CASE OF GUILLEMIN v. FRANCE (ARTICLE 50)
Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Franz Matscher;R. Pekkanen
14. In a judgment of 26 May 1997 the Evry tribunal de grande instance ruled as follows: The application against Saint-Michel-sur-Orge Town Council The town council was certainly the instigator of the expropriation – subsequently declared unlawful – that gave rise to the damage sustained by the plaintiffs, and it has already been held to be liable in the judgment of 23 October 1995. The amount of this damage must therefore now be assessed and the town council ordered to pay the resulting sums. As regards the value of the building and the damage resulting from loss of enjoyment, it should be remembered that as all damage is to be assessed as at the date on which the assessment is made, the value of the building must be assessed as at the date of this judgment. But the interference with enjoyment must be assessed in relation to the income that the property would have brought in from the date of dispossession to the present day, and that presupposes that the land in question should also be valued at the date of dispossession, that is to say in July 1983. … The total value of the property, including the repurchase allowance, is therefore FRF 1,038,043; this figure was arrived at by the expert in September 1996 but, in the absence of any significant [change] since then, it will be adopted as being still valid at the date of this judgment. The plaintiffs should therefore be awarded the sum of FRF 1,038,043 in respect of the value of the property of which they have been dispossessed. The damage resulting from the loss of this property will be assessed on the basis of 6.5% – the average rate of return – of the value of the property in 1983, with annual indexation, as the expert recommended, that method of calculation and rate corresponding to the reality of the situation as it has developed since 1983. … And the damage resulting from interference with enjoyment will thus be assessed at FRF 415,883 in all. Apart from the foregoing damage, the plaintiffs have indisputably sustained damage distinct from the pecuniary or material damage through being deprived of a property that they were entitled to wish to keep and on account of the endless difficulties they encountered [over] many years in seeking compensation whose principle could not be in doubt. This non-pecuniary damage will be compensated by the award of a sum of FRF 150,000, an assessment which cannot be in any way affected by the judgment of the European Court of Human Rights. Interest shall be payable on the totality of the foregoing sums from the date of this judgment, having regard to their compensatory nature. Furthermore, regard being had to the length of time the case has lasted and the plaintiffs’ indisputable right to be compensated, this judgment shall be immediately enforceable notwithstanding any appeal, as is moreover appropriate to the nature of the case. …” In so deciding, the court adopted the assessment made in the court-appointed expert’s report that was filed on 29 July 1996. 15. On 4 November 1997 the President of the Paris Court of Appeal, ruling on the application for an interim order by Saint-Michel-sur-Orge Town Council and the Evry New Town Development Corporation, refused the council’s and corporation’s requests for a stay of execution of the judgment of the Evry tribunal de grande instance. His order read as follows: “… The general principle of law that property belonging to public bodies is exempt from execution, thus making it impossible to have recourse to the execution procedures of private law, has no bearing on the present case, as the execution of judgments by public bodies is governed by the special rules laid down in Law no. 80-539 of 16 July 1980. Nor is the considerable sum of damages awarded a sufficient ground in itself for staying immediate execution, and in any event the defendants did not claim that immediate payment of the sums in question would have manifestly unconscionable consequences for them within the meaning of Article 524 of the New Code of Civil Procedure. Furthermore, they did not in any way establish that Mrs Guillemin and Mrs Grandjean had not provided sufficient security to satisfy any order for restitution in the event of the decision’s being set aside by the Court of Appeal. It follows that the applications by St-Michel-sur-Orge Town Council and EPEVRY must be dismissed in their entirety. …” 16. On 13 March 1998 the Paris Court of Appeal delivered its judgment on the appeal by Saint-Michel-sur-Orge Town Council against the judgment of the Evry tribunal de grande instance. It reduced the amounts awarded by that court on the following grounds: “… The value of the real property … The land cannot be valued on the day of compensation by indexing the price per sq. m in 1982 in line with the building cost index, which is inappropriate in the instant case. In order to arrive at the present-day value of the property, regard will be had to the fluctuations in property prices in the sector concerned for comparable properties, which gives a round figure of 500,000 francs, whence a repurchase allowance of … 105,000 francs and a total sum of 500,000 francs + 105,000 francs = 605,000 francs. The expert has made an expert assessment of the value of the improvements (buildings, gardens and swing), valuing them at 38,200 francs (1983 value). The present-day value may be assessed, as it was by the court below, at 55,518 francs. In consequence, Mrs Guillemin and Mrs Grandjean will receive in respect of the loss of the value of the property total compensation of 660,518 francs. Loss of enjoyment The damage resulting from the loss of this property since 1 July 1983 will be assessed at 300,000 francs, regard being had to the average return to be expected from such a property. Non-pecuniary damage The sum of 50,000 francs will be awarded to Mrs Guillemin and Mrs Grandjean in respect of the non-pecuniary damage resulting from the unjustified dispossession of their property and the trouble caused by the reluctance of Saint-Michel-sur-Orge Town Council to compensate them for the damage arising from their unlawful eviction from their property in 1983. …” 17. On 2 April 1998 Saint-Michel-sur-Orge Town Council transferred to the CARPA account of Mr Horta, Mrs Guillemin’s counsel in the proceedings before the national courts, the sum awarded her by the Evry tribunal de grande instance. According to the applicant, the town council was going to seek restitution of the difference between the sum it had paid and the one awarded by the Paris Court of Appeal. 18. On 5 June 1998 Mrs Guillemin appealed on points of law against the Court of Appeal’s judgment. 19. In her submissions on the application of Article 50 the applicant requested the Court: “To order France to pay the applicant, pursuant to Article 50 of the Convention, the sum of FRF 3,735,000 in respect of the violation of Article 1 of Protocol No. 1, together with statutory interest from the date of the judgment. In the alternative: To reserve the question of the application of Article 50 pending the judgment of the Court of Cassation. In any event: To order France to pay Mrs Guillemin the sum of FRF 30,000 in respect of costs of representation, together with statutory interest from the date of the judgment.” 20. The Government considered that the “payment by [the] town council of the sums awarded to Mrs Guillemin as compensation for her pecuniary damage [made] it possible to envisage closing the case…”