[TRANSLATION-EXTRACTS]

...

THE FACTS

The applicant [Mr C. Geffre] is a French national, who was born in 1932 and lives in La Rochelle (departement of Charente-Maritime). He was represented before the Court by Ms E. Rabesandratana, of the Rochefort Bar. The respondent Government were represented by their agent, Mr R. Abraham.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1974 the applicant acquired parcels of land subject to a prohibition on building in the administrative district (commune) of La-Flotte-en-Ré on the Île de Ré (Charente-Maritime). The applicant used the land for caravanning.

By a ministerial order issued on 23 October 1979, the whole of the Île de Ré was included in the list of monuments and places of interest whose conservation or preservation was in the public interest from the artistic, historic, scientific, legendary or scenic point of view, in accordance with section 4 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest, as amended.

The order was published in two newspapers distributed in the administrative districts concerned: Le Phare de Ré (on 26 December 1979) and the daily Sud-Ouest (on 2 January 1980). It was republished in the 2 January 1980 edition of the former and the 9 January 1980 edition of the latter. The order was also displayed in La-Flotte-en-Ré town hall on 14 December 1979 and published in the Recueil des actes administratifs du département de la Charente-Maritime (Collection of Administrative Decisions of the département of Charente-Maritime) (no. 2 of 15 January 1980).

One of the consequences of listing was to render Article R443-9 of the Town Planning Code applicable to the entire island. That provision made it illegal to camp or to park a caravan other than on authorised campsites or to create campsites on listed places of interest unless an exemption had been granted under sub-paragraph 2 of the Article.

On 3 July 1996 the rural police officer of La-Flotte-en-Ré reported the applicant for illegally parking caravans.

The applicant was summoned to answer the charges in the La Rochelle Criminal Court. He argued that the proceedings were unlawful, as he had not received individual notification of the listing order and the interference with his right of property was disproportionate. In a judgment of 7 August 1997, the Criminal Court rejected the applicant's submission that the proceedings were unlawful, holding that there was no requirement for individual notification under section 4 of the Law of 2 May 1930 and Articles 2 and 7 of the decree of 13 June 1969. It further found that the restriction placed on the applicant's use of the land arose from a public easement that had been created in the general interest and which accordingly did not contravene Article 1 of Protocol No. 1. It found the applicant guilty of parking two caravans on his land, contrary to Articles L443-1, L480-4, L480-5, L480-7, R443-2 and R443-9 of the Town Planning Code. The applicant was ordered to pay a fine of 3,000 French francs (FRF) and to reinstate the land within one month, an additional penalty of FRF 50 being imposed for each day's delay. The Criminal Court ordered publication of the judgment.

The applicant appealed against that decision and the public prosecutor lodged a cross appeal. The applicant argued, firstly, that his prosecution was unlawful, as he had not received individual notification of the decision to designate the land, even though such notification was necessary before criminal proceedings could be brought according to an explanatory circular that had been issued on 19 November 1969. He added that there was no evidence in the case file that the notification procedure set out in the law of 1967 had been followed. As to the merits, he asked the Court of Appeal to rule on the lawfulness of the administrative decision. He further relied on Article 1 of Protocol No. 1, arguing that he could not have committed an offence, as he had not been awarded proper compensation for the adverse effect the public easement had had on his vested rights and the situation prior to designation. He complained, lastly, that the failure to give him individual notification of the listing order had deprived him of effective access to a court.

In a judgment of 13 February 1998, the Poitiers Court of Appeal declared the applicant's preliminary objection that the listing order should have been declared unlawful inadmissible, as it had been made for the first time on appeal whereas it should have been made prior to any defence on the merits. It noted that the applicant had not denied being aware of the listing order's existence or seriously contended that the notification procedure had not been followed, since he could not properly rely on a non-legally binding circular in the face of the unequivocal wording of Article 2 of the decree of 13 June 1969. Accordingly, it dismissed his plea that he had not been notified of the order and held that the authorities had been entitled to proceed by general announcement. The Court of Appeal observed that creating a public easement in the public interest was not contrary to the Convention, but could entail a right to compensation which it was not for the criminal courts to quantify; the applicant had not been deprived of effective access to a court, since the applicant had been given proper notice of the order and could either have asked the authorities to reconsider their decision or appealed. It therefore upheld the impugned judgment in its entirety.

The applicant appealed on points of law against the Court of Appeal's judgment. He complained among other matters that he should have been given individual notification of the listing order, as, although Article 2 of the decree of 13 June 1969 allowed notice to be given by general announcement rather than individually if more than a hundred landowners were affected by the listing of a place of interest, it also required listing orders that contained special directions to alter the state or use of the land to be notified to the property owner and accompanied by a formal notice. The applicant alleged that he had installed the caravans on the land before the designation decision – which made it illegal to park caravans on the Île de Ré – was issued and had not received any individual notification or formal notice. In his submission, therefore, by wrongly relying in its decision on the fact that he had not denied being personally aware of the designation order, the Court of Appeal had violated Article 1 of Protocol No. 1.

The Court of Cassation (Criminal Division) dismissed the applicant's appeal on points of law in a judgment of 23 March 1999, inter alia, on the following grounds:

“In finding the accused guilty of the offence, the Court of Appeal found that the order of 23 October 1979 did not constitute a designation decision within the meaning of the legislation introduced by the aforementioned Law, and in particular section 8 thereof, but merely an order under section 4 of that Law for the land to be included in the list of sites of natural beauty in the département. Accordingly, since – as the courts below found – the order affected more than a hundred landowners, the authorities were entitled to use – and it is common ground that they did use – the general announcement procedure instead of the individual notification procedure prescribed by that section.

The Court of Appeal added that, since the Law of 2 May 1930 and its subsequent implementing legislation did not require a formal notice to be given, such notice only being required when a designation decision was contested by the landowners ..., 'the authorities were entitled to give notice of the order of 23 October 1979 by general publication'.

... in so holding, the Court of Appeal justified its decision.”

B.  Relevant domestic law

1.  The Law of 2 May 1930 to reorganise the conservation of natural monuments and places of artistic, historic, scientific, legendary or scenic interest (as amended by the Law of 28 December 1967) as in force at the material time

Section 4 of the Law provided:

“In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view. ...

Listing shall be effected by means of an order made by the Minister for Cultural Affairs. The decree issued after consultation of the Conseil d'Etat shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner. On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months' notice of their intention.”

2.  Decree of 13 June 1969 implementing sections 4 and 5-1 of the amended Law of 2 May 1930 on the conservation of places of interest

The relevant provisions of the decree provided:

Article 2

“Listing orders shall be notified by the prefect to the owners of natural monuments or places of interest.

However, when the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3.

Recourse shall likewise be had to public announcements where the authorities are unable to ascertain the identity or address of the owners.”

Article 3

“The public announcements provided for in Article 2 ... shall be made at the instance of the prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication.

The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices ...”

Article 6

“The designation decision shall be published in the Official Gazette.”

Article 7

“Where a designation decision contains special directions that would alter the state or change the use of a site, it must be notified to the property owner.

This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (paragraph 3) of the Law of 2 May 1930.”

3.  The Circular of 19 November 1969 on the implementation of Part II of the Law of 28 December 1967 amending the Law of 2 May 1930 on places of interest

The relevant provisions of the circular read as follows:

“Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed.

There are now two possible procedures:

–  either individual notification, in accordance with the arrangements currently in force in all cases; or

–  general publication (public display and publication in two newspapers), to which the prefect resorts when the number of owners concerned is greater than a hundred – as with places of interest covering a larger area – or when one or more property owners have not been identified.

This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented ...”

4.  The Town Planning Code

The relevant provisions of the Code provide:

Article L160-5

“There shall be no right to compensation for easements created pursuant to this Code for public access, public health, aesthetic or other purposes and concerning matters such as the use of the land, the height of buildings, the proportion of developed and undeveloped land in each property, prohibitions on building in certain areas and along certain roads and the distribution of buildings between different areas.

However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and indisputable damage. In the absence of an amicable agreement, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a land-use plan that has been made public, or of an approved local town-development plan or equivalent document.”

Article R443-9

“It shall be illegal to camp or to park a caravan other than on an authorised campsite, or to create a camp or caravan site:

(1)  on the seashore;

(2)  on designated or listed places of interest, within the areas defined in paragraph 3 of section 1 of the Historical Monuments Act of 31 December 1913, in the area surrounding a historical monument that is designated, listed or in the process of being designated, in areas in which architectural or urban heritage is protected and in the protected areas established by section 17 of the Law on the protection of natural monuments and places of interest of 2 May 1930. With the exception of places of interest that have been designated or are in the process of being designated, the competent authority may grant exemption from the prohibition, after obtaining the opinion of the département's heritage protection officer and, if applicable, its Committee on Places of Interest. As regards designated places of interest, exemptions may be granted by the minister responsible for places of interest or, in the case of natural sites, by the minister responsible for the conservation of nature and the environment, after obtaining the opinion of the département's Committee on Places of Interest.

...”

COMPLAINTS

1.  The applicant complained under Article 6 § 1 of the Convention that, as he had not received individual notification of the order of 23 October 1979 for the inclusion of the Île de Ré in the list of protected places of interest, he had been deprived of an opportunity to assert his rights in the domestic courts. He alleged a violation of his right to access to a court.

...

THE LAW

1.  The applicant complained that he had been given inadequate notice of the listing order to enable him to assert his rights in the domestic courts and, in particular, to challenge the lawfulness of the order, to seek compensation or to apply for exemption from the ban on caravanning. He relied on Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government said that that complaint was unfounded. As regards the steps taken to publish the order of 23 October 1979, they referred to the applicable domestic legislation and noted that, in the instant case, owing to the large number of people concerned (more than 3,000), the order had been published in accordance with the procedure laid down in Article 3 of the decree of 13 June 1969, namely in two newspapers – one of which was distributed locally – and at the town hall, where it had been displayed for at least a month. In that connection, the Government stressed that the present case concerned a listing order, not a “designation” decision, so that there had been no statutory legal requirement for the applicant to be notified of the order.

The Government said that the applicant could not seriously complain that he had been denied access to a court to air his complaints: he could have sought judicial review of the impugned order in the administrative court, as Article L160-5 of the Town Planning Code enabled him to seek compensation in the administrative courts; he could have sought exemption from the ban on caravanning on his land under Article R443-9, sub-paragraph 2, of the Town Planning Code; in addition, the criminal courts had been asked to interpret and assess the lawfulness of the listing order.

The Government also referred to the Court's decision in de Geouffre de la Pradelle v. France and submitted that it could not be transposed to the present case. It noted that the measures for publishing listing orders were identical to those which the Government had decided, in accordance with an opinion of the Committee of Ministers of the Council Europe, to implement systematically to ensure compliance with the Court's judgment in de Geouffre de la Pradelle (Resolution DH(2000)43 of 10 April 2000). In the alternative, the Government said that it would be unreasonable to require the systematic individual notification of listing orders, as, in addition to being extremely cumbersome and costly, such a system did not appear adapted to cases such as the present one involving more than several hundred, or even several thousand, property owners.

The applicant said that the publication of the order had not been an effective measure: the order had only been published locally – mainly on the Île de Ré itself – and in winter, whereas he only stayed on the island in the summer months. He further maintained that the statutory procedure for publication had not been followed as the order had only been displayed in the town hall for just one day. In any event, the French legal system required individual notification in the instant case.

As regards the issue of access to a court, the applicant considered that the fact that he had not received individual notification of the order had deprived him of all possibility of applying to the domestic courts. Without full, detailed information, he was unable to determine the consequences which listing would entail for his land. Furthermore, notwithstanding the listing order, the practice of parking caravans on private land had continued for fifteen years, so that he had had no interest in challenging the lawfulness of the order, as it did not adversely affect him. In any event, in view of the time constraints, he would not have been able to challenge the order or claim compensation.

The Court considers that all the limbs of the applicant's complaints must be examined from the perspective of the right of access to a court, as guaranteed by Article 6 § 1 of the Convention.

The applicant's complaint therefore concerns his lack of access to the administrative courts to challenge the lawfulness of the order issued in 1979, to obtain compensation for the resulting interference with his property rights or to seek exemption from the ban on caravanning. The Court reiterates that the “right to a court” enshrined in Article 6 § 1 of the Convention is not an absolute one. It may be subject to limitations, but these must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see, among other authorities, Philis v. Greece (no. 1), judgment of 27 August 1991, Series A no. 209, pp. 20-21, § 59).

French law undoubtedly afforded the applicant various remedies: he could have challenged the lawfulness of the impugned order in the administrative courts or, if he considered that the burden imposed on him by the easements was out of all proportion to the aim pursued in the general interest, applied to the administrative courts under Article L160-5 of the Town Planning Code for compensation for the loss he had sustained as a result of the ban on parking caravans on his land. He could also have applied to the authorities under Article R443-9 of the Town Planning Code for exceptional permission to park caravans on his land.

The Court observes in that connection that it is not for it to interpret procedural rules such as those governing the time-limits for exercising remedies (see, mutatis mutandis, Tejedor García v. Spain, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2796, § 31). Rules governing the procedure and time-limits applicable to legal remedies are intended to ensure a proper administration of justice and compliance with, in particular, the principle of legal certainty (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, ECHR 2000-I). It therefore remains to be ascertained whether the procedure for making such applications, in particular as regards the calculation of the time-limits to be complied with in the light of the system for giving notice, was such as to ensure that the right to a court was effective as required by Article 6 of the Convention.

In the instant case, the Court does not have to assess, as such, the French system of classifying administrative acts and the procedure for appealing against them; it must confine its attention as far as possible to the issue raised by the specific case before it (see, mutatis mutandis, de Geouffre de la Pradelle v. France, judgment of 16 December 1992, Series A no. 253-B, p. 42, § 31). Its role is to determine whether the applicant was able to count on a coherent system that struck a fair balance between the authorities' interests and his own and, in particular, whether he was given a clear, practical and effective opportunity to challenge an administrative act that allegedly constituted a direct interference with his right of property.

The Court notes that it is established that the ministerial order for the listing of the land was published in two newspapers, one of which was a daily newspaper, that were distributed in the administrative district of La-Flotte-en-Ré. The order was republished no more than a month later. In addition, it was displayed at La-Flotte-en-Ré town hall, some seventeen kilometres from La Rochelle where, it seems, the applicant has lived throughout. It was also published in the Recueil des actes administratifs du département de la Charente-Maritime (La Rochelle is the principal town in that département).

As the Court has previously stated, the rule permitting general publication of listing orders offers undeniable advantages (see, mutatis mutandis, de Geouffre de la Pradelle, cited above, p. 42, § 32); as the Government have pointed out, it is intended to provide for legal stability and to simplify the formalities for implementing such measures, particularly where they cover extensive tracts of land in multiple ownership.

It should also be borne in mind that the French government have implemented various measures as a result of de Geouffre de la Pradelle. In that judgment, the Court held that there had been a violation of Article 6 of the Convention after the Conseil d'Etat had dismissed an appeal as being out of time when the applicant made a mistake regarding the date when the time allowed for appealing started to run owing to uncertainty as to whether the administrative act was individual or regulatory in nature. The Court found that the complexity of the legal position was likely to create legal uncertainty as to the exact nature of the designation decree and as to how to calculate the time-limits for appealing to the Conseil d'Etat. The French government have now introduced a new practice in order to ensure the systematic general publication of designation orders (publication in the Official Gazette, display at the town hall and in places used for that purpose for a month, publication of the designation decision in two newspapers, at least one of which is a daily newspaper that is distributed in the administrative district concerned) in order to ensure that interested parties may avail themselves fully of the time allowed for lodging appeals with the Conseil d'Etat. In its Resolution DH(2000)43 of 10 April 2000 concerning de Geouffre de la Pradelle, the Committee of Ministers declared that the French government had thereby fulfilled their obligations under former Article 53 of the Convention.

Lastly, having examined the facts of the present case, the Court finds that the machinery of general publication used by the authorities constitutes a coherent system that strikes a fair balance between the interests of the authorities and of the property owners. In particular, it affords the latter a clear, practical and effective opportunity to challenge administrative acts. In the light of all the circumstances of the case, the Court finds that the applicant has not suffered a disproportionate interference with his right of access to a court and that, accordingly, there has been no infringement of the essence of his right to a court, as guaranteed by Article 6 § 1. Consequently, there has been no violation of that provision.

It follows that this complaint must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

...

For these reasons, the Court unanimously

Declares the application inadmissible.

GEFFRE v. FRANCE DECISION


GEFFRE v. FRANCE DECISION