Information Note on the Court’s case-law 25

December 2000

Arvanitakis v. France (dec.) - 46275/99

Decision 5.12.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal to deal with an appeal on points of law due to failure to execute the judgment appealed against (when it is not established that the execution would have "manifestly excessive consequences"): inadmissible

As the company which they had formed was in financial difficulties, the applicant and P.B. entered into an agreement under which P.B. was to reimburse a third party the sum of 1,480,000 French francs (FRF) owed by the company and the applicant was to guarantee the compan y’s obligation to repay P.B. that amount. Owing to the company’s collapse and in partial performance of the agreement, the applicant reimbursed P.B. FRF 572,500. After the company had gone into compulsory liquidation, the applicant took the view that his g uarantee obligations to P.B. had been extinguished. He refused to pay the balance of FRF 907,500 and, declaring himself ruined, returned to Greece. Nancy Court of Appeal, upholding the judgment of the court of first instance, ordered the applicant to pay F RF 1,600,000, that being the amount of the balance with interest. The applicant appealed to the Court of Cassation, submitting that the court of appeal had erred in its determination of the nature of his obligation. On an application by P.B., the First Pre sident of the Court of Cassation ordered that the appeal be struck out of the list pursuant to Article 1009-1 of the New Code of Civil Procedure, which enabled such an order to be made if the appellant had failed to comply with the impugned judgment and, a s the First President found to be the case in this instance, there was no reason to suppose that the appellant would suffer manifestly unreasonable consequences in the event of compliance. As the judgment had not been complied with within two years after t he date of the appeal, the First President of the Court of Cassation granted the applicant’s application at the end of that period for a declaration that the appeal had lapsed.

Inadmissible under Article 6 § 1: The objection that the applicant had failed t o exhaust domestic remedies was bound up with the merits, the essence of the applicant’s complaint being precisely that no means were available to him to request the reinstatement of the case on the Court of Cassation’s list. The Court noted that the decis ion to strike the appeal out of the list had been taken on the ground that the applicant had not evinced any intention to comply with the decision of the court below and had not sought to show that there was a danger that compliance would entail “manifestl y unreasonable consequences” for him personally. The aims pursued by imposing an obligation to comply with the judgment of the court below included protecting creditors and preventing dilatory appeals. Since those aims appeared legitimate, it was appropria te to examine whether the applicant’s situation was such that he could not even have begun to comply with the appellate court’s order. There was no cogent evidence to suggest that he could not do so since, although he had affirmed that he was a ruined man, he had not produced any certificate as to his revenue and owned immovable property which, even allowing for the mortgages encumbering it, apparently had a substantial value. Lastly, the Court noted – although it was not a decisive factor – that the applic ant had retained an adviser whom he had paid out of his own funds; his position was therefore distinguishable from that of the applicants in the Annoni di Gussola and Desbordes-Omer case (see the judgment of 14 November 2000), who had been legally-aided. I t had therefore been open to the applicant to make an offer of part-payment so as to demonstrate his good faith and obtain the reinstatement of the appeal on the list; however, paradoxically, he had instead sought a declaration that the appeal had lapsed: 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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