Resolution CM/ResDH(2008) 6 [1]

Execution of the judgment of the European Court of Human Rights

Bertuzzi against France

(Application No. 36378/97, judgment of 13 February 2003, final on 21 May 2003)

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 violation of the Convention found by the Court in this case concerned the fact that the applicant could not have the assistance of a lawyer although he had been given legal aid, which the competent authorities failed to give effect to (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 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), 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)6

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

Introductory case summary

This case concerns a violation in 1995 of the applicant ' s right of access to a tribunal to claim for damages against a lawyer whom he considered not to have represented him properly in previous proceedings, and hence of his right to a fair trial (violation of Article 6, paragraph 1).

Although he had been given legal aid, the applicant did not have the assistance of a lawyer, because of the successive withdrawals of various lawyers officially assigned to him.

The European Court found that the competent authorities should have taken the necessary steps to give effect to the decision to grant legal aid, so as to allow the applicant to have an effective defence. According to the decision awarding legal aid, even if representation by a lawyer was not compulsory in this case (a civil matter) it was nevertheless of the utmost importance. In June 1997, the P resident of the Bar informed the applicant that the decision to grant him legal aid had lapsed.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 euros

-

5 000 euros

P aid on 30 October 2003, with interest

b) Individual measures

The lawyer who represented the applicant before the European Court indicated that the applicant did not want to resume the proceedings at issue.

II. General measures

The existing procedural rules were not correctly applied in this case.

In similar cases, it is possible to ask for the assistance of an officially assigned lawyer whose professional address is outside the area of jurisdiction of the Court seised.

Furthermore, if no lawyer exercising within the area covered by the Court in question accepts the case (and provided this appears to be justified: Article 159 of the Decree of 27/11/1991), the P resident of the Bar must take it himself (corollary of Article 4 of the Law of 31/12/1971), which he did not do in the present case.

Otherwise, by virtue of his supervisory authority over the officers of the court, the prosecutor ( procureur général ) may draw the attention of the Bar Council to a situation such as that in the Bertuzzi case or even invoke a disciplinary fault before the competent authorities (Article 22 of the Law of 31/12/1971).

To ensure that these provisions are applied in the future in conformity with the Convention, the competent authorities have been duly informed of the present judgment: it has been transmitted to the authority which represents the Bar Associations before the French authorities, to ensure its dissemination to all local Bar Associations. It has been sent to the courts which have dealt with the case and published on the Intranet site of the Ministry of Justice ' s Department for European and International affairs. Finally, the general public has also been informed of the requirements of the Convention as they emerge from this judgment, as it has been published on the official Internet site www.legifrance.gouv.fr , section actualité européenne , and a summary of the judgment has also been published by the Court of Cassation ' s European Law Observatory ( Observatoire de Droit Européen ), in “ La Cour européenne des droits de l ' Homme - 2006 - Arrêts concernant la France et leurs commentaires ” (available on the Internet site of the Court of Cassation).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation 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