Resolution CM/ResDH(2008) 40 [1]

Execution of the judgment of the European Court of Human Rights

Frette against France

(Application No. 36515 /97, judgment of 26 February 2002, final on 26 May 2002)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 transmitted by the Court once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns an infringement to the right to a fair trial in proceedings before the Conseil d ' Etat due to the fact that the applicant, who was unrepresented and had not been notified of the hearing , found it impossible to acquaint himself with the Government Commissioner ' s submissions or to establish the general tenor of those submissions and thus to have the opportunity to submit a memorandum in reply (violation of Article 6§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 France ' s 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 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) and considering the decision taken at the 885th meeting of the Ministers ' Deputies (15 June 2004), 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 this case.

Appendix to Resolution CM/ResDH(2008)40

Information about the measures taken to comply with the judgment in the case of Frette against France

Introductory case summary

The case concerns an infringement of the right to a fair trial in proceedings before the Conseil d ' Etat, regarding an application for prior authorisation to adopt a child, in that the applicant, who was unrepresented and had not been notified of the hearing , had no possibility of acquainting himself with the Government Commissioner ' s submissions or establishing the general tenor of those submissions and thus having the opportunity to submit a memorandum in reply.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

3 500 EUR

3 500 EUR

P aid on 14/10/2002 with interest

b) Individual measures

The applicant made no claim, either to the Court or to Committee of Ministers, for any non-pecuniary damage he may have suffered because of the violation of the right to a fair trial. Therefore, no measure appeared necessary.

II. General measures

Several measures have been adopted to ensure the adversarial character of proceedings before the Conseil d ' Etat for unrepresented parties .

Since 1 January 2001, according to Article R. 712-1 of the Code of Administrative Justice , any party, represented or unrepresented , is notified of the date of the hearing. Unrepresented applicants thus informed may attend the hearing and have therefore the possibility to hear the Government Commissioner ' s submissions and submit a memorandum for the deliberations in reply, if they so wish. This notification allows the party to make contact with the Government Commissioner in order to receive the general tenor of his submissions.

In a memorandum of 23 November 2001, the P resident of the judicial department of the Conseil d ' Etat reminded to the Government Commissioners that an unrepresented applicant must receive the same information as that given to Counsel (members of the specific bars of the Conseil d ' Etat and the Cour de cassation ).

The Government Commissioner ' s submissions are therefore communicated to unrepresented applicants when they ask for it.

III. Conclusions of the respondent state

The government considers that the measures taken have 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 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 25 June 2008 at the 1028th meeting of the Ministers’ Deputies