Information Note on the Court’s case-law 31

June 2001

Kress v. France [GC] - 39594/98

Judgment 7.6.2001 [GC]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Equality of arms

Presence of the commissaire du Gouvernement at the deliberations of the Conseil d'Etat : violation

Fair hearing

Adversarial trial

Non-communication to party of observations submitted to the Conseil d'Etat by the commissaire du Gouve rnement : no violation

Facts : After undergoing an operation under general anaesthetic at Strasbourg Hospital the applicant suffered vascular accidents, which resulted in 90% invalidity, and also her shoulder was scalded. On an urgent application for the appointment of an expert, the President of the Strasbourg Administrative Court designated a doctor, who concluded that there had not been any medical error. In August 1987 the applicant brought a claim for damages against the hospital in the Administrative Court. In May 1990 the Admini strative Court ordered a fresh expert report and in September 1991 delivered its judgment, in which damages were awarded solely in respect of the applicant’s scalded shoulder. In April 1993 the Nancy Administrative Court of Appeal dismissed an appeal by th e applicant. The latter appealed on points of law to the Conseil d’Etat and filed full pleadings. She was represented by a member of the Court of Cassation and Conseil d’Etat Bar. She had not been able to study the Government Commissioner’s submissions before he made them orally at the hearing and had been unable to reply to them. She nevertheless made final submissions in a memorandum for the deliberations which her lawyer ga ve to the court before it took its decision. The Conseil d’Etat dismissed the appeal in a judgment of 30 July 1997.

Law : Article 6 § 1 (fair trial) – The complaints raised, mutatis mutandis , issues similar to those examined by the Court in several cases co ncerning the role of the Advocate-General or similar officers at the Court of Cassation or Supreme Court in various European countries. They were, however, being raised for the first time in connection with a case in the administrative courts, and it there fore had to be considered whether the principles the Court had identified in the cases mentioned earlier also applied in the instant case. The administrative courts in France displayed a number of special features and the role of the Government Commissione r in those courts was that not of a State counsel’s office but of a sui generis institution peculiar to administrative-court proceedings in France. Nevertheless, the Commissioner’s status as an independent judge who was not responsible to any hierarchical superior was not in itself sufficient to justify the assertion that the non-disclosure of his submissions to the parties and the fact that it was impossible for the parties to reply to them were not capable of offending against the principle of a fair tria l. In that connection, importance had to be attached to the part he actually played in the proceedings and, in particular, to the content and effects of his submissions.

(a) Complaint based on the non-disclosure of the Government Commissioner’s submission s and the impossibility of replying to them at the hearing – the Government Commissioner made his submissions for the first time orally at the public hearing of a case and accordingly the parties to the proceedings, the judges and the public all learned of their content on that occasion. The right to equality of arms did not guarantee the right to disclosure, before the hearing, of submissions which had not been disclosed to the other party to the proceedings or to the reporting judge or to the judges of th e trial bench. There had accordingly been no breach of equality of arms. The right to a fair trial, however, also meant the opportunity for the parties to a trial to have knowledge of and comment on all evidence adduced or observations filed, even by an in dependent member of the national legal service, with a view to influencing the Court’s decision. In the Conseil d’Etat lawyers could ask the Government Commissioner, before the hearing, to indicate the general tenor of his submissions and might reply to th em by means of a memorandum for the deliberations; in the event of the Government Commissioner’s raising orally at the hearing a ground not raised by the parties, the presiding judge would adjourn the case to enable the parties to present argument on the p oint. That being so, current procedure in the Conseil d’Etat afforded litigants sufficient safeguards and no problem arose from the point of view of the right to a fair trial as regards compliance with the principle that proceedings should be adversarial.

Conclusion : no violation (unanimously).

(b) Complaint based on the Government Commissioner’s presence at the Conseil d’Etat ’s deliberations – the Government’s argument that the Government Commissioner was truly a judge was considerably weakened by the fact that he had no right to vote; moreover, it was hard to accept the idea that some judges might express their views in public while the others might do so only during secret deliberations. The Court also took into account the earlier finding (see point (a)) that the applicant enjoyed sufficient safeguards to counterbalance the Government Commissioner’s power. Although the Commissioner’s opinion did not derive its authority from that of a State counsel’s office, contrary to the position in the cases in which the Court had developed its case-law on the doctrine of appearances, importance had to be attached to the role of appearances in the case of the Government Commissioner also. In publicly expressing his opinion on the rejection or acceptance of the grounds submitted by one of the parties, the Government Commissioner could legitimately be regarded by the parties as taking sides with one or other of them; an uninitiated litigant might see him, according as he recommended rejection or acceptance of the litigant ’s submissions, either as an adversary or as an ally; lastly, a party might have a feeling of inequality if he saw him withdraw with the judges of the trial bench to attend the secret deliberations after making submissions unfavorable to his case at the he aring. Admittedly, as the last person to have seen and studied the file, the Government Commissioner would be able to answer any questions put by the judges during the deliberations. However, that purely technical assistance given to the trial bench was to be weighed against the higher interest of the litigant, who had to have a guarantee that the Government Commissioner would not be able, through his presence at the deliberations, to influence their outcome. That guarantee was not afforded by the current F rench system. Furthermore, at the Court of Justice of the European Communities the Advocate General, whose role was very similar to that of the Government Commissioner, did not attend the deliberations.

Conclusion : violation (ten votes to seven).

Article 6 § 1 (reasonable time) – The administrative proceedings had lasted ten years and more than one month. Seeing, in particular, that the proceedings in the Conseil d’Etat had taken four years and a little over one month, that length of time was excessive.

C onclusion : violation (unanimously).

Article 41 – The finding of a violation in respect of the fairness of the proceedings sufficiently compensated for the applicant’s non-pecuniary damage. On the other hand, the Court awarded the sum of FRF 80,000 for non- pecuniary damage on account of the length of the proceedings. For costs and expenses incurred in the proceedings before it, the Court awarded FRF 20,000.

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

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