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You are here: BAILII >> Databases >> European Court of Human Rights >> BEAUMARTIN v. FRANCE - 15287/89 [1994] ECHR 40 (24 November 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/40.html Cite as: [1994] ECHR 15287/89, 19 EHRR 485, (1995) 19 EHRR 485, [1994] ECHR 40

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In the case of Beaumartin v. France*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court A**, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr A. Spielmann,

Mr A.N. Loizou,

Mr F. Bigi,

Sir John Freeland,

Mr G. Mifsud Bonnici,

Mr J. Makarczyk,

and also of Mr H. Petzold, Acting Registrar,

Having deliberated in private on 24 June and 25 October 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 35/1993/430/509. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 9 September 1993, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 15287/89) against the French Republic lodged with the

Commission under Article 25 (art. 25) by three French nationals, Mr

Pierre Beaumartin and his two sisters, Mrs Jeanne Droin and Mrs

Paule Thibout, on 19 July 1989.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 6 para. 1 (art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that

they wished to take part in the proceedings and designated the lawyer

who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 24 September 1993, in the presence of

the Registrar, the President drew by lot the names of the other seven

members, namely Mr F. Matscher, Mr A. Spielmann, Mr S.K. Martens,

Mr A.N. Loizou, Mr F. Bigi, Sir John Freeland and Mr G. Mifsud Bonnici

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

Subsequently, Mr J. Makarczyk, substitute judge, replaced Mr Martens,

who was unable to take part in the further consideration of the case

(Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the French

Government ("the Government"), the applicants' lawyer and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the applicants' and the Government's memorials

on 18 February 1994. On 10 May the Secretary to the Commission

informed the Registrar that the Delegate would submit his observations

at the hearing.

On 6 November 1993 the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 May 1994. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-P. Puissochet, Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Ms M. Merlin-Desmartis, administrative court

judge on secondment to the Department of

Legal Affairs, Ministry of Foreign Affairs, Counsel;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicants

Ms C. Waquet, avocate at the Conseil d'Etat

and the Court of Cassation, Counsel.

The Court heard addresses by Mr Puissochet, Mr Soyer and

Ms Waquet, and also replies to its questions and those of several

judges.

AS TO THE FACTS

I. The circumstances of the case

6. Mr Pierre Beaumartin, a retired industrialist of French

nationality, lives in Léognan (Gironde). His sisters, Mrs Jeanne Droin

and Mrs Paule Thibout, live respectively in Bordeaux and Paris.

A. The nationalisation

7. The applicants held between them ten shares in the Société

immobilière du Karmat El Hadj, a company under Moroccan law whose sole

asset was an agricultural estate of more than 400 hectares in the

Moroccan province of Kenitra and whose share capital comprised 6,000

shares. They further owned almost all of the share capital of the

Société foncière du Quartier de l'Europe, a non-trading company

(société civile) under French law, which itself owned 5,959 shares in

the Moroccan company in addition to a building in Paris.

8. Under a dahir (royal decree) of 2 March 1973 the Moroccan

Government nationalised agricultural land belonging to foreigners.

B. The compensation proceedings

9. On 2 August 1974, following negotiations, the Moroccan and

French Governments concluded a Protocol with a view to making provision

for the financial consequences of the nationalisation of French

citizens' assets. The following provisions are relevant to the instant

case:

Article 1

"The Moroccan Government shall pay the French Government

compensation in a single lump sum and the French Government

shall be responsible for apportioning that sum among the

beneficiaries of this Protocol.

The beneficiaries shall be natural persons of French

nationality who are individual or joint landowners or members

of partnerships or companies, or who suffered the consequences

of the dahir of 2 March 1973 in any other capacity."

Article 4

"The French Government shall be responsible for apportioning

the compensation provided for in this Protocol. ..."

Article 6

"With effect from the signature of this Protocol, each

Government undertakes, subject to the other Government's

compliance with their obligations under the Protocol, to

refrain from submitting to the other Government or to an

arbitral tribunal or a court any claims made by their

nationals in respect of the assets, rights and interests

referred to in Articles 1, 2 and 5 of this Protocol or from

supporting such claims."

A decree of 3 January 1975 promulgated the text of the

agreement and charged the Prime Minister and the Minister for Foreign

Affairs with implementing it.

10. Under a decree of 6 November 1979 a committee responsible for

apportioning the Moroccan indemnity was set up. Article 3 of the

decree provided:

"The committee shall comprise

(a) a representative of the Ministry of Foreign Affairs, who

shall chair the committee;

(b) a representative of the Ministry of Justice;

(c) a representative of the Ministry of the Interior; and

(d) a representative of the Ministry of the Economy.

The Chairman and members of the committee shall be appointed

by order of the Minister for Foreign Affairs.

...

Decisions shall be taken by a majority. The Chairman shall

have a casting vote."

11. In a decision of 23 June 1980, notified on 31 July 1980, the

committee awarded the applicants, as natural persons, compensation

solely in respect of the shares they owned directly in the Société

immobilière du Karmat El Hadj, i.e. four shares in Mr Beaumartin's case

and three shares in the case of each of his sisters. On the other

hand, pursuant to the second paragraph of Article 1 of the Protocol,

it refused to pay them compensation in their capacity as majority

shareholders of the Société foncière du Quartier de l'Europe.

C. The judicial proceedings

1. In the Paris Administrative Court

12. On 26 September 1980 the applicants challenged this decision

in the Paris Administrative Court. The grounds for their application

were set out in a memorial filed on 9 February 1981. They complained

that the committee had determined the compensation to be awarded in

respect of the Moroccan property company's agricultural estate solely

on the basis of the shares they held in that company in their own

names, without taking into consideration the shares they owned in the

French property company.

The Minister for Foreign Affairs, the respondent in the

proceedings, submitted his observations in reply on 2 April 1981.

13. In an order of 15 June 1981 the Vice-President of the

Administrative Court held that the dispute fell outside that court's

jurisdiction and forwarded the application and the file to the Conseil

d'Etat.

2. In the Conseil d'Etat

14. The Minister for Foreign Affairs filed observations on

25 February 1983.

15. On 3 October 1986 the Conseil d'Etat deferred its decision on

the application until the authority empowered to interpret the Protocol

had given its opinion. It gave the following reasons:

"The outcome of this dispute depends on whether, under this

Article [1 of the Franco-Moroccan Protocol], natural persons

are entitled to claim compensation solely as members of

partnerships or companies that were the direct owners of

assets conferring a right to compensation under the

above-mentioned Protocol or whether they are also entitled to

do so as shareholders of companies themselves members of the

partnerships or companies which owned such assets. The

outcome of the dispute is accordingly contingent on the

interpretation of the Protocol. The Protocol is an

international agreement and its meaning is unclear.

Consequently, only the Minister for Foreign Affairs is

competent to interpret it."

16. In a note of 2 July 1987 the Minister replied that the Protocol

in question "was not ... intended to cover natural persons holding

shares in companies which themselves were members of the partnerships

or companies that owned the assets conferring a right to compensation",

with the result that the applicants were not entitled to compensation

under the Protocol.

17. On 13 October 1987 the applicants filed further submissions,

in which they argued that, if the Conseil d'Etat considered itself

bound by the minister's interpretation, such a decision would entail

a violation of Article 6 para. 1 (art. 6-1) of the Convention.

The respondent filed submissions on 10 November 1988.

18. In a judgment of 27 January 1989 the Conseil d'Etat dismissed

the application on the following ground: "The interpretation given by

the Minister for Foreign Affairs is binding on the Conseil d'Etat which

can only draw the legal conclusions which follow from it."

II. The French case-law relating to the interpretation of

international treaties

A. The Conseil d'Etat's position

1. The case-law applied to the instant case

19. Since 1823 (see the Veuve Murat, Comtesse de Lipona, judgment

of 23 July 1823, Recueil des arrêts du Conseil d'Etat [Reports of the

judgments of the Conseil d'Etat], p. 545) the Conseil d'Etat had held

that the interpretation of international treaties fell outside the

scope of its judicial functions. When confronted with provisions that

it considered insufficiently clear - except for Community legislation,

the interpretation of which is governed by Article 177 of the Treaty

of Rome - it relied on the official interpretation given by the

Minister for Foreign Affairs. It deemed that interpretation to be a

prerogative act that could not be dissociated from international

relations, had binding force and was not open to challenge in the

courts (see the full court's judgment of 3 July 1931 in the case of

Karl and Toto Samé, Recueil des arrêts du Conseil d'Etat, p. 722, Sirey

1932, III, p. 129).

2. The subsequent case-law

20. On 29 June 1990 the Conseil d'Etat, sitting as a full court and

endorsing the submissions of the Commissaire du gouvernement,

Mr Ronny Abraham, delivered a judgment relating to the conditions of

circulation, residence and employment of Algerian nationals and their

families in France (G.I.S.T.I. judgment, Recueil des arrêts du Conseil

d'Etat, p. 171; Actualité juridique. Droit administratif 1990, p. 621;

Revue générale de droit international public 1990, p. 879; Revue

française de droit administratif 1990, p. 923, with a note by

Mr Jean-François Lachaume; Revue critique de droit international public

1991, p. 61). It discontinued the practice - which had no equivalent

in the other member States of the Council of Europe - of referring a

preliminary question to the minister on the construction of an

international treaty containing ambiguous or unclear provisions. It

now interprets international agreements itself and, if it seeks the

opinion of the executive, it does not regard itself as bound thereby.

B. The Court of Cassation's position

21. Since a judgment of 24 June 1839 (Dalloz 1839, part one,

p. 257), the Civil Divisions of the Court of Cassation have held that

the ordinary courts are entitled to interpret clauses of a treaty

"provided that they do not raise issues liable to jeopardise good

international relations" (l'ordre public international). Otherwise,

if an instrument is unclear they still require the question to be

referred to the Minister for Foreign Affairs (judgment of 7 June 1989,

First Civil Division, Juris-classeur périodique 1990, part two,

no. 21448).

In the Criminal Division the principle of a lack of

jurisdiction entailing an obligation to seek a preliminary

interpretation continues to apply. With the exception of the European

Convention on Human Rights, "international treaties are measures taken

by the highest administrative authorities which can only be

interpreted, if necessary, by the authorities which concluded them"

(judgment of 3 June 1985, Bulletin des arrêts de la Cour de cassation

[Court of Cassation law reports], no. 212, p. 542). The official

interpretation is of general application and is binding on the courts

(judgment of 7 June 1988, Bulletin des arrêts de la Cour de cassation,

no. 257, p. 683).

On the other hand, the Social Division recently abandoned the

approach of distinguishing between international treaties and now

interprets them without seeking to establish whether issues liable to

jeopardise good international relations are raised (Caisse autonome

mutuelle de retraite des agents des chemins de fer judgment of 29 April

1993 and submissions filed by the Advocate-General, Mr Chauvy, Gazette

du Palais, 11-12 March 1994, p. 13).

PROCEEDINGS BEFORE THE COMMISSION

22. Mr Beaumartin and his sisters lodged their application with the

Commission on 19 July 1989. Relying on Article 6 (art. 6) of the

Convention, they alleged that their case had not been heard within a

reasonable time by the administrative courts and that they had not been

given a fair hearing by the Conseil d'Etat since that court held itself

to be bound by the opinion of the Minister for Foreign Affairs.

23. The Commission declared the application (no. 15287/89)

admissible on 10 January 1992. In its report of 29 June 1993

(Article 31) (art. 31), the Commission expressed the opinion that there

had been a violation of Article 6 para. 1 (art. 6-1) in respect of the

applicants' two complaints (by ten votes to five). The full text of

the Commission's opinion and of the dissenting opinion contained in the

report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will appear

only with the printed version of the judgment (volume 296-B of

Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

GOVERNMENT'S FINAL SUBMISSIONS TO THE COURT

24. In their memorial the Government requested the Court to

"dismiss the application on the following grounds:

1. principally, that the provisions of Article 6 (art. 6) of

the Convention ... are inapplicable to the dispute;

2. alternatively, that France has not infringed the rules of

a fair hearing laid down by those provisions".

AS TO THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

25. The applicants complained of the length of the proceedings they

had brought in the administrative courts and the unfairness of those

conducted in the Conseil d'Etat. They relied on Article 6 para. 1

(art. 6-1) of the Convention, which provides:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing within a

reasonable time by an independent ... tribunal ..."

A. Applicability of Article 6 (art. 6)

26. The applicants and the Commission agreed that Article 6

(art. 6) was applicable in the instant case.

27. The Government took the opposite view. Referring in particular

to Mr Danelius's dissenting opinion annexed to that of the Commission,

they contended by way of primary submission - and this argument was

adduced for the first time before the Court - that the Franco-Moroccan

Protocol was an international agreement giving rise to rights and

obligations for the two Governments, which did not confer an individual

right to compensation on the persons concerned; it was the measures

subsequently taken by the French authorities that established such a

right. The Protocol merely provided a general definition of the

beneficiaries and contained no specific rule on apportionment of the

compensation.

In the alternative, they argued, as they had done before the

Commission, that the entitlements claimed, which were derived from an

international agreement freely negotiated by France in carrying out its

role of affording diplomatic protection to its nationals, were not

civil rights at all. They added that the subject-matter of the

"contestation" (dispute) did not have any direct link with the

deprivation of property suffered by the applicants, responsibility for

which measure lay with another State.

28. The Court is not persuaded by the Government's argument. The

negotiations entered into by the French Government, in the exercise of

their sovereign prerogative, with a view to obtaining reparation from

Morocco for damage sustained by French nationals whose property had

been expropriated undoubtedly fell within the scope of the State's role

of affording diplomatic protection. The first paragraph of Article 1

of the Protocol provided: "The Moroccan Government shall pay the French

Government compensation in a single lump sum and the French Government

shall be responsible for apportioning that sum among the beneficiaries

of this Protocol" (see paragraph 9 above). The Protocol therefore

already proclaimed the principle of the right to compensation of

certain categories of expropriated persons, even though it was for the

French authorities to determine, through a compensation committee set

up by decree, how the compensation was to be apportioned.

In undertaking to assume responsibility for apportionment of

the lump sum, the French Government at the same time waived their right

to submit any claims by French nationals to the Moroccan Government or

to support such claims (Article 6 of the Protocol - see paragraph 9

above). French nationals could, pursuant to the decree of

6 November 1979 (see paragraph 10 above), assert a right to a share of

the compensation received by France before the administrative committee

set up for this purpose.

The entitlement to compensation thus established in favour of

the applicants, among other persons, was unquestionably a pecuniary

right and consequently a civil one, notwithstanding the origin of the

dispute and the fact that the administrative courts had jurisdiction

(see, mutatis mutandis, the Neves e Silva v. Portugal judgment of

27 April 1989, Series A no. 153-A, p. 14, para. 37, and the Editions

Périscope v. France judgment of 26 March 1992, Series A no. 234-B,

p. 66, para. 40).

The dispute brought before the administrative courts originated

in an expropriation measure and related to the principle and/or

the extent of reparation. It thus directly affected the applicants'

property right, which was a civil right; the outcome of the dispute,

which depended on the interpretation of the treaty, was directly

decisive for a right of that nature.

Article 6 para. 1 (art. 6-1) is accordingly applicable.

B. Compliance with Article 6 (art. 6)

1. The length of the proceedings

29. Mr Beaumartin and his sisters claimed that, particularly in the

Conseil d'Etat, their case had not been heard within a reasonable time.

The Government disputed this assertion, whereas the Commission

endorsed it.

30. The period to be taken into consideration began on

26 September 1980, when the application was filed in the Paris

Administrative Court. It ended on 27 January 1989, on which date the

Conseil d'Etat delivered its judgment dismissing the appeal. It

therefore lasted eight years and four months.

31. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

32. According to the Government, the applicants contributed to

delaying the case by initially instituting proceedings in a court that

lacked jurisdiction. The case was furthermore a particularly complex

one because it raised a difficult question of interpretation. Finally,

the Conseil d'Etat could not, without breaching the principle of

adversarial proceedings, set down the case for hearing until the

applicants had filed their observations in reply to the Minister for

Foreign Affairs' note interpreting the Protocol and the State, as the

respondent in the proceedings, had filed its own submissions in reply.

33. Like the Commission, the Court accepts that the applicants

prolonged the proceedings by almost nine months by erroneously bringing

proceedings in the Paris Administrative Court. They also contributed

to the length of the proceedings by not filing their pleadings until

four months after lodging their appeal. The case was, moreover, a

difficult one because of the wording of Article 1 of the

Franco-Moroccan Protocol and the procedure followed to obtain an

official interpretation.

The Court notes, however, that there were long periods during

which the proceedings in the Conseil d'Etat stagnated, for which no

explanations have been forthcoming. The respondent ministry waited

twenty months after the commencement of proceedings before filing

pleadings (see paragraph 14 above) and the court dealing with the case

took over five years to hold its first hearing (see paragraph 15

above). It follows that the Court cannot regard as "reasonable" in

this instance a lapse of time of more than eight years.

There has therefore been a violation of Article 6 para. 1

(art. 6-1) in this respect.

2. The fairness of the proceedings

34. The applicants maintained that the proceedings in the Conseil

d'Etat had not been fair. In so far as it had referred to their

opponent - the Minister for Foreign Affairs - for an interpretation of

the applicable law, the Conseil d'Etat had abdicated its judicial

duties.

35. The Commission took the view that such an interference with the

Conseil d'Etat's powers by a representative of the executive, who was

moreover a party to the proceedings, was incompatible with the

principle of the independence of the courts laid down in Article 6

para. 1 (art. 6-1).

36. The Court considers that the minister in question did not have

the status which the Commission and the applicants attributed to him.

The application to have the administrative decision set aside was filed

against the State, represented by the competent authority, the Minister

for Foreign Affairs, who had played no role in determining the amount

of the compensation. The Court will therefore examine the complaint

from the point of view of the independence of the tribunal and not from

that of the principle of equality of arms.

37. The Government acknowledged that the practice of referring

provisions for interpretation no longer had any real equivalent in the

other member States of the Council of Europe and that the Conseil

d'Etat had now discontinued it. They pointed out nevertheless that the

practice had been a longstanding one, to which recourse had been had

very rarely owing to the liberal application of the "acte clair"

doctrine. They also drew attention to the advantages of such a

practice. There were advantages from the legal point of view since it

ensured that international agreements were interpreted consistently,

which was a guarantee of legal certainty and of equality of treatment

for litigants. There were also technical advantages as the minister

was the best placed authority to inform the courts of the Contracting

Parties' mutual intention. Lastly, the Government considered this

practice quite simply to reflect an institutional balance of powers,

in particular between the judiciary, the executive and the legislature.

Relying on the Delcourt v. Belgium judgment (17 January 1970,

Series A no. 11), it requested the Court to look beyond appearances and

contended that in the instant case the reference of the preliminary

question to the minister had not violated the principle of equality of

arms. On being consulted by the Conseil d'Etat, he had himself sought

the opinion of the French negotiator of the treaty with the result that

the interpretation he gave had been completely objective and unbiased.

38. The Court does not subscribe to the Government's view. It

points out that the practice under consideration meant that, when the

administrative court encountered serious difficulties in interpreting

an international treaty, it was obliged to request the Minister for

Foreign Affairs to clarify the meaning of the impugned provision and

it then had to abide by his interpretation in all circumstances. The

Government conceded this.

The Court takes note of the recent change in French law in this

respect. At least where the administrative courts are concerned, the

power to interpret treaties is no longer vested exclusively in the

Minister for Foreign Affairs (see paragraph 20 above).

It observes, however, that in the instant case the Conseil

d'Etat referred to a representative of the executive for a solution to

the legal problem before it. It dismissed the application filed by

Mr Beaumartin and his sisters because the minister had confirmed the

interpretation adopted by the compensation committee. The Court points

out, in addition, that the minister's involvement, which was decisive

for the outcome of the legal proceedings, was not open to challenge by

the applicants, who had moreover not been afforded any possibility of

giving their opinion on the use of the referral procedure and the

wording of the question.

Only an institution that has full jurisdiction and satisfies

a number of requirements, such as independence of the executive and

also of the parties, merits the designation "tribunal" within the

meaning of Article 6 para. 1 (art. 6-1) (see, inter alia, the Ringeisen

v. Austria judgment of 16 July 1971, Series A no. 13, p. 39, para. 95;

the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June

1981, Series A no. 43, p. 24, para. 55; and the Belilos v. Switzerland

judgment of 29 April 1988, Series A no. 132, p. 29, para. 64). The

Conseil d'Etat did not meet these requirements in the instant case.

39. In sum, the applicants' case was not heard by an independent

tribunal with full jurisdiction. There has accordingly been a

violation of Article 6 para. 1 (art. 6-1) in this respect also.

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

40. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

41. The applicants requested the Court to award them 120,000 French

francs (FRF) for the length of the proceedings and FRF 200,000 on

account of their unfairness. As to the latter claim, they alleged that

they had lost all opportunity of having their case tried or of

obtaining an interpretation of the Protocol that would be favourable

to them.

42. In the Government's opinion, although the excessive length of

the proceedings could justify compensation within a limit of

FRF 30,000, a finding of a violation would constitute sufficient

reparation for the non-pecuniary damage resulting from any infringement

of the rules on fair trial.

43. Without expressing his view on the sums claimed, the Delegate

of the Commission observed that there had been a loss of opportunity.

44. The Court cannot speculate as to the conclusions which the

Conseil d'Etat would have reached if it had not sought the minister's

interpretation of the Protocol. It considers, however, that the

applicants must have suffered non-pecuniary damage, for which the

findings of violations in this judgment do not constitute sufficient

reparation. Taking its decision on an equitable basis, as required by

Article 50 (art. 50), it awards them FRF 100,000 under this head.

B. Costs and expenses

45. The applicants also claimed reimbursement of FRF 80,000 in

respect of the costs and expenses incurred before the Conseil d'Etat

(FRF 10,000) and before the Convention institutions (FRF 70,000).

The Government left this matter to the Court's discretion.

The Delegate of the Commission expressed no opinion.

46. On the basis of the criteria it applies in this field, the

Court awards the applicants FRF 80,000.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that Article 6 para. 1 (art. 6-1) of the Convention is

applicable in the instant case;

2. Holds that there has been a breach of Article 6 para. 1

(art. 6-1) on account of the length of the proceedings;

3. Holds that there has been a breach of Article 6 para. 1

(art. 6-1) in that the applicants' case was not heard by an

independent "tribunal" having full jurisdiction;

4. Holds that the respondent State is to pay the applicants,

within three months, 100,000 (one hundred thousand) French

francs for non-pecuniary damage and 80,000 (eighty thousand)

francs for costs and expenses;

5. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 24 November 1994.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Acting Registrar