RIGHT FOR THE JUSTICIABLE TO OPPOSE THE PRESENCE OF THE GOVERNMENT COMMISSIONER OF DELIBERATE
LexInter | May 30, 2008 | 0 Comments

RIGHT FOR THE JUSTICIABLE TO OPPOSE THE PRESENCE OF THE GOVERNMENT COMMISSIONER OF DELIBERATE

Considering the request, registered on August 9, 2006 at the litigation secretariat of the Council of State, presented by Mr. Roland, residing …; M. asks the Council of State to cancel, for excess of power, III of article 5 of decree n ° 2006-964 of August 1, 2006, insofar as it inserts in the code of administrative justice the first paragraph of a new article R. 733-3;

Having regard to the other documents in the file;

Seen, recorded on May 2, 2007, the request presented by M., on the basis of article R. 733-3 of the code of administrative justice, and tending that the government commissioner does not attend the deliberation;

Having regard to the European convention for the protection of human rights and fundamental freedoms;

Considering the ordinance of September 10, 1817;

Considering decree n ° 2005-790 of July 12, 2005;

Considering the code of administrative justice;

After hearing in public session:

– the report of Mr. Hervé Cassagnabère, Master of Requests,

– the conclusions of Mr. Rémi Keller, Government Commissioner;

Considering that M. requests the cancellation, for excess of power, of III of article 5 of the decree of August 1, 2006 as it inserts in the chapter of the code of administrative justice relating to the hearing and the deliberation before the Council of State, ruling on disputes, the first paragraph of a new article R. 733-3 under the terms of which, Unless a party requests otherwise, the government commissioner attends the deliberation. He does not take part. ;

Considering, in the first place, that M. maintains that these provisions disregard the right to a fair trial, recalled by the stipulations of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; that, however, the attacked decree also introduced into the code of administrative justice, on the one hand, a second paragraph in article R. 733-3 providing that the request provided for in the preceding paragraph is presented in writing. It can be done at any time during the procedure before deliberation., On the other hand, a fourth paragraph of article R. 712-1 under which the notice of hearing sent to the parties reproduces the provisions of the article R. 733-3; that the contested decree thus intended to ensure compliance with the requirements arising from the right to a fair trial; that, since it has provided for the possibility for the litigant, informed by the hearing notice, to be able to effectively exercise his right by opposing the presence of the government commissioner at the deliberation, the contested decree, far from undermining the guarantees provided for by Article 6 § 1 of the convention as interpreted by the European Court of Human Rights, helped to strengthen them; that the litigant could not thus, as it is alleged, waive, by exercising his right, a guarantee which he holds from the European convention for the protection of human rights and fundamental freedoms; it provided for the possibility for the litigant, informed by the notice of hearing, to be able to effectively exercise his right by opposing the presence of the government commissioner to the deliberation, the decree attacked, far from undermining the guarantees provided for in Article 6 § 1 of the convention as interpreted by the European Court of Human Rights, has helped to strengthen them; that the litigant could not thus, as it is alleged, waive, by exercising his right, a guarantee which he holds from the European convention for the protection of human rights and fundamental freedoms; it provided for the possibility for the litigant, informed by the notice of hearing, to be able to effectively exercise his right by opposing the presence of the government commissioner to the deliberation, the decree attacked, far from undermining the guarantees provided for in Article 6 § 1 of the convention as interpreted by the European Court of Human Rights, has helped to strengthen them; that the litigant could not thus, as it is alleged, waive, by exercising his right, a guarantee which he holds from the European convention for the protection of human rights and fundamental freedoms; opposing the presence of the government commissioner to the deliberation, the contested decree, far from undermining the guarantees provided for by Article 6 § 1 of the convention as interpreted by the European Court of Human Rights, contributed to strengthen them; that the litigant could not thus, as it is alleged, waive, by exercising his right, a guarantee which he holds from the European convention for the protection of human rights and fundamental freedoms; opposing the presence of the government commissioner to the deliberation, the contested decree, far from undermining the guarantees provided for by Article 6 § 1 of the convention as interpreted by the European Court of Human Rights, contributed to strengthen them; that the litigant could not thus, as it is alleged, waive, by exercising his right, a guarantee which he holds from the European convention for the protection of human rights and fundamental freedoms;

Considering, in the second place, that, as it was said above, far from ignoring the guarantees defined by the European convention, the decree is intended only to ensure the application of it; that in any event, the European Court of Human Rights, whose judgments are not endowed with the absolute authority of res judicata, has not had to rule on the provision in dispute;

Considering finally that, if it is maintained that members of the Council of State and of the Bar Association of the Council of State and the Court of Cassation would have taken a public stand on the provision in question, this circumstance cannot, in any event, deprive of effect the right of any party to request that the government commissioner not attend the deliberation, taking into account, in particular, the rules relating to the exercise of the profession of lawyer and the obligation of the court to comply with the request as soon as it is presented;

Considering that it follows from the foregoing that M. is not founded in requesting the annulment of the attacked decree;

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