CASE OF GUILLEMIN v. FRANCE
Violation of Art. 6-1;Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
6. In a decision of 7 October 1982 the Prefect of the département of Essonne made a declaration that it was in the public interest to acquire by compulsory purchase land needed for the development of a residential area in the town of Saint-Michel-sur-Orge, known as the Fontaine de l’Orme project. The land included a plot belonging to the applicant on which stood a building used as a secondary residence by a member of her family. 7. On 10 September 1982 the mayor of Saint-Michel-sur-Orge had applied to the Essonne expropriations judge, who on 6 December 1982 made an expropriation order transferring the applicant’s land to the municipality and setting the amount of compensation to be paid to her. On 28 March 1983 the applicant appealed against the order. 8. On 28 July 1983 the Evry New Town Development Corporation (EPEVRY), which was responsible for carrying out the scheme, informed Mrs Guillemin that she should have vacated the land by 14 July 1983. In the same month the town council demolished the fence, the buildings, the infrastructure for the supply of services, the vegetable garden and the orchard on the land. 9. On 14 October 1983, on the appeal by the expropriated applicant, the Expropriations Division of the Paris Court of Appeal increased the amount of the expropriation compensation to 221,858 French francs (FRF), which is currently held in deposit at the Bank for Official Deposits (Essonne Treasury). 10. On 19 November 1982 Mrs Guillemin had brought proceedings in the Versailles Administrative Court. On 24 October 1985 the court set aside the public-interest declaration on the grounds that it was ultra vires. It held that the declaration should have been made in a decree after consultation of the Conseil d’Etat and not in a prefectoral decision (see paragraph 23 below). The inspector appointed to conduct the inquiry prior to the declaration in question had recommended that the scheme should not include existing houses that had sufficient land to make a garden for family use, as was the case with the applicant’s property. 11. The town council appealed on 26 December 1985 and lodged a pleading on 28 April 1986. In a judgment of 13 March 1989 the Conseil d’Etat upheld the Administrative Court’s judgment. It refused Mrs Guillemin’s application for formal note to be taken that the town council had automatically abandoned the proceedings as it had failed to file a supplementary pleading in time, and also refused her claim for compensation, which had been submitted for the first time on appeal. 12. The applicant lodged two appeals on points of law with the Court of Cassation, the first against the expropriation order of 6 December 1982 and the second against the judgment of the Paris Court of Appeal of 14 October 1983. In two judgments of 4 January 1990 the Court of Cassation (Third Civil Division) set aside the expropriation order providing for the transfer of ownership and "in consequence" set aside the judgment of the Paris Court of Appeal, which had ruled on the expropriation compensation. These judgments were served on the town council on 22 May 1990. 13. On 20 June 1990 Mrs Guillemin applied unsuccessfully to the town council, seeking either restoration of her rights or compensation in the amount of FRF 4,194,655.65. 14. On 10 November and 17 December 1990 Mrs Guillemin applied to Evry State Counsel. On 11 March 1991 he decided to take no action. 15. On 23 December 1991 the applicant challenged the town council’s implied decision to refuse her application in the Versailles Administrative Court. Her claim for restoration of her rights was accompanied by an application for compensation for non-pecuniary damage and loss of enjoyment of her property, which she assessed at FRF 1,971,795. 16. On 13 January 1992 she brought proceedings in the Evry tribunal de grande instance against the mayor of Saint-Michel-sur-Orge and EPEVRY, seeking an order for demolition of the buildings erected on her land by the town council, with periodic penalties in the event of failure to comply, and damages. In joint submissions the defendants argued that it was not possible to return the property. It had been sold to EPEVRY with a view to a housing development and the individual building plots had in turn been sold to various different purchasers and had now been built on and were occupied. 17. On 1 February 1993 the Evry tribunal de grande instance deferred judgment until the Versailles Administrative Court ruled and listed the case for the hearing that was to be held on 10 June 1993 by the judge in charge of preparing the case for trial. 18. The Administrative Court held a hearing on 10 May 1994 and gave judgment on 24 May 1994. It held that the claim for return of the land was inadmissible on the ground that "it [was] not for the administrative courts to issue orders to the authorities" and ruled as follows on the claim for compensation: "It is clear from the preparation of the case for trial that the expropriation ... in the public interest [on] 7 October 1982 was carried out unlawfully. The dispossession of [Mrs Guillemin] was accordingly an illegal expropriation of private property. It is for the ordinary courts alone, which protect private property, to deal with [her] claim for compensation for the loss [she allegedly] sustained as a result of the dispossession or of any direct consequences of it." 19. In the meantime, on 3 March 1994, Mrs Guillemin’s application had been struck off the list of the Evry tribunal de grande instance. It was entered in the list again on 25 November 1994. On 5 January 1995 the applicant filed fresh submissions seeking compensation. 20. In a judgment of 23 October 1995 the Evry tribunal de grande instance noted that Mrs Guillemin had implicitly abandoned her application for the buildings on her land to be demolished and held that she was entitled to compensation from the expropriating town council. It deferred judgment on the compensation claim, ordered an expert report on the value of the expropriated plot of land as at December 1982 and on the loss arising from her being deprived of her land and the price of it since then, and ruled that the town council should pay an advance on the costs of the expert report. 21. The expert received the file on 27 November 1995. He summoned the parties to an inspection of the site on 12 March 1996 and filed his report on 29 July 1996. He assessed the total value at FRF 1,602,805, which he broke down as follows: FRF 462,139 for the value of the property, covering the sum needed to purchase a similar property, FRF 746,338 for the interest on the principal sum from 14 July 1983 to 30 September 1996 and FRF 394,328 compensation for loss of the enjoyment of the property over the same period. For this last item he adopted a rate of return of 6.50% on the value of the property, excluding the sum needed to purchase a similar property. 22. The proceedings are at present pending in the Evry tribunal de grande instance. 23. Expropriation proceedings in the public interest comprise two separate stages. The first stage is administrative. It begins with a preliminary inquiry - opened by a prefectoral decision - to gather information on the grounds for the expropriation. The inspector appointed to conduct the inquiry has one month from the date on which it ends to consider observations from the public, to draw up his findings and then to forward the file to the administrative authority. If his opinion is unfavourable, or is favourable subject to conditions that the expropriating authority is not minded to satisfy, the public-interest declaration must be made in a decree adopted after consultation of the Conseil d’Etat rather than in a prefectoral decision. This declaration establishes that the scheme is in the public interest. The expropriation liability order subsequently made by the Prefect identifies the property to be expropriated and ends the administrative stage of the expropriation. The next step in the procedure is for the expropriating authority to forward the expropriation liability order, within six months of its publication, to the judicial authority for expropriation matters, a judge of the ordinary court, failing which it will lapse. 24. The second stage takes place before the expropriations judge. He alone has the power to order expropriation and assess compensation. He does not, however, have competence to assess the lawfulness of the steps taken by the administrative authority. On receipt of the expropriation liability order that has been forwarded to him, he will issue an expropriation order transferring ownership to the expropriating authority and depriving the former owner of the right to dispose of his property. The former owner, however, retains the use of it as a provisional occupier until compensation for the loss of possession is paid or, in the event of a dispute, deposited. The proceedings for issuing the expropriation order are separate from those leading to the judicial assessment of the expropriation compensation; they are generally conducted entirely by the expropriating administrative authority. This second set of proceedings may commence as soon as the prefectoral decision to open the public inquiry has been taken. The calculation of the expropriation compensation takes into account the value of the expropriated property, all the costs necessarily incurred in purchasing a replacement and, as subsidiary compensation, the depreciation in value of the remaining property where only part of it has been expropriated. The compensation amount may always be fixed by agreement, even after the expropriation order has been issued. 25. Anyone affected by an expropriation that enables a scheme in the public interest to be carried out may challenge the validity of the public-interest declaration in the administrative court within two months of its publication. Appeals against expropriation liability orders must be brought within the same time. As a prefectoral decision to open a public-interest inquiry is seen as a purely preliminary measure, its lawfulness may only be challenged in conjunction with one of those two remedies. Any application on the merits may be accompanied by an application for a stay of execution, but appeals to the administrative courts do not in any event have a suspensive effect and do not prevent the expropriation proceedings continuing in the ordinary courts. 26. The only means of challenging an expropriation order is by lodging an appeal on points of law within two weeks of the order being served. An appeal against a judgment in which compensation has been assessed may be brought within two weeks of the decision being served and any appeal on points of law must then be brought within two months of the Court of Appeal’s judgment being served. These appeals do not have a suspensive effect and do not prevent possession being taken of the expropriated property. Lastly, if the compensation has not been either paid or deposited by the expropriating authority within a year of the decision whereby it was assessed, the person expropriated may seek review of it by the expropriations judge. 27. Once a public-interest declaration has been set aside, there is no legal basis for the expropriation order. If, however, the declaration is set aside after the order has become final, the expropriation cannot be legally challenged. It is accepted that a further public inquiry may be held to rectify the situation. In any event, the adage "public buildings that have been erected unlawfully are not demolished" applies.