Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31398/96

by Olaseni Aderibige ADESINA

against France

The European Commission of Human Rights sitting in private on

13 September 1996, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 January 1996

by Olaseni Aderibige ADESINA against France and registered on 6 May

1996 under file No. 31398/96 ;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Nigerian citizen, born in 1952 and residing

in Paris (France).

The applicant has lodged two previous applications with the

Commission.

In his first application, No. 16964/90, he complained under

Article 6 of the Convention of the proceedings concerning the eviction

from his flat of which he was a tenant.

On 5 September 1986, a real estate agency introduced proceedings

before the Nanterre tribunal de grande instance in order to obtain the

applicant's eviction from his flat.

This request was not notified to the applicant.

By a provisional order (ordonnance de référé) of 12 September

1986 the President of the Nanterre tribunal de grande instance decided

that the applicant was occupying a flat without any right (ni droit ni

titre) and ordered his eviction from this flat. It was stated in this

order that the applicant and his lawyer were present at the hearing of

the same day.

This order was notified to the applicant on 14 October 1986.

The applicant, who was not notified the date of this hearing and

was therefore not present at the hearing nor represented by his lawyer,

appealed against the eviction order to the Versailles Court of Appeal.

The appeal was filed with the Court of Appeal on 23 October 1986.

By a decision of 15 December 1986 the President of the Nanterre

tribunal de grande instance rectified the provisional order of

12 September 1986 as follows:

The applicant was neither present nor represented by a

lawyer at the hearing of 12 September 1986;

"Having heard the parties' representatives" shall be

replaced by "having heard the plaintiff's representative";

The words "deciding in a public hearing and in the presence

of both parties" ("statuant publiquement et

contradictoirement") shall be replaced by "deciding in a

public hearing and by a decision deemed to have been given

in proceedings in which both sides were represented"

("statuant publiquement et par décision réputée

contradictoire")

By a letter of 20 January 1987 the applicant's lawyer, Mr. B,

informed the applicant that the date for the conclusion of the pre-

trial proceedings was fixed on 8 March 1988 and the date of the

hearing on 2 May 1988.

When the applicant appeared a few months later at his lawyer's

law firm to pay the lawyer's fees he was informed that by a judgment

of 10 July 1987 the Versailles Court of Appeal had dismissed his appeal

on the ground that he had failed to submit any grounds of appeal. The

operative part of the judgment reads: "Deciding in a public hearing and

in the presence of the parties. Confirms the provisional order (...)"

("Statuant publiquement et contradictoirement. Confirme l'ordonnance

(...)"). The applicant learned also that on 25 May 1987 his lawyer had

resigned from representing him.

By a letter of 25 January 1988 Mr. C., a lawyer at the State

Council (Conseil d'Etat) and at the Court of Cassation informed the

applicant that an appeal on points of law would have no chance of

success. According to him, it would be preferable that the applicant

tried to have his rights recognised in proceedings on the merits.

Other lawyers consulted by the applicant confirmed that an appeal

on points of law would have no prospects of success.

The applicant complained under Article 6 of the Convention that

he was denied a fair hearing before the French courts. He complained

in particular that the Nanterre tribunal de grande instance had

modified its order after its notification to the parties, particularily

after an appeal had been lodged. He also complained that the Court of

Appeal had given a judgment prior to the date of the hearing which had

been previously indicated to the parties and without any notification

as to the change of this date. According to him, he was not responsible

for not knowing the date of the hearing before the Versailles Court of

Appeal. He alleged that the judgment of the Versailles Court of Appeal

of 10 July 1987 was smuggled out of the court room. He complained

furthermore that the obligation under the French Code of Civil

Procedure to be represented by a lawyer in the proceedings before the

Court of Cassation constituted a violation of his right of access to

court.

By a decision of 29 May 1991 a Committee of three members, set

up by the European Commission of Human Rights pursuant to Article 20

para. 3 of the Convention, declared the application inadmissible as

being manifestly ill-founded.

In a second application, No. 29239/95, the applicant criticised

the decision of the Committee of three members of 29 May 1991 and

submitted supplementary information on the contested proceedings.

On 18 January 1996 a Committee of three members declared the

second application inadmissible under Article 27 para. 1 (b) of the

Convention as being essentially the same as Application No. 16964/90

and containing no relevant new information.

The facts of the present application concern the same facts as

the applicant's two previous applications.

In addition the applicant submits, as "relevant new information",

under Article 27 para. 1 (b) of the Convention, documents by which he

intends to show that his former lawyer was never present at the hearing

before the Versailles Court of Appeal, that the French police was

involved in his case and that this was the reason for denying him a

residence permit, that his former lawyer, Mr. B, knew his address and

received on 28 September 1987 a chèque of 2000 FF from him and that he

handed to his former lawyer a notice of forceful expulsion issued by

the Ministry of the Interior on 18 November 1986.

The applicant refers also to numerous letters he has sent to the

Secretary General of the Council of Europe, copies of which have been

sent to the Commission's Secretariat, and which should enable the

Commission "to understand thoroughly the real details of the basic

documents as regards the previous relevant arguments". He stresses that

his presence to support all documents and relevant arguments before the

Commission is not a mere necessity but a priority.

COMPLAINTS

In his present application the applicant again complains under

Article 6 of the Convention of the fairness of the above court

proceedings and the denial of his right of access to court.

THE LAW

The applicant complains that he was denied the right to a fair

hearing in the proceedings before the Nanterre tribunal de grande

instance and the Versailles Court of Appeal. He furthermore complains

of the obligation under French law to be represented by a lawyer before

the Court of Cassation. He alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

The Commission notes that the applicant complains of the same

matters in the present application which it has already examined and

rejected in Applications Nos. 16964/90 and 29239/95.

The Commission points out that, by virtue of Article 27 para. 1

(b) (Art. 27-1-b) of the Convention, it may not deal with the present

application unless it contains "relevant new information".

The applicant has submitted certain further information

concerning the factual circumstances of the case. However, the

Commission finds nothing in this information which could alter the

basis on which its previous decisions, in particular the decision on

Application No. 16964/90, were taken and does not see any reason to

reopen the case.

Accordingly the Commission finds that the applicant has not

submitted any "relevant new information" in relation to the above

complaints. It follows that the application must be rejected pursuant

to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÃœGER S. TRECHSEL

Secretary to the Commission President of the Commission

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ADESINA v. FRANCE

ADESINA v. FRANCE

LEXI