Resolution CM/ResDH(2007)78 [1]

Execution of the case of

Lemoine Daniel against France

(Application No. 33656/96, Interim Resolution ResDH(2000)16, adopted on 14 February 2000)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),

Having regard to Interim Resolution ResDH(2000)16, adopted on 14 February 2000 in the case of Lemoine Daniel against France, in which the Committee of Ministers decided that there had been a violation of Article 6, paragraph 1, of the Convention, on account of :

- the lack of access for the applicant to a court to contest a decision, taken by his employer, the French railway company ( Société nationale des chemins de fer - S.N.C.F.), discharging him from his post on grounds of physical unfitness, and

- the excessive length of judicial proceedings concerning civil rights and obligations before civil courts,

and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 17 June 1999;

Whereas at the 695th meeting of the Ministers ' Deputies, the Committee of Ministers, agre e ing with the Commission ' s proposals, held by a decision adopted on 14 February 2000, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, 130 000 French francs (19 818,37 euros) in respect of non-pecuniary damage and 8 000 French francs (1 219,59 euros) in respect of costs and expenses, namely a total sum of 138 000 French francs (21 037,96 euros), and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 14 February 2000, having regard to France ' s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state accordingly gave the Committee information about the measures taken in consequence of the Committee ' s decisions taken to avoid new violations of the same kind as those found in this case (see details in Appendix);

Whereas the Committee of Ministers satisfied itself that on 23 November 2000, after the time-limit set, the government of the respondent state had paid the applicant the total sum of 138 000 French francs (21 037,96 euros) as just satisfaction, plus default interest;

Noting with regret that the courts seised by the applicant to have the decision discharging him from his post annulled in view of the breach of his right of access to a court, did not consider finally that they were competent to re-examine the situation, after years of proceedings during which the applicant could hope for another outcome;

Noting, however, that the alternative avenues indicated by the government offered, and still offer the applicant a possibility to obtain a further compensation for the consequences of the violation which would possibly not have been repaired, and noting that only this kind of redress would be possible today in view of the time elapsed (see details in Appendix),

Declares, taking into account the measures taken by the government, among other things to avoid new, similar violations, the applicant ' s specific situation, as well as the possibilities of compensation which are still open, that it has exercised its fun c tions under former Article 32 of the Convention in this case.

Appendix to Resolution CM/ResDH(2007)78

Information about the measures to comply with

Interim Resolution DH(2000)16 of the Committee of Ministers

in the case of Lemoine Daniel against France

Introductory case summary

This case concerns the fact that the applicant could not contest before a court a decision discharging him from his post in 1988 on grounds of physical unfitness, according to the procedure then applicable by his employer, the French railway company ( Société nationale des chemins de fer - S.N.C.F.) (violation of Article 6, paragraph 1).

This was because the French courts, holding themselves - in final judicial decisions - to be incompetent in view of the specific procedural rules applicable in this field, considered that a non-judicial organ (a commission set up by the S.N.C.F.) had exclusive jurisdiction to decide on the applicant ' s complaint. In fact the staff of the S.N.C.F., a public establishment principally subject to private law, is in principle subject to private law, but comes partially under a specific regime resulting from the S.N.C.F. Staff Rules or of regulations having the nature of an administrative act (points 36-39 of the Commission ' s report).

The case also concerns the excessive length of the judicial proceedings brought unsuccessfully by the applicant to contest his discharge, from 1989 to 1996 (violation of Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

130 000 French francs (19 818,37 euros)

8 000 French francs (1 219,59 euros)

138 000 French francs (21 037,96 euros)

Paid on 23 November 2000 + default interest

b) Individual measures

Access to a court

On several occasions, the applicant indicated that in his opinion the only measure likely to erase the consequences, for him of the violation concerning the access to a court was to ensure that the initial requests he had made in the national proceedings were examined by a “court”, within the meaning of the Convention, following the finding of a violation.

The internal avenues offering a possibility of redress for this violation not having been clear, the applicant tried to obtain the annulment of the S.N.C.F. decision at issue, by bringing his claims before the French courts. However, these courts (and most recently the Cour de cassation in a judgment of 30 September 2005) dismissed his requests, holding themselves incompetent to review the question of their competence, in spite of the finding of a violation of the Convention, because of the res judicata principle.

In these circumstances, while regretting the problems met by the applicant, the government nevertheless indicated that some avenues remain open to him, especially as a full reopening of the initial case on the applicant ' s discharge on grounds of physical unfitness would, obviously, at the most lead to compensation for the applicant, in particular in view of the time elapsed since the relevant time (almost 20 years) and the applicant ' s age.

French law offers the applicant possibilities to request compensation before the administration, even if it is not possible to give a priori guarantees that he will succeed. The applicant could, for example request compensation on the basis of the finding of violations of the Convention and/or on the merits of the dispute between him and the S.N.C.F.

If he fails, he could appeal before the administrative courts, requesting compensation on the basis of the provisions on which the initial, contested decision had been based. To deliver a judgment, these courts could be led to examine the merits of his claims and/or possibly grant him compensation for loss of opportunity. These courts apply the Convention and the Court ' s case-law directly and would thus be in a position to take account of the findings of violations to erase, as far as possible, their negative consequences (see also Final Resolution ResDH(2006)52 of the Committee of Ministers in the case of Chevrol against France ).

Excessive length of proceedings

The proceedings at issue ended in 1999. The damage suffered by the applicant has been compensated by the just satisfaction.

II. General measures

Access to a court

Since the facts of the case, a new procedure has been instituted (modification in 1999 of the Rules on health and the organisation of the occupational health service).

According to the new procedure, decisions concerning unfitness for work are taken by doctors from the occupational health service.

Where “( ... ) an agent contests a decision taken by the company occupational health officer declaring him/her unfit for his/her job, the agent may seise the transport labour inspector, who will take a decision after consulting the transport occupational health officer”.

There are several possibilities to appeal against decisions by transport labour inspectors (who in fact are ordinary labour inspectors): submission for an out-of-court settlement to the inspector who took the decision; disciplinary complaint to the Minister of Transport; finally, submission for a legal settlement before the administrative court.

The French authorities confirm that according to the law currently in force, these provisions would fully apply to a person in a situation similar to that of Mr Lemoine.

Length of the proceedings

It is recalled that general measures have already been taken to avoid excessive length of civil proceedings, in particular before the Cour de cassation . These measures were examined in the framework of the execution of the Hermant case (application No. 31603/96, Final Resolution ResDH(2003)88).

III. Conclusions of the respondent state

Concerning the violation of the right of access to a court, the government recalls that, event if Mr. Lemoine ' s appeal before the labour courts has not been successful, the alternative avenues it has indicated offered, and still offer him the possibility to obtain further compensation for the consequences of the violation which might possibly not have been repaired. It notes that only this kind of redress would be possible today in view of the time elapsed. Furthermore, the Government considers that no individual measure is necessary concerning the excessive length of proceedings, over and above the payment of the just satisfaction. Finally, the government considers that the general measures adopted will prevent new, similar violations. Consequently, the government considers that France has complied with its obligations under former Article 32 of the Convention in this case.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.