Resolution CM /ResDH(2007)44 [1]

Execution of the judgments of the European Court of Human Rights

i n the case of Kress against France and in 5 other cases concerning the right to a fair trial before the Conseil d ' Etat (participation of the Government Commissioner in the deliberations)

Kress, application No. 39594/98, judgment of 7 June 2001 – Grand Chamber

A P B P , application No. 38436/97, judgment of 21 March 2002, final on 21 June 2002

Immeubles groupe Kosser, application No. 38748/97, judgment of 21 March 2002, final on 21 June 2002

Théraube, application No. 44565/98, judgment of 10 October 2002, final on 21 May 2003

Marie Louise Loyen and others, application No. 55929/00, judgment of 5 July 2005, final on 5 October 2005

Maisons Traditionnelles, application No. 68397/01, judgment of 4 October 2005, final on 4 January 2006

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 referred to as “the Convention” and “the Court”),

Having regard to these 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 lack of a fair trial due to the participation of the Government Commissioner in the deliberations of the Conseil d ' Etat (see details in Appendix ) and in the cases of Kress and Maisons Traditionnelles also concern the excessive length of proceedings before administrative courts (violations of Article 6, paragraph 1) ;

Having invited the government of the respondent state to inform the Committee of the mea s ures taken 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;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix,

DECLARES 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(2007)44

Information on the measures taken to comply with the judgments in the case of

Kress against France and in 5 other cases concerning the

the right to a fair trial before the Conseil d ' Etat

Introductory case summary

These cases concern infringements of the right to a fair trial on account of the Government Commissioner ' s participation in the deliberations of the trial bench in proceedings before the Conseil d ' Etat (violations of Article 6, paragraph 1). The European Court, referring to the theory of appearances, considered that the advantage for the bench of this purely technical assistance by the Government Commissioner in the deliberations (the Government Commissioner being the last to have seen and studied the case file, he would be able to answer any question which might be put to him during deliberations) “is to be weighed against the higher interest of the litigant, who must have a guarantee that the Government Commissioner cannot through his presence influence the outcome of the deliberations”.

The Grand Chamber confirmed in its Martinie judgment of 12 April 2006 that the presence of the Government Commissioner in the deliberations leads to a violation of the Article 6, paragraph 1 of the Convention whether this presence is “active” or “passive”.

The cases of Kress and Maisons Traditionnelles also concern the excessive length of proceedings before administrative courts (violation of Article 6, paragraph 1).

I. P ayment 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

Kress Marlène

No. 39594/98

-

80 000 euros

20 000 euros

100 000 euros

P aid with the interest on 17 January 2002

A P B P

No. 38436/97

-

-

3 000 euros

3 000 euros

P aid on 12 July 2002

Immeubles groupe Kosser

No. 38748/97

-

-

3 000 euros

3 000 euros

P aid with the interest on 23 October 2002

Théraube Brigitte and Laetitia

No. 44565/98

-

10 000 euros

-

10 000 euros

P aid on 11 August 2003

Loyen Marie-Louise and others

No. 55929/00

-

-

500 euros

500 euros

P aid on 22 March 2006

Maisons Traditionnelles,

No. 68397/01

-

7 000 euros

2 000 euros

9 000 euros

P aid on 28 December 2005

b) Individual measures

As regards the finding of a violation concerning the presence of the Government Commissioner in the deliberations before the Conseil d ' Etat , no other measure seems necessary, due to the circumstances of these cases and the reasons put forward by the Court in support of its decisions on the just satisfaction.

Furthermore, the domestic proceedings in the cases of Kress and Maisons Traditionnelles are closed.

II. General measures

On the participation of the Government Commissioner in the deliberations of the Conseil d ' Etat

The French government modified the Code of Administrative Justice by a Decree of 1 August 2006, published in the Official Journal on 3 August 2006 and which entered into force on 1 September 2006.

This decree lays down a distinction between the Conseil d ' Etat , which guarantees the consistency of administrative case-law, and ordinary courts and administrative courts of appeal.

The Government Commissioner will no longer intervene in deliberations in proceedings before courts and administrative courts of appeal.

In proceedings before the Conseil d ' Etat it will be open to parties to request that the Commissioner does not take part in deliberations (see A rticle R. 733-2 which may be translated as follows: “T he Government Commissioner is present at deliberations, unless any party requests that he is not . He does not take part. Requests [that the Government Commissioner should not be present at deliberations] must be submitted in writing and may be made at any point in the proceedings prior to the deliberations”). P arties are informed of this right in the summons, which quotes the terms of the Decree of 1 August 2006. If no such request is submitted, the Government Commissioner will be present at the deliberation in the interest of the consistency of administrative case-law and the greater legal security of the parties.

On the length of proceedings before administrative courts

Measures have already been taken, in particular with the adoption of the Law No. 2002-1138 of 9 September 2002, which provides, inter alia , the recruitment of staff, the creation of new courts, and provision of budgetary resources and which, through the adoption of procedural measures enables administrative courts both to reduce their backlogs more quickly and to reduce the flow of incoming cases (see ResDH(2005)63 in the case of Sapl).

It should also be recalled that in the case of Broca and Texier-Micault (judgment of 21 October 2003), the European Court found that a remedy now exists in French law whereby a complaint may be lodged against the excessive length of proceedings before administrative courts.

III. Conclusions of the respondent state

The French government considers that, in view of these measures, it has complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 April 2007 at the 992nd meeting of the Ministers’ Deputies