Protection of property (Article 1 of Protocol No. 1 to the Convention)
II. RELEVANT LAW A. Domestic law 24. The Disabled Persons Act of 30 June 1975 (Law no. 75-534) provides for the benefit of an allowance for disabled adults. Article L. 821-1 of the Social Security Code, as worded prior to the entry into force of the Act of 11 May 1998, provided for the award of this minimum income to any disabled person, subject to the fulfilment of certain conditions: “ Any French national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan France ... who is over the age of entitlement to the special education allowance provided for in Article L. 541-1 and whose permanent disability is at least equal to the percentage determined by decree, shall receive an allowance for disabled adults if they are not eligible for an old-age or invalidity or employment-injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance. ” 25. The Aliens (Conditions of Entry, Residence and Asylum) Act of 11 May 1998 (Law no. 98- 34 9) abolished the nationality condition. Since that Act was passed, any foreign national lawfully resident in France may claim the allowance. 26. With regard to another benefit, namely the supplementary allowance paid by the National Solidarity Fund, the Court of Cassation has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 ( Social Division, judgment of 14 January 1999, published in the Bulletin ). B. Recommendation of the Committee of Ministers No. R (92) 6 27. Recommendation No. R ( 92) 6 on a coherent policy for people with disabilities, adopted by the Committee of Ministers of the Council of Europe on 9 April 1992, cross- refers to its Appendix, which provides, inter alia, as follows: “ ... 2. Aims All people who are disabled or are in danger of becoming so, regardless of their age and race, and of the nature, origin, degree or severity of their disablement, should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential. Through a coordinated set of measures they should be enabled to: ... – have a minimum livelihood, if appropriate by means of social benefits; ... 4. General directives To implement this policy States should take the following steps: ... – ensure that people with disabilities enjoy a respectable standard of life, if necessary by means of economic benefits and social services; ... Social provisions remain, however, in many spheres an essential means of either activating and supporting self-help or initiating and promoting rehabilitation and integration processes. ... THE LAW 30. In the first place, the applicant challenged the Court's decision of 13 March 2001 declaring his application partly admissible in that it rejected as manifestly ill-founded his complaint about the procedure concerning his application for French nationality. 31. The Court considers that the arguments advanced by the applicant are not such as to call into question its decision on that point. I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 32. The applicant complained of a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Those provisions are worded as follows: Article 14 of the Convention “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 1. Arguments before the Court 33. The Government contended that the right of property protected by Article 1 of Protocol No. 1 did not include non-contributory benefits such as the allowance for disabled adults. That allowance took the form of assistance rather than an actual right to payment or an acquired right, as could be seen from the fact that, under French law, it was not a predetermined allowance and was subject to conditions. The Government submitted that Gaygusuz v. Austria ( judgment of 16 September 1996, Reports of Judgments and Decisions 1996 - IV) supported their contention since, in their view, the Court had expressly pointed out that entitlement to a social benefit was linked to the payment of contributions. In the Government's submission, the decisions given in Michael Matthews, in which they agreed with the British Government's submissions, did not enable it to be determined whether or not the benefit in question was a “possession” within the meaning of Article 1 of Protocol No. 1 ( see Michael Matthews v. the United Kingdom, no. 40302/98, decision of 28 November 2000 and judgment of 15 July 2002). The Government submitted that the complaint was therefore inadmissible ratione materiae. 34. In the applicant's submission, the allowance for disabled adults amounted to a “possession” within the meaning of Article 1 of Protocol No. 1 and the refusal to award it to him had breached his right to peaceful enjoyment of that possession. He argued that the refusal had been based on a discriminatory criterion, namely the fact of his being a foreign national from a non-European Union country that had not signed a reciprocity agreement in respect of the allowance for disabled adults. He submitted that the concept of “ possession ” had been widely extended by the Court's case-law. The applicant also pointed out, among other things, that in Diop, which concerned the crystallisation of retirement pensions paid to foreign nationals, the Paris Administrative Court of Appeal, whose judgment was upheld by the Conseil d'Etat on 30 November 2001, had dismissed the argument advanced by the Minister for the Economy, Finance and Industry that the pension was not a “possession” within the meaning of Article 1 of Protocol No. 1 because no correlation could be established between the contributions paid and the pensions awarded by the State, which, moreover, funded that special scheme from its budget. The applicant, referring to further examples of administrative case-law, inferred from this that the distinction as to whether the benefit was contributory or not was invalid. He also referred to the example of the minimum welfare benefit (that he had received for a time ), which varied according to any income from a professional activity and which could potentially be claimed by anyone aged 25 who had never worked and which was not subject to any nationality condition. Accordingly, he considered himself entitled to a right that had been unlawfully denied him for discriminatory reasons regarding his nationality. 35. Mr Bernard Poirrez, the applicant's adoptive father, who had been given leave to intervene in the present proceedings, submitted that the AAH was a “possession” within the meaning of Article 1 of Protocol No. 1. 2. The Court's assessment 36. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to the “ rights and freedoms ” safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 198 5, Series A no. 94, p. 35, § 71, and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p. 17, § 36). 37. The Court also points out that it has already held that the right to emergency assistance - in so far as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No. 1. That provision is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay “ taxes or other contributions ” ( see Gaygusuz, cited above, p. 1142, § 41). In that connection, the Court considers that the fact that, in that case, the applicant had paid contributions and was thus entitled to emergency assistance ( ibid., pp. 1141-42, § 39) does not mean, by converse implication, that a non-contributory social benefit such as the AAH does not also give rise to a pecuniary right for the purposes of Article 1 of Protocol No. 1. 38. In the instant case, it was not disputed that the applicant had been registered as 80% disabled and issued with an invalids'card. His claim for an allowance for disabled adults was refused solely on the ground that he was neither a French national nor a national of a country that had signed a reciprocity agreement in respect of the AAH. Accordingly, the Court notes that the allowance could be awarded both to French nationals and to nationals of a country that had signed a reciprocity agreement with France to that end. 39. In the Court's view, the fact that the applicant's country of origin had not signed such an agreement, whereas the applicant had been issued with an invalids'card, resided in France, was the adopted son of a French citizen residing and working in France and, lastly, had previously been receiving the minimum welfare benefit, did not in itself justify refusing him the allowance in question. As the allowance is moreover intended for persons with a disability, the Court also refers to Recommendation No. R (92) 6 of the Committee of Ministers, adopted on 9 April 1992 (see paragraph 27 above), which is aimed at the adoption of a policy and measures adapted to the needs of persons with disabilities, and to the conclusions of the European Committee of Social Rights (see paragraph 29 above). 40. Furthermore, the Court notes that the nationality condition for the award of the allowance was abolished by the Act of 11 May 1998. The AAH has therefore been awarded without any distinction on grounds of nationality since that Act was enacted. The applicant has indeed received it since June 1998, that is immediately after the Act was passed. 41. The Court considers finally that the refusal to award the allowance to the applicant prior to June 1998 was based on criteria – possession of French nationality or the nationality of a country having signed a reciprocity agreement with France in respect of the AAH – which amount to a distinction for the purposes of Article 14 of the Convention. 42. Having regard to all the foregoing considerations, the Court holds that the applicant had a pecuniary right for the purposes of Article 1 of Protocol No. 1 and that Article 14 of the Convention is also applicable in the instant case. B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 1. Arguments before the Court 43. The Government submitted that the applicant's complaint based on discrimination contrary to Article 14 was ill-founded. They pointed out that the distinction made, prior to the 1998 Act, between nationals and foreigners when awarding the allowance for disabled adults pursued a legitimate aim, which was a balance between the State's welfare income and expenditure. The requirement of proportionality had also been satisfied, as foreign nationals had not been deprived of all resources since they were entitled to, among other things, the RMI. The Government also pointed out that, although the applicant had been unable to acquire French nationality by declaration, he could have requested his naturalisation and benefited from the allowance for disabled adults without being disqualified by the nationality condition. 44. The applicant disputed that submission, considering that the allowance for disabled adults was an actual pecuniary right acquired subject to fulfilment of the conditions as to a maximum income limit and a particular disability rate, which had been the case when he had first applied in 1990. The CAF's refusal to award him the allowance had thus infringed his right on the ground of his nationality. 45. Mr Bernard Poirrez submitted that nationality was also referred to in Articles 2 § 2, 3 and 4 of Protocol No. 4, and that it had served as a basis for discrimination regarding awards of the allowance in question. 2. The Court's assessment 46. According to the Court's case-law, a distinction is discriminatory, for the purposes of Article 14, if it “ has no objective and reasonable justification ”, that is if it does not pursue a “ legitimate aim ” or if there is not a “ reasonable relationship of proportionality between the means employed and the aim sought to be realised ”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see, inter alia, Gaygusuz, cited above, p. 1142, § 42; Larkos v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999 - I; and Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000 - IV). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention ( see Gaygusuz, cited above, p. 1142, § 42). 47. In the instant case, the Court notes in the first place that the applicant was legally resident in France, where he received the minimum welfare benefit, which is not subject to the nationality condition. It reiterates that the domestic authorities'refusal to award him the allowance in issue was based exclusively on the fact that he did not have the requisite nationality, which was a precondition for obtaining the allowance under Article L. 821-1 of the Social Security Code as applicable at the material time. 48. In addition, it has not been established, or even alleged, that the applicant did not satisfy the other statutory conditions entitling him to the social benefit in question. In that connection, the Court can only note that the applicant did receive the AAH after the 11 May 1998 Act had abolished the nationality condition. He was therefore in a like situation to that of French nationals or nationals of a country that had signed a reciprocity agreement as regards his right to receive the benefit. The Court notes that the Court of Cassation also considered that the refusal – solely on grounds of foreign nationality – to award the supplementary allowance payable by the National Solidarity Fund to a claimant resident in France who received an invalidity pension under the French scheme breached Article 14 of the Convention and Article 1 of Protocol No. 1 (see paragraph 26 above). 49. The Court therefore finds the arguments advanced by the Government unpersuasive. The difference in treatment regarding entitlement to social benefits between French nationals or nationals of a country having signed a reciprocity agreement and other foreign nationals was not based on any “objective and reasonable justification” (see, conversely, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 20, § 49). Even though, at the material time, France was not bound by reciprocity agreements with the Ivory Coast, it undertook, when ratifying the Convention, to secure “ to everyone within [its] jurisdiction ”, which the applicant indisputably was, the rights and freedoms defined in Section I of the Convention ( see Gaygusuz, cited above, p. 1143, § 51). 50. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 51. The applicant maintained that the proceedings had not been conducted within a reasonable time as required by 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 ... hearing within a reasonable time by [a] ... tribunal ...” 1. Arguments before the Court 52. The Government's primary submission was that the complaint was inadmissible because it was incompatible ratione materiae with the provisions of Article 6 § 1. The applicant could not claim to have a “civil right” within the meaning of that provision, since the legislation applicable at the material time did not entitle him to obtain the allowance in question. 53. In the alternative, the Government submitted that the complaint based on the excessive length of the proceedings was ill-founded on account of the undeniable complexity of the case (illustrated, among other things, by the need for the trial judge to refer a question to the European Court of Justice for a preliminary ruling) and on account of its reduced importance on the merits, which meant there was no need for special diligence (since the applicant was entitled to the RMI). The Government also stressed that the applicant had instituted numerous proceedings and that the courts dealing with the case had been sufficiently diligent in deciding it. While acknowledging a certain period of inactivity before the Paris Court of Appeal and the Court of Cassation, they reiterated that the first had considered it necessary to obtain an opinion from Principal State Counsel and that the Court of Cassation had conducted the proceedings diligently from the time of the reporting judge's appointment in June 1997. 54. The applicant contested that submission. He argued that the dispute did concern a “civil right” within the meaning of Article 6 § 1 because he should have been awarded the allowance in issue on account of his registered invalidity and regardless of his nationality. He pointed out, in particular, that he could rely on that right on the basis of provisions of European law that took precedence over French law. He referred to a judgment of the Court of Cassation of 17 October 1996 upholding an award of the AAH to an Algerian on the ground that there was an agreement between Algeria and the EEC, and to a judgment of the Haute-Savoie Social Security Tribunal of 15 May 1997 basing its decision to award the benefit on the Lomé Convention. Lastly, the applicant disputed the Government's submissions regarding the length of the proceedings, arguing that his case had not been sufficiently complex to justify the length of the proceedings and that the real reason for the excessive length had been the lack of diligence on the part of the French authorities. 55. Mr Bernard Poirrez submitted that the length of the proceedings was unreasonable and that the responsibility for this lay principally with the authorities, which had failed to grasp or, more seriously, had breached the hierarchy of legal norms. 2. The Court's assessment 56. Regarding the applicability of Article 6 § 1 of the Convention, the Court refers to its finding that the applicant was entitled to the AAH, which was a pecuniary right for the purposes of Article 1 of Protocol No. 1 (see paragraph 42 above). Accordingly, the Court concludes that the right was a “civil” one. Furthermore, it cannot be disputed that this pecuniary “right” was the subject of a “dispute” before the domestic courts (see also Mennitto v. Italy [ GC], no. 33804/96, §§ 23 et seq., ECHR 2000 - X). 57. Article 6 § 1 is therefore applicable in the instant case. 58. The Court notes that the period to be considered started on 13 June 1990 when the case was referred to the Friendly Settlements Board and ended on 22 January 1998 with the judgment of the Court of Cassation. It therefore lasted seven years, seven months and nine days for three levels of jurisdiction. 59. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria laid down in its case-law, especially the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII). 60. It agrees with the Government that there was a certain degree of complexity in the instant case. 61. With regard to the conduct of the parties, the Court considers that the applicant cannot be criticised for having taken full advantage of the remedies available to him. With regard to the domestic authorities, it does not find any significant period of inactivity attributable to them. The Court also reiterates that the length of the proceedings before the ECJ, namely over eighteen months in the present case, cannot be taken into consideration ( see Pafitis and Others v. Greece, judgment of 26 February 1998, Reports 1998 ‑ I, p. 459, § 95). 62. Lastly, the financial stakes in the proceedings, although substantial, are not decisive in the instant case because the applicant received the RMI from 17 December 1991 (see paragraph 17 above). 63. Having regard to the foregoing, the Court considers that the length of the proceedings did not exceed the “reasonable time” required by Article 6 § 1. 64. Accordingly, there has been no violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 65. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 66. The applicant claimed 184,0 00 French francs (FRF), that is 28,050 euros (EUR), for the pecuniary loss sustained as a result of the difference in amount between the RMI and the AAH between 1990 and 1998. He also claimed FRF 500,000 ( EUR 76,224 ) for the non-pecuniary damage sustained as a result of the refusal to grant him French nationality, FRF 200,000 (EUR 30,489) for the French State's resistance and FRF 10 0 ,000 (EUR 15,244) for the length of the proceedings. 67. Mr Bernard Poirrez, the third party, claimed FRF 400,000 (EUR 60,979) for non-pecuniary damage distinct from that sustained by his son, and FRF 100,000 (EUR 15,244) for the length of the proceedings. 68. The Government submitted, inter alia, that the applicant could not claim compensation for the refusal to grant him French nationality, that he had ceased to be a victim since the 1998 Act was passed and that, in any event, a finding of a violation of Article 14 of the Convention and of Article 1 of Protocol No. 1 would not give rise to a right to any compensation. Regarding the complaint based on the length of the proceedings, they submitted that, in respect of the amounts claimed under that head and under the head of costs and expenses, the sum of FRF 40,000 ( EUR 6,079. 96 ) would be appropriate just satisfaction. Lastly, the Government maintained that Mr Bernard Poirrez could not claim any compensation under Article 41 because he was not an applicant. 69. The Court reiterates first of all that, under Article 36 § 2 of the Convention and Rule 61 § 3 of the Rules of Court, the President of the Court may, among other things, invite any person concerned who is not the applicant to submit written comments or take part in hearings. Mr Bernard Poirrez was given leave to intervene, which conferred only third- party and not applicant status on him, as is evident from the wording of the above-cited provisions. 70. With regard to the applicant, the Court reiterates that the complaint based on the refusal to grant him French nationality was rejected by the Court's decision of 13 March 2001 declaring his application partly admissible. Accordingly, no just satisfaction can be awarded under that head. As to the rest, without wishing to speculate as to the amount of AAH to which the applicant was entitled and the date on which he could have claimed it, the Court must nonetheless take into account the fact that he undoubtedly suffered pecuniary and non-pecuniary damage. Making an assessment on an equitable basis, as is required by Article 41 of the Convention, it awards him EUR 20,000 to cover all the heads of damage. B. Costs and expenses 71. The applicant claimed FRF 40,00 0 net of tax ( EUR 6,079.96 ) for costs and expenses, having regard to the “ extent of the research and the dilution of the proceedings over time ”. 72. The Government did not directly express a view, their submissions covering the applicant's claims regarding his complaint under Article 6 and for costs (see paragraph 68 above). 73. If the Court finds that there has been a violation of the Convention, it may award an applicant not only the costs and expenses incurred before the Strasbourg institutions, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports 1998 -VI, p. 2334, § 63). An award in respect of costs and expenses before the Court can be made only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Kress v. France [GC], no. 39594/98, § 102, ECHR 2001 - VI). 74. In the instant case, the Court finds the amounts claimed by the applicant for costs manifestly excessive. Furthermore, as no breakdown has been provided, there is no way of ascertaining the extent to which they were incurred for the prevention or redress of just the violations found by the Court. That being so, in the light of the written and oral steps evidently taken by his lawyer, the Court awards the applicant EUR 3,000 under this head. C. Default interest 75. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court considered that a non-contributory benefit such as the D.A.A. could give rise to a pecuniary right for the purposes of Article 1 (protection of property) of Protocol No. 1 to the Convention. It held that in the present case there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 of Protocol No. 1, finding that there was no objective and reasonable justification for the difference in treatment between French nationals or nationals of countries that had signed a reciprocal agreement and other foreigners. Even though – at the material time – France was not bound by a reciprocal agreement with the Ivory Coast, it had undertaken, in ratifying the Convention, to secure to everyone within its jurisdiction – which the applicant unquestionably was – the rights and freedoms defined in the Convention.