Resolution CM/ ResDH (2009)55 [1]

Execution of the judgments of the European Court of Human Rights

in 3 cases against France regarding the

right to a fair trial before the Conseil d ’ Etat (Presence of the Government Commissioner in the deliberations - case-law Kress)

(see details in Appendix)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concern the lack of a fair trial due to the presence of the Government Commissioner in the deliberations of the Conseil d ’ Etat (violations of Article 6, paragraph 1), that the cases of Sarl du Parc d ’ Activités de Blotzheim and Malquarti also concern the excessive length of proceedings before administrative courts (violations 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 judgments;

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 the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- 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 these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2009)55

Information about the measures to comply with the judgments

in 3 cases against France regarding the

right to a fair trial before the Conseil d ’ Etat (Presence of the Government Commissioner in the deliberations - case-law Kress)

Introductory case summary

These cases concern the lack of a fair trial due to the presence of the Government Commissioner in the deliberations of the Conseil d ’ Etat (violations of Article 6, paragraph 1).

The cases of Sarl du Parc d ’ Activités de Blotzheim and Malquarti also concern the excessive length of proceedings before administrative courts (violations of Article 6, paragraph 1).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Judgment of

Final on

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Paid on

Sarl du Parc d ’ Activités de Blotzheim (72377/01)

11/07/2006

11/10/2006

-

10 000 euros

-

16/03/2007

(+ interest)

Poulain de Saint Père (38718/02)

28/11/2006

28/02/2007

-

-

1 500 euros

28/11/2007

(+ interest)

Malquarti (39269/02)

20/09/2006

-

4 000 euros

1 500 euros

21/12/2006

b) Individual measures

All the applicants alleged that they had suffered pecuniary damages in the context of the domestic proceedings that were not fair, or excessively long (even if the applicant Mr. Poulain de Saint Père did not quantify his request). The Court rejected their requests, in the absence of any causal link between the violations found and any possible pecuniary damage ( Sarl du Parc d ’ Activités de Blotzheim , Poulain de Saint Père ), or holding that the finding of a violation constituted in itself sufficient violation ( Malquarti ). However, the Court awarded just satisfaction in respect of the non pecuniary damage sustained by the applicant in the cases of which the proceedings were excessively long.

In consequence, no other measure appeared necessary.

II. General measures

1) Presence of the Government Commissioner in the deliberations of the Conseil d ’ Etat

With regard to this violation, these cases present similarities to the case of Kress and other similar cases, the examination of which was closed in view of the general measures adopted – after the material time in the present cases. The measures adopted appear in Final Resolution CM / ResDH (2007)44 (it is now open to parties to request that the Commissioner is not present in deliberations; the parties are informed of this right in the summons).

2) Excessive length of proceedings before administrative courts

With regard to this violation, the cases of Sarl du Parc d ’ Activités de Blotzheim and Malquarti present similarities to other cases of length of proceedings before administrative courts, the examination of which has been closed in view of the general measures adopted – after the material time in the present cases (among others recruitment of staff, procedural measures etc.). The measures adopted appear in Final Resolution CM/ ResDH (2008)12 in the case of Raffi against France and thirty other cases. This resolution also presents the effective remedy created to complain about the excessive length of such procedures.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent new, 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 2 April 2009 at the 1051st meeting of the Ministers’ Deputies