2. Translation

[…]

Concerning the argument regarding the elements of state liability:

Whereas the Keeper of the Seals, the Minister of Justice, claims that first the Administrative Court of Appeal has committed an error of law in considering that state liability is automatically incurred in case of excessive length of procedure, secondly, that the Administrative Court of (p.314) Appeal has committed another error of law, as well as a misconstruction of the elements of the dossier, in respect of the criteria which it applied in judging the abnormally long duration of the procedure in question.

Whereas according to Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms: ‘[i]n the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by [a]…tribunal…’ and according to Article 13 of the same Convention, ‘[e]veryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’.

Whereas it derives both from these dispositions, where a dispute falls within their scope, and in all other cases from the general principles governing the functioning of the administrative courts, that litigants have a right to have their claims judged within a reasonable time.

Whereas even if the breach of this obligation has not affected the validity of the judicial decision taken at the end of the procedure, litigants must nonetheless be able to ensure that this obligation is respected; that thus when the breach of the right to judgment within a reasonable time has caused them loss, they should be able to obtain reparation of the damage thus caused by the defective functioning of the system¹ of justice.

Whereas after having decided that the length of the procedure was excessive, the Administrative Court of Appeal inferred from this that state liability was incurred vis-à-vis Monsieur Magiera; that, in so doing, far from breaching the aforestated dispositions and principles, it applied the law correctly.

Whereas the reasonableness of the length of time for giving judgment in a case must be assessed in both a global manner, taking account notably of all the procedures exercised,² and a concrete manner, taking account of the complexity of the case, the conditions under which the proceedings progressed, and in particular, the conduct of the parties during the entire procedure, and also—to the extent which the court was aware of this—the interest which the case presented for one or other of the parties, taking account of [his or her] particular situation, the circumstances relating to the litigation, and where this is the case, the need—given the case's specific nature—to give judgment rapidly.

Whereas, in considering the length of time for giving judgment in Monsieur Magiera's action as excessive, the Paris Administrative Court of Appeal found that the length of time which the Versailles Tribunal administratif took to consider the case was seven years and six months in respect (p.315) of ‘a claim which did not present any particular difficulties’; that deciding thus the court, contrary to the arguments of the Minister, applied the above-mentioned principles correctly.

Concerning the manner of assessing the loss:

Whereas the Keeper of the Seals, the Minister of Justice, claims that the court should not simply have contented itself with finding ‘anxiety and troubles in the conditions of existence’, but ought rather to have examined whether the loss was really so established, taking account of the nature of the case and the stakes involved, as well as the ultimate outcome of the litigation.

Whereas a damages action brought by a litigant whose claim has not been decided within a reasonable time must allow the grant of compensation for all the loss—moral, direct and certain—which has been caused, and in respect of which reparation has not been gained by virtue of the principal proceedings; that compensation should in particular be given for damage caused by the loss of a chance or an advantage, or for the late recognition of a legal right; that compensation should in particular be given for trouble caused by an excessively long procedure, when these troubles are real and go beyond the anxiety habitually associated with litigation, and that account is especially taken of the particular situation of the person concerned;

Whereas the Paris Administrative Court of Appeal held, exercising its sovereign power in the assessment of damages, that Monsieur Magiera sustained ‘anxiety and troubles in the conditions of existence’ due to the delay in the procedure, and assessed the quantum of damages as 30,000 Francs; that it results from the aforementioned that contrary to the arguments of the Minister, the Paris Administrative Court of Appeal did not commit an error of law.

…

Translator's Notes

1. 1. It should be noted that the meaning of the French terminology here is fuller than merely the ‘system of justice’ and refers to the ‘public service’ which ensures the functioning of justice.

2. 2. The French phrase here is ‘l'exercice des voies de recours’ which refers to the aspects of the procedure which might have affected its length, for instance whether appeals have been made.

(p.316) 10. CE 30 November 2001, Kechichian, Req 219562

Liability of the state for failure properly to regulate banks—Liability premised on faute lourde

Summary: depositors brought an action against the state alleging that the Commission Bancaire had failed to supervise properly a bank, the United Banking Corporation, thereby contributing to its failure and the consequent loss of their deposits.

For further discussion of this case, see Chapter 4, at page 109, Chapter 6, at pages 175–6, and Chapter 7, at page 200, and Chapter 9, at pages 270 and 283.