CE, 30 novembre 1923, p. 789 Case Basilio Couitéas
30 November 1923
Translated by:
Professor Bernard Rudden
Professor B. S. Markesinis

Conseil d’Etat

Having seen (1) under docket number 38, 284 the application of Mr Basilio Couitéas. . . asking that it please the Conseil to annul a decision dated 7 June 1909 whereby the Foreign Minister rejected the claim for compensation he had lodged against the French state by reason of the refusal of the French authorities in Tunisia to enforce two decisions handed down by the first instance civil court of the judicial district of Sousse ordering the expulsion from the applicant’s estate of members of the native population who had unlawfully occupied it;

Having seen (2) under docket number 48, 688 the application of Mr Couitéas. . . asking that it please the Conseil to annul a decision dated 11 March 1912 whereby the Foreign Minister rejected the claim for compensation he had lodged against the French state by reason of the expropriation of his estate at Tabia el Houbira, an expropriation in fact ensuing from a series of acts and measures involving the liability of the French state;

Having seen the agreement which took place in Paris on 15 November 1904 between the Director of agriculture of the Tunisian government, acting as such as representative of the State subject to the approval of the French Resident-General and the department of foreign affairs, and Mr Couitéas;

the agreement made at Tunis on 20 January 1905 between the Director of Agriculture of the Tunisian state and Mr Couitéas;
the dispatch dated 21 July 1905 whereby the French Resident-General in Tunis let Mr Couitéas know that the Foreign Ministry had authorized the Resident-General and the administration of the protectorate to implement the arrangements contained in the said agreements;

the minutes of the activities of the arbitration commission set up in implementation of the first of the agreements referred to above in order to examine and determine the rights of collective enjoyment of the native groups established on the territory of Tabia el Houbira and the extent of the land which the State kept to be put at their disposition;

together with the decisions of that arbitration commission;

the minutes dated 14 July and 4 August 1906 of the administrative operation to mark out the territory of Tabia el Houbira and to settle the boundaries of the enclaves, operations carried out in execution of the arbitration decision referred to above;

the Decree of the Bey of Tunis of 23 November 1908, deciding to set in train the delimitation of tribal collective lands in the Zlan kaidat, and deciding that the operations to delimit collective lands in the kaidat of Saoussi prescribed in the Decree of 15 August 1906 be carried out on territories which had so far remained outside that operation;

the Decree of the Bey of Tunis of 14 January 1901 and that of 15 August 1906;

the judgment of the first instance civil court of the judicial district of Sousse of 13 February 1908;

the decision of the Court of Cassation of 15 May 1911;

Having seen the Act of 24 May 1872;

Considering that the two applications referred to above were to have the French state ordered to pay to Mr Couitéas various amounts in compensation for the damage caused him by a series of acts and measures whose effect was to deprive him of both property and enjoyment in the estate of Tabia el Houbira; that because of the connections between their factual bases it is appropriate to dispose of the two applications by the one decision;

On the intervention of the Land and Agriculture Credit Company of Algeria and Tunisia:

Considering that this company, because of the credit line it has opened for Mr Couitéas, has an interest in the annulment of the decisions submitted which dispute their debtor’s right to compensation; that hence its intervention must be permitted;

On the applications of Mr Couitéas: Considering that, in his latest filings particularly his memorandum of 10 February 1914, Mr Couitéas, abandoning part of his earlier claims, claims from the French state compensation of 4,600,000 francs, basing this exclusively on the loss sustained up to 31 December 1917 by the fact of the government’s refusal to assist in enforcing of the judgments given in his favour by the civil tribunal of Sousse on 13 February 1908, a loss consisting in being deprived of the enjoyment to which those decisions recognized his entitlement on the estate of Tabia el Houbira and the consequent ruin of his business; that therefore it is necessary to decide only on these said submissions;

Considering, it is true, that in its memorandum of 20 July 1914 the Land and Agriculture Credit Company of Algeria and Tunisia argued for keeping matters open and for judgment to be rendered on the claims first put forward but then withdrawn by its debtor;

But considering that the said Company, which is merely an intervener in the motions, is may not adopt submissions which the principal party has expressly withdrawn;

Considering that it emerges from the investigation that, by judgments dated 13 February 1908, the Sousse civil court ordered ‘the maintenance in possession of Mr Couitéas in the parcels of land of the estate of Tabia el Houbira, possession of which had been conferred on him by the State’ and awarded him ‘the right to have all the occupants expelled’; that on several occasions the applicant requested the competent authorities to enforce these decisions; but that, because of the serious disturbances which would be occasioned by the expulsion of numerous native occupants from lands which they considered had been theirs since time immemorial, the French government had always refused to authorize use of the military occupation force necessary for this operation;

Considering that in taking, for the reasons and in the circumstances outlined above, the decision about which Mr Couitéas complains, the said government has merely used powers conferred upon it to secure order and public safety in a protectorate country;

But considering that the litigant equipped with a judicial decision duly furnished with an order for its enforcement has the right to count on the support of the public power to ensure the enforcement of the title thus delivered him; that if, as said above, the government has the duty to assess the conditions of this enforcement and the right to decline to use military force in so far as it perceives a danger to order and security, the loss suffered by such a refusal, if prolonged, cannot be treated as normally falling on the person involved, and it is within the powers of a judge to decide to what extent it should be borne by the public as a whole;

Considering that the total and enduring deprivation of enjoyment resulting, for the applicant, from the measures taken in his case, imposed on him, in the general interest, a loss for which he is entitled to demand monetary compensation; hence the Foreign Minister was wrong to deny him any right to compensation; that it is appropriate to remit the matter to the said Minister to proceed, in the absence of amicable settlement, and taking into account all the legal and factual circumstances, to fix the damages due to the applicant . . ..

(Intervention of the Land and Agriculture Credit Company of Algeria and Tunisia declared admissible; decisions of the Foreign Minister dated 7 June 1909 and 11 March 1912 annulled; Mr Couitéas remitted to the said Minister to settle, in default of amicable agreement, on the amount in capital and interest of the compensation to which is is entitled by reason of the deprivation of enjoyment sustained to 31 December 1917 through the refusal of the French government to lend military support to the enforcement of the judgments cited above; submissions of the Land and Agriculture Credit Company of Algeria and Tunisia seeking to adopt submissions withdrawn by the principal party, rejected; costs to be paid by the State.)

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