CASE OF HIGGINS AND OTHERS v. FRANCE
Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
7. The case concerns a dispute over the succession to the estates of Mary-Ann Higgins, who died on 22 February 1961, and her husband Charles Brown-Petersen, who died on 13 March 1962. The applicants are entitled to a share in the estates of the deceased either by will or on intestacy and are all French citizens. Their names are: 8. In this complex succession dispute the applicants were parties to three sets of proceedings against a number of other people, including a Mr L., a notary in Papeete (French Polynesia). Those proceedings were: (ii) a third-party application to reopen proceedings in which the Papeete Court of Appeal had on 10 September 1964 refused an application to set aside Charles Brown-Petersen’s will of 19 December 1961; (iii) an application to have set aside as fraudulent a transfer of a property development known as the “Bloc Vaima” to the Brown Building Corporation (“BBC”) and for payment of rent and other income derived from that property since 1961. 9. In the last set of proceedings – the only one in issue – the Papeete Civil Court of First Instance found in favour of the applicants in a judgment of 16 December 1988. It ordered that the rent should be paid to a receiver and held that BBC had been formed for an illegal purpose. It held that the Higginses and the other applicants were in principle entitled to have the transfer set aside but deferred judgment on that point until the Court of Appeal had given its decision in the action for payment of a legacy. On 4 January 1989 BBC appealed against the judgment to the Papeete Court of Appeal (see paragraph 17 below). 10. While that appeal was pending, the applicants applied for transfer of the case to another court on grounds of bias. 11. In an application (no. T-89-15.690) registered on 1 June 1989, the applicants asked the Court of Cassation (Second Civil Division) to order transfer of the proceedings pending against BBC to a court other than the Papeete Court of Appeal. They also requested the Papeete Court of Appeal to defer judgment until the Court of Cassation had delivered its decision (see paragraph 17 below). Before making that application, the applicants had, on 25 May 1989, made an initial application (no. N-89-15.409) to the same division of the Court of Cassation for the proceedings in the action for payment of a legacy and those relating to the third-party application, both of which were pending in the Papeete Court of Appeal, to be transferred to another court on grounds of bias (see paragraph 8 above). 12. The application of 1 June 1989 read as follows: “There are currently pending before the Papeete Court of Appeal (i) proceedings for payment of ... legacies…; and (ii) a third-party application to reopen proceedings… In application no. 89-15.409 registered on 25 May 1989 at the registry of the Court of Cassation the applicants requested transfer of those two sets of proceedings from the Papeete Court of Appeal to another court. … … The Higginses and the other applicants brought an action ... against the Brown Building Corporation in which they sought a declaration that the transfer of the property concerned to the company ... was fraudulent… … … the case is to be considered on the merits by the Papeete Court of Appeal; the applicants request its transfer to another court. The applicants expressly refer to the grounds on which they relied in application no. 89-15.409. A transfer is justified for the same reasons in the proceedings against the Brown Building Corporation…” As regards the grounds for suspecting bias, the applicants made, inter alia, the following submissions in their application of 1 June 1989: “The Papeete Court of Appeal comprises only six members: the President, three other judges, a Principal State Counsel and an Assistant Principal State Counsel. The applicants are entitled to question whether objectively the court that is to rule in their various proceedings against the Bambridges, Mr L. and the Brown Building Corporation – a mere emanation of the Bambridges – is impartial. Firstly, Mr L. has held a prominent position in Papeete and enjoyed privileged, friendly relations with a number of the judicial officers of the Court of Appeal. Several judicial officers, including some from the Court of Appeal, have enjoyed special relations with the parties for a very long time, Mr J. and Mr A. were close friends of Phineas Bambridge (at the latter’s funeral his widow was supported by Mr A.). … It has to be noted, furthermore, that the atmosphere of tranquillity in which judicial business ought necessarily to be conducted has in fact been seriously disturbed by the sudden turn of events in the case and its repercussions. In particular, the Higginses and the other applicants, aware that their share in the estate was about to be squandered, applied for – and in several cases obtained from the court of first instance – orders for some of the assets of the estate to be delivered to a receiver. They also secured a like measure over Mr L.’s assets… He reacted very violently when the measure was ordered, publicly declaring it to be ‘an act of judicial terrorism’. The local judicial officers became divided and State Counsel at the Papeete Court of First Instance reflected the disarray in an application to have the case transferred that he made to the Criminal Division on 24 September 1987. In other words some judicial officers in Papeete, divided among themselves, whose actions have been publicly called into question and who have taken up a position on events closely connected with the proceedings, which are still pending, feel that, over and above their goodwill their impartiality may be objectively called into question and that the decisions they render may legitimately fall under suspicion… ... Taken as a whole, these factors cast unacceptable doubt on the impartiality of the judicial officers of the Court of Appeal and render it ‘questionable’ or suspect. The Court of Cassation will prefer to avoid any ambiguity or suspicion and to order that the case be removed from the Papeete Court of Appeal.” 13. On 22 March 1990 the Court of Cassation (Second Civil Division) held: “As to the applications dated 25 May and 1 June 1989 … for an order for transfer on grounds of bias to a court other than the Papeete Court of Appeal of the proceedings between them and (i) the Bambridges and another, (ii) Mr L. and (iii) the Brown Building Corporation property company; The Court … … Having considered the applications and the documents lodged with the Court of Cassation registry on 25 May and 1 June 1989 on behalf of the Higginses and the other applicants; … In their applications the Higginses and the other applicants seek transfer to another court of appeal on grounds of bias of the cases pending before the Papeete Court of Appeal to which they are parties, namely: (1) proceedings for payment of a legacy following an appeal against a judgment of the Papeete Civil Court of First Instance dated 19 March 1986; and (2) a third-party application to reopen proceedings with a view to securing an order setting aside a judgment of 10 September 1964 of the Papeete Court of Appeal; those applications are connected and must be joined. While it has not been shown that the members of the Papeete Court of Appeal have taken up a position on the outcome of the proceedings before them, it is apparent from the alleged facts and the documents produced that the Higginses and the other applicants may entertain doubts as to the impartiality of the court that is to try their cases; the cases should therefore be transferred to another court, whose decision will command respect and have the authority that court decisions must possess. FOR THESE REASONS, JOINS applications nos. N-89-15.409 and T-89-15.690; DECLARES the applications admissible; and ORDERS transfer of the following cases to the Paris Court of Appeal: (1) proceedings for the payment of a legacy…; (2) a third-party application for proceedings to be reopened…; the applications are connected and must be joined…” 14. In two judgments dated 16 July 1991 the Court of Cassation (First Civil Division) declared null and void the two judgments that the Papeete Court of Appeal had delivered meanwhile, on 29 June 1989, in the proceedings for payment of a legacy and on the application to reopen proceedings. The Court of Cassation’s two judgments were similarly worded. The one on the appeal against the Papeete Court of Appeal’s judgment in the action for payment of a legacy indicated: “In the impugned decision of 29 June 1989 the Papeete Court of Appeal gave judgment in an action for payment of a legacy, after holding that it was unnecessary to defer judgment until the Court of Cassation had ruled on an application for the case to be transferred on grounds of bias that had been lodged on 25 May 1989; in a judgment of 22 March 1990 the Court of Cassation granted that application and ordered that the case be transferred to the Paris Court of Appeal; it follows, since that transfer decision must be executed, that the Court of Appeal’s decision in the impugned judgment is null and void; it is therefore unnecessary to rule on the appeal against that judgment. FOR THESE REASONS HOLDS that it is unnecessary to rule on the appeal.” 15. On 2 July 1990, being of the view that the Court of Cassation had failed to mention the proceedings against BBC in its judgment of 22 March 1990 by mistake, the applicants made an application for rectification of a clerical error to the Second Civil Division of that court. 16. In a judgment of 23 October 1991 the Second Civil Division dismissed that application in the following terms: “In a judgment of 22 March 1990 the Second Civil Division of the Court of Cassation transferred to the Paris Court of Appeal, on grounds of bias, two sets of proceedings pending in the Papeete Court of Appeal between, on the one hand, the Higginses and the other applicants and, on the other hand, Mr L.; On 2 July 1990 the Higginses and the other applicants made an application to the Court of Cassation for rectification of the judgment of 22 March 1990; in support of their application they argued that that decision contained a clerical error, the Court of Cassation having ordered the joinder of two applications before it, registered under nos. N-89-15.409 and T-89-15.690, but having ordered transfer of only the first two cases, to which the first application related; But on the pretext of rectification, the purpose of the application is to secure a variation of the judgment’s clear provisions. For these reasons Dismisses the application; and Holds that it is unnecessary to rectify the judgment of 22 March 1990.” 17. Meanwhile, having held a hearing on 23 November 1989, the Papeete Court of Appeal ruled on 7 December 1989 that there were no grounds for deferring judgment pending a decision on the application lodged by the applicants on 1 June 1989 for transfer of the case on grounds of bias and reversed the judgment of 16 December 1988 in its entirety. Ruling afresh, it held that it had not been established that the instrument creating BBC was a nullity, and it consequently dismissed the application of the Higginses and the other applicants for an order setting aside the transfer to BBC. As to its refusal to defer judgment, it gave the following reasons: “The Higginses and the other applicants referred to a challenge but have not shown that one was made and do not even identify the judicial officer or officers concerned; accordingly, the application cannot be granted on that count. On the other hand, they have shown that on 1 June 1989 they filed an application for transfer on grounds of bias with the Court of Cassation’s registry. By Article 615 of the local Code of Civil Procedure, such applications do not in themselves have suspensive effect and it is for the court concerned to assess whether judgment should be deferred. Securing the appointment of a receiver in order to paralyse the usual appeals process is contrary to the rights of the defence and is therefore acceptable only in exceptional circumstances. In their application for a transfer, the Higginses and the other applicants confined themselves to making abstract and vague complaints and only referred in more concrete terms to three judicial officers, who are not (in the case of Mr D.) or are no longer (in the case of Mr A. and Mr J.) members of this Court of Appeal; in practice, execution of the impugned decision is to be levied only on rent from a plot of land, not on the title to that land; in the circumstances, the danger is not such as to make it necessary to defer judgment…” 18. Without waiting for the application for transfer on grounds of bias to be decided (see paragraphs 11–13 above), the applicants appealed to the Court of Cassation and lodged full pleadings on 20 July 1990. The case was allocated to the First Civil Division. 19. On 23 April 1991 – although the time-limit for filing pleadings had expired on 7 September 1990 (see paragraph 22 below) – the applicants lodged observations and submissions to the effect that it was unnecessary to decide the appeal, and produced in support the judgment delivered on 22 March 1990 by the Second Civil Division of the Court of Cassation and the application for rectification of a clerical error. Pointing out that the latter application was pending before the Second Civil Division, they argued before the First Civil Division: “If that application [for rectification of a clerical error] is allowed, the result will be that the Second Civil Division will be deemed to have granted on 22 March 1990 the applicant’s request for transfer of the case on grounds of bias. In those circumstances, the judgment delivered in this case by the Papeete Court of Appeal on 7 December 1989 will have to be considered null and void. That judgment was delivered after the applicants had lodged the application for transfer on grounds of bias and before that application was heard by the Second Civil Division. The judgment of the Second Civil Division can only have a declaratory effect and contain a finding that it was impossible for the Papeete Court of Appeal to hear the case. Accordingly, the judgment now impugned must be considered as having been deprived of any legal basis as a result of the judgment of 22 March 1990 (once rectified by the Second Civil Division), whereby removal of the case from the Papeete Court of Appeal was ordered. The First Civil Division will, in consequence, have to hold that the impugned judgment is null and void.” 20. On the same day the applicants’ lawyer sent a letter to the advocate-general dealing with the case to remind him of the history of the proceedings in the First and Second Civil Divisions of the Court of Cassation. He drew the advocate-general’s attention to the judgment of 22 March 1990 and the application for rectification of a clerical error pending in the Second Civil Division of the Court of Cassation and suggested he contact the advocates-general dealing with the other cases. 21. The First Civil Division held a hearing on 5 November 1991. In a judgment of 17 December 1991, after ruling on the two grounds of appeal alleging that the Court of Appeal had not given sufficient reasons, it dismissed the substantive appeal against the judgment of 7 December 1989 without referring to the judgment of 22 March 1990. 22. Two provisions of the New Code of Civil Procedure are relevant: “Appellants shall be barred from proceeding with their appeal unless, within five months of giving notice of appeal on points of law, they file at the Court of Cassation’s registry and serve on the respondent a pleading setting out the legal grounds on which they rely in their appeal against the impugned decision.” “The time-limits laid down in Articles 978 and 989 shall be extended: (a) by one month where the appellant lives ... in an overseas territory...” 23. Article 341 of the New Code of Civil Procedure provides: “A judge may be challenged on grounds of bias only for the reasons prescribed by law. ... Save for special provisions that shall apply in certain courts, a judge may be challenged if: (1) he or his spouse has a personal interest in the dispute; 2. he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties; (3) he or his spouse is related by blood or by marriage to one of the parties or his spouse up to and including the fourth degree; (4) there is or has been litigation between him or his spouse and one of the parties or his spouse; (5) he has previously dealt with the case as a judge or arbitrator or has advised one of the parties; (6) he or his spouse is responsible for administering the assets of one of the parties; (7) he or his spouse is the employer or employee of one of the parties or his spouse; (8) it is common knowledge that there is a friendship or hostility between him and one of the parties...” 24. The following rules in the New Code of Civil Procedure apply to transfers: “An application for a case to be transferred on grounds of bias shall be subject to the same conditions as regards admissibility and form as a challenge of a judge for bias.” “Where an application is justified, the case shall be transferred either to a differently composed bench of the same court or to another court of the same type. The decision shall be binding both on the parties and on the court to which the case is transferred. No appeal shall lie.” “Proceedings in the court from which an applicant seeks to have a case transferred shall not be stayed. However, the president of the court to which the application for the case to be transferred is made may, depending on the circumstances, direct the court suspected of bias to stay the proceedings pending a decision on the application.” 25. Article 462 of the New Code of Civil Procedure provides: “Clerical errors and omissions in a judgment, including a final judgment, may in all cases be rectified by the court that delivered it ... on the basis of the evidence in the file or, failing that, of what reason dictates. Proceedings for rectification may be brought by means of an application by one of the parties or by means of a joint application; the court may also act of its own motion. The court shall decide the application after hearing the parties or after having given them an opportunity to appear. The order for rectification of the error or omission shall be noted on the original and execution copies of the judgment. It shall be served in the same way as the judgment. Where a rectified decision has become final, the order for rectification may be challenged only by an appeal on points of law to the Court of Cassation.”