Lexploria

Information Note on the Court’s case-law 11

October 1999

Zielinski and Pradal and Gonzalez and Others v. France [GC] - 24846/94, 34165/96, 34166/96 et al.

Judgment 28.10.1999 [GC]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Legislative intervention in pending court proceedings: violation

(Extract from press release)

Facts : The case concerns eleven applications lodged by French nationals: on the one hand Benoît Zielinski and Patrick Pradal, who were born in 1954 and 1955 respectively, and, on the other, Jeanine Gonzalez, Martine Mary, Anita Delaquerrière, Guy Schreiber, Monique Kern, Pascal Gontier, Nicole Schreiber, Josiane Memeteau and Claude Cossut a, who were born in 1956, 1953, 1955, 1948, 1949, 1957, 1950, 1954 and 1957 respectively. The applicants live in France and work for social-security bodies in Alsace-Moselle. On 28 March 1953 the representatives of the social-security offices of the Strasb ourg region signed an agreement with the regional representatives of the trade unions whereby a “special difficulties allowance” ( indemnité de difficultés particulières – “ IDP ”) was introduced. The implementation of the agreement having given rise to diff iculties, legal proceedings were brought by a number of staff members of the social-security offices concerned and the applicants in their turn applied to industrial tribunals. In judgments of 2 July 1991 the Colmar industrial tribunal allowed the applicat ions of Ms Gonzalez and others. The Colmar Health Insurance Office and the Director of Health and Social Affairs appealed. In judgments of 4 December 1991 and 21 October 1992 the Metz industrial tribunal allowed Mr Zielinski’s and Mr Pradal’s applications, and those judgments were upheld by the Metz Court of Appeal in judgments of 19 and 20 April 1993. The prefect and the Director of Health and Social Affairs appealed on points of law to the Court of Cassation. Concurrently, proceedings brought by other sta ff members of the health-insurance offices covered by the 1953 agreement gave rise to a judgment of the Court of Cassation quashing judgments of the court below and then a rehearing of the cases by the Besançon Court of Appeal, whose judgment of 13 October 1993 laid down a method of payment favourable to the plaintiffs. By means of an amendment (which became section 85) to Law no. 94-43 of 18 January 1994, Parliament endorsed the amount of the IDP argued for in the courts by the State’s representative and t he health-insurance offices, and did so with retrospective effect. The Constitutional Council ruled in a decision of 13 January 1994 that the disputed provision was constitutional. On the grounds of the terms of the new Act, the Court of Cassation quashed the judgments given in Mr Zielinski’s and Mr Pradal’s favour by the Metz Court of Appeal. The Colmar Court of Appeal likewise relied on the new Act when it reversed the judgments that had been given in favour of Ms Gonzalez and others.

The applicants compl ained that the State’s intervention in a lawsuit affecting it, by means of retrospective legislation (section 85 of Law no. 94-43 of 18 January 1994), had contravened the principle of equality of arms and rendered the proceedings unfair. Except for Mr Ziel inski and Mr Pradal, they also complained of the length of the proceedings. They relied on Articles 6 § 1 and 13 of the Convention.

Law

Article 6 § 1 as to the fairness of the proceedings - The Court could not overlook the effect of the content of section 85 of the Act of 18 January 1994 (Law no. 94-43), taken together with the method and timing of its adoption. To begin with, while section 85 expressly excluded from its scope court decisi ons that had become final on the merits, it had settled once and for all the terms of the dispute before the ordinary courts and had done so retrospectively and “notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of [the] Act”. Secondly, section 85 had been part of an Act on “public health and social welfare”. It was only in the course of the parliamentary debates and shortly after the delivery on 13 October 1993 of the Besançon Court of Appeal’s judgment that an amendment on the IDP had been tabled. Lastly, section 85 had quite simply endorsed the position taken up by the State in pending proceedings. The Court noted that a majority of earlier decisions by the tribunals of fact had been favourable to the applicants. Admittedly, whereas the Metz Court of Appeal had found wholly in favour of the employees of the social-security offices concerned, the Colmar Court of Appeal, unlike the Colmar industrial tribunal, had dismissed the claims. Ho wever, the special role of the Besançon Court of Appeal, the court which had had to rehear the cases after the Court of Cassation’s judgments of 22 April 1992, had to be emphasised. The Besançon Court of Appeal had been designated to resolve the dispute, n otably the issues of “fact”, within the legal framework previously laid down by the Court of Cassation itself. Keeping strictly within the compass of the issues as laid down in the Court of Cassation’s judgments of 22 April 1992, it had found that no pract ice had arisen and had rejected the method contended for by the State. It had set a new reference index and, allowing a claim in the alternative by certain employees of the social-security offices concerned, had held that the IDP had to be calculated on th e basis of 6.1055% of the minimum wage, that being the percentage corresponding to the amount of the IDP as calculated on the basis of twelve points at 1 January 1953. Such a decision, which had clarified the issues while remaining within the limits laid d own by the Court of Cassation on 22 April 1992, had been favourable to the applicants, since it had had the effect of more than doubling the amount of the allowance actually paid by the social-security offices and had conferred a right to back payment of t he difference on allowances paid over several years. The Court could not discern in the facts of the case why the conflicting court decisions had required legislative intervention while proceedings were pending. It considered that such divergences were an inherent consequence of any judicial system which, like the French one, was based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. As the role of the Court of Cassation was precisely to resolve conflic ts between decisions of the courts below, it was, moreover, impossible to conjecture what its decision in the face of these conflicting decisions would have been but for the intervention of the Act in issue. In the Court’s opinion, the circumstances of the case did not make it possible to assert that the intervention of the legislature had been foreseeable, any more than they could support the argument that an original intention had been frustrated, seeing that the dispute had been over the application of a n agreement that had been discussed and adopted under a prescribed procedure by the employers and trade unions concerned. The Court considered that the financial risk adverted to by the Government and expressly noted by the Constitutional Council in the re asons it gave for its decision could not in itself warrant the legislature’s substituting itself both for the parties to the collective agreement and for the courts in order to settle the dispute. The adoption of section 85 had in reality determined the su bstance of the dispute. The application of it by the domestic courts, in particular the Court of Cassation in its judgments of 2 March 1995, had made it pointless to continue the proceedings. In view of the foregoing, the Court also considered that no dist inction could validly be made between the applicants according as they had or had not obtained a final decision on the merits. As to the Government’s argument that the dispute had not been one between the applicants and the State, the finding was inescapab le that the intervention of the legislature in the instant case had taken place at a time when legal proceedings to which the State was a party had been pending. There had consequently been a violation of Article 6 § 1 in respect of the right to a fair tri al.

Conclusion : violation (unanimously).

Article 6 § 1 as to the length of the proceedings - The Court considered that the subject matter of the case before the domestic courts was undoubtedly complex, as had been confirmed by the finding in the Court of Cassation’s judgments of 22 April 1992 that the reference index had ceased to exist. It cou ld find nothing to suggest that the applicants had been responsible for prolonging the proceedings. In particular, the date on which the applicants’ grounds of appeal had been filed had had no effect on the Colmar Court of Appeal’s setting down of the case for hearing. The Court found that the proceedings had lasted three years, eight months and eight days in the Colmar Court of Appeal. Although the appeals had been lodged on 10 September 1991, the Court of Appeal had not set a date for the hearing until 12 July 1994, almost three years later. The Court considered that no persuasive explanation of that delay had been put forward. In particular, it noted that the Colmar Court of Appeal had already ruled on the issue of the IDP in its judgments of 23 September 1993, more than two years after the appeals lodged in the instant case. Furthermore, the Colmar Court of Appeal’s judgment had been delivered on 18 May 1995, almost a year and a half after the passing of the Act of 18 January 1994. Having regard to all th e evidence, the Court considered that the “reasonable time” within which Article 6 § 1 required a case to be heard had been exceeded. There had accordingly been a violation of Article 6 § 1 as regards of the length of the proceedings.

Conclusion : violation (unanimously).

Article 13 - Having regard to the finding in the preceding paragraph, the Court held that it was unnecessary to rule on the complaint in question.

Article 41 - The Court noted that in the instant case an award of just satisfaction could onl y be based on the fact that the applicant had not had the benefit of the guarantees of Article 6, including the one regarding the length of the proceedings in respect of Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreibe r, Ms Memeteau and Mr Cossuta. As to the fairness of the proceedings, whilst the Court could not speculate as to the outcome of the trial had the position been otherwise, it did not find it unreasonable to regard the applicants as having suffered a loss of real opportunities. To that had to be added non-pecuniary damage, which the findings of violations in this judgment did not suffice to remedy, except in the case of Mr Zielinski and Mr Pradal, who had made no claim under that head. Making its assessment o n an equitable basis as required by Article 41, the Court awarded FRF 47,000 each to Mr Zielinski and Mr Pradal and FRF 80,000 to each of the other nine applicants, in respect of all heads of damage taken together. The Court noted that Mr Zielinski and Mr Pradal had been represented by the same lawyer throughout the proceedings before the Commission and the Court, the other nine applicants having used the services of the same lawyer only after the Grand Chamber had ordered the joinder of the applications. C onsequently, and on the basis of the information in its possession, the Court, making its assessment on an equitable basis, awarded Mr Zielinski and Mr Pradal FRF 30,000 each in respect of the proceedings before the Commission and the Court and each of the other applicants FRF 4,000.

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