European Court of Human Rights

Resolution CM/ResDH(2010)93¹

Execution of the judgment of the European Court of Human Rights

Le Stum against France

(Application No. 17997/02, judgment of 4 October 2007, final on 4 January 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the applicant’s right to an impartial tribunal (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken in the Le Stum case at the 1035th meeting of the Ministers’ Deputies (17 September 2008), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)93

Information about the measures to comply with the judgment in the case of

Le Stum against France

Introductory case summary

This case concerns a breach of the applicant’s right to an impartial tribunal (violation of Article 6, paragraph 1). As the manager of a company first under judicial recovery and subsequently in liquidation, the applicant was ordered by a 1997 judgement which became final in 2001 to personally to support the company’s debts due to management failures for which he was responsible (responsibility for insufficient assets). The European Court noted that there might be doubts on the impartiality of the court which condemned the applicant, as the insolvency judge, who was responsible under the law for monitoring the management of the company during the insolvency proceedings, had then presided over this court. The Court then examined whether those doubts were "objectively reasoned" under the circumstances. The Court considered that they were reasoned, as the judge had been led to form his own opinion on the case examined by the court prior to the trial during the insolvency proceedings.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court awarded no just satisfaction in this case.

b) Individual measures

Before the European Court, the applicant claimed compensation for the pecuniary damage corresponding to the amount he actually paid pursuant to the decision against him (over 6 000 EUR), but the Court rejected this request on the ground that it could not speculate as to the outcome of the proceedings at issue had the violation not taken place. The sums owed by the applicant under the judgment were actually attributable to the company under liquidation. Under those circumstances and in the light of the principle of legal certainty, re-opening of the proceedings did not seem necessary.

The Court also held that the finding of a violation constituted sufficient just satisfaction in respect of non pecuniary damage.

II. General measures

The finding of a violation in this kind of proceedings depends on a case-by-case appreciation in the light of the functions of the insolvency judge in the context of the insolvency proceedings. However, as noted by the Court as a subsidiary consideration (§33), the law has been amended and now when, as in the present case, a court is required to rule on a manager’s potential responsibility for the insufficiency of assets, the insolvency judge may neither be part of the bench hearing the case nor take part in the deliberations (Law No. 2005-845 of 26/07/2005; Article L651-3 of the Commercial Code). Similar measures have been taken concerning other cases of responsibilities and sentences ordered by a court against managers (obligation to meet the company’s liabilities - Article L652-5; personal bankruptcy and other prohibitions - Article L653-7).

III. Conclusions of the respondent state

The government considers that it has executed the judgment in that it has taken individual measures to redress as far as possible the prejudice sustained by the applicant and in that the general measures adopted will prevent similar violations and that France has accordingly fulfilled its obligations pursuant to Article 46, paragraph 1, of the Convention.