Ministers’ Deputies
Annotated Agenda
CM/Del/OJ/DH(2007)992-Add 4.1 2 April 2007[1]
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992nd (DH) meeting, 3‑4 April 2007
Section 4.1
Questions raised by the individual measures in cases
of unfair “civil”[2] proceedings
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Elements of reflection proposed by the Secretariat
1. When the European Court of Human Rights (“the Court”) holds that a state is responsible for a violation of the European Convention on Human Rights (“the Convention”), the respondent state has to achieve, if required and as far as possible, restitutio in integrum. That is to say that it must ensure that the violation has ceased and that the injured party is put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention[3].
2. The reflections presented here focus on the content of this obligation in cases where the Court holds that “civil” proceedings, in the meaning of the Convention, have been unfair.
3. In view of the very nature of the violation, in many cases of this type, the consequences of the unfairness on the outcome of the national proceedings are not certain, and nor is the situation in which the applicant would have been in the absence of a violation.
4. Hence, in order to determine the individual measures which must, if required, be adopted, the impact of the violation on the applicant’s situation must firstly be evaluated (I), and then the consequences of this evaluation may or must be drawn (II).
I. Evaluation of the impact of the violation on the applicant’s situation
5. The first question is to know who can or must clear up the uncertainty concerning the possible consequences of the violation. The Court itself is not, in the vast majority of cases, in a position to do this evaluation[4]; this is why, in numerous judgments finding that proceedings were unfair, the Court holds, under its examination from the application of Article 41, that it cannot speculate on what the outcome of the proceedings would have been in the absence of a violation[5]. On the contrary, the competent national authorities (judicial, administrative…) do have access to all the factual elements which are available, and are in a better position to proceed to this evaluation.
6. Thus, organs should exist at national level, capable of evaluating the possible incidences that the violation had - or did not have - on the outcome of the unfair proceedings, and then to draw the consequences from this evaluation. It is useful to recall the first paragraph of the operative part of Recommendation No. R(2000)2 of the Committee of Ministers to member states on the re-examination or reopening of certain cases at domestic level following judgments of the Court : the Committee “invites (…)the Contracting Parties to ensure that there exist at national level adequate possibilities to achieve, as far as possible, restitutio in integrum”[6].
7. When the national systems do not provide for such an evaluation, the Committee of Ministers is in a difficult position. Certains cases remained for a long time on the agenda of the DH meetings of the Ministers’ Deputies because of this difficulty, with sometimes complex debates. To come out of this impasse in a way complying with the obligation to achieve, as far as possible, restitutio in integrum, the only solution for the Committee of Ministers has been to try to evaluate itself whether the gravity of the violation and its consequences were such that an individual measure, e.g. the reopening of the proceedings, is required. If that is the case, it insists on the adoption of individual measures ; on the other hand, if such is not the case, it stops its supervision of the execution of the case, under its individual aspect[7].
II. Consequences to be drawn from the above-mentioned evaluation
8. When the evaluation of the impact of the violation has been made, whether by the respondent state or, failing that, by the Committee of Ministers, and that it has reached the conclusion that serious consequences of the violation - at least possibly - remain for the applicant, the state must rectify this. However, it remains free to chose the means of doing so [8].
9. The experience of the Committee of Ministers[9] and of the states[10] shows that re-examination or reopening may be appropriate means to achieve this aim in the case of unfair proceedings, inter alia in the case of “civil” proceedings within the meaning of the Convention. Moreover, this approach has also been recommended by the Court, also in “civil” cases[11]. In certain cases, the reopening of the proceedings at issue is even the only means of achieving restitutio in integrum (see Recommendation No. R (2000) 2).
10. However, in “civil” matters within the meaning of the Convention, these principles must be considered together with the principle of legal certainty[12].
11. Thus, when the national proceedings at issue created rights to the benefit of third parties (in comparison with the proceedings before the European Court) of good faith, the principle of legal certainty constitutes in prinicple an obstacle to a re-examination or reopening. This is obviously the case when the proceedings at issue concerned a dispute between two private persons (legal or natural)[13]. This is the case in the broad majority of cases.
12. On the other hand, when the national proceedings at issue did not create rights to the benefit of third parties (in comparison with the proceedings before the European Court) of good faith, the principle prevails, according to which the re-examination or reopening are good, indeed sometimes the best, means of achieving restitution in integrum in cases of unfair proceedings. It appears that this is the case inter alia when the state, responsible of the unfairness, is itself party to to the proceedings at issue[14], so that it has potentially benefited from the violation of which it is responsible. This situation is all the more accute when the proceedings at issue concern the exercise of powers conferred by public law.
[1] This document has been classified restricted at the date of issue. Unless the Committee of Ministers decides otherwise, it will be declassified according to the rules set up in Resolution Res(2001)6 on access to Council of Europe documents.
[2] Within the meaning of the Convention, i.e. proceedings that Article 6 defines as concerning “civil rights and obligations”. According to the Court’s case-law, this can concern proceedings having different denominations, depending from the national law (civil, administrative, statutory etc.).
[3] See inter alia the Papamichalopoulos v. Greece judgment (31 October 1995, § 34).
[4] For an opposite example, see the Stankiewicz v. Poland judgment (6 April 2006, in section 4.2 at the present meeting).
[5] For examples of cases in « civil » matters, see the judgments in the following cases : Lundevall v. Sweden (12 November 2002); Schelling v. Austria (10 November 2005). It can further be noted, concerning the execution of these judgments (individual measures), that the respondent states indicated to the Committee of Ministers that the applicants could ask for the re-examination or reopening of the case at national level (Lundevall : ResDH(2003)152 ; Schelling : agenda of the 987th meeting, February 2007, section 5.3). A recent case in the same sense is Stojakovic v. Austria (9 November 2006).
[6] See also § 8 of the explanatory memorandum : “Paragraph 1 sets out the basic principle behind the recommendation that all victims of violations of the Convention should be entitled, as far as possible, to an effective restitutio in integrum. The Contracting Parties should, accordingly, review their legal systems with a view to ensuring that the necessary possibilities exist.”
[7] See e.g. the cases of Saunders v. United Kingdom and I.J.L., G.M.R. and A.K.P. v. United Kingdom, Resolution ResDH(2004)88.
[8] See inter alia the Piersack v. Belgium judgment (former Article 50, 26 October 1984, §12).
[9] See e.g. Interim Resolution ResDH(2004)14 in the case of Sovtransavto Holding v. Ukraine, in which the Committee emphasized the necessity to guarantee that a reopening of proceedings be conducted in full respect of the Convention and of the case-law of the European Court in this case.
[10] See e.g. the Final Resolution in the Schüler-Zgraggen v. Switzerland case (ResDH(1995)95), from which it emerges inter alia that “in the opinion of the Swiss Government, [the] revision procedure should, in the spirit of the Article 50 (art. 50) of the Convention, allow Switzerland to fully repair the consequences of the violation of the Convention found by the Court”. See also Final Resolution in the Lundevall v. Sweden case (ResDH(2003)152), from which it emerges that “with regard to the applicant’s rights, the government notes that the applicant has the right to ask for the reopening of the proceedings before the Supreme Administrative Court and that this Court can order the reopening of the proceedings, if it considers it necessary, in order to fully erase the consequences of the violations for him”.
[11] See in particular the judgments in the cases of : San Leonard Band Club v. Malta (29 July 2004, § 68 ff) ; Lungoci v. Romania (judgment of 26 January 2006, § 53 ff.) ; Gurov v. Moldova (judgment of 11 July 2006, § 43) ; Yanakiev v. Bulgaria (judgment of 10 August 2006, § 88 ff.).
[12] In this respect, see § 10 of the explanatory memorandum of Recommendation R (2000) 2: “The practice of the Convention organs has demonstrated that it is primarily in the field of criminal law that the re-examination of a case, including the reopening of proceedings, is of the greatest importance. The recommendation is, however, not limited to criminal law, but covers any category of cases, in particular those satisfying the criteria enumerated in sub-paragraphs (i) and (ii). The purpose of these additional criteria is to identify those exceptional situations in which the objectives of securing the rights of the individual and the effective implementation of the Court’s judgments prevail over the principles underlying the doctrine of res judicata, in particular that of legal certainty, notwithstanding the undoubted importance of these principles.”
[13] See among others the André v. France case (judgment of 28 February 2006), in section 6.1 at the present meeting, or three cases against Poland : Jedamski and Jedamska (judgment of 26 July 2005), Kniat (judgment of 26 July 2005) and Teltronic-CATV (judgment of 10 January 2006), in section 4.1 at the present meeting.
[14] See e.g. the Yvon v. France case (judgment of 24 April 2003, in Section 4.1 at the present meeting, concerning the compensation to be allocated to the applicant following an expropriation, the state being the expropriating authority.