CEDH · CASELAW;CLIN;ENG — 9 novembre 2006

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France - 65411/01 Judgment 9.11.2006 [Section III] Article 6 Civil proceedings Article 6-1 Impartial tribunal Independent tribunal Appointment to a key post in the Ministry responsible for mines of a member of the Conseil d'Etat who had taken part in proceedings involving questions of mining law: violation Overlap of the Conseil d'Etat 's consultative and judicial functions in the context of the same proceedings involving questions of mining law: no violation   Facts : The applicant, the Société des Mines de Sacilor-Lormines, is a limited company ( société anonyme ) which has been in voluntary liquidation since March 2000. It held many iron-ore mining concessions in Lorraine. Because it was no longer profitable to mine iron-ore in Lorraine, in the face of worldwide competition, it decided in 1991 to halt all production. The closure of the various pits was staggered until 1993. With a view to the complete cessation of its activity, the applicant company initiated the appropriate procedures for the abandonment/surrender of its concessions. The abandonment procedure, for the purpose of closing disused mines and ensuring their safety, entailed the implementation of an order whereby the prefect for the particular area stipulated the abandonment operations to be carried out. It was completed when the authorities had taken note of the fulfilment of those requirements. The surrender procedure terminated the concession with the result that its holder was no longer bound by the special mining rules and regulations and was released from the presumption of liability in respect of any damage occurring above ground. In this connection, numerous regulatory measures were imposed upon the applicant company, which challenged them all in the administrative courts. The company also lodged numerous appeals to obtain the annulment of the refusals by the Minister responsible for mining (the Minister for the Economy, Finance and Industry) to accept its surrender of a number of concessions, requesting that the Minister be required to allow it to surrender them and seeking compensation for the damage it had sustained as a result of those refusals. In 1997 the company lodged a number of administrative appeals with the Minister for the Economy, Finance and Industry requesting him to withdraw two orders imposing on it certain obligations for the monitoring and securing of mining sites where there was a risk of subsidence, and to grant it the reimbursement of the amounts it had incurred in implementing the provisions of those orders. On 29 September 1997 the Conseil d’Etat gave an opinion concerning “operations to ensure the safety and rehabilitation of mining sites subsequent to closure”, in response to an application from the Minister, in connection with the pending proceedings, asking the Conseil to determine certain questions of mining law following the entry into force of new legislation in that field. A few weeks later the applicant company lodged applications with the Conseil d’Etat for the annulment of the above-mentioned orders and the corresponding decisions of the Minister whereby he had refused to withdraw the orders. On 19   May 2000, following a deliberation on 26 April 2000, the Conseil d’Etat , sitting with a different bench to that which had given the opinion, delivered a judgment which partly annulled the impugned decisions. Subsequently, the applicant further applied for the annulment of another order but that appeal was dismissed by the Conseil d’Etat on 5 April 2002. Moreover, by a decree of 26   May   2000, the President of France appointed a member of the Conseil d’Etat who had participated in the deliberation of 26 April 2000 to the position of Secretary General of the Ministry of the Economy, Finance and Industry. Law : As to the independence and impartiality of the Conseil d’Etat , whilst the Court did not wish to pass judgment, in general terms, on the conditions of appointment and career development of members of that court, it was called upon to assess whether the Judicial Division had the required “appearance of independence”, particularly in the light of the fact that one of its members who had participated in the deliberation of 26 April 2000 had been appointed as Secretary General of the Ministry responsible for mining policy. Whilst the appointment itself had post-dated that deliberation, the Government had indicated that it had been under discussion since April 2000. The member in question could not therefore appear neutral vis-à-vis the applicant company, given the absence of guarantees against possible external influence, since his appointment had already been envisaged at the time he was serving as a judge in April 2000. Accordingly, the applicant company had been founded in having objective doubts, ex post facto , as to the independence and impartiality of the Conseil d’Etat bench to which the member in question had belonged. Conclusion : violation (four votes to three). As to the participation of the Conseil d’Etat in the development of mining policy, through its opinions, the question in this case was whether the opinion given by the Advisory Division on 29   September 1997 had constituted a sort of preliminary judgment in relation to the judgments of the Judicial Division delivered on 19 May 2000 and 5 April 2002. In this connection, none of the members who sat on the Judicial Division’s benches had participated in the adoption of the opinion. Moreover, whilst there was certainly a connection between the legal issues contained in the opinion and those to be settled in the dispute submitted by the applicant, the opinion and subsequent appeal proceedings could not be regarded as forming part of the “same case” or “same decision”. Conclusion : no violation (unanimously). The Court reiterated its finding in the Kress and Martinie cases that the participation, whether “active” or “passive”, of the Government commissioner ( commissaire du gouvernement ) at the deliberations of the bench of the Conseil d’Etat entailed a breach of Article 6(1). Conclusion : violation (unanimously). The two sets of impugned proceedings had lasted, respectively, for four years, nine months and three days, and for three years, six months and seventeen days. Having regard to the circumstances of the case, it considered that such periods were excessive and did not meet the “reasonable time” requirement. Conclusion : violation (unanimously). Article 41: EUR 8,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes