AS TO THE ADMISSIBILITY OF
by Yves MIFSUD
The European Court of Human Rights, sitting on 11 September 2002 as a Grand Chamber composed of
Mr L. Wildhaber,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr G. Ress,
Sir Nicolas Bratza,
Mr A. Pastor Ridruejo,
Mr P. Kūris,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mr K. Jungwiert,
Mr J. Casadevall,
Mrs N. Vajić,
Mrs H.S. Greve,
Mr R. Maruste,
Mr E. Levits,
Mr K. Traja,
Mrs S. Botoucharova, judges,
and Mr P.J. Mahoney, Registrar,
Having regard to the above-mentioned application lodged on
2 May 2000,
Having regard to the decision of 28 November 2001 by which the Chamber of the Third Section to which the case had originally been assigned relinquished jurisdiction in favour of the Grand Chamber (Article 30 of the Convention),
Having regard to the observations submitted by the French Government (“the Government”) and the observations in reply submitted by the applicant,
Having deliberated, delivers the following decision:
applicant, Yves Mifsud, is a French national. He was
born in 1941 and lives in Eze (France). He was
represented before the Court by
Mr Nicolas Fady, a lawyer practising in Strasbourg.
The Government were represented by their Agent, Mr Ronny Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In April 1982 the Public Works Department of Alpes Maritimes, noting that the applicant had erected enclosing walls without planning permission, drew up a report certifying that there had been a breach of the planning laws. In a judgment of 29 June 1984 the Nice Criminal Court found the applicant guilty of carrying out these building works without planning permission and adjourned sentencing. In a judgment of 3 May 1985 the Criminal Court sentenced the applicant to a fine of 3,000 francs and ordered him to demolish the building works in question within one year, with a further daily penalty of 100 francs for non-compliance. The judgment was served at the public prosecutor’s office on 19 November 1985.
4. On 22 July 1993 the mayor of Eze had the applicant served with a notice of outstanding debts of 244,800 francs, which was the total amount of penalties due for 2,448 days (from 13 May 1986 to 26 January 1993). The applicant submitted that he had not learnt of the judgment of 3 May 1985 until he received that notice.
In November 1993 the applicant demolished one wall.
On 24 February 1994 the applicant was served with a further notice of outstanding debt, however, for 31,500 francs, corresponding to the penalties incurred from 27 January 1993 to 7 December 1993. The applicant paid that sum at the Villefranche-sur-mer tax office on 26 April 1994.
5. By an application registered on 27 May 1994 the applicant brought proceedings in the Nice tribunal de grande instance for repayment of the penalties ordered against him. He based his application on Article L. 480-7 of the Town Planning Code, which provides “... the court may authorise repayment of part of the penalties if the debtor has had the property restored to its former condition as ordered and can establish that he was prevented, by a circumstance beyond his control, from complying with the time-limit allowed him”. He also set aside 244,800 francs at the Crédit foncier de Monaco to cover the penalty demand issued in July 1993.
In a letter of 26 July 1994 the public prosecutor at the Nice tribunal de grande instance informed the applicant’s lawyer that his application would shortly be brought before the court.
6. The applicant undertook further demolition works in April 1996.
7. The applicant sent reminders to the Nice tribunal de grande instance on 18 April, 10 September, 20 November 1996 and 27 December 1997. In a letter of 25 April 1998 he referred the matter to the Minister of Justice and, on 18 August 1998, he was informed that the Legal Services Department had referred his case to the Principal Public Prosecutor at the Court of Appeal of Aix-en-Provence so that it “would not suffer any unjustified delay”.
On 16 March 2001
the Nice public prosecutor’s office sent a letter to the
applicant inviting him to bring proceedings himself against the
municipality of Eze. Accordingly, on 15 January 2002, the applicant
summoned the mayor of Eze before the tribunal de grande instance
for a hearing on
20 March 2002. At that hearing the court noted that the mayor had failed to appear and asked the applicant to issue a further summons for a hearing in May 2002.
B. Relevant domestic law and practice
8. Article L. 781-1 of the Code of Judicial Organisation provides:
“The State shall be under an obligation to compensate for damage caused by a malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice.”
In a judgment of 5 November 1997, on the basis of that provision, the Paris tribunal de grande instance awarded an employee in a pending industrial-relations dispute damages of 50,000 francs for non-pecuniary loss; the employee had been notified by the registry of the Aix-en-Provence Court of Appeal that his appeal could not be examined until forty months after it had been lodged with the court. The judgment states the following:
“By denial of justice is meant not only a refusal to determine an application or a failure to try a case which is ready for trial, but also, more broadly, any breach by the State of its duty to provide judicial protection to the individual, which includes the right of any litigant to have his or her claims decided within a reasonable time; moreover, the provisions of Article 6 of the Convention ... require the national courts to determine cases within a reasonable time...”.
In a judgment of 20
January 1999 the Paris Court of Appeal upheld that judgment but
reduced the damages awarded to the applicant to
20,000 francs. The judgment states the following:
“Anyone who has submitted a dispute to a court shall have the right to have his case heard within a reasonable time; an infringement of that right, which constitutes a denial of justice within the meaning of Article L. 781-1 of the Code of Judicial Organisation, shall oblige the State to compensate for the damage caused by the malfunctioning of the system of justice;
The existence of such a denial of justice shall be assessed in the light of the particular circumstances of each case; account shall be taken, in particular, of the nature of the case, its degree of complexity, the conduct of the party complaining of the length of the proceedings, and the measures implemented by the appropriate authorities”.
As no appeal on points of law was lodged against that judgment, it became final on 20 March 1999.
tribunal de grande instance confirmed this case-law in judgments
of 9 June and 22 September 1999, and the Aix-en-Provence and Lyons
Courts of Appeal gave similar judgments on 14 June and
27 October 1999, as did a number of other courts. The Paris Court of Appeal itself reiterated its position in, among others, a judgment of
10 November 1999. Many of the decisions delivered to date concern the length of pending proceedings.
9. Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained of the length of the proceedings for repayment of the penalties. He submitted that the length of those proceedings infringed his right to have his case heard within a reasonable time and his right to an effective remedy.
10. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained of a breach of his right to respect for enjoyment of his possessions. In that connection he submitted that he had been unlawfully forced to demolish the enclosing walls in question pursuant to the judgment of 3 May 1985 in so far as it had not been duly served on him and, moreover, did not expressly stipulate the constructions which had to be demolished.
A. Alleged violation of Articles 6 § 1 and 13 of the Convention
12. The Court notes that the purpose of the proceedings in question is to obtain the repayment of penalties under Article L. 480-7 of the Town Planning Code. Given the economic nature of the claim, the proceedings therefore concern a “dispute (contestation)” over “civil rights and obligations” of the applicant within the meaning of Article 6 § 1 of the Convention. That provision is therefore applicable, which, moreover, the Government did not contest.
The Court considers, furthermore, that the circumstances complained of by the applicant must be examined solely from the standpoint of the right of everyone to have his or her case heard within a reasonable time, which Article 6 § 1 guarantees in the following terms:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”
13. The Government contended primarily that the applicant had not exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention. They pointed out in that connection that the applicant could have lodged his complaint about the length of the proceedings with the French courts in the form of an action for damages under Article L. 781-1 of the Code of Judicial Organisation. Recent developments in the domestic case-law showed that such a remedy was “effective”. The Government relied in particular on a judgment of the Paris tribunal de grande instance of 5 November 1997 which had broadened the concept of “denial of justice”, within the meaning of Article L. 781-1, to “any breach by the State of its duty to provide judicial protection to the individual, which includes the right of any litigant to have his claims decided within a reasonable time”. The Government stated that this judgment had been upheld by a judgment of 20 January 1999 of the Paris Court of Appeal and that it had been authority for several further decisions since then.
The Government then pointed out that, in the Giummarra and Others v. France case (no. 61166/00, decision of 12 June 2001), taking formal note of those developments in the case-law, the Court held that by 20 September 1999 the remedy provided for by Article L. 781-1 of the Code of Judicial Organisation had acquired a sufficient degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention. Any complaint based on the length of judicial proceedings which was lodged with the Court after that date without having first been submitted to the domestic courts under that provision would accordingly be inadmissible. According to the Government, that conclusion was binding in every case, even where, as in the instant case, the domestic proceedings in question were still pending on the date on which the application was lodged with the Court. In that connection they laid particular emphasis on the fact that the case-law showed that this remedy was effective regardless of the stage reached in the proceedings at domestic level.
14. The applicant replied that as the proceedings complained of were pending, there was a continuing violation of Article 6 § 1. Use of the remedy provided by Article L. 781-1 of the Code of Judicial Organisation would not therefore have afforded full compensation for his loss. Nor would it have put an end to the violation complained of.
Court reiterates that under Article 35 § 1 of the Convention it
may only deal with a matter after all domestic remedies have been
exhausted. The question which first arises is therefore whether the
Government’s objection that domestic remedies have not been
exhausted is well-founded in the instant case. In that connection the
Court points out that any applicant must have provided the domestic
courts with the opportunity which is in principle intended to be
afforded to Contracting States, namely the opportunity of preventing
or putting right the violations alleged against them (see, for
example, the Cardot v. France judgment of 19 March 1991, Series A no.
200, p. 19, § 36). That rule is based on the assumption,
reflected in Article 13 of the Convention – with which it has
close affinity – that there is an effective remedy available in
the domestic system in respect of the alleged breach (see, for
example, Selmouni v. France [GC],
no. 25803/94, § 74, ECHR 1999-V).
The only remedies
which Article 35 of the Convention requires to be exhausted are those
that relate to the breaches alleged and at the same time are
available and sufficient. The existence of such remedies must be
sufficiently certain not only in theory but also in practice, failing
which they will lack the requisite accessibility and effectiveness;
it falls to the respondent State to establish that these various
conditions are satisfied (see, among many other authorities, the
Vernillo v. France judgment of
20 February 1991, Series A no. 198, p. 11, § 27, and Dalia v. France of
19 February 1998, Reports of Judgments and Decisions 1998-I, p. 87, § 38).
regard to the developments in the case-law to which the Government
referred, the Court has held that an application under
Article L. 781-1 of the Code of Judicial Organisation provides a remedy for an alleged violation of the right to have a case heard within a “reasonable time” within the meaning of Article 6 § 1 of the Convention where the proceedings in question have ended at domestic level (see, inter alia, Van der Kar and Lissaur van West v. France (dec.), nos. 44952/98 and 44953/98, 7 November 2000, and Giummarra and Others v. France (dec.), no. 61166/00, 12 June 2001). It has pointed out that, by
20 September 1999, this remedy had acquired the requisite degree of legal certainty to enable and oblige an applicant to use it for the purposes of Article 35 § 1 of the Convention (see, in particular, the above-mentioned Giummarra and Others decision). It is therefore established that where judicial proceedings have ended at domestic level by the date on which an application is lodged with the Court and that application postdates 20 September 1999, a complaint based on the length of those proceedings is inadmissible if the applicant has not first unsuccessfully submitted it to the domestic courts under Article L. 781-1 of the Code of Judicial Organisation.
17. The only issue which arises in the instant case is whether the same principle applies where the proceedings in question are pending at domestic level at the date on which an application is lodged with the Court. It is clear from the judgments to which the Government refer that positive law does not distinguish between proceedings which are pending and proceedings which have ended: regardless of the stage reached in proceedings of which the length appears excessive, Article L. 781-1 of the Code of Judicial Organisation allows litigants to obtain a finding of a breach of their right to have their case heard within a reasonable time and compensation for the ensuing loss.
The fact that this purely compensatory remedy cannot be used to expedite proceedings which are under way is not decisive. The Court reiterates in that connection that it has held that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective”, within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (Kudla v. Poland [GC], no. 30210/96, § 158, 26 October 2000). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see the Kudla judgment cited above, § 159). In the Court’s view, having regard to the “close affinity” between Articles 13 and 35 § 1 of the Convention (see also the Kudla judgment cited above, § 152), the same is necessarily true of the concept of “effective” remedy within the meaning of the second provision.
The Court accordingly reaches the conclusion that any complaint based on the length of judicial proceedings which is lodged before it after 20 September 1999 without having first been submitted to the domestic courts under Article L. 781-1 of the Code of Judicial Organisation is inadmissible, regardless of the stage reached in the proceedings at domestic level.
18. In the instant case the applicant lodged his application with the Court on 2 May 2000 without having first used that remedy. He has not therefore exhausted domestic remedies in respect of his complaint about the length of the proceedings in question. This part of the application must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
B. Alleged violation of Article 1 of Protocol No. 1
applicant complained of a violation of his right to respect for
peaceful enjoyment of his possessions on account of having been
unlawfully forced to demolish the enclosing walls pursuant to a
3 May 1985 which had not been duly served on him and, moreover, did not expressly stipulate the constructions which had to be demolished. He relied on Article 1 of Protocol No. 1, according to which:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
20. The Court notes that the applicant has not used any domestic remedy to prevent or redress the alleged violation of Article 1 of Protocol No. 1. In that connection it points out, in particular, that this cannot be the purpose of the proceedings for repayment of the penalties, which he brought before the Nice tribunal de grande instance and which, moreover, are still pending.
Assuming, as the applicant implied, that no remedy of that nature was available to him, the six-month time-period laid down by Article 35 § 1 of the Convention ran in the instant case from the date on which the facts giving rise to the alleged violation occurred, namely the demolition works complained of. Since the demolition works were carried out in November 1993 and April 1996, that is, more than six months before the application was lodged with the Court, this part of the application is in any event out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.