Information Note on the Court’s case-law 51

March 2003

G.L. and S.L. v. France (dec.) - 58811/00

Decision 6.3.2003 [Section I]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Obligatory representation before the Conseil d’Etat by a lawyer authorised to appear before the supreme courts: inadmissible

Fair hearing

Adversarial trial

Non-disclosure of submissions of the commissaire du Gouverement and lack of opportunity to respond to them at a Conseil d’Etat hearing – failure to submit a note in deliberations: inadmissible

Impartial tribunal

Consultative and judicial functions of the Conseil d’Etat : inadmissible

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Deprivation of property

Public interest

Operations linked to land consolidation aimed at general cleaning up of land: inadmissible

In the context of a scheme for the consolidation of plots of land, water pipes were laid at the request of a farmer. The cost of this work was charged, in the form of land taxes, to the owners of the plots affected by the consolidation scheme, including the applicants. The applicants disputed their liability to pay the taxes, essentially because the work in que stion had not been carried out on their properties. It was held that they were not liable to pay the disputed taxes.  A new proposal to allocate the costs of the water service work established that each of the landowners affected by the consolidation schem e had the same interest in the work being carried out and was therefore required to finance it. The basis for payment of the work in laying the pipes was definitively adopted after the persons concerned had been given the opportunity to submit observations . The applicants again sought to be declared not liable to pay the taxes and were unsuccessful in part. The Administrative Court of Appeal held, in particular, that the laying of the pipes, which formed part of the work involved in the consolidation scheme , formed part of a general land improvement programme carried out homogeneously on the entire area covered by the consolidation scheme; the work therefore concerned all the landowners affected by the consolidation scheme, in proportion to the area of the i ndividual plots concerned. The applicants appealed on a point of law to the Council of State, without success.

Article 6 § 1 (equality of arms/ inter partes proceedings before the Council of State): the applicants were represented by a lawyer practising bef ore the Councils and have not shown that they sent the Council of State a note for consideration while it was deliberating following the hearing. Quite apart from the fact that in most cases the submissions of the Government law officer are not recorded in a written document, in proceedings before the Council of State the Government law officer makes his submissions for the first time orally at the public hearing and the parties to the proceedings and also the judges and the public discover the sense and co ntent of those submissions at the hearing. Accordingly, no problem arises from the aspect of equality of arms (cf. the principles set out in the Kress v. France judgment, ECHR 2001-VI.

The lodging of a note for consideration by the court while it is delib erating helps to ensure respect for the inter partes principle, on certain conditions.  In particular, the parties must be able to lodge such a note irrespective of any decision by the President to adjourn the case, and must be allowed sufficient time to d raft it.

Furthermore, in order to avoid any dispute as to whether the note was taken into account by the Council of State, the Court considers that the judgment should make express reference to the existence of a note for its consideration while it is del iberating, just as judgments of the Council of State already make reference to the application or the action registered at its secretariat, to the other documents in the case-file and to the submissions made at the public hearing (by the rapporteur, counse l for the parties and the Government law officer). In the present case, the Court observes that the applicants have not shown that they availed themselves of the possibility to lodge a note for consideration by the Council of State while it was deliberatin g. In those circumstances, the proceedings before the Council of State offered the applicants sufficient guarantees and no problem arises from the aspect of the right to a fair hearing as regards respect for the inter partes principle (cf. the principles s et out in the APBP v. France   judgment of 21 March 2002): manifestly ill-founded.

Inadmissible under Article 6 § 1 (structural impartiality of the Council of State): the applicants claim that, regard being had to the functioning of the various sections of the Council of State, there might be confusion on the part of the judges of the Council of State between advisory and judicial functions. However, the applicants have not indicated any factor on which it might be concluded that, in the exercise of previous or contemporaneous functions, the members of the trial beach may have had to adopt a position on the provisions to which the applicants’ action related, have dealt with them in any way at all or have had links with the applicants’ opponents of such a kind as to give rise to fear a lack of impartiality (cf., a contrario , the Procola v. Luxembourg judgment, Series A no. 326). The applicants’ fears cannot therefore be regarded as objectively justified: manifestly ill-founded.

Inadmissible under Article 6 § 1 (fair hearing): as regards the obligation to be represented before the Council of State by a lawyer practising before the Councils, in the light of the specific nature of the proceedings before the Council of State and regard being had to the proceedings c onsidered in their entirety, the fact that the applicants were not given the opportunity to plead their case orally, in person or through a lawyer belonging to the general Bar, but were able to chose their counsel from among the members of the Bar of lawye rs practising before the Councils, did not infringe their right to a fair hearing (transposition of the principles laid down by the Court for proceedings before the French Court of Cassation in the Meftah and Others   judgment, ECHR 2002-VII): manifestly il l-founded.

Inadmissible under Article 1 of Protocol No. 1: the applicants complain that the interference with their assets by the pipe-laying work, for which they had to pay in the form of a tax imposed on all property owners, was not justified in the gene ral interest. The Court considers that the work in question formed part of a general programme to improve the land affected by the consolidation scheme and meets the aim of the consolidation scheme, which is to improve operating conditions and to help to d evelop the land of the district as a whole. The interference by the State in the applicants’ property right therefore satisfies the condition of legality. The purpose of the pipe-laying work, namely the general improvement of the land affected by the conso lidation scheme, is “in the public interest” for the purposes of Article 1 of Protocol No. 1 and the work in question did not cause the applicants harm of such a kind as render it disproportionate to the aim pursued by the consolidation scheme or arbitrary : manifestly ill-founded.

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

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