading on 28 April 1986.
In a judgment of 13 March 1989 the Conseil d'Etat upheld the
Administrative Court's judgment. It refused Mrs Guillemin's
application for formal note to be taken that the town council had
automatically abandoned the proceedings as it had failed to file a
supplementary pleading in time, and also refused her claim for
compensation, which had been submitted for the first time on appeal.
C. Setting aside of the expropriation measures
12. The applicant lodged two appeals on points of law with the
Court of Cassation, the first against the expropriation order of
6 December 1982 and the second against the judgment of the
Paris Court of Appeal of 14 October 1983.
In two judgments of 4 January 1990 the Court of Cassation
(Third Civil Division) set aside the expropriation order providing for
the transfer of ownership and "in consequence" set aside the judgment
of the Paris Court of Appeal, which had ruled on the
expropriation compensation. These judgments were served on the
town council on 22 May 1990.
D. The applications for compensation
1. The application to the expropriating town council
13. On 20 June 1990 Mrs Guillemin applied unsuccessfully to the
town council, seeking either restoration of her rights or compensation
in the amount of FRF 4,194,655.65.
2. In the courts
14. On 10 November and 17 December 1990 Mrs Guillemin applied to
Evry State Counsel. On 11 March 1991 he decided to take no action.
15. On 23 December 1991 the applicant challenged the town council's
implied decision to refuse her application in the
Versailles Administrative Court. Her claim for restoration of her
rights was accompanied by an application for compensation for
non-pecuniary damage and loss of enjoyment of her property, which she
assessed at FRF 1,971,795.
16. On 13 January 1992 she brought proceedings in the
Evry tribunal de grande instance against the mayor of
Saint-Michel-sur-Orge and EPEVRY, seeking an order for demolition of
the buildings erected on her land by the town council, with periodic
penalties in the event of failure to comply, and damages.
In joint submissions the defendants argued that it was not
possible to return the property. It had been sold to EPEVRY with a
view to a housing development and the individual building plots had in
turn been sold to various different purchasers and had now been built
on and were occupied.
17. On 1 February 1993 the Evry tribunal de grande instance
deferred judgment until the Versailles Administrative Court ruled and
listed the case for the hearing that was to be held on 10 June 1993 by
the judge in charge of preparing the case for trial.
18. The Administrative Court held a hearing on 10 May 1994 and gave
judgment on 24 May 1994.
It held that the claim for return of the land was inadmissible
on the ground that "it [was] not for the administrative courts to issue
orders to the authorities" and ruled as follows on the claim for
compensation:
"It is clear from the preparation of the case for trial that
the expropriation ... in the public interest [on]
7 October 1982 was carried out unlawfully. The dispossession
of [Mrs Guillemin] was accordingly an illegal expropriation of
private property. It is for the ordinary courts alone, which
protect private property, to deal with [her] claim for
compensation for the loss [she allegedly] sustained as a result
of the dispossession or of any direct consequences of it."
19. In the meantime, on 3 March 1994, Mrs Guillemin's application
had been struck off the list of the Evry tribunal de grande instance.
It was entered in the list again on 25 November 1994. On
5 January 1995 the applicant filed fresh submissions seeking
compensation.
20. In a judgment of 23 October 1995 the
Evry tribunal de grande instance noted that Mrs Guillemin had
implicitly abandoned her application for the buildings on her land to
be demolished and held that she was entitled to compensation from the
expropriating town council. It deferred judgment on the compensation
claim, ordered an expert report on the value of the expropriated plot
of land as at December 1982 and on the loss arising from her being
deprived of her land and the price of it since then, and ruled that the
town council should pay an advance on the costs of the expert report.
21. The expert received the file on 27 November 1995. He summoned
the parties to an inspection of the site on 12 March 1996 and filed his
report on 29 July 1996. He assessed the total value at FRF 1,602,805,
which he broke down as follows: FRF 462,139 for the value of the
property, covering the sum needed to purchase a similar property,
FRF 746,338 for the interest on the principal sum from 14 July 1983 to
30 September 1996 and FRF 394,328 compensation for loss of the
enjoyment of the property over the same period. For this last item he
adopted a rate of return of 6.50% on the value of the property,
excluding the sum needed to purchase a similar property.
22. The proceedings are at present pending in the
Evry tribunal de grande instance.
II. Relevant domestic law and practice
A. Stages of the expropriation procedure
23. Expropriation proceedings in the public interest comprise
two separate stages.
The first stage is administrative. It begins with a
preliminary inquiry - opened by a prefectoral decision - to gather
information on the grounds for the expropriation. The inspector
appointed to conduct the inquiry has one month from the date on which
it ends to consider observations from the public, to draw up his
findings and then to forward the file to the administrative authority.
If his opinion is unfavourable, or is favourable subject to conditions
that the expropriating authority is not minded to satisfy, the
public-interest declaration must be made in a decree adopted after
consultation of the Conseil d'Etat rather than in a prefectoral
decision. This declaration establishes that the scheme is in the
public interest. The expropriation liability order subsequently made
by the Prefect identifies the property to be expropriated and ends the
administrative stage of the expropriation.
The next step in the procedure is for the expropriating
authority to forward the expropriation liability order, within
six months of its publication, to the judicial authority for
expropriation matters, a judge of the ordinary court, failing which it
will lapse.
24. The second stage takes place before the expropriations judge.
He alone has the power to order expropriation and assess compensation.
He does not, however, have competence to assess the lawfulness of the
steps taken by the administrative authority. On receipt of the
expropriation liability order that has been forwarded to him, he will
issue an expropriation order transferring ownership to the
expropriating authority and depriving the former owner of the right to
dispose of his property. The former owner, however, retains the use
of it as a provisional occupier until compensation for the loss of
possession is paid or, in the event of a dispute, deposited.
The proceedings for issuing the expropriation order are
separate from those leading to the judicial assessment of the
expropriation compensation; they are generally conducted entirely by
the expropriating administrative authority. This second set of
proceedings may commence as soon as the prefectoral decision to open
the public inquiry has been taken.
The calculation of the expropriation compensation takes into
account the value of the expropriated property, all the costs
necessarily incurred in purchasing a replacement and, as subsidiary
compensation, the depreciation in value of the remaining property where
only part of it has been expropriated. The compensation amount may
always be fixed by agreement, even after the expropriation order has
been issued.
B. Appeals
1. To the administrative courts
25. Anyone affected by an expropriation that enables a scheme in
the public interest to be carried out may challenge the validity of the
public-interest declaration in the administrative court within
two months of its publication. Appeals against expropriation liability
orders must be brought within the same time. As a prefectoral decision
to open a public-interest inquiry is seen as a purely preliminary
measure, its lawfulness may only be challenged in conjunction with one
of those two remedies. Any application on the merits may be
accompanied by an application for a stay of execution, but appeals to
the administrative courts do not in any event have a suspensive effect
and do not prevent the expropriation proceedings continuing in the
ordinary courts.
2. To the ordinary courts
26. The only means of challenging an expropriation order is by
lodging an appeal on points of law within two weeks of the order being
served. An appeal against a judgment in which compensation has been
assessed may be brought within two weeks of the decision being served
and any appeal on points of law must then be brought within two months
of the Court of Appeal's judgment being served. These appeals do not
have a suspensive effect and do not prevent possession being taken of
the expropriated property.
Lastly, if the compensation has not been either paid or
deposited by the expropriating authority within a year of the decision
whereby it was assessed, the person expropriated may seek review of it
by the expropriations judge.
C. The consequences of the setting aside of an administrative act
27. Once a public-interest declaration has been set aside, there
is no legal basis for the expropriation order. If, however, the
declaration is set aside after the order has become final, the
expropriation cannot be legally challenged. It is accepted that a
further public inquiry may be held to rectify the situation. In any
event, the adage "public buildings that have been erected unlawfully
are not demolished" applies.
PROCEEDINGS BEFORE THE COMMISSION
28. Mrs Guillemin lodged an application with the Commission on
28 November 1991. Relying on Articles 6 para. 1 and 8 of the
Convention (art. 6-1, art. 8) and Article 1 of Protocol No. 1 (P1-1),
she complained of the length of the proceedings to challenge the
expropriation, the subsequent failure to enforce the judicial decisions
in her favour, the loss of her property and the late notice given that
she had to vacate the land.
29. On 12 October 1994 the Commission (Second Chamber) declared the
application (no. 19632/92) admissible as to the complaints under
Article 6 para. 1 of the Convention (art. 6-1) and Article 1 of
Protocol No. 1 (P1-1) and declared the remainder of the application
inadmissible. In its report of 18 October 1995 (Article 31) (art. 31),
it expressed the unanimous opinion that there had been a violation of
Article 6 para. 1 of the Convention (art. 6-1) and of Article 1 of
Protocol No. 1 (P1-1). The full text of the Commission's opinion is
reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1997-I),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
30. In their memorial the Government asked the Court to:
"Find that the applicant cannot claim to be a victim and has
in any event not exhausted domestic remedies as regards the
complaint of a violation of Article 1 of Protocol No. 1 (P1-1).
Hold that the two complaints of a violation of Article 1 of
Protocol No. 1 (P1-1) and Article 6 para. 1 of the Convention
(art. 6-1) are ill-founded."
31. The applicant asked the Court to "hold that there has been a
violation of Article 1 of Protocol No. 1 (P1-1) and Article 6 para. 1
of the Convention (art. 6-1)".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
32. Mrs Guillemin complained of the length of the entirety of the
proceedings she had had to institute on account of the unlawful
expropriation of her property. She alleged a violation of Article 6
para. 1 of the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
33. The Government disputed that submission, whereas the Commission
accepted it.
A. Period to be taken into consideration
34. The Court observes that the decision whereby the Prefect
declared the acquisition of land including the applicant's to be in the
public interest was taken on 7 October 1982. On 19 November 1982
Mrs Guillemin applied to the administrative court to have that decision
set aside. In civil cases the "reasonable time" for the purposes of
Article 6 para. 1 (art. 6-1) usually begins to run when the application
is made to the court. In the present case the period to be taken into
consideration began on 19 November 1982 at the latest.
35. As to the end of the proceedings, the Government maintained
that the compensation proceedings, which were instituted by
Mrs Guillemin after she had lodged her application with the Commission
(see paragraphs 15 and 16 above), should fall outside the scope of the
Court's consideration of the case. The total length of the proceedings
was therefore eight years and two months.
36. Like the Commission, the Court does not accept this argument.
It has consistently held in relation to the application of Article 6
para. 1 (art. 6-1) that the period whose reasonableness falls to be
reviewed takes in the entirety of the proceedings, right up to the
decision which disposes of the dispute ("contestation")
(see, mutatis mutandis, the Guincho v. Portugal judgment of
10 July 1984, Series A no. 81, p. 13, para. 29, and the
Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A
no. 117, p. 62, para. 65). In the instant case, resolving the dispute,
which could have been amicably settled, entailed bringing two sets of
proceedings: the first in the administrative courts, which alone have
jurisdiction to assess whether the public interest of an expropriation
is lawful, and the second, conducted in both the administrative and the
ordinary courts simultaneously, to secure compensation for the
applicant for the illegal expropriation of her property by the
public authorities. The latter proceedings are still pending. The
length of time to be considered accordingly exceeds fourteen years
already (19 November 1982 - 22 January 1997).
37. Such a lapse of time would at first sight seem unreasonable and
therefore calls for close examination under Article 6 para. 1
(art. 6-1) (see the Guincho judgment cited above, p. 14, para. 30).
B. Reasonableness of the length of the proceedings
38. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case,
which here call for an overall assessment, and having regard to the
criteria laid down in the Court's case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities (see, as the most recent authority, the
Katikaridis and Others v. Greece judgment of 15 November 1996, Reports
of Judgments and Decisions 1996-V, p. 1687, para. 41).
39. The applicant pointed out that while the expropriation of her
property had been carried out swiftly, she had still not managed to
obtain compensation in the domestic courts for her loss, even though
those courts had held that the expropriation had been unlawful and that
she was in principle entitled to compensation. She complained of the
organisational complexity of expropriation law and in particular of the
lack of any effective means of securing fair and swift compensation
where an expropriation had been held to be unlawful in its entirety but
restoration of the status quo ante was no longer possible.
40. The Commission considered that most of the delays it had noted
in the proceedings were attributable to the State.
41. The Government relied on the inherent complexity of
expropriation proceedings. It was first necessary to have the
public-interest declaration set aside by the administrative courts
before seeking to have the expropriation order set aside by the
ordinary courts. Only once the courts of both sets had given a
final decision could compensation be sought in the ordinary courts for
the loss arising from the illegal expropriation. They also said that
the applicant could not hold the national authorities responsible for
the delay in the proceedings pertaining to the application for
compensation which she had erroneously made to the
administrative court.
42. The Court recognises that expropriation proceedings are
relatively complex, in particular in that they come under the
jurisdiction of both sets of courts - the administrative courts in
respect of the lawfulness of expropriation measures and the
ordinary courts in respect of the transfer of the property in question,
the assessing of compensation and, in general, interferences with
private property. Furthermore, as in the present case, an
administrative court may have to rule on the lawfulness of the initial
stage of the proceedings at the same time as an ordinary court has to
deal with the consequences of an expropriation order whose lawfulness
has been challenged in the other court. Such a situation may give rise
to conflicting decisions, and this is a risk which prompt consideration
of claims might help to diminish. The Court notes that the division
of jurisdiction between the courts was not obvious to the
Evry tribunal de grande instance; on 1 February 1993 it deferred
judgment until the Versailles Administrative Court, to which a
compensation claim had likewise been made but which theoretically had
no jurisdiction in the matter, ruled on 24 May 1994 (see paragraphs 16
and 17 above). The applicant consequently cannot be criticised for not
bringing her action for compensation before the right court.
43. Like the Commission, the Court notes that, in addition to the
delays due to organisational difficulties (see paragraph 42 above),
Mrs Guillemin cannot be held responsible for other delays either. The
proceedings to challenge the lawfulness of the
public-interest declaration continued for nearly three years in the
Versailles Administrative Court (see paragraph 10 above) and then
three years and nearly three months in the Conseil d'Etat
(see paragraph 11 above), and the expropriating town council of
Saint-Michel-sur-Orge was late in filing its pleadings (ibid.). Once
the expropriation measures had been set aside, the town council did not
respond to the applicant's claims, and this further delayed the end of
the proceedings (see paragraph 13 above). Lastly, the compensation
proceedings which were instituted in the
Evry tribunal de grande instance on 13 January 1992 and entered in the
court's list again on 25 November 1994, two years and eleven months
later, are still pending (see paragraphs 16 and 19-22 above); moreover,
an appeal will lie against the judgment to be delivered.
44. Like the Commission, the Court considers that the total delay
noted above already exceeds what could be regarded as "reasonable"
within the meaning of Article 6 para. 1 of the Convention (art. 6-1).
45. There has accordingly been a violation of that provision
(art. 6-1).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
46. Mrs Guillemin submitted that the unlawful expropriation of her
property had infringed Article 1 of Protocol No. 1 (P1-1), 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 (P1-1) 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."
A. Government's preliminary objections
47. The Government maintained, firstly, that Mrs Guillemin could
not claim to be a "victim" within the meaning of Article 25 of the
Convention (art. 25) as the domestic courts had recognised the
principle of compensation and therefore made good the consequences of
the violation of her right to the peaceful enjoyment of her
possessions. Secondly, the applicant had not exhausted
domestic remedies as her action for compensation was still pending in
the Evry tribunal de grande instance, which on 23 October 1995 had
upheld the principle of her entitlement to compensation and would give
her full compensation for the loss sustained.
48. The applicant replied that the satisfaction in principle that
had been obtained from the Conseil d'Etat, the Court of Cassation and
the Evry tribunal de grande instance had not led to the payment of any
compensation, even partial, and that she was still the victim of a
breach. It was clear from the length of the proceedings she had
already instituted that domestic remedies were not effective. The
objection that she was not a victim had not been raised before the
Commission and was therefore out of time.
49. The Delegate of the Commission agreed with the applicant.
Fourteen years after the irreparable loss of her property Mrs Guillemin
could not be satisfied with promises, and there was nothing to show
that the proceedings still pending in a court of first instance would
not lead to an appeal to the Court of Appeal and even, on points of
law, to the Court of Cassation.
50. The Court does not share the Government's opinion.
As to the objection that the applicant is not a victim, the
Court is of the view, firstly, that the Government were not out of time
in raising this objection for the first time before the Court. The
judgment in which the Evry tribunal de grande instance held that the
applicant was entitled to compensation from the expropriating town
council was delivered on 23 October 1995 (see paragraph 20 above), that
is to say after the end of the proceedings before the Commission. The
Court considers, however, that the domestic courts' acknowledgment of
the applicant's right to compensation does not mean that she ceases to
be a victim. The position might have been different if, for instance,
the national authorities had afforded effective redress for the alleged
violation (see, mutatis mutandis, the Eckle v. Germany judgment of
15 July 1982, Series A no. 51, pp. 30-31, para. 66, and the Inze
v. Austria judgment of 28 October 1987, Series A no. 126, p. 16,
para. 32). This is not so in the case of Mrs Guillemin, who remains
dispossessed of her property without any compensation after its
unlawful expropriation by the administrative authorities. The
applicant has consequently not ceased to be a "victim" within the
meaning of Article 25 of the Convention (art. 25).
Secondly, the Court notes that the applicant has had recourse
to all the domestic remedies available to her. It accepts the
Commission's opinion in its decision on admissibility, namely that as
the proceedings to which she was a party had been so slow, it was
unnecessary at that time for Mrs Guillemin to institute further
proceedings in order to comply with the requirements of Article 26 of
the Convention (art. 26). Nor, in the particular circumstances of the
case, can she be criticised for not awaiting the outcome of the
proceedings pending in the Evry tribunal de grande instance. In
conclusion, the requirement of Article 26 (art. 26) that
domestic remedies must be exhausted has been satisfied.
51. The Government's objections must consequently be dismissed.
B. Merits of the complaint
52. It was common ground that Mrs Guillemin had been deprived of
her possessions within the meaning of the second sentence of
Article 1 of Protocol No. 1 (P1-1) and that the expropriation of her
property had not been carried out in the manner laid down in
domestic law.
53. The Government maintained that the actions to have
public-interest declarations and expropriation orders set aside and to
secure compensation for unlawful expropriation constituted sufficient,
adequate remedies within the meaning of the Court's case-law to
guarantee the protection of the applicant's right to the peaceful
enjoyment of her possessions. Moreover, she had won her three actions
and would receive compensation once the expert had filed his report.
She could not therefore rely on any violation.
54. The Court notes that in 1982 the French authorities unlawfully
expropriated the applicant's property to develop an extensive
residential area. By erecting new buildings, later sold individually,
the expropriating town council and the corporation in charge of the
scheme permanently deprived the applicant of the chance of regaining
possession of her land. Her only course was to seek compensation.
Compensation for the loss sustained by the applicant can only
constitute adequate reparation where it also takes into account the
damage arising from the length of the deprivation. It must moreover
be paid within a reasonable time.
55. On 20 June 1990 Mrs Guillemin made an initial application to
the town council for compensation, but it was implicitly refused
(see paragraph 13 above). No proposal for a friendly settlement was
made to her subsequently. The court proceedings for compensation have
lasted five years so far (see paragraphs 15-22 above), have already
exceeded a reasonable time (see paragraphs 43-45 above) and are
continuing (see paragraph 22 above). Compensation has not to date
begun to be paid, although it could have been agreed on even after the
expropriation order had been issued (see paragraph 24 above).
56. The Court considers that the potentially large sum that may be
awarded at the end of the pending proceedings does not offset the
previously noted failure to pay compensation and cannot be decisive in
view of the length of all the proceedings already instituted by the
applicant (see, mutatis mutandis, the Zubani v. Italy judgment of
7 August 1996, Reports 1996-IV, p. 1078, para. 49).
57. Having regard to all these considerations, the Court finds that
there has been a violation of Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
58. Under Article 50 of the Convention (art. 50),
"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."
A. Damage
59. Mrs Guillemin sought FRF 3,737,000 in respect of the violation
of Article 1 of Protocol No. 1 (P1-1) and FRF 500,000 compensation for
the damage arising from the violation of Article 6 para. 1 of the
Convention (art. 6-1).
60. The Government submitted that it would be premature at the
present stage to rule on the claim in respect of a violation of
Article 1 of Protocol No. 1 (P1-1) and considered that the sum sought
for the length of the proceedings was exorbitant as the compensation
to be awarded by the domestic courts would reflect the length of time
for which she had been deprived of her property.
61. The Delegate of the Commission pointed out that although
Mrs Guillemin had been litigating for fourteen years, she had still not
been paid anything.
62. In the circumstances of the case the Court considers that the
question of the application of Article 50 (art. 50) is not ready for
decision as regards pecuniary damage and must therefore be reserved,
due regard being had to the possibility of an agreement between the
respondent State and the applicant (Rule 54 paras. 1 and 4).
63. On the other hand, it is of the view that Mrs Guillemin has
already sustained indisputable non-pecuniary damage as she has been and
still is living in a state of uncertainty and anxiety about the outcome
of the proceedings in issue. Making an overall assessment on an
equitable basis of the various items of damage found, the Court awards
the applicant compensation in the amount of FRF 250,000.
B. Costs and expenses
64. Mrs Guillemin also sought FRF 100,000 for the proceedings
before the national authorities and the Convention institutions.
65. The Government submitted that the costs were justified only in
part.
66. The Delegate of the Commission made no submissions.
67. Having regard to the finding of a violation of Article 1 of
Protocol No. 1 (P1-1) and Article 6 para. 1 of the Convention
(art. 6-1) and making its assessment on an equitable basis, the Court
awards the applicant FRF 60,000 in respect of costs and expenses.
C. Default interest
68. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 6.65% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1 of
the Convention (P1-1);
2. Dismisses the Government's preliminary objections concerning
Article 1 of Protocol No. 1 (P1-1);
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 (P1-1);
4. Holds that the respondent State is to pay the applicant, within
three months, 250,000 (two hundred and fifty thousand)
French francs for non-pecuniary damage and 60,000
(sixty thousand) francs for costs and expenses, on which sums
simple interest at an annual rate of 6.65% shall be payable
from the expiry of the above-mentioned three months until
settlement;
5. Holds that the question of the application of Article 50 of the
Convention (art. 50) is not ready for decision as regards
pecuniary damage;
accordingly,
(a) reserves the said question in that respect;
(b) invites the Government and the applicant to notify it,
within three months, of any agreement they may reach;
(c) reserves the further procedure and delegates to the
President of the Chamber the power to fix the same if need be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 February 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar