CASE OF PHOCAS v. FRANCE

1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 9 September 1994, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 17869/91) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a French national,
Mr Léopold Phocas, on 19 November 1990.
The Commission's request referred to Articles 44 and 48 (art.
44, art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 1 of Protocol No. 1 (P1-1) to the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 24 September 1994, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr C. Russo, Mrs E. Palm, Mr I. Foighel,
Mr J.M. Morenilla, Mr F. Bigi, Mr K. Jungwiert and Mr P. Kuris
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence and the
extension of time subsequently granted by the President, the registry
received the applicant's and the Government's memorials on 1 February
7 March 1995 respectively. On 13 April the Secretary to the Commission
indicated that the Delegate did not wish to reply in writing, and on
24 April he supplied various documents, as did the applicant on 12 and
17 July and 18 and 25 October and the Government on 31 October 1995,
as they had all been requested to do by the Registrar on the
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
19 June 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
Mrs M. Merlin-Desmartis, administrative court judge
on secondment to the Legal Affairs Department,
Ministry of Foreign Affairs, Agent,
Mrs A. Brun, administrative assistant, Architecture
and Town Planning Department, Ministry of
Regional Development, Infrastructure and
Mr P. Calaffel, avocat, Counsel.
The Court heard addresses by Mr Békés, Mr Calaffel and
6. Mr Phocas was born in 1918 and lives in Montpellier. From 1956
he owned and ran commercial premises occupying 275 sq. m at
Castelnau-le-Lez (in the département of Hérault), at the spot where one
road (the RN 113) crossed another (the CD 21).
In a decision of 20 May 1960 the Minister of Public Works and
Transport adopted a scheme for improving the crossroads in question.
In 1962 the applicant, believing that expropriation was imminent,
transferred his greengrocery business to other premises.
A. The proceedings relating to planning permission
1. The applications for planning permission
7. Mr Phocas's property was not expropriated and he accordingly
decided to convert the building into eight flats by adding two floors.
To this end, on 1 March 1965, he applied for planning permission.
(a) The first decision to adjourn the application
8. In an order of 31 July 1965 the Prefect of Hérault decided to
adjourn the application "until publication of the decision approving
the general development plan of the municipality of Castelnau-le-Lez",
on the ground that "in the present state of the surveys undertaken, it
appears that the project submitted [by the applicant] is likely to
jeopardise the carrying out of the scheme to improve the crossroads
..., which was adopted by the Minister of Public Works and Transport
That decision was confirmed on 30 March 1967 by the
département's Director of Infrastructure and Planning, who so indicated
in response to a fresh application by the applicant.
9. On 31 July 1967 Mr Phocas sought a final decision from the
Prefect, as the period of adjournment had expired.
As he did not receive any reply, he lodged an application with
the Montpellier Administrative Court on 2 December 1967 for judicial
review of the decisions of 31 July 1965 and 30 March 1967 and the
implied refusal of his application of 31 July 1967.
The registrar sent him the following letter, dated
"I should like to remind you that on 11 March 1968 you were
sent a pleading ... by the Minister of Infrastructure and
Housing. In a memorandum of 29 May 1970 you informed us that
you were awaiting a decision by the authorities that was due
to be taken by May 1971 ... As you have still not sent any
pleading to the registry, I am taking the liberty of pointing
out that it is desirable that you should send one to me as soon
as possible or make known to the Court that you do not intend
In a letter of 13 October 1971 Mr Phocas informed the Prefect
that he was not withdrawing the proceedings.
On 22 September 1972 he nevertheless stated that he was
abandoning the action, and this was noted by the court in a judgment
(b) The second decision to adjourn the application
10. The general development plan for Castelnau-le-Lez was published
on 20 March 1968. It provided, among other things, for the acquisition
of part of the applicant's property by the authorities for the purpose
of the crossroads improvement and designated the rest as coming within
the area of land on which further building was not permitted.
11. In an order of 9 October 1969 the Prefect of Hérault adjourned
a new application for planning permission that Mr Phocas had made on
13 May 1969 until publication of the decision approving the general
development plan of the municipality of Castelnau-le-Lez, on the ground
that "in the present state of the surveys undertaken, it appears that
the project submitted [by the applicant] is likely to jeopardise
implementation of the general development plan ... published on
20 March 1968 (building planned on land reserved for the improvement
of a crossroads formed by the RN 113 and the CD 21 and included in
newly designated areas on which further building is not permitted)".
The general development plan was approved by the Prefect on the
12. On 2 January 1970 the Ministry of Infrastructure and Housing
informed the applicant that the decision to defer was maintained but
that it was open to him under Article 28 of Decree no. 58-146 of
31 December 1958 (see paragraph 36 below) to ask the local authority
that was benefiting from the improvement scheme to purchase the
reserved part of the land within a period of three years.
13. In a letter of 13 October 1971 to the Prefect Mr Phocas
requested a decision on his application for planning permission that
had been registered on 13 May 1969 (see paragraph 11 above) as the
period of adjournment had expired.
(c) The third decision to adjourn the application
14. The proceedings to abandon his property having failed (see
paragraphs 18-26 below), the applicant made a fresh application for
planning permission on 17 July 1976, which the Prefect adjourned in an
order of 21 September 1976 on the ground that the Castelnau-le-Lez
land-use plan (the POS) - which was then being drawn up, pursuant to
a prefectoral order of 1 June 1973 - showed the property in question
as coming within an area reserved for the crossroads improvement.
On 15 November 1976 Mr Phocas lodged an application for
judicial review with the Montpellier Administrative Court. The
Minister of Infrastructure produced his observations on 16 June 1977
and documents on 29 June 1977. The hearing took place on 15 December
8 January 1979 the court refused the application as follows:
"Under Article L. 123-5 of the Town Planning Code, the
administrative authority may, where a draft land-use plan is
to be drawn up, adjourn applications for permission relating
to buildings that would be likely to jeopardise implementation
of the plan. It is established that the prefectoral order of
1 June 1973 required a land-use plan to be drawn up for the
municipality of Castelnau-le-Lez. It appears from the evidence
that the roadworks envisaged in the plan include the widening
of the RN 113 and of the CD 21 at the very spot occupied by the
property of Mr Phocas's concerned in the building project
referred to in the planning application of 15 July 1976. That
project was likely to jeopardise the roadworks. It follows
that Mr Phocas, who - seeing that the impugned order was not
based on the development plan approved on 9 September 1969 -
cannot rely on the expropriations judge's decision of 19 March
1976 [see paragraph 26 below], in which it was held that Mr
Phocas's property was not subject to any reservation under the
plan, has no grounds for maintaining that the order of 21
September 1976 in which the Prefect of Hérault adjourned his
application for planning permission is unlawful."
2. The constructive planning permission
15. At the end of the period of adjournment on 21 September 1976,
Mr Phocas sent the mayor of Castelnau-le-Lez a letter confirming his
application for planning permission.
The mayor received the letter on 12 October 1978 and refused
the application in a decision of 12 December 1978 that was served on
16. On an application made by Mr Phocas on 9 February 1979, the
Montpellier Administrative Court set aside that decision on
7 February 1980 on the following grounds:
"It appears from the documents submitted in evidence that at
the end of the period of validity of the adjournment decided
on by the Prefect Mr Phocas confirmed to the mayor of
Castelnau-le-Lez his application for planning permission. The
mayor received this letter of confirmation on 12 October 1978.
As the mayor failed to notify his decision to Mr Phocas before
two-month period allowed by the provisions of Article L. 111-8
of the Town Planning Code, Mr Phocas had constructive
permission with effect from 13 December 1978. The mayor of
Castelnau-le-Lez's decision of 12 December 1978, notified on
14 December 1978, must be regarded as having the effect of
withdrawing that constructive permission.
But the constructive permission which the applicant had could
not lawfully be withdrawn within the time allowed for appeal
unless it was itself unlawful. Although Articles R. 111-3-1
R. 111-4 of the aforementioned Code allow the relevant
authority to refuse permission or to grant it, in the cases
referred to in the aforesaid Article R. 111-3-1 and in
Article R. 111-4 subject to compliance with special directions,
it was for the authorities to examine, during the process of
considering the planning application, which had been reopened
by the confirmation of 12 October 1978, whether ... the
building to which it was proposed to make alterations ... was
liable to be exposed to serious nuisance within the meaning of
the aforementioned Article R. 111-3-1 and to assess whether
access to the land affected by the project was insufficient
within the meaning of the aforesaid Article R. 111-4 and
whether the means of access to the building endangered the
safety of those using them. By failing to notify a refusal
within the time provided for in Article L. 111-8 of the Town
Planning Code, the authorities must be deemed to have taken the
view that there was no reason in this case to refuse permission
Articles R. 111-3-1 and R. 111-4 of that Code. It does not
appear from the evidence that there was any manifest error in
that assessment. Accordingly, the permission tacitly granted
to Mr Phocas was not unlawful. It follows from the foregoing
that the mayor of Castelnau's decision of 12 December 1978,
which had the effect of withdrawing that permission, is
unlawful and must be set aside.
17. On 19 May 1983 the Conseil d'Etat dismissed an appeal brought
by the Minister for the Environment and the Quality of Life on
"Whether there was constructive planning permission
Under Article L. 111-8 of the Town Planning Code, '... when the
period of validity of the adjournment expires, a decision must,
on confirmation by the person concerned of his application, be
taken by the administrative authority responsible for granting
permission, within two months of that confirmation. Failing
notification of the decision within this time, permission shall
be deemed to have been granted as applied for'. The date of
notification shall be that shown by the Post Office date-stamp
on the recorded-delivery form that has to be signed by the
applicant when he receives notification of the authorities'
decision on his planning application.
It appears from the evidence that on expiry of the adjournment
decided on by the Prefect of Hérault, Mr Phocas confirmed his
planning application in a letter received by the mayor of
Castelnau-le-Lez on 12 October 1978. Not having received
notification of a decision by the mayor of that municipality
within the two-month period laid down in the aforementioned
Article of the Town Planning Code, Mr Phocas had constructive
planning permission. When, on 14 December 1978, Mr Phocas
received notification of the mayor of Castelnau-le-Lez's
decision of 12 December 1978 whereby planning permission was
refused, that decision had to be regarded as withdrawing the
The lawfulness of the impugned decision
By the terms of the second paragraph of Article R. 111-4 of the
Town Planning Code, planning permission 'may lawfully be
refused if the means of access endanger the safety of users of
the highway or persons using those means of access'. It was
for the authorities to determine during the process of
considering the planning application which had been reopened
by the confirmation of 12 October 1978 whether access to the
block of eight flats planned by Mr Phocas constituted a danger
to users of the highways. In failing to notify a refusal, the
authorities determined that there was no reason in this case
to refuse permission under Article R. 111-4 of the
aforementioned Code. It does not appear from the evidence that
there was any manifest error in the authorities' assessment.
The original permission was thus in no way unlawful and
consequently could not be lawfully revoked. Accordingly, the
Minister has no grounds for maintaining that the Administrative
Court was wrong to set aside the decision of 12 December 1978
Castelnau-le-Lez withdrew the constructive planning permission
The applicant thus retrospectively had constructive planning
permission from 12 December 1978.
B. The proceedings to abandon property
1. The applicant's requests to have his property purchased
18. In response to the letter of 2 January 1970 from the Ministry
of Infrastructure and Housing (see paragraph 12 above), Mr Phocas
applied in writing to the département's Director of Infrastructure on
27 May 1970 for "steps to be taken as soon as possible to purchase
He referred to this last letter when writing to the Prefect on
13 October 1971 (see paragraph 13 above), and on 13 May 1972 sent the
"Pursuant to Article 28 of Decree no. 58.146 of 31 December
1958 I am writing to confirm my letter of 27 May 1970 ...
Inasmuch as it may be necessary, I am hereby renewing that
application and would point out that it is being sent to you
in your capacity as representative of the State and also in
your capacity as representative of the département of Hérault.
I am at your department's disposal for the purpose of reaching
an agreement on the purchase price.
19. In a telephone conversation on 17 July 1972 an official from
the State Lands Department allegedly invited the applicant to an
interview in order to settle the purchase price by agreement. A
meeting is said to have taken place on 26 January 1973, followed by
several telephone conversations, but without result.
20. On 2 June 1973 Mr Phocas sent the Prefect of Hérault the
After the interview at your offices on Tuesday 29 May last,
during which a promise was made that the formalities for
purchasing my property at Castelnau-le-Lez ... would be carried
out very speedily, I feel it necessary, in order that this
unfortunate matter may be dealt with as satisfactorily as
possible, to assure you that I have not changed my mind. I
would thus like to point out to your department that with
reference to my letter of 27 May 1970, in which I requested,
pursuant to my rights, that my property should very speedily
be purchased, I am earnestly reiterating that request, as the
three-year period provided for in law has now elapsed.
2. The administrative authorities' purchase offer
21. On 7 November 1974 the département's Director of Infrastructure
wrote to the applicant making an offer to purchase for the sum of
22. On 20 January 1975 Mr Phocas sent the Director the following
"Thank you for your letter of 7 November 1974, received after
considerable delay, replying after a wait of four and a half
years to the one I sent on 27 May 1970 requesting that my
Seeing that the State Lands Department set their procedure in
motion on 17 July 1972 (they sent you letters on 18 May 1972
and 13 September 1972, without receiving any reply
incidentally), it is really very surprising that your offer
could not have been made within a more reasonable time. The
small amount offered is equally surprising, since how can you
suppose that with the derisory sum of 142,500 francs I can buy
a property more or less the same as the one which has been the
subject of such unfortunate disagreements. As the victim of
an unacceptable situation over so many years, I can obviously
only maintain my original application. May I, lastly, point
out that when asked about the value of my property by Mr
Pélissier, an engineer in the Department of Infrastructure, I
gave him the figure in reply of 300,000 francs some days
Mr Miguel, the engineer's secretary.
23. The département's Director of Infrastructure replied as follows
"Thank you for your letter of [illegible] January in which you
refused the offer of compensation for the property you own at
Castelnau-le-Lez and ask for a higher offer to be made with
reference to your own [illegible] of 1962.
I am sorry to have to tell you that the scheme justifying the
purchase of your property relates to the improvement of the RN
[illegible], for this [illegible], compensation for buildings
lies within the exclusive discretion of the Commissioner of
That is why, in my letter of 7 November, I referred to that
As the potential purchasing department, I have no discretion
to alter offers [illegible] by the Revenue.
If, therefore, you maintain your formal application [illegible]
purchase by the State, you must, in accordance with the
legislative provisions (Article [illegible] of the Town
Planning Code) apply to the expropriations judge to fix the
24. On 16 May 1975 the département's Director of Infrastructure
sent Mr Phocas the following letter:
"I write to confirm my letter of 4 February, in which I told
you, firstly, of the Revenue's decision and, secondly, of the
means afforded you by current legislation of securing an
adjustment of the amount of the dispossession compensation that
I had offered you for your property ...
I do not think that you have, to date, applied to the
appropriate judicial authority. I am therefore entitled to
assume that you have withdrawn your application to the
administrative authorities to purchase the property in
I should be very grateful if you would let me know whether that
assumption is correct or whether you are still maintaining the
formal application you have already made. Unless I hear from
you within eight days, I shall assume that you have given up
your project and, in that case, I shall put back at the
disposal of the higher authorities the budgetary appropriation
that had been made available to me to meet the foreseen
25. Mr Phocas's lawyer wrote to his client as follows on 22 May
"I have seen the Department of Infrastructure's letter of 16
I would advise you to send a registered letter with recorded
delivery to the département's Director of Infrastructure ...
immediately, worded as follows:
'In reply to your letter ... of 16 May, I am writing to
inform you that I have not given up my intention of
I am currently assembling the information that will enable
me to justify the expropriation compensation that I shall
3. The application to the expropriations judge
26. On 20 October 1975 the applicant applied to the Hérault
expropriations judge in order to have the purchase price determined.
On 8 December 1975 the département's Director of Infrastructure
"I am sending you herewith a memorandum setting out the
particulars of and justification for the dispossession
compensation offered by the expropriating authority for the
parcel of land ... in respect of which an expropriation order
The purchase offer, which you have not to date accepted, was
notified to you by registered letter with recorded delivery on
PS. By the same post I am sending the expropriations judge two
photocopies of the memorandum and of this letter."
The expropriations judge made a visit to the site on
15 December 1975 and held a hearing on 29 January 1976. On
19 March 1976 he delivered the following judgment:
The function of the expropriations judge is confined to fixing
the amount of expropriation compensation.
In the instant case Mr Phocas, having failed to secure planning
permission, made an application to the Director of
Infrastructure in a letter of 27 May 1970 seeking to have [the]
property purchased, an application that was renewed in a letter
to the Prefect of Hérault on 13 May 1972.
The Department of Infrastructure offered a purchase price of
142,500 francs, which was not accepted, and Mr Phocas then
applied, in written submissions of 16 October 1975 ..., for the
price of the property to be fixed.
As the land is no longer subject to the restriction laid down
in the development plan approved on 9 June 1969 and has not
been purchased or expropriated within three years of the
application, in accordance with the provisions of the Decree
31 December 1958, the owner is again able to dispose of it
It further appears from the circumstances of the case, in
particular from the mayor of Castelnau's letter of 15 March
1976, that the land-use plan of the municipality of Castelnau-
le-Lez has not yet been published or implemented.
In these circumstances no valid application may be made to the
expropriations judge to value the land, and still less the
building on it, as Article 123-9 of the Town Planning Code is
I, ..., expropriations judge for the département of Hérault
Declare that I have no jurisdiction.
C. The expropriation proceedings
27. On 7 March 1980 the Prefect of Hérault ordered a public inquiry
prior to expropriation and then, on 25 September 1980, declared the
crossroads improvement scheme to be in the public interest and urgent.
On 23 February 1981 he declared Mr Phocas's property liable to
28. The expropriation order was made on 2 March 1981.
Whereas the applicant had claimed FRF 2,903,000, compensation
for his expropriation was assessed on 19 June 1981 at FRF 385,000 by
the expropriations judge of Hérault, to whom an application had been
made on 15 December 1980, and then, on appeal, at FRF 394,440 by the
Expropriations Division of the Court of Appeal of Hérault on
In an order of 23 June 1982 the President of the Court of
Cassation recorded that Mr Phocas had withdrawn an appeal on points of
law that he had lodged against the Court of Appeal's judgment.
D. The proceedings to obtain compensation
1. The first set of compensation proceedings
(a) The application to the Minister of Town Planning and
29. On 8 January 1982 the applicant submitted a preliminary
compensation claim to the Minister of Town Planning and Housing, who
refused it on 18 May 1982 in the following terms:
"... you sought compensation in the amount of FRF 2,750,000 for
damage resulting from actions by the administrative authorities
amounting to an interference with your building plans.
It should be pointed out that payment of compensation to
members of the public in town-planning matters is subject to
its being established that there has been fault arising from
an unlawful act and definite direct, pecuniary damage.
As to the first point, it appears that between 1 March 1965 and
8 January 1979 the decisions adverse to you that were taken all
became final, either because they were not challenged or
because their lawfulness was confirmed by the Administrative
The only head of damage on which you might be able to rely
would be that arising if the Conseil d'Etat were to affirm the
Montpellier Administrative Court's judgment of 7 February 1980.
This case, however, is still pending in the Conseil d'Etat,
with which I lodged an appeal against the aforementioned
As to the second point, it should be noted that any fault
stemming from the unlawfulness of the refusal of planning
permission on 12 December 1978 would only be able to have any
consequences if there was definite direct, pecuniary damage.
The breakdown you have supplied, however, is based on loss of
capital in real property and of expected income from real
property, together with the interest on that income. That
damage is contingent, and the courts have consistently held
that such damage cannot give rise to compensation.
Lastly, I would point out that in respect of the existing
building, you have already received expropriation compensation
It follows from the foregoing that I cannot grant your
(b) In the Montpellier Administrative Court
30. On 16 June 1982 Mr Phocas lodged a claim for compensation with
the Montpellier Administrative Court. He argued that through their
conduct the authorities had unlawfully infringed his right of property
and had caused him damage that he assessed at FRF 3,212,235.
The court received observations from the Minister of Town
Planning and Housing on 10 October 1983 and pleadings in reply from the
applicant on 20 and 22 November 1984. It held a hearing on 23 November
and decided on 27 November to reopen the inquiry into the facts:
"... the applicant lodged with the Court two pleadings
registered on 20 and 22 November 1984, to which the
administrative authorities were not able to reply as they had
been lodged late. In the final version of his submissions Mr
Phocas relied, in support of his compensation claim, on, among
other things, the 'dishonest conduct' of which he had been the
victim on the part of the authorities, who had continually
blocked the reiterated applications for planning permission
that he had made since 1962. The fact that the decisions are
final does not preclude pleading, in support of a compensation
claim, that the decisions taken by the administrative
authorities on those applications were unlawful. That being
so, further inquiries into the facts should be ordered, so as
to allow the administrative authorities to reply to the
arguments set out in the aforementioned pleadings."
Following that judgment, the court registered pleadings from
the Minister on 21 January and 23 July 1985 and from the applicant on
23 May, 12 August and 25 September 1985.
It held a hearing on 21 March 1986, and on 3 June 1986 it
delivered its judgment, in which the following reasons were given:
"Mr Phocas sought compensation for damage he had allegedly
sustained as the result of successive unlawful decisions taken
by the authorities since 1968 which had had the effect of
preventing him from building on a parcel of land that had been
expropriated and compensation for which was assessed in a
In the first place, in so far as Mr Phocas intended to
challenge in the Administrative Court the amount of
expropriation compensation awarded him ... on the ground that
the court had not had regard to the right that he considered
he had to build on the parcel of land in question, his
submissions must be rejected as having been made to a court
without jurisdiction to entertain them. Nor can he secure
compensation on the basis of the provisions of Article L. 160,
second paragraph, of the Town Planning Code, seeing that for
want of planning permission or a prior agreement, he could not
rely on an established right preceding the imposition of the
restriction placed on his land.
In the second place, while a decision on the building project
submitted by Mr Phocas has been deferred on three successive
occasions, it does not appear from the inquiries into the facts
that those adjournments ... were unlawful. The public interest
in the improvement scheme planned on Mr Phocas's land cannot
be seriously contested. Mr Phocas, however, had obtained
planning permission on 12 December 1978 which was withdrawn
unlawfully, as held in a judgment of this Court on 7 February
1980. An irregularity of this kind amounts to misfeasance such
as to engage the State's responsibility.
Mr Phocas cannot be compensated for the increase in the cost
of building when he never carried out any building works or for
the mere possibility of loss of the income he expected to
derive from letting the future flats, any more than he can be
for the expenses he had to incur as a result of transferring
his business to the wholesale market for agricultural produce
at Montpellier, which are unconnected with the unlawful
Mr Phocas, however, needlessly incurred expenditure on
preparing the application for the planning permission which was
unlawfully withdrawn, notably architect's fees; these expenses
as a whole may be fairly assessed in the instant case at 10,000
francs. The State must accordingly be ordered to pay Mr Phocas
the sum of 10,000 francs, including all interest up to the date
31. On 11 August 1986 Mr Phocas appealed to the Conseil d'Etat.
He filed a supplementary pleading that was registered on 10 December
1986. He also produced a pleading in reply to defence observations
submitted by the Minister of Infrastructure.
The Conseil d'Etat held a hearing on 11 May 1990, and on
25 May 1990 it upheld the judgment of 3 June 1986 as follows:
In his claim for compensation Mr Phocas sought compensation for
damage allegedly caused him by the successive decisions of the
administrative authorities in response to applications he had
submitted since 1965 for planning permission for extending and
adding storeys to a building he owned at the crossroads of the
RN 113 and the CD 21 at Castelnau-le-Lez.
It appears from the inquiry into the facts that the planned
crossroads improvement scheme cited as the reason for decisions
whereby Mr Phocas's applications were refused was in the public
interest. The adjournment decisions of 31 July 1965 and
9 October 1969 were lawfully taken on the basis of Article 18
of the ... Decree of 30 December 1958, which was then in force.
Admittedly, on 12 December 1978 Mr Phocas had secured planning
permission, which was unlawfully withdrawn. While that
irregularity amounts to misfeasance such as could render the
State liable, Mr Phocas did not adduce in support of his
submissions any factual evidence that would make it possible
to take into account damage dismissed by the Administrative
Court as contingent, which arose from the loss of earnings
sustained because it was impossible for the applicant to
undertake the works to extend his building. It does not appear
from the inquiry into the facts that the Administrative Court
assessed the circumstances of the case inaccurately when it
ordered the State to pay compensation in the amount of FRF
2. The second set of compensation proceedings
(a) In the Montpellier Administrative Court
32. On 12 December 1990 the applicant applied to the Administrative
Court, seeking an order that the State should pay him compensation in
the amount of FRF 2,998,000 for the losses caused him by the
administrative decisions on planning permission and expropriation taken
in his regard: losses of capital in real property and of income from
real property and the interest on it; loss of the letting right (droit
au bail); and losses resulting from the transfer of the goodwill.
33. The court dismissed the application on 4 November 1992 on the
As to the orders sought against the State
Mr Phocas's ... submissions are based on, inter alia, decisions
he considers unlawful whereby his applications for planning
permission were adjourned or refused. In the earlier
proceedings ... the Court gave a ruling in a judgment of 3 June
1986, upheld by the Conseil d'Etat on 25 May 1990, and refused
the applications for compensation based on the same legal
grounds and in respect of damage of the same nature as that
alleged in the instant application ...
The Prefect consequently has good cause to maintain that the
submissions in the present proceedings, in so far as they are
directed against the State on the basis of administrative
decisions taken by his officials, raise matters that are res
judicata and must accordingly fail, without there being any
need to consider the grounds based on a violation of Articles
1 and 6 (art. 1, art. 6) of the European Convention on Human
As to the application against the département of Hérault
Mr Phocas bases the above-mentioned application against the
aforementioned département on the slowness, amounting in his
view to misfeasance, with which the administrative authorities
dealt with his application to them of 27 May 1970, confirmed
13 May 1972, to purchase his property. In this connection, it
is apparent from the provisions of Article 28 of the Decree of
31 December 1958 that 'an owner of reserved land may request
the public authority for whose benefit the land has been
reserved to purchase the land within a period of three years
from the date of the application. Failing agreement between
the parties, the price shall be determined as for an
expropriation, the land being deemed to have ceased to be
reserved. If the purchase has not taken place within the
aforementioned period, the owner shall be able to dispose of
his land freely again'. Furthermore,
Article 18 of the Town Planning and Housing Code, as worded
following Law no. 67-1253 of 30 December 1967 provides that `an
owner of land reserved in a land-use plan for a public highway
or other public works ... may, from the day on which the plan
was published, ..., require the local authority ... for whose
benefit the land has been reserved to purchase the land within
a maximum period of three years from the date of the
application ... Failing agreement between the parties at the
end of the period referred to ..., the expropriations judge,
on an application by the owner, shall declare ownership to have
been transferred and shall determine the price of the land
...'. It was therefore for Mr Phocas to take the initiative
of applying to the expropriations judge within the allotted
time after the failure, noted at the end of the discussions on
24 January 1973, of attempts to agree a purchase price for his
property. It appears from the evidence that Mr Phocas did not
apply to the expropriations judge until 20 October 1975. Mr
Phocas therefore has no cause to maintain that the département
of Hérault was guilty of misfeasance in not acting promptly on
the request to purchase his land. Since the statute itself
has, by means of the procedure laid down in the aforementioned
Articles, provided for compensation for owners affected by a
reservation of land for the benefit of a public authority, Mr
Phocas cannot in any event claim compensation from the
département of Hérault on the basis that there has been a
breach of equality vis-à-vis public burdens.
Nor has any fact been made out against the département of
Hérault, the expropriating authority, which discloses a misuse
of powers or could amount to an interference with the proper
conduct of the expropriation proceedings brought in April 1980,
which resulted in the expropriation order of 22 April 1981 and
gave rise, for the purposes of Articles 1 and 6 (art. 1, art.
6) of the European Convention on Human Rights, to the appeal
to the appellate court, which increased the expropriation
compensation that had been fixed by the expropriations judge.
(b) In the Bordeaux Administrative Court of Appeal
34. On 6 January 1993 the applicant appealed against that judgment
to the Bordeaux Administrative Court of Appeal.
On 6 February 1995 he requested it to stay its decision pending
the judgment of the European Court of Human Rights.
In a judgment of 9 March 1995 the Administrative Court of
Appeal found against him and ordered him to pay FRF 3,000 to the
département of Hérault pursuant to the provisions of Article L. 8-1 of
the Administrative Courts and Administrative Courts of Appeal Code
(expenses incurred by the département that were not covered by costs).
It said the following as to the application against the département:
"It appears from the inquiry into the facts that the scheme to
improve the crossroads of the RN 113 and the CD 21 at
Castelnau-le-Lez was adopted by the Ministry of Transport on
10 May 1960. It was on that ground that on 1 March 1965 a
planning application by Mr Phocas was adjourned for the first
time. The scheme was abandoned in 1970 and then taken up again
by the département of Hérault in 1971. Subsequently, two
further adjournments and a number of refusals of planning
permission were notified to the applicant because the site was
shown in the various planning documents as being reserved for
the improvement of the crossroads. As early as 27 May 1970 Mr
Phocas sought to have his property purchased, and his
application to that effect was confirmed on 13 May 1972, 2 June
1973 and 7 November 1974. Although he himself delayed in
applying to the expropriations judge under the provisions of
21 December 1958, following the failure to agree on a purchase
price, this does not alter the fact that the expropriation did
not finally take place until 2 March 1981. While such a delay
is in itself capable of rendering the expropriating authority
liable on the basis of a breach of equality vis-à-vis public
burdens, it is at all events for the applicant to prove
In this connection, Mr Phocas cannot be compensated for the
cost of building works that were never carried out. As regards
the loss of the income he expected to derive from letting the
future flats, Mr Phocas did not adduce in support of his
quantified claim any evidence relating specifically to the
stage reached by the extension project or to his means of
financing that would enable the definite, direct nature of the
Lastly, it does not appear that the expenses which Mr Phocas
had to incur on account of the transfer of his business in 1962
to the wholesale market for agricultural produce at Montpellier
had any direct link with the expropriation proceedings, which
had not been set in motion by then. That being so, Mr Phocas,
who was not deprived of the enjoyment of his property at any
stage during the administrative phase of the expropriation, has
not made out any special, abnormal damage such as would entitle
35. Below are set out the main rules relating to general
development plans and land-use plans that were applicable in the
36. Development plans were governed by Decree no. 58-146 of
31 December 1958. The provisions of the decree relevant to the instant
The general development plan shall lay down the general outline
of development and determine the essential features ...
General development plans ... shall apply either to
municipalities or to parts of municipalities or to groups of
municipalities or parts of municipalities with interests in
Chapter I - Subject-matter of development plans
The general development plan shall contain
a designation of land in zones according to use;
the routes of the main trunk roads to be retained, changed or
built, with their width and characteristics;
the sites reserved for the main public facilities and open
(Decree no. 62-460 of 13 April 1962) 'Regulations laying down
rules and restrictions on the use of land which are justified
by the nature of the region or of the built-up area or by
general or local needs and by the needs of civilian disaster
relief or the running of public services.'
These restrictions may, where appropriate, include a
Chapter II - Drawing up of development plans
A prefectoral order shall list, for each département, the
groups of municipalities, municipalities or parts of
municipalities in which development plans must compulsorily be
This list ... shall be published in the département's
compendium of administrative decisions.
Section I - General development plans
After consultation of the authorities concerned, the general
development plan shall be submitted to a conference between the
It shall then be made public, either by a decision of the
Prefect where the departments concerned have made known their
agreement, or by a decision of the Minister of Construction in
The general development plan shall be the subject of a public
inquiry as provided for in respect of an expropriation.
Approval of development plans shall be given
by the Prefect, where the development plan concerns a
municipality or group of municipalities with a population of
less than 50,000 and where, furthermore, the findings of the
public inquiry and the opinions of the departments concerned
and of the public authorities are not unfavourable;
Section II - Detailed development plans
Section III - Summary development plans
Chapter III - Protection and implementation measures
Section I - Protection measures prior to approval of
The protection measures provided for in this section shall
apply to general development plans from the time of the
publication referred to in Article 8 above until publication
of the decisions approving the plans.
Where a building is likely to jeopardise implementation of the
development plan or make it more expensive, the Prefect may
decide, in a reasoned order served on the petitioner and the
mayor within the time and in the manner provided in Article 87
of the Town Planning and Housing Code, to adjourn the
application [for planning permission].
Once the decision has been taken whereby the general
development plan has been published pursuant to Article 10
above, decisions to adjourn can only be founded on provisions
Within two months of their notification, decisions to adjourn
may be referred to the Minister of Construction, who may either
confirm the adjournment or grant the permission sought.
In no case may an adjournment exceed two years.
At the end of that period a final decision must, on an
application by the applicant in a registered letter, be taken
by the authority responsible for giving permission in the
prescribed manner and within the prescribed time. Permission
may not be refused for reasons derived from provisions of a
development plan that has not yet been approved, unless it has
been published and contains provisions that expressly preclude
the carrying out of the envisaged project.
Section II - Measures to implement development plans
No public or private works to be undertaken within the area
covered by the development plan may be carried out unless they
Where a building is to be erected on a site reserved, in an
approved development plan, for a road, open space or public
service, planning permission shall be refused.
An owner of reserved land may request the local authority or
public institution for whose benefit the land has been reserved
to purchase the land within a period of three years from the
Failing agreement between the parties, the price shall be
determined as for an expropriation, the land being deemed to
If the purchase has not taken place within the aforementioned
period, the owner shall be able to dispose of his land freely
37. Pursuant to the Land Planning Act of 30 December 1967, general
development plans were gradually replaced by land-use plans (POS),
which contain at least a zoning plan and rules on the siting of
buildings and may also, among other things, designate areas reserved
for public roads and other works and for facilities for the benefit of
the public (see, in particular, Article L. 123-1 and the transitional
provisions of Article L. 124-1 of the Town Planning Code).
38. Where a POS is to be drawn up, the relevant authority may, in
a reasoned decision and for a period not exceeding two years, decide
to adjourn applications for permission relating to buildings,
installations or operations which would be likely to jeopardise
implementation of the future plan or make it more expensive
(Article L. 123-5 of the Town Planning Code).
On expiry of the period of validity of the adjournment, if the
applicant confirms his application within two months, the authority
responsible for giving permission must take a final decision within two
months of that confirmation. If the decision has not been notified
within this period, permission is deemed to have been granted in the
terms in which it was requested (Article L. 111-8, fourth paragraph,
PROCEEDINGS BEFORE THE COMMISSION
39. Before the Commission, to which he applied on 19 November 1990,
Mr Phocas complained of an infringement of his right of property
(Article 1 of Protocol No. 1) (P1-1) and of the slowness of the
proceedings in the French administrative courts (Article 6 para. 1 of
40. The Commission declared the application (no. 17869/91)
admissible on 29 November 1993. In its report of 4 July 1994 (Article
(art. 31), it expressed the unanimous opinion that there had been a
breach of Article 1 of Protocol No. 1 (P1-1) and that it was
unnecessary to consider the complaint based on Article 6 para. 1
The full text of the Commission's opinion is reproduced as an
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (in Reports of Judgments
and Decisions - 1996-II), but a copy of the Commission's report is
41. The applicant sought "judgment against the French State and an
order that it should pay damages".
42. The Government asked the Court "to dismiss the application".
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
43. The applicant complained of the restrictions imposed on his
right of property on account of the scheme for improving the crossroads
where his property was situated. In his submission, their duration and
the French authorities' conduct amounted to a breach of Article 1 of
Protocol No. 1 (P1-1), which provides:
"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
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
44. It must be ascertained whether there was an interference with
the right in question and, if so, whether it was justified.
A. Whether there was an interference with the applicant's right
45. It was not contested that the measures relating to Mr Phocas's
property amounted to an interference with his right to the peaceful
enjoyment of his possessions, but the duration of that interference was
46. The applicant maintained that the interference with the
peaceful enjoyment of his possessions had begun in 1962, when,
believing that expropriation was imminent, he had transferred his
business to other premises, and had ended on 22 January 1982, when the
Expropriations Division of the Court of Appeal of Hérault had fixed his
expropriation compensation on appeal.
47. In the Government's submission, the events that had taken place
before France ratified Protocol No. 1 (P1) on 3 May 1974 could not be
taken into consideration since Mr Phocas's complaints did not concern
a continuous situation. At all events, the starting-point of the
interference could not be earlier than 31 July 1965, when the
applicant's first application for planning permission had been
adjourned. The interference had ended in the middle of 1973, when the
expropriations judge would have fixed the purchase price if Mr Phocas
had applied to him within the statutory time-limit.
48. The Commission considered that the events which had affected
the enjoyment of the applicant's possessions before 3 May 1974 could
be taken into account inasmuch as they had affected the situation in
which the applicant found himself after that date. Nevertheless, it
did not determine the precise length of the interference in question.
49. The Court notes that on 31 July 1965 the Prefect of Hérault
decided to adjourn the application lodged by Mr Phocas on 1 March 1965
"until publication of the decision approving the general development
plan of the municipality of Castelnau-le-Lez", on the ground that "in
the present state of the surveys undertaken, it appears that the
project submitted [by the applicant] is likely to jeopardise the
carrying out of the scheme to improve the crossroads ..., which was
adopted by the Minister of Public Works and Transport ..." (see
paragraph 8 above). From that moment up to 22 January 1982, the date
of the judgment in which the Expropriations Division of the Court of
Appeal of Hérault finally determined the expropriation compensation
(see paragraph 28 above), the crossroads scheme was an obstacle to the
development of the applicant's property but the applicant was not
compensated for this. During the period thus delimited, there was the
necessary continuity in Mr Phocas's situation for the Court to be able
to take into account events that occurred before France ratified
In short, from 31 July 1965 to 22 January 1982 there was an
interference with the right secured to the applicant by Article 1 of
B. Justification for the interference with the applicant's right
50. It remains to be determined whether that interference
51. Article 1 (P1-1) guarantees in substance the right of property.
It comprises three distinct rules. The first, which is expressed in
the first sentence of the first paragraph (P1-1) and is of a general
nature, lays down the principle of peaceful enjoyment of property. The
second rule, in the second sentence of the same paragraph (P1-1),
covers deprivation of possessions and makes it subject to certain
conditions. The third, contained in the second paragraph (P1-1),
recognises that the Contracting States are entitled, amongst other
things, to control the use of property in accordance with the general
interest, by enforcing such laws as they deem necessary for the
purpose. However, the rules are not "distinct" in the sense of being
unconnected: the second and third rules are concerned with particular
instances of interference with the right to peaceful enjoyment of
property. They must therefore be construed in the light of the general
principle laid down in the first rule (see, among other authorities,
the Mellacher and Others v. Austria judgment of 19 December 1989,
Series A no. 169, pp. 24-25, para. 42).
52. Like the Commission and the Government, the Court considers
that the first of those rules applies in the instant case; Mr Phocas
did not complain of a deprivation of his property within the meaning
of the second sentence of the first paragraph (P1-1) or of specific
measures restricting the use of it within the meaning of the second
paragraph (P1-1), but of an infringement of his right of property
resulting from the authorities' general conduct.
2. Compliance with the rule laid down in the first sentence
53. For the purposes of the first sentence of the first paragraph
(P1-1), the Court must determine whether a fair balance was struck
between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental rights
(see the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982,
Series A no. 52, p. 26, para. 69).
54. The interference in issue was designed to enable an urban
development scheme to be carried out. The applicant noted that it had
taken twenty-seven years for the project to materialise, and he
consequently questioned the genuineness of its public interest.
55. Like the Government and the Commission, the Court reiterates
that the Contracting States enjoy a wide margin of appreciation in
order to implement their town-planning policy (see the Sporrong and
Lönnroth judgment previously cited, p. 26, para. 69). The Court
regards it as established that the interference answered the needs of
(b) Striking a fair balance between the opposing interests
56. The applicant alleged that for twenty years he had suffered
disproportionate restrictions on the enjoyment of his right of
property. It was the threat of expropriation that had caused him to
transfer his business to other premises in 1962; he could not
reasonably have let his property to a trader as it was, since in the
event of expropriation, he would have had to compensate him for the
loss of the business and for non-renewal of the lease; furthermore, he
had been prevented from converting the building. He had, he continued,
tried to have it purchased by the authorities under his right of
abandonment, but he had not been able to do otherwise than refuse the
price, which he said had been derisory, that the authorities had
offered him - FRF 142,500, whereas ten years later, the Expropriations
Division of the Court of Appeal of Hérault set his expropriation
Mr Phocas further alleged that the authorities' aim in not
allowing his various applications for planning permission had been
purely speculative. In the event of expropriation, the compensation
paid to the owner would be determined according to the value of the
property concerned on the day it was expropriated. If he had been able
to convert his property as he wished, the cost of the operation would
therefore have been greater. Furthermore, the expropriation
proceedings had begun on 7 March 1980 because of the Montpellier
Administrative Court's judgment of 7 February 1980, in which that court
had held that the applicant had constructive planning permission.
57. The Government acknowledged that urban development schemes were
a matter of long-term planning and that that could lay major burdens
on certain landowners. The owner of land reserved in a development
plan for an amenity in the public interest, such as Mr Phocas,
nevertheless had the possibility of remedying such a situation.
Article 28 of the Decree of 31 December 1958 had provided for a
so-called abandonment procedure allowing the landowner to have the land
in question purchased by the benefiting local authority within three
years. Failing an agreement, the price could be set by the
In the instant case, the Government continued, the applicant
had lodged his application to abandon his property with the authorities
on 24 May 1970, and the failure of the price negotiations had been
acknowledged at the end of the interview on 26 January 1973. The
expropriations judge, to whom the applicant had applied only on
20 October 1975, after the three-year period had expired, had therefore
been bound to hold that he had no jurisdiction to fix the purchase
price. In short, Mr Phocas had been responsible for the failure of
that procedure, which afforded him the chance of putting an end to the
burden on his right of property.
The weight of that burden had, moreover, to be put in
perspective. Mr Phocas's rights as an owner had for the most part been
preserved; he could make use of his building - and, in particular,
continue to use it for business purposes - or let it as it was.
Furthermore, if it had proved difficult to sell the building because
of the restriction affecting it, the possibility of having it purchased
by the authorities had been open to him.
In sum, the balance between the community's interests and those
of Mr Phocas had not been upset.
58. The Commission observed that for a long period before 3 May
1974, when France ratified Protocol No. 1 (P1), the applicant had not
managed either to secure planning permission or to sell his property
to the authorities pursuant to his right of abandonment. That
situation had continued after that date. Thus on 21 September 1976 the
Prefect had adjourned his fresh application for planning permission,
although the expropriations judge in his decision of 19 March 1976 had
found that Mr Phocas was "again able to dispose of [his land] freely"
(see paragraph 26 above). Moreover, the applicant had been prevented
by the commencement of expropriation proceedings on 7 March 1980 from
benefiting from the Montpellier Administrative Court's judgment of
7 February 1980, in which he had been held to have constructive
Having regard also to the slowness of the proceedings relating
to the applicant's property, the Commission concluded that the acts of
the French authorities and courts had made Mr Phocas's right of
property so unstable and uncertain over a very long period that a fair
balance had not been struck between the public interest and the private
59. The Court notes that there were various interferences with
Mr Phocas's full enjoyment of his property as a result of different
kinds of proceedings. The threat of expropriation and the restrictions
on building were undoubtedly an obstacle to continuing to run his
business on the premises and made it doubtful that he could sell them
or let them to a trader. Nor was the applicant able to convert his
building as he wished, since three of his applications for planning
permission were adjourned and one refused (see paragraphs 8-15 above).
60. Such a situation is in principle incompatible with the fair
balance required by Article 1 of Protocol No. 1 (P1-1) (see
The Court observes, however, that the law applicable at the
material time, namely Article 28 of the Decree of 31 December 1958 (see
paragraph 36 above), afforded the applicant a remedy. That provision
allowed the owner of land reserved in an approved development plan,
such as Mr Phocas, to have the land in question purchased by the local
authority or public institution for whose benefit the land had been
reserved within three years of the application; failing agreement, an
application could be made to the expropriations judge to determine the
In the instant case the general development plan of the
municipality of Castelnau-le-Lez was approved on 9 October 1969 (see
paragraph 11 above). It was not until 27 May 1970, however, that
Mr Phocas applied to the département's Director of Infrastructure to
abandon his property (see paragraph 18 above), after the Ministry of
Infrastructure and Housing had suggested this course of action on
2 January 1970 (see paragraph 12 above). Furthermore, having had no
response from the authorities, the applicant, instead of applying to
the expropriations judge, renewed his application on 13 May 1972 (see
paragraph 18 above). The negotiations which followed failed (see
paragraph 19 above). Instead of immediately applying to the
expropriations judge, the applicant again renewed his application, on
2 June 1973 (see paragraph 20 above). When the applicant did finally
apply to the judge on 20 October 1975, the judge could not but hold
that he had no jurisdiction because the statutory three-year time-limit
had been exceeded (see paragraph 26 above).
It thus appears that even if the authorities delayed in
replying to Mr Phocas's applications to have his property purchased,
the failure of the abandonment proceedings was attributable to the
applicant, who first rejected the purchase offer made to him (see
paragraphs 21-25 above) and then applied to the expropriations judge
out of time (see paragraph 26 above). At all events, the applicant
finally accepted the expropriation compensation awarded by the
Expropriations Division on 22 January 1982 (see paragraph 28 above).
The procedures provided in domestic law therefore afforded a remedy
sufficient to ensure protection of the right to the peaceful enjoyment
In short, there has not been a breach of Article 1 of
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
61. Mr Phocas also complained of the length of the proceedings
brought in the French courts. He relied on Article 6 para. 1
(art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time
62. As it had already done before the Commission, the Government
raised an objection to admissibility.
A. The Government's preliminary objection
63. The Government pleaded that the complaint based on Article 6
para. 1 (art. 6-1) was out of time as the applicant had made it for the
first time in his supplementary pleading of 30 December 1992, after the
six-month period laid down in Article 26 (art. 26) of the Convention
64. Mr Phocas rejected that submission, contending that he had
raised the complaint in substance in his application to the Commission.
65. The Delegate of the Commission pointed out that it was for the
Commission to characterise the facts submitted to it and that it had
declared the complaint in question admissible after observing that the
applicant had complained of the length of the proceedings in the French
66. The Court notes that in his application Mr Phocas raised the
slowness of the proceedings in the national courts and thus, in
substance, relied on Article 6 para. 1 (art. 6-1). Having regard also
to the Commission's decision on admissibility, it dismisses the
67. The Government did not plead on the merits of this complaint
and the Commission expressed no view (see paragraph 40 above).
68. The Court points out, firstly, that the applicant provided no
particulars in support of his complaint. It notes further that he
initiated various distinct sets of proceedings, which must be assessed
The proceedings in connection with the application for judicial
review made to the Montpellier Administrative Court on 2 December 1967
do not fall under the Court's scrutiny as they were terminated on
16 October 1972 (see paragraph 9 above), that is to say before
3 May 1974, when France ratified the Convention. The same is true of
the second set of proceedings to obtain compensation (see
paragraphs 32-34 above); these were instituted on 12 December 1990,
after the application to the Commission on 19 November 1990.
69. While the length of the preliminary, amicable stage of the
proceedings to abandon property is open to criticism, it was mainly
attributable to the conduct of the applicant (see paragraph 60 above).
The proceedings before the expropriations judge and the Expropriations
Division, on the other hand, took place speedily. The expropriations
judge of Hérault, to whom application was made on 20 October 1975 to
have the purchase price fixed, ruled on 19 March 1976 (see
paragraph 26 above). Similarly, on the application made on
15 December 1980 to have the expropriation compensation assessed, the
same judge gave judgment on 19 June 1981. On appeal, the
Expropriations Division gave its ruling on 22 January 1982 (see
70. It remains to consider the length of the proceedings brought
in the Montpellier Administrative Court on 15 November 1976 (see
paragraph 14 above) and 9 February 1979 (see paragraphs 16 and 17
above) and those relating to Mr Phocas's first application for
compensation (see paragraphs 29-31 above).
71. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case and
having regard to the criteria laid down in the Court's case-law, in
particular the complexity of the case and the conduct of the applicant
and of the relevant authorities (see, for example, the Terranova v.
Italy judgment of 4 December 1995, Series A no. 337-B, p. 21, para. 20)
and the importance of what is at stake for the applicant in the
litigation (see, among other authorities, the Allenet de Ribemont v.
France judgment of 10 February 1995, Series A no. 308, p. 19, para.
72. As regards the length of the first of the three sets of
proceedings mentioned above (about two years and two months), the Court
notes that it went through its various stages at a regular pace. The
application was lodged on 15 November 1976, the Minister of
Infrastructure filed his observations on 16 June 1977 and documents on
29 June 1977, the hearing took place on 15 December 1978 and judgment
was delivered on 8 January 1979.
The second set of proceedings lasted a little over four years
and three months. Mr Phocas sought to have quashed the decision
whereby the mayor of Castelnau-le-Lez had refused his last application
for planning permission. Only one year elapsed between the lodging of
the application with the Montpellier Administrative Court (9 February
1979) and the delivery of the judgment (7 February 1980). The Conseil
d'Etat did not proceed so rapidly. Having received the appeal on
14 April 1980, it did not hold a hearing until 21 January 1983 and
delivered its judgment only on 19 May 1983. The case, however, had
become pointless for the applicant after 7 March 1980, when the
expropriation proceedings were commenced (see paragraphs 27 and 28
above), making any building work impossible.
The third set of proceedings lasted eight years and nearly five
months, between the filing of the preliminary compensation claim
(8 January 1982) and the judgment of the Conseil d'Etat (25 May 1990).
The Court observes, however, that those proceedings were to some degree
complex as they raised the issue of the State's liability. It also
notes that the main delay was to be ascribed to the applicant, who did
not reply to the observations filed with the Administrative Court by
the Minister of Town Planning and Housing on 10 October 1983 until 20
and 22 November 1984, when the hearing was to take place on
23 November. On 27 November the court consequently ordered further
inquiries into the facts so as to allow the authorities to reply.
Several pleadings were subsequently exchanged, with the result that
judgment was not given until 3 June 1986. The Conseil d'Etat, to which
Mr Phocas applied on 11 August 1986, subsequently filing a
supplementary pleading on 10 December of the same year, admittedly did
not deliver its judgment until 25 May 1990. It does not appear from
the evidence, however, that Mr Phocas made any special effort to speed
73. In conclusion, there has been no breach of Article 6 para. 1
1. Holds by seven votes to two that there has been no breach of