Information Note on the Court’s case-law 52

April 2003

Yvon v. France - 44962/98

Judgment 24.4.2003 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Equality of arms

Role of Government Commissioner in proceedings concerning the fixing of compensation for expropriation: violation

Facts : Following an expropriation measure affecting the applicant, and in the absence of agreement with the State on the amount of compensation payable, the applicant referred the matter to the Expropriations Judge.  The Expropriations Judge determined the amount payable by the State, after hearing submissions by the applicant, the Inspector of the Charente-Maritime Fisc al Services Directorate, representing the State in the proceedings, and the Deputy Director of the Charente-Maritime Fiscal Services Directorate, acting as Government law officer. The applicant challenged the amount of the compensation before the Court of Appeal. In those proceedings, the Fiscal Services Directorate lodged a memorial in reply and the Deputy Director of the Charente-Maritime Fiscal Services filed submissions in his capacity as Government law officer. The applicant claimed that this twofold i nvolvement of the Director of Fiscal Services was contrary to his right to a fair trial. The Court of Appeal held that the double capacity of the Director of Fiscal Services, acting as Government law officer, and of the Director of Fiscal Services, represe nting the expropriating authority, did not amount to an irregularity. The Court of Appeal set the compensation at a higher amount than that awarded at first instance but below the amount claimed by the applicant. The Court of Cassation dismissed the applic ant's appeal on a point of law.

Law: Article 6 § 1 – (a) Equality of arms: The Government law officer is a “party” to the compensation proceedings before the Expropriations Judge. He protects interests similar to those protected by the expropriating author ity and advocates a reasonable evaluation of the compensation. Sometimes, moreover, as in this case, he belongs to the same administration, indeed to the same departmental service, as the representative of the expropriating authority. This may lead to situ ations in which, as appears to have been the case here, the Government law officer is the hierarchical superior of the representative of the expropriating State, and in which there is thus a certain confusion between those two parties. Those circumstances undoubtedly undermine the position of the expropriated party. However, they do not in themselves suffice to characterise a breach of the principle of equality of arms. The situation is one which is commonly found before the courts of the member States of t he Council of Europe. In short, the fact that a similar point of view is argued by a number of parties in judicial proceedings does not necessarily place the opposite side at a “clear disadvantage” in presenting his case. The conditions on which the Govern ment law officer participates in the proceedings must still enable a “fair balance” to be struck between the parties. In the compensation proceedings, the expropriated party is faced not only with the expropriating authority but also with the Government la w officer. The Government law officer and the expropriating authority – which in certain cases is represented by an official from the same department as the Government law officer – have significant advantages in access to the relevant information; further more, the government law officer, who is both an expert and a party, is in a dominant position in the proceedings and has considerable influence on the findings of the judge. All of this gives rise, vis-à-vis the expropriated party, to an imbalance which i s incompatible with the principle of equality of arms.

Conclusion : violation (unanimous).

(b) Inter partes proceedings: although there was no legal requirement to that effect, the applicant received a copy of the submissions of the government law officer on the day before the date of the hearing and was thus able to prepare a reply in satisfactory circumstance s. He cannot therefore complain of a breach of the inter partes principle in this regard.

The applicant also complains that at the hearings before the expropriation courts the government law officer was the last to address the court. However, the applicant was notified of the government law officer's written submissions before the hearing, on appeal as well as at first instance, in circumstances which enabled him to prepare a written reply; he was also able – and in fact did so before the appellate court – to lodge a note for consideration by the court during its deliberations. The applicant was therefore able to reply to the government law officer in satisfactory circumstances. Accordingly, there was no breach of the inter partes principle in this regard ei ther.

Article 41 – The Court considers that the finding of a violation affords in itself sufficient just satisfaction for the non-pecuniary harm sustained by the applicant. It awards the sum of EUR 15,973.86 by way of costs and expenses.

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

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