Information Note on the Court’s case-law 19

June 2000

Morel v. France - 34130/96

Judgment 6.6.2000 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Equality of arms

Non-communication of juge commissaire ’s report to the parties: no violation

Facts : The applicant lodged a notice with the commercial court that construction companies of which he was the head were unable to pay their debts. Judicia l reorganisation proceedings were commenced and an insolvency judge, judicial administrator and creditors’ representative were assigned to the case by the commercial court. The court ordered a six-month period of observation to allow the administrator to d raw up a report on the companies’ finances and workforce and to make proposals as to whether or not they should continue to trade; the observation period was extended twice. The insolvency judge made a number of orders during that period regarding the mana gement of the business. In the light of the report prepared by the insolvency judge and the judicial administrator, the court made orders for the liquidation of the companies. The insolvency judge remained in office and was appointed president of the court chamber dealing with the liquidation. After an unsuccessful appeal, the applicant lodged a further appeal, on points of law. The Court of Cassation held that the fact that the insolvency judge was one of the three judges that had delivered judgment was co nsistent with the relevant domestic law and did not contravene Article 6 of the Convention. The applicant had further argued that the insolvency judge’s report had not been served on him by the commercial court. The Court of Cassation dismissed that ground of appeal, too, holding that the report could be and had been presented orally and that there had therefore been no violation of Article 6. The applicant was subsequently unable to obtain a copy of that report, which was deemed “secret, being part of the deliberations”.

Law : Article 6 § 1 (fair hearing): The right to an inter partes hearing implies, in principle, that the parties to a trial, whether criminal or civil, are to have the opportunity to peruse any document or observation presented to the court, even by a judge, with a view to influencing its decision, or to discuss it. The principle of equality of arms requires that each party be given a reasonable opportunity to state his case in conditions which do not place him at a distinct disadvantage in c omparison with his opponent. In the course of the hearing before the Court, the Government relied on a clerical error in the drafting of the judgment, without being contradicted by the applicant’s lawyer. The procedure followed by the commercial court was that laid down in Article 61 of the Law of 25 January 1985, not Article 36 thereof; the course taken by the proceedings confirmed that argument. The Article 61 procedure made no provision for a written report to be filed by the insolvency judge, unlike the Article 36 procedure. The reference to such a report in the citations of the judgment therefore proved to be incorrect. In fact the applicant relied on those references in the judgment as the basis for his complaint; his reasoning was therefore based on i ncorrect references in the judgment of the commercial court.

Conclusion : no violation (unanimously).

Article 6 § 1 (impartial tribunal): As regards the personal impartiality of the insolvency judge, there was insufficient evidence to establish that he had acted with personal prejudice. As regards the impartiality of the bench, it was necessary to ascertain whether, i ndependently of the personal attitude of its members, certain facts were able to cast doubt on the impartiality of the bench. In the present case the insolvency judge adopted a number of measures concerning the companies during the observation stage and su bsequently presided over the court which determined the fate of those companies; such a situation could lead the applicant to doubt the impartiality of the commercial court. However, the mere fact that the insolvency judge had adopted certain decisions dur ing the observation stage could not in itself justify the applicant’s concerns as to its impartiality. It is apparent that during the observation stage the insolvency judge made a number of orders concerning the management of the economic and financial sur vival of the companies and the management of their staff. Under domestic law, he was responsible for ensuring that the matter proceeded expeditiously and that the interests concerned were protected. Following an application under Article 61 of the Law of 2 5 January 1985, the court over which he presided was required to assess the more or less long-term viability of the proposal that the companies should continue to trade which the applicant had submitted at the end of the observation stage. The court theref ore had to examine the financial guarantees and other evidence produced by the applicant at the hearing and also the state of the companies at that date (staff, real assets, business sector in difficulties). The court also relied on evidence provided by th e administrator. The insolvency judge was therefore faced with two quite separate issues. There was therefore no objective reason to believe that the nature and scope of the insolvency judge’s role during the observation stage implied any prejudice on the part of the court in its assessment of the viability of the proposal that the companies should continue to trade submitted by the applicant at the end of the observation period and the financial guarantees produced at the hearing. In short, the applicant’s concerns were unfounded.

Conclusion : no violation (unanimously).

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

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