Case and
Parties
Yves Morael v. France, Communication No. 207/1986 (4 November 1988),
U.N. Doc. Supp. No. 40 (A/44/40) at 210 (1989).
Submitted by: Yves Morael
State party concerned: France
Facts
Term: due diligence- 1.) care that a reasonable person exercises under the
circumstances to avoid harm to other persons or their property 2.) research and
analysis of a company or organization done in preparation of a business
transaction (Merriam-Webster)
- Mr. Morael was a shareholder of the “Sociate anonyne des cartonneries
mecaniques”. The company started to have financial problems at the late 1973
and in 24 May 1974 was put under judicial supervision by the Tribunal of
Commerce of Dunkirk. When the Managing director left in 30 June 1979 the
applicant took his place. The applicant took different measures to allow the
company to continue its operations and reduce the debts however none were
successful and the applicant resigned on 7 December 1979. Following the
appointment of a new judicial administrator on 24 January 1980, several civil
and criminal proceedings were instituted against the applicant. The applicant
was acquitted of all criminal charges. The Applicant however was found
responsible pursuant to the Bankruptcy Law and the Tribunal of Commerce of
Dunkirk found that the author had failed to prove due diligence and ordered
him to pay 5% of the company’s debts. The author launched an appeal, which
was rejected on 13 July 1983 by Court of Appeal. The Court of Appeal upheld
the decision but increase the amount to be paid from 5 to 10%. The author
then applied to the Court de Cassation, which also denied his appeal on 2 May
1985. (par 9.2)
- The author alleges that the former French Bankruptcy Law unjustly placed a
presumption of fault on the defendant (article 99of Act No. 67-563). The
French Parliament amended the law (effective 1 January 1986) eliminating the
presumption of guilt. However, the author did not benefit from the application
of the revised law in a violation of Art. 14 (2). (par. 1.5)
- The author alleges that the French legal system did not guarantee him a fair
hearing; particularly because there was no "equality of arms,” and placed an
unfair presumption of fault on company officers in violation of Art. 14 (1).
The author claims that that an excessively severe interpretation of "due
diligence" is discriminatory against company officials and incompatible with
actions taken. He argues that such a view of due-diligence prevents him from
being able to establish a suitable defence. (par. 2.1)
- The author also claims a violation under Art. 14 (1) in that he was unable to
challenge the Court of Appeal’s implementation of a new and higher monetary
penalty which he contends is a violation of the rule of adversary proceedings.
He further contends that the case was not heard within a reasonable time. (par.
2.2)
- The author contends that the French Bankruptcy Law had civil as well as
penal character. He further contends that the decision by the Court of Appeal
ordering payment amounts to a penal sanction. He therefore claims that he
should have enjoyed the presumption of innocence in accordance with Art. 14
(2). (par. 2.3)
- The author states that to the extent that he was a victim of violations of
article 14, he was also denied the equal protection of the law under Art. 26. He
also claims that because of the allegations sustaining the judgement there was
a violation of article 17 (1). (par. 2.4)
Procedural
posture
Issue
- The State party rejects the author's contention that the French courts did not
decide the case within a reasonable time. (par. 4.2)
- The Government does not view the presumption of liability attached to a
company's managers to be in conflict with the principle of a fair hearing. (par.
4.4)
-With regard to the author's claim that the Court of Appeal violated the
principle of adversary proceedings, the State party notes that the author does
not identify the elements in the file that were allegedly not the subject of
adversary proceedings (see para. 9.4). (par. 4.7)
-With respect to the alleged violation of article 14 (2), the State party argues
that under no circumstances does an action or coverage of liabilities have a
penal character, and that acts constituting serious errors of management do not
as such constitute criminal offences; Art 14 (2) applies exclusively to criminal
offences and thus would not apply in this case. (par. 4.8)
-The State party observes that the author has failed to substantiate his
allegations with respect to Art. 14 (1) in conjunction with Art. 26 and Art. 17.
(par. 4.9)
Date of communication: 5 June 1986
Date of decision on admissibility: 10 July 1987
-On 1 July 1986 the Working Group of the Human Rights Committee
transmitted the communication to the State party, requesting any information
and observations relevant to the question of the admissibility of the
communication. (par. 3)
- The state party concedes that the author has exhausted all domestic remedies
but contends that the author's communication should be rejected as manifestly
ill-founded. (par. 4.1 + 4.2)
-The Committee found that the author had made a reasonable effort to
substantiate his complaints and that he invoked specific provisions of the
Covenant. Therefore, the case is not considered manifestly ill-founded and
will be examined on its merits. (par. 6.3)
-Does Bankruptcy law have a penal character and therefore invoke the rights
within the Covenant? (par. 2.3)
-If so, is the Bankruptcy Law of 13 July 1967 which establishes a presumption
of fault a violation of Art. 14 (2)?
-Is the author a victim of a violation of 14 (1) in that he did not receive a fair
hearing?
-What is the Committee’s role regarding the interpretation of the national
courts of “due diligence?”
-Does the Court of Appeal’s decision have a penal character?
-Is the author a victim of a violation of Art. 26, regarding equality before the
law?
-Was the procedure followed by the French courts an improper attack in the
author’s honour and reputation Art 17?
-Did the author have adequate ability to present his case and the evidence at
his disposal?
Rights
Direct: Article 14 (1) Fair trial. & (2) Presumed Innocence
Indirect: Articles 26 (Equality before the law) and 17 (1) Defamation
Holding and
reasoning
-The Committee ruled that the presumption of fault can be refuted by evidence
of due diligence. It is not for the Committee to pass judgement on the validity
of the evidence produced by the author or to question the national court's
discretionary power. (par. 9.4)
-There was no violation of the principle of adversary proceedings in that the
Court fixed the amount based on uncontested liabilities. It ruled that it is
doubted that the ruled of adversary proceedings and preclusion of ex officio
reformatio in pejus were ignored. (par. 9.4)
-Considering the circumstances and given the complexity of a bankruptcy
case, the time taken by the domestic courts to deal with it cannot be
considered excessive (4 years).
-The Bankruptcy Law entailed penalties which were civil-law and not
criminal-law penalties. The provision concerning the presumption of
innocence in Art. 14 (2) cannot therefore be applied in the case under
consideration. (par. 9.5)
-The Committee considers that the author has not demonstrated that he was a
victim of a violation of Art 26 Art 17. (par. 9.6)
Rule of Law
-Art. 14 (1) applies not only to criminal matters but also to litigation
concerning rights and obligations of a civil nature. Although article 14 does
not explain what is meant by a "fair hearing" in a suit at law the Covenant
should be interpreted as requiring a number of conditions, such as equality of
arms, respect for the principle of adversary proceedings, preclusion of ex
officio reformatio in pejus, and expeditious procedure. (par. 9.3)
-Presumption of innocence in Art 14 (2) is applicable only to persons charged
with a criminal offence. (par. 9.5)
Decision
No violation of Art. 14 (1), Art.14 (2), Art. 26, or Art. 17 (1)
Validity
Non-binding