Resolution CM/ ResDH (2010) 87 [1]

Execution of the judgment of the European Court of Human Rights

Asnar against France

(Application No. 12316/04, judgment of 18 October 2007, final on 18 January 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of civil proceedings before the Conseil d ’ Etat because of the failure to communicate to the applicant pleadings from the adverse party (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of t his case.

Appendix to Resolution CM/ ResDH (2010)87

Information about the measures to comply with the judgment in the case of

Asnar against France

Introductory case summary

The case concerns the unfairness of certain proceedings concerning civil rights and obligations before the Conseil d ’ Etat in 1999, and in particular the violation of the adversarial principle due to the fact that a memorial in reply from another party had not been communicated to the applicant (violation of Article 6, paragraph 1).

The European Court noted that this memorial included a reasoned opinion on the merits of the claim of the applicant, who should therefore have been given the opportunity to submit his comments.

In the proceedings at issue, the Conseil d ’ Etat set aside a judgment awarding the applicant a pension as from 1991. As a result of this judgment the Minister for Economic Affairs, Finance and Industry decided that the applicant ’ s right to a pension dated only from 1996. The applicant thus found himself obliged to reimburse the pension that had been paid to him between 1991 and 1996, a total of more than 122 000 euros.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

2 000 euros

2 000 euros

Paid on 10/03/2008

b) Individual measures

Before the European Court , the applicant requested the reimbursement of the sums which had been unduly claimed (more than 122 000 euros); but the Court rejected the applicant ’ s request, on the ground that it could not speculate on the outcome of the proceedings at issue in the absence of a violation of Article 6, paragraph 1.

The applicant appealed to the French administrative courts of appeal against the contested decisions requiring him to reimburse the sums to the state (decisions of which he had, furthermore, obtained suspension), and requested compensation for the damage allegedly caused to him by the postponement of his pension from 1991 to 1996. In 2005 the Bordeaux Administrative Court partly allowed his request and ordered the state to pay him 120 000 euros in compensation for the pecuniary damage suffered and 11,000 euros for non-pecuniary damage. In a judgment of 3 January 2008, the Bordeaux Administrative Court of Appeal upheld this decision. No appeal has been lodged against this judgment.

It is also pointed out that the Court held that its finding of a violation of the Convention in itself constituted sufficient just satisfaction in respect of non-pecuniary damage.

Finally, no consequences of the unfairness of the proceedings appear to remain.

II. General measures

According to Article R 611-1 of the Administrative Justice Code, memorials in reply should be communicated to the other party if they contain new elements. Domestic law did not therefore directly cause the violation, which was a consequence of its interpretation by the Conseil d ’ Etat , which did not disclose the memorial in reply to the applicant (the defendant in this case) considering – wrongly in the European Court ’ s opinion – that it included no new element that might have any bearing on the outcome of the dispute.

Taking into account the fact that the courts concerned grant direct effect to the Convention, measures taken to draw their attention to this judgment will suffice to avoid new, similar violations.

In particular, the judgment has been brought by the Conseil d ’ Etat documentation centre to the attention of the Conseil d ’ Etat , of the administrative courts and of the administrative courts of appeal, via their respective intranet sites, with a view to granting the broadest possible publicity to all administrative courts.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies