Resolution CM/ResDH(2008) 5 [1]

Execution of the judgments of the European Court of Human Rights

Bayle and Carabasse against France

(Bayle case: application No. 45840/99, judgment of 25 September 2003, final on 25 December 2003;

Carabasse case: application No. 59765/00, judgment of 18 January 2005, final on 18 April 2005)

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

Recalling that the violations of the Convention found by the Court in these cases concern the infringement of the applicants ' right of access to a court (violation of Article 6§1), on account of the disproportionate nature of decisions to strike their appeals out of the roll of the Cour de cassation , on the grounds that they had not paid a fine ordered by the Court of Appeal (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 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(2008)5

Information about the measures taken to comply with the judgments in the cases of Bayle and Carabasse against France

Introductory case summary

These cases concern infringements of the applicants ' right of access to a court (violations of Article 6, paragraph 1). In 1998 and 1999, their appeals on points of law were struck from the roll of the Cour de cassation by its First P resident under Article 1009-1 of the new Code of Civil P rocedure, on the grounds that they had not complied - or not fully complied - with pecuniary orders made by the respective Courts of Appeal. Their subsequent applications for restoration of their appeals to the Cour de cassation roll were denied (in July 2000 and November 2002 for Bayle, and in May 2000 for Carabasse).

In reaching the conclusion that the decision to strike the applicants ' appeals out of the roll had been a disproportionate measure, the European Court took account, among other things, of their financial situation: they were unable to pay all the sums concerned.

In the Bayle case, the Court also took account of the fact that, notwithstanding the applicant ' s unfavourable financial situation, her desire to comply with the judgment had been evidenced by the fact that she had paid a substantial sum in partial execution; moreover, regarding the Cour de cassation ' s case-law on the issue before it, her appeal had good prospects of success.

In the Carabasse case, t he European Court also took account of the applicant ' s advanced age, a “determining element” in the case. Furthermore, according to the Court, the decisions striking out the appeal and confirming the striking-out were not reasoned so as to make it possible to ascertain that the First P resident of the Cour de cassation had examined the applicant ' s situation effectively or completely.

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

BAYLE

45840/99

-

5 000 euros

1 840 euros

6 840 euros

P aid on 6 April 2004, with interest

CARABASSE

59765/00

-

12 000 euros

4 200 euros

16 200 euros

P aid on 13 September 2005, with interest

b) Individual measures

Following the European Court ' s judgment, the applicant applied to the First P resident of the Cour de Cassation in order to reinstate the appeal on the roll. This has been accepted. Hence, it has been possible to begin the proceedings anew, before the 1st Civil Chamber of the Cour de cassation .

The applicant died in 2003 and his widow and two daughters applied to resume the proceedings before the Cour de cassation as his heirs. However, because the applicant had been inactive for two years, the other party to the proceedings asked the First P resident to declare that these proceedings had lapsed. No appeal is possible in this respect (§ 33 of the judgment). This is why the applicant ' s heirs were obliged to pay the damages owing under the terms of the pecuniary sentence given at appeal (nearly 200 000 euros) by the judgment which could not be contested because of the violation of the Convention.

It is not possible, under French law, to have this case re-examined or re-opened, following the judgment of the European Court .

Nevertheless, two elements lead to the conclusion that no individual measure is necessary. First, the proceedings at issue resulted in establishing certain rights to the benefit of a third party of good faith (a person to whom Mr Carabasse had been ordered to pay damages), who deserves protection according to the principle of legal certainty. Secondly, the applicant heirs made no request at the stage of the execution of the European Court ' s judgment.

II. General measures

In these cases, the European Court did not call Article 1009-1 of the New Code of Civil P rocedure into question, but rather its implementation by the judge.

These cases present similarities to that of Annoni di Gussola and others against France (judgment of 14 November 2000), in which the Court had already found a similar violation. In this case, general measures had been taken as from January 2001, in particular the publication of the judgment with a view to facilitating its direct application in national case-law [2] .

However, similar violations occurred after the adoption of these measures, including in the Bayle case, as well as in more recent judgments, in particular Cour against France (judgment of 3 October 2006 - application for restoration of the appeals to the roll denied in February 2002) and Ong against France (judgment of 14 November 2006 - application for restoration of the appeals to the roll denied in June 2002), the following complementary measures were adopted:

III. Conclusions of the respondent state

The government considers that the individual measures taken in the Bayle case have fully remedied the consequences for the applicant of the violation, and that no individual measure is necessary in the Carabasse case. The Government further considers that the general measures will prevent new, similar violations. Consequently, it considers that France has 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

[2] Final Resolution CM/ResDH(2007)37 adopted on 20/04/2007 by the Committee of Ministers , in view of its decision taken at its 760th meeting (23/07/2001).