CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 28 juin 2013

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FRANCE   (Application no. 16574/08)                     JUDGMENT (Just satisfaction and striking out)         STRASBOURG   28 June 2013             This judgment is final but may be subject to editorial revision. In the case of Fabris v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Josep Casadevall, President,   Françoise Tulkens,   Nina Vajić,   Lech Garlicki,   Karel Jungwiert,   Elisabeth Steiner,   Alvina Gyulumyan,   Egbert Myjer,   Dragoljub Popović,   George Nicolaou,   András Sajó,   Ledi Bianku,   Nona Tsotsoria,   Işıl Karakaş,   Guido Raimondi,   Paulo Pinto de Albuquerque,   André Potocki, judges, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 5 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 16574/08) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Henry Fabris (“the applicant”), on 1   April 2008. The applicant was represented by Mr A. Ottan, a lawyer practising in Lunel. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs. 2.     In a judgment delivered on 7 February 2013 (“the principal judgment”), the Court held that there was no objective and reasonable justification for the difference in treatment suffered by the applicant, a child born of adultery, regarding his inheritance rights and those of his legitimate half-brother and half-sister, and particularly those that the applicant had acquired under the Law of 3 December 2001, and that there had therefore been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see Fabris v. France [GC], no. 16574/08). 3.     Under Article 41 of the Convention the applicant sought just satisfaction of 128,550.75 euros (EUR), which was the amount of the share in his mother’s estate that he would have inherited if he had received equal treatment to his half-brother and half-sister, plus statutory interest. He also claimed EUR   30,000 in respect of non-pecuniary damage and EUR   20,946 for costs and expenses. 4.     As the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 85, and point 3 of the operative provisions). 5.     On 3 May 2013 the Government informed the Court of the “agreement reached between the parties on a total sum of EUR   165,097.77 to compensate all the pecuniary and non-pecuniary loss sustained by Mr Fabris and the costs and expenses incurred by him as a result of the violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 found by the Court in its judgment of 7 February 2013”. They sent the following declaration signed by the applicant on 2 May 2013: “Regarding the determination of just satisfaction, Mr Henry Fabris declares that he accepts the sum of 165,097.77 euros (one hundred and sixty-five thousand and ninety-seven euros and seventy-seven cents) offered by the French Government in compensation for all the damage and costs and expenses originating in the above-mentioned application pending before the European Court of Human Rights”. THE LAW 6.     On 3 May 2013 the Court received the text of the friendly settlement reached between the Government and the applicant with respect to the latter’s claims under Article 41 of the Convention. 7.     The Court takes formal note of the friendly settlement reached between the parties (Article 39 of the Convention). It finds that the agreement is equitable within the meaning of Rule 75 § 4 of the Rules of Court and that it is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3). Consequently, it considers it appropriate to strike the remainder of the case out of the list (Article 37 § 1 (b) of the Convention and Rule 43 § 3). FOR THESE REASONS, THE COURT, Decides , by sixteen votes to one, to strike the remainder of the application out of its list of cases. Done in English and in French, and notified in writing on 28 June 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Johan Callewaert   Josep Casadevall Deputy to the Registrar   President   In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Pinto de Albuquerque is annexed to this judgment. J.C.M. J.C.   DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE States Parties are obliged to abide by the standards set in the Court’s case-law, even when they have not been involved in the particular disputes in respect of which the case-law was established. This is the major lesson of the Fabris judgment. In fact, the respondent State has itself set some praiseworthy examples of appropriate conduct of this kind in the past, such as the reaction of the French Conseil d’Etat to the 1988 Moustaquim v.   Belgium judgment when it amended its case-law on the deportation of aliens in 1991, or, more recently, the reaction of the Court of Cassation in April 2011 to the 2008 Salduz v. Turkey judgment on the question of legal assistance from the very beginning of police custody. It should be remembered that in this case the Court of Cassation, sitting in its most solemn formation, held that “States parties to the Convention must comply with the decisions of the European Court of Human Rights, without waiting to be the subject of proceedings before the Court or to have their laws amended”. The impugned judgment of the Court of Cassation of 14 November 2007 is an internationally wrongful act whose effects injured the applicant’s right not to be discriminated against and to inherit a share in his mother’s estate. The respondent State’s duty to cease that discrimination and acknowledge the applicant’s right should have been enshrined in the national legal order in which his right was injured. That is not the case with the proposed friendly settlement. Since the respondent State had a duty, after Mazurek, to cease immediately any similar violation in pending proceedings, including in the proceedings for abatement brought by Mr Fabris and pending at that time, and the duty to cease immediately the illegal conduct is not prejudiced by the “internal law of the High Contracting Party” referred to in Article 41, the respondent State could not choose to maintain the discriminatory treatment of children born out of wedlock and pay compensation to the applicant as an alternative to ceasing the said discrimination and granting the abatement according to the principle of equality of children born in and out of wedlock. The purpose of the duty to cease an internationally wrongful judicial act is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying rule that has been breached. That duty also encompasses situations where a State has violated the same rule on a series of occasions, with the attendant possibility of further repetitions (Commentaries to Article 30 of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission, 2001). Cessation of the violation is not at the discretion of the injured party, since the violation must cease even if the injured party does not demand it. Moreover, cessation is not subject to limitations relating to proportionality. Compliance with the rule that has been breached must be secured, especially when the breach takes the form of a judicial act of the highest court of the State at fault. In the instant case the Court of Cassation’s judgment of 14 November 2007 breached the principle of equality of children born in and out of wedlock. With the proposed friendly settlement, the internationally wrongful judicial act (namely, the aforementioned judgment of the Court of Cassation) will remain valid and thus the principle of equality will not be duly safeguarded. Full implementation of the Grand Chamber’s judgment would have required a different response from the respondent State. In order to achieve that purpose, three practical consequences should have followed: firstly, the respondent State should have reviewed the impugned judgment of the Court of Cassation of 14 November 2007 and, if it does not already have one, introduced a procedure for revision of civil judgments which puts an end to the discrimination in question and the resulting violation of the European Convention of Human Rights; secondly, the domestic courts should have proceeded to a division of Mrs M’s estate ex novo , with an abatement of the inter vivos gifts made in 1970, in order to safeguard the applicant’s reserved portion, in accordance with Article 922 of the French Civil Code; and thirdly, the respondent State should have reviewed the provision of the law of 3 December 2001 which foresees that successions opened on 4 December 2001 are regulated according to the principle of equality of children born in and out of wedlock, save for cases where division of the estate had taken place prior to that date. None of these consequences depends on the will of the injured party, since they are obligatory legal effects of the Grand Chamber’s judgment of 7 February 2013. The fact that the Court of Cassation’s judgment of 14 November 2007 is still operative and consequently the discriminatory division of Mrs M’s estate and, worse still, section 25(2) of the Law of 3 December 2001 remain in force, thus allowing for discriminatory treatment of children born out of wedlock in successions opened on 4 December 2001 in cases where division of the estate has taken place prior to that date, fails to comply with the aforementioned judgment of the Grand Chamber and thus shows serious disrespect for the Court’s authority. To put it simply, the respondent State cannot simply pay compensation for the continuing situation of legal discrimination against Mr Fabris in the domestic legal order; instead, it has to afford him and his half-brother and half-sister equal legal treatment in the division of Mrs M’s estate. Nor can the respondent State maintain in force a discriminatory provision which breaches the principle of equality of children born in and out of wedlock. I therefore disagree with the proposed friendly settlement, since it is not inspired by the principles foreseen by Article 37 § 1 in fine of the Convention, and I reject the striking out of the applicant’s just satisfaction claim.