Resolution CM/ResDH(2008) 4 [1]

Execution of the judgment of the European Court of Human Rights

Baumann against France

(Application No. 33592/96, judgment of 22 May 2001, final on 22 August 2001)

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 to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern an infringement of the applicant ' s right of access to a court to obtain recognition of his title to property seized and then confiscated (violation of Article 6§1), as well as of his right to liberty of movement, due to the seizure and then confiscation of his passport (violation of Article 2 of P rotocol No. 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order 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 948th meeting of the Ministers ' Deputies (14 December 2005), 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)4

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

Introductory case summary

The case concerns an infringement of the applicant ' s right of access to a court (between 1993 and 1995) to obtain recognition of his right of property with respect to possessions – in particular a sum of money (7 700 German marks, namely 3 936,95 euros) and documents, one of which a German passport – seized and then confiscated by a court decision, in the context of criminal proceedings to which the applicant was a third party (violation of Article 6, paragraph 1). None of the four remedies the applicant tried by the applicant to obtain the restitution of this property was effective, because of various shortcomings:

1. Application before the investigating magistrate (Art. 99 of the Code of Criminal P rocedure): under this Article, the applicant requested the investigating magistrate to order the restitution of the objects; however “the judge failed unexpectedly to rule on this application and ( ... ) thus the applicant was deprived of possibility to benefit from this remedy, which had been available since the pre-trial investigation stage” (§42 of the judgment);

2. Application before the Criminal Court (Article 479 of the Code of Criminal P rocedure): under this Article, as a third person at the trial, the applicant could have requested the Criminal Court to order the restitution of the objects; however “ not having been informed that the case had been scheduled before this court, the applicant was unable to use this remedy at the time when the judgment of the Criminal Court was delivered” (§43 of the judgment);

3. Application before the P ublic P rosecutor (Art. 41-1 1st paragraph of the Code of Criminal P rocedure): under this Article, the applicant requested the P ublic P rosecutor to order the restitution of the objects; however he used this possibility too late: the criminal court had already ordered the confiscation of the seized objects by judgment; “this remedy could not be effective because the competent authorities failed to give information about the scheduling of the case before the Criminal Court” (§44 of the judgment);

Moreover, the case concerns an infringement of the applicant ' s right to freedom of movement, due to the seizure of his passport during searches and then its confiscation by court order (violation of Article 2 P rotocol No. 4).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

20 000 French francs

(3 048,98 Euros)

30 000 French francs

(4 573,47 Euros)

50 000 French francs

(7 622,45 Euros)

P aid on 20/12/2001, with interest

b) Individual measures

The issue of the restitution of the passport seized in 1993 is obsolete. The passport in question would no longer be valid and in any case it was destroyed.

The sums of which the applicant tried to obtain restitution, and of which he was prohibited from establishing ownership, as it is not possible to speculate on what would have been the outcome of the proceedings on restitution, have been placed on an escrow account of the Caisse des dépôts et consignations.

More generally, concerning the fate of all the seized objects: taking into account the very specific, isolated shortcomings which led to the violations in this case, and in view of the fact that the French courts directly apply the Convention and that in this case they have been placed in a position to draw the consequences of this judgment (see below the general measures), following the European Court ' s judgment, the applicant was able to lodge a new application for the restitution of the seized objects, in particular under Articles 710 and 711 of the Code of Criminal P rocedure.

It is to be noted that the applicant has never made representations to the Committee of Ministers during the execution since 2001.

Finally, it is recalled that the European Court granted the applicant just satisfaction in respect of first, the non pecuniary damage sustained (20 000 French francs, namely 3 048,98 Euros) and, second, the costs and expenses, including the cost necessarily incurred in the domestic proceedings for the applications lodged for the restitution of the seized objects (30 000 French francs, namely 4 573,47 Euros).

II. General measures

The present case deals with isolated problems.

In order to prevent new similar problems, measures have been taken to ensure that all relevant authorities take this judgment into consideration. In view of the direct effect given to the Convention in France, this judgment has been broadly and swiftly disseminated to all French courts and to the prosecutors general of all courts of appeal, and published on the Ministry of justice ' s intranet site, which is accessible to all the judiciary

Concerning more specifically the issue of the information provided to third persons at criminal proceedings concerning the moment when the case is scheduled before the relevant court (see above point 2 of the introductory case summary), the government is of the opinion that it is not desirable to modify Article 479 of the Code of Criminal P rocedure, because such amendment would give rise to excessive practical obstacles. In particular, it would imply individually informing third persons who might be owners of seized objects, whereas generally the owner ' s identity is not known. Application of the existing remedies for restitution of seized and/or confiscated objects in a manner compliant with the Baumann judgment will in any event respect the requirements of the Convention.

III. Conclusions of the respondent state

The government considers that the measures taken offered the possibility to remedy the consequences for the applicant of the violations 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 27 March 2008 at the 1020th meeting of the Ministers’ Deputies