The fair trial was violated because the procedural rules were vague and unpredictable!
JUDGMENT
Vermeersch v. Belgium 16.02.2021 (app. no. 49652/10)
SUMMARY
Limitation of claim and retroactive application of a more favorable law.
The applicant, a Belgian farmer, requested the expansion of his business. His application was upheld in part and the applicant lodged an application for annulment with the Council of State. The decision was issued in 2004.
The applicant brought an action for civil liability, 8 years after the adoption of the administrative act concerning him. The domestic courts rejected the statute of limitations. It was held that his claim was statute-barred because the applicant’s application for annulment to the Council of State had not interrupted or suspended the time-limit in the civil courts. The applicant brought an action before the ECtHR alleging breach of the fair trial on the ground that the legislation was unclear.
The Court recalled that the right of access to a court must be specific and effective, and stressed that compliance with procedural rules, which allow parties to resolve a dispute, is useful and important because it ensures equality of arms and prevents arbitrariness.
The ECtHR found that the case-law taken into account by the Court in the applicant’s case had not yet been consolidated and that the provisions of the law as interpreted by the civil courts at the material time did not preclude misunderstandings as to the details of the two remedies. Combined with the legal uncertainty regarding the suspension and interruption of the limitation period due to the more favorable law on limitation, which had retroactive application but was not applied by the domestic Courts, the ECtHR found that the applicant’s right of access to court had been violated. of a fair trial (Article 6§1 of the ECHR).
The ECtHR awarded an amount of 10,000 euros for non-pecuniary damage and an amount of approximately 8,650 euros for costs.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Franck Vermeersch, is a Belgian national. He is a farmer.
In this application Mr Vermeersch complained of the dismissal by the domestic courts of his action
for damages against the State on the grounds of statutory limitation. He submitted that both the law
and case-law regarding statutory limitation of claims against the State were unclear and
unforeseeable, and that the Court of Cassation had been excessively formalistic in dismissing his
supplementary pleadings.
In 1991 Mr Vermeersch applied for a permit to extend his pig farm. That application was only partly
allowed (in 1996), and Mr Vermeersch therefore lodged an action for annulment with the Conseil
d’État. The latter court found for the applicant in 2004.
In 2005 Mr Vermeersch lodged an action for damages against the State, claiming a total of
368,470 euros (EUR). The civil courts dismissed his action on the grounds that it was statute-barred
pursuant to Article 2262bis of the Civil Code and section 100 of the Laws on Public Accounts. The
courts stated, in particular, that an action for annulment before the Conseil d’État had no suspensive
or interruptive effect, in accordance with Articles 2246 to 2250 of the Civil Code; that under
established case-law there was no need to await the outcome of an action for annulment before
bringing an action for damages according to the ordinary rules on liability in tort; and that,
therefore, the limitation period for the action for damages had started running on 1 January 1996,
whereas Mr Vermeersch had lodged his action for damages in January 2005.
Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights,
Mr Vermeersch alleged that the applicable rules regarding the statutory limitation of claims against
the State were unclear and unforeseeable. He also complained that the Court of Cassation had been
excessively formalistic on the matter of the admissibility of his supplementary pleadings.
THE DECISION OF THE COURT….
The Court recalled that the right of access to a court must be specific and effective and not theoretical and deceptive. The effectiveness of access to a natural judge presupposes that an individual has a clear and specific ability to challenge an act that constitutes an interference with his or her rights. The restrictions applied must not impede access to justice in such a way or to the extent that the very essence of the right is violated. In addition, restrictions are in accordance with Article 6§1 only if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means used and the aim pursued.
The applicant alleged that the provisions relating to the claim against the State were not clear and foreseeable when he submitted the application for annulment to the Council of State. Consequently, his action for damages was declared inadmissible as time-barred, because the applicant was awaiting the final outcome of the proceedings before the Council of State before bringing his civil action. It further argued that the decision of the Court of Cassation, in particular the fact that the last Court had rejected its supplementary application and had not applied Article 2244 of the Civil Code, as amended by the Law of 25 July 2008, constituted excessive formalism which violated the right access to court. He briefly claimed that the application of the procedural rules concerning the action prevented him from benefiting from the new law of 25 July 2008 which was favorable to him.
The Court initially pointed out that even if the applicant had not been required to bring an action for annulment before the Council of State before bringing an action before the civil court for damages under civil liability, that action could nevertheless prove useful. Indeed, the possible annulment of the administrative act in question would prove its illegality and, therefore, in principle, the erroneous decision of the competent administrative authority within the meaning of Article 1382 of the Civil Code. On the other hand, the Application for Cancellation to the Council of State did not allow, at the crucial time, to be compensated for the damage suffered due to the illegal administrative act. The Court noted that the fact that the case-law considered by the Court in the applicant’s case had not yet been consolidated and that the provisions of the Public Accounts Act, as interpreted by the civil courts at the material time, did not preclude to the details of the parallel exercise of the two remedies.
The Court of Cassation ruled on this issue for the first time in judgments of 16 February 2006, ending legal uncertainty. This was not a reversal of the case-law, as the applicant claimed, as it was the first time that the Court of Cassation had been called upon to rule on whether the application for annulment before the Council of State had suspended or interrupted the limitation period for filing a claim for damages. based on article 1382 of the Civil Code. The Court then noted that the position taken by the Court of Cassation in its judgments of 16 February 2006 led the legislature to amend the applicable law. The Court finally noted that the law of 25 July 2008 entered into force while the applicant’s application for annulment was pending before the Court of Cassation. At this point, the Court recalled that compliance with the rules of civil procedure, which allow the parties to resolve a dispute, is useful and important, as it is likely to limit discretion, ensure equality of arms, prevent arbitrariness, allow a dispute to be settled and a judgment to be rendered efficiently and within a reasonable time, and to ensure legal certainty and respect for the court.
In the present case, the Court of Cassation rejected the applicant’s supplementary plea in law, arguing that it had been lodged outside the time-limit laid down in Article 1087 of the Code of Administrative Procedure. However, it appears that no provision of the Code of Administrative Procedure allowed the applicant to bring a new action on the ground of breach of a legal provision applicable to pending disputes if that provision had entered into force while his appeal was pending and that the time limit for filing a supplementary memorandum had expired, even if it was a matter of enforcing the retroactive application of a law.
The Court held that the right of access to a court required, in the particular circumstances of the case, that the applicant could ask the Court of Cassation to rule on the impact of the entry into force of the Law of 25 July 2008 on the legality of the judgment rendered before the trial of his case. This was due to the fact that the provisions of this law had retroactive effect and applied in pending trials, unless there was already a decision that had become final and had not been appealed.
In the light of the foregoing considerations, the Court has therefore concluded that the present case has found a gap in the rules on the admissibility of applications for annulment and the applicable provisions, which in themselves do not infringe Article 6 § 1. In fact, there are exceptional cases where, while an application for annulment is pending, a law enters into force which is directly applicable to the pending proceedings and the party can undoubtedly claim that it has consequences for the outcome of his dispute before the Court of Cassation.
In those circumstances, the Court held that the legal framework ceased to serve the purposes of “legal certainty” and “the proper administration of justice”. Combined with the legal uncertainty regarding the suspension and interruption of the limitation period, in the event of an application or cancellation, as existed at the material time, that regulation constituted a kind of barrier which prevented the applicant from resolving its dispute on the merits. His right of access to a court was therefore substantially violated.
This finding was sufficient for the Court to conclude that there had been a violation of Article 6 § 1 of the Convention.
Just satisfaction: 10,000 euros (EUR) for pecuniary damage and EUR 8,649.84 for costs and
expenses.
