Resolution CM/ResDH(2007)79 [1]

Execution of the judgment of the European Court of Human Rights

Yvon against France

(Application No. 44962/98, judgment of 24 April 2003, final on 24 July 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection 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 concerns an infringement of the principle of equality of arms because the Government Commissioner (a party to the proceedings for assessing for compensation expropriation, defending the same interests that those of the expropriating authority – the state, in this case) had a privileged position in the proceedings before the expropriations judge (violation of Article 6, paragraph 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 (see details in Appendix);

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 in the judgment, 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;

Noting with regard to individual measures that French law provides no possibility to examine the need for re ‑ opening or re-examining the present case, following the judgment of the European Court ;

Considering that this situation does not dispense the Committee, from the point of view of the Convention, from examining whether appropriate measures to ensure, as far as possible, restitutio in integrum are nevertheless necessary;

Considering however, after a detailed examination of the elements at its disposal, that in this case the applicant does not appear to have undergone very serious negative consequences as a result of the violation, and noting in addition that the applicant made no representation while the case was before the Committee of Ministers;

Concluding accordingly that France was not in the present case called upon, under Article 46, paragraph 1, of the Convention, to adopt any individual measure over and above the payment of the just satisfaction awarded by the Court;

Recalling that, on the occasion of the examination of the Yvon case, the question of the reopening of “civil” proceedings within the meaning of the Convention following the finding of a violation of Article 6 by the Court, was discussed, and that a more general reflection by governments is going on, inter alia in the Council of Europe ' s intergovernmental bodies, concerning the development in national legal systems of appropriate procedures for re-examining cases, including re-opening (see inter alia Recommendation Rec(2000)2 of the Committee of Ministers and the judgments of the Court: San Leonard Band Club v. Malta of 29 July 2004, Lungoci against Romania of 26 January 2006, Gurov agaisnt Moldova of 11 July 2006 and Yanakiev against Bulgaria of 10 August 2006),

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(2007)79

Information about the measures to comply with the judgment in the case of

Yvon against France

Introductory case summary

This case concerns an infringement of the principle of equality of arms on account of the privileges of the Government Commissioner in expropriation proceedings, to the detriment of the parties subject to expropriation (violation of Article 6, paragraph 1).

The European Court noted that “the Government Commissioner is a “party to the proceedings for determining compensation” before the expropriations judge (paragraph 30 of the judgment), and his main role is “to ensure in particular that the compensation awarded for dispossession does not exceed the real value of the expropriated assets. Accordingly, he defends interests similar to those defended by the expropriating authority, tending towards moderation of compensation assessments. In addition, as in the instant case, he sometimes belongs to the same administrative entity, and even the same entity at département level, as the expropriating authority ' s representative” (paragraph 32 of the judgment).

The Court held that “whether regarded as a sharing out of representation of the community ' s interests in the compensation proceedings or as a strengthening of one party ' s position through the intervention of another, these circumstances undoubtedly weaken the expropriated party ' s position” (paragraph 32 of the judgment).

However, according to the European Court , this does not necessarily place the person whose land has been expropriated in a position of “substantial disadvantage” when presenting his case. To reach the conclusion that in these proceedings there was an imbalance to the detriment of the party whose land had been expropriated, in breach of the principle of equality of arms, the European Court relied on the following elements (paragraphs 33 to 37 of the judgment) :

Being a tax official, he has full access to the land registry index listing all transfers of property, whereas the expropriated party ' s access is limited (this party does not have a full and free access to the index: on the contrary, he may only obtain extracts corresponding to transfers of property, the references of which he knows).

2. Furthermore, the Government Commissioner plays a dominant role in the proceedings.

a. at first instance, unlike the other parties, he is not obliged to disclose his written submissions to them; he may simply file them with the registry, and is not even obliged to inform the other parties that he has done so;

b. he addresses the judge last;

c. “finally, and above all” (according to the European Court ), he has considerable influence over the judge ' s assessment of the land. The Commissioner ' s conclusions have a particular weight when the assessment he proposes is lower than that proposed by the expropriating authority and, in such a case, if the judgment dismisses the Government Commissioner ' s conclusions, it must give specific reasons. As a consequence, the judge is bound to a large extent; in fact, he is only entitled to name another expert at first instance, and may only do so in exceptional circumstances at the appeal stage.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

15 973,86 euros

15 973,86 euros

Paid on 22 October 2004 + default interest

b) Individual measures

The unfair proceedings concerned the amount of compensation the state was to pay to the applicant, in return for the expropriation of 21 hectares belonging to him, to improve a major road.

In the absence of an agreement between the applicant and the state as the expropriating authority on the amount of compensation to be paid, he applied to the expropriations judge (paragraph 10 of the Court ' s judgment).

The amount of compensation finally granted to the applicant following the proceedings was lower than the applicant ' s claims, but higher than the Government Commissioner ' s assessment.

With regard to the application of Article 41 of the Convention, the applicant requested, as pecuniary damage, the difference between the compensation for expropriation that, in his opinion, he should have received and the sum which he had been awarded by the expropriations courts. The European Court , holding that it could not speculate as to what the outcome of the proceedings complained of would have been had the violation of Article 6, paragraph 1, of the Convention not occurred, dismissed the applicant ' s claims in this respect (paragraphs 42-44 of the Court ' s judgment). As to the non-pecuniary damage, the Court considered it sufficiently compensated by the finding of a violation.

There is no possibility to examine the need for re-opening or re-examining the present case at national level, following the judgment of the European Court . Furthermore, in the circumstances of the case, there is no possibility for the applicant to lodge an appeal for an ex gratia compensation either.

In these circumstances, it was nevertheless necessary to consider whether, in this case, an individual measure – and more particularly the re-examination of the re-opening of the case – was required according to the practice of the Committee of Ministers or Recommendation Rec(2000)2 of the Committee of Ministers on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights.

The applicant made no representation while the case was before the Committee of Ministers,

Thus, after a detailed examination by the Committee of Ministers, it appeared that the applicant does not appear to have undergone very serious negative consequences as a result of the violation.

II. General measures

First, from 9 June 2004, the Cour de cassation , directly drawing the consequences of the present judgment of the European Court, held that some of the national provisions at issue in the Yvon case caused an imbalance incompatible with the principle of equality of arms to the advantage of the Government Commissioner, and that implementing them would breach Article 6, paragraph 1, of the Convention.

Secondly, on 13 May 2005 the French authorities enacted a decree, No. 2005/467 (which entered into force on 01/08/2005). A circular explaining this decree was also issued. It was published in the Ministry of Justice ' s official bulletin No. 100 (1 October to 31 December 2005), and expressly cites the Yvon judgment (see the Roux against France judgment of 25 April 2006, §14). The new decree provides the following.

1. Concerning the government Commissioner ' s advantage to assess the expropriated land.

Although it did not increase this access, the decree (Article R 13-32) now requires the Government Commissioner ' s conclusions to set out the references to the elements upon which he relied to reach the proposed assessment, as well as the reasons for which the elements which were not relevant were dismissed. Thus, the party whose land bas been expropriated would be in a position to access the same information as the Commissioner.

2. Concerning the Government Commissioner ' s dominant position in proceedings.

a. The Government Commissioner must now notify his conclusions to the parties (by recorded delivery with acknowledgement of receipt) at least eight days before the visit of the land. If he does not respect this obligation, his conclusions are inadmissible.

b. To compensate for the fact that the Commissioner addresses the judge last, the other parties may now reply to his conclusions by a written note (notified to the parties by recorded delivery with acknowledgement of receipt), until the day of the hearing.

c. The provision giving particular weight to the Commissioner ' s conclusions when the assessment he proposes is lower than that proposed by the expropriating authority has been repealed and replaced by the following provision: “The judgment must indicate the reasons in law and in fact for granting any principal or secondary compensation” (Article R 13-36). Accordingly there is now legal parity of treatment as between the Government Commissioner ' s and the claimant ' s proposals.

Finally, concerning the question of the possibility for the judge to appoint another expert:

- at first instance, the judge may now appoint an expert (or a solicitor - notaire ), by a reasoned decision, when there is a special difficulty regarding the assessment.

- at appeal, the assistance of an expert is no longer limited to exceptional circumstances. The decision is taken by a motivated decision of the court of appeal and the expert is chosen by the Chamber President if there is no agreement between the parties on this point.

The government has indicated that this decree is the precursor of a broader reform of the law of expropriation, and that a government order ( ordonnance ) would be adopted on the basis of a law of 9 December 2004. It also pointed out that the procedural principles set out in the Decree of 13 May 2005 in response to the European Court ' s judgment in Yvon, would not be changed.

III. Conclusions of the respondent state

The government declares that French law gives no possibility of re-judging the case, or of providing any other individual measure in this case, apart from the payment of just satisfaction. Since the applicant has not suffered very serious negative consequences resulting from the violation, the payment of the just satisfaction awarded by the European Court ensures, concerning the individual aspects of the case, full execution of the judgment. Furthermore, the government is of the opinion that the general measures adopted will prevent new, similar violations. Consequently, the government considers that France has complied with its obligations under Article 46, paragraph 1, of the Convention.

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