Information Note on the Court’s case-law 240

May 2020

Graner v. France (dec.) - 84536/17

Decision 5.5.2020 [Section V]

Article 35

Article 35-1

Exhaustion of domestic remedies

No final decision in main proceedings, leaving open the possibility of in concreto examination notwithstanding the reply to a priority question of constitutionality: inadmissible

Facts – In French law the procedure known as the “priority question of constitutionality” (QPC) enabled litigants to challenge the constitutionality of a legislative provision in the context of proceedings before an administrative or ordinary court. If the Constitutional Council replied that the provision was comp liant with the Constitution, the court hearing the case would be required to apply it, unless it then found the provision to be incompatible with another provision of EU law or an international treaty.

In the context of historical research, the applicant made a request in 2015 to consult various volumes of the archives of a former French President. The director of the national archives could only partly grant his request on account of the opposition expressed by the former President’s administrator.

The ap plicant applied to the Administrative Tribunal seeking the annulment of this partial refusal: in his submission, the legal provision providing for this possibility of opposition was in breach of the right to have access to information and the right to an e ffective remedy, as guaranteed by the Declaration of the Rights of Man and the Citizen of 1789 (Articles 15 and 16) – an instrument of constitutional value – and by the Convention (Articles 10 and 13).

In 2017 the Constitutional Council, in response to the applicant’s priority question on the first aspect, found that the impugned law complied with the Constitution. The applicant subsequently referred the matter to the European Court of Human Rights, without waiting for the outcome of the main domestic proce edings. In 2018 the Administrative Court dismissed his case. The applicant lodged an appeal on points of law which was still pending before the Conseil d’État .

Law

Article 10 (taken separately or together with Article 13): The fact that the present application had been lodged with the Court while the proceedings were still pending before the Administrative Court was not precluded. The important thing was for the final domestic decision to have been taken before the Cou rt’s decision on the admissibility of the application.

In administrative law, the application for annulment on grounds of misuse of authority in principle provided an effective remedy up to cassation level. The applicant submitted, however, that it was dif ferent in the present case in view of the decision by the Constitutional Council and its authority over other courts.

Admittedly, the question referred to the Constitutional Council at the applicant’s request had been aimed very specifically at the legal p rovision applied in his case, and concerned individual Constitutional rights that were identical to the individual Convention rights.

However, there was a difference between a review of constitutionality by the Constitutional Council and a review by the or dinary courts of Convention compatibility. The first consisted in verifying in abstracto if a given legal provision was compliant with the Constitution. The second involved verifying in concreto whether an action or omission imputable to a State party was compatible with the Convention.

The Administrative Court had thus drawn a distinction between, on the one hand, the argument that the law in question breached the rights and freedoms secured by the Constitution and, on the other, the arguments pleading a violation of Convention rights and freedoms.

The Constitutional Council’s reasoning concerned only its rejection of the “Constitutional” argument, while in dismissing the Convention-based argumen ts the court had not relied on that decision, but on a specific ground – namely that there had been “no breach” of the rights protected by Articles 10 and 13 of the Convention.

Without prejudging whether or not the review thus carried out by the Administra tive Court was sufficient as to Convention compliance – as this was primarily for the Conseil d’État to assess –, this showed that it had not been precluded from examining the arguments concerning the Convention rights, neither by the decision of the Const itutional Council, nor by the fact that the law in question obliged the authorities to follow the opinion of the administrator.

Therefore, to the extent that it concerned Articles 10 and 13 of the Convention, it could not be said that the application for a nnulment before the administrative courts was “clearly doomed to fail” on account of the decision by the Constitutional Council.

Lastly, the applicant had been wrong to rely on the case of S.A.S. v. France [GC] (43835/11, 1 July 2014): in that case the Cou rt had merely found that the question of the exhaustion of domestic remedies was devoid of pertinence in the context of the French legal system in so far as it had concluded that the applicant could claim to be a victim notwithstanding the absence of an in dividual measure; it was only secondarily, without drawing any conclusion, that it had mentioned the Constitutional Council’s ruling on the law challenged by the applicant.

In accordance with the principle of subsidiarity it was now the task of the Conseil d’État , to which the applicant had duly appealed on points of law, to verify whether the examination of his Convention-based arguments by the Administrative Court had met the requirements arising from the Court’s case-law.

Pending that final domestic deci sion, the applicant’s complaints remained premature.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

See also Charron and Merle-Montet v. France , 22612/15 , 16 January 2018.

© Counc il of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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