APPLICATION N° 33933/96 Jean-Claude GUISSET v/FRANCE DECISION of 9 March 1998 on the admissibility of the application Article 6, paragraph 1 of the Convention a) Examination oj the question whether proceedings before the Budget and Finance Disciplinary Court (France) imolve the determination of a criminal chaj-ge Importance of the classification of the Act in domestic law the nature oftfie offence and the nature and stverit} of tht penain rfie general character of the legal provision contravened combined mth a penalty M hich IS both deterrent and punitive, may suffice to show that an offence is criminal m nature rhe criteria oj the nature of the offence and the degree of (he severi(\ of ihe penally are alternative and not cumnlalne il suffices that the offence in question should by Its nature be "criminal" fiom the point oj v/en of the Convention or should ha\e made the person concerned liable to a sanction whu h in its nature and degree of seventy' belongs in general to the "criminal sphere" The Commission concluded that the proceedings before the Budget and Finance Disciplinary Court m tht instant case were criminal in nature on the basis that the legislation m question was applicable to anyone who committed the relevant offence and that (he purpose of (he penalty was to deter and to punish The seventy of the potential penalt\ - up to hvice the gioss annual salary of the offender reinforced this interpretation b) Where two judges out of six plus (he reporting judge look pan in the original decision before this was quashed and the case remitted to the same court there is no lack of impartiality since cases are decided by a majority and the reporting fudge can merely gne an opinion hut not vote 122 Article 25 of the Con\ention a) i^liere national authorities have acknowledged, either expressly or in substance, a violation of the Convention and afforded redress therefor, the person concerned cannot claim to be a victim b) Hliere an applicant is discharged hv a court, but that court states in its judgment that he was guilty of the charges brought against him and could have been sentenced to a fine, he does not cease to qualify as a victim since such a discharge cannot be considered as having redressed the alleged violations, as the court expresstv dismissed the applicant's complaints based on the Convention THE FACTS The applicant is a French citizen He was bom in 1933 and lives in Orgenis Before the Commission, he was represented by Mr Guillaume Delvolve, a lawyer practising before the Conseil d'Etal and the Court of Cassation The facts of the case, as submitted by the parties, may be summansed as follows A Particular circumstances of the case The applicant was the French Ambassador to the Umted Arab Emirates from December 1977 to March 1982 In the course of auditing the accounts and management of the "Mission laique frani^aise" (French Secular Mission) and the "Fondation scolaire et culturelle h vocation Internationale" (International Educational and Cultural Foundation) for the years 1976- 1983, the Audit Court found a number of irregulanties relating to the construction of a school in Abu Dhabi The Abu Dhabi trench school is run by a parents' association which owns the premises Since 1974, it has been based on land given to the French State by Sheik Zahed In March 198! the UAE authonties requested thai this land be made available to the City of Abu Dhabi from 30 June of that year, in exchange for another piece of land situated outside the city, in the embassy quarter This exchange was approved by the relevant Government committee 123 New buildings were constructed on this land in time for the beginning of the 1981-1982 school year The school, which is nowadays the Lycee Louis Massignon, was merely the first phase of a much larger development known as the "Maison de la culture franco-arabe Cheikh Khalifa", also compnsing a cultural centre and a leisure centre In order to finance the development, two loans of fifteen million dirhams each were taken out from the Government of the United Arab Emirates, one m June 1980 for a period of ten years and the other in May 1981 for a penod of twenty years, both at an interest rate of 4% (later reduced to 2%) These loans, which were entered into on behalf of the French State, were signed for by the applicant in his capacity as Ambassador and in the name of the French Emba'Jsy However, the applicant had not requested any authority to sign for these loans, in breach of the rules on procedures for handling State revenue and expenditure, which constitutes an offence under section L 313-1 of the Finance Courts Act, which penalises maladministration affecting the Stale or \ ai lous forms of local authonty and under which the Budget and Finance Disciplinary Court was established In a decision of 15 February 1984 the Audit Court decided to refer tlie applicant's case to the Budget and Finance Disciplinary Court From 3 July 1986, the date of the Ministerial order terminating his office as the French Ambassador to Bolivia, where he had been posted after the United Arab Emirates, the applicant conhnued to receive his basic salary but was never given another posting or promoted On 11 Februarv 1987. Pnncipal State Counsel attached to the Audit Court, acting as State Counsel to the Budget and Finance Disciplinary Court, applied for an investigation to be opened and a reporting judge to be appointed The president of the court designated the reporting judge on 9 March 1987 The applicant was informed on 10 June 1987 that an investigation had been opened into his conduct and that he had the nght to instruct a legal representative m the proceedings He was questioned by the reporting ludge on 25 June and 3 July 1987 On 13 Apnl and 4 November 1988, the Minister of Foreign Affairs and the Minister of the Budget filed their opinions on the matter On 15 November 1988 Pnncipal State Counsel committed the applicant for tnal belore the Budget and Finance Disciplinary Court On 7 February 1989 the applicant was informed by the president of the court that he could examine the case-file at the court offices On 24 March 1989 the applicant filed his defence with the court registry 124 On 11 Apnl 1989 the applicant filed a cnminal complaint against person or persons unknown with the pubhc prosecutor attached to Pans tribunal de grande instance in relation to a withdrawal of hands from the Franco-UAE Cultural Association after he had left Abu Dhabi On 13 Apnl 1989 he applied to the Budget and Finance Disciplinary Court, requesting it to suspend judgment until this cnmmal complaint had been finally resolved He also aj>ked the court to order a further investigation in order to obtain further information and documents on vanous matters In a decision of 17 Apnl 1989, which was served on the applicant on 3 October 1989, the Budget and Finance Disciplinary Court dismissed the applicahon on the grounds that "the evidence compiled in the course of the investigation [was] sufficient to enable the court to decide the case without calling tor other documents or awaihng the outcome of the above-mentioned complaint" It ordered the applicant to pay a fine of 2 000 French frani.s (FRF) for breach of the procedures for handling State revenue On 4 December 1989, the applicant appealed to the Conseil d Flat on a point of law, filing full grounds of appeal on 4 Apnl 1990 The appeal was declared admissible by the Conseil d Etat on 25 January 1991 and on 14 February and 18 Apnl 1991 respectively it was served on the Minister of the Budget and the Minister of Foreign AfTairs, each of whom filed a response, the first on 11 Apnl and the second on 3 September 1991 On 22 July 1991, the case-file was sent to the applicant s lawyer to enable him to prepare pleadings in answer to the responses In a judgment of 29 December 1993, \\\e. Conseil d £to/quashed the Budget and Finance Disciplinary Court's decision of 17 April 1989, on the grounds that it did not give sufficient reasons, and remitted the case to the same court In a decision of 12 Apnl 1995, which was served on 28 December of the same year, the Budget and Finance Disciplinary Court (including two judges who had taken pari m the first decision of 17 Apnl 1989, as well as the same reporting judge) found against the applicant m the following terms With regard to the claim thai the applicant's defence nghts had been breached, the court held, inter aha, that 'm accordance with section 18 of the Law of 25 September 1948, as amended, [L 314-4] [the applicant had] been duly informed, by a recorded-delivery letter of 10 June 1987, which he signed for, that an investigation into his conduct had been opened, tliat he was entilled to the assistance of a lawyer and that he would be summoned to give evidence When the reporting judge had fimshed questioning him on 3 July 1987, a record of his evidence [had been] drav\'n up, in the presence of the parties and of the court registrar Moreover, the reporting 125 judge saw [the applicant] on 25 June 1987 solely in order to infonn him of the nature of the allegations about which he would be questioned at the session of 3 July In the course of that preliminary interview of 25 June 1987, [the applicant had] handed the investigahng judge 81 documents, which were properly indexed and placed on the case-file " In relation to the application for a further investigation and tor the documents referred to by tlie applicant to be obtained, the court held that it was exclusively concerned with the circumstances in which the two long-term loans entered into by tJie applicant had been taken out It held that the documents referred to by the applicant "must, by their very nature, relate to the manner in which the [project which the applicant had launched] developed after he left Abu Dhabi, so that they are not relevant to the matter before us " With regard to the application for an adjournment pending the outcome of the criminal complaint against person or persons unknown filed on 11 Apnl 1989, the court held that it was "never bound io await a decision of the cnminal courts before delivenng judgment, furthermore, the information laid with Pans tribunal de grande instance m this case [related] to events subsequent to those which led to this court being seized" The court also dismissed, in the following terms, the ground of appeal alleging a violation of Article 6 para 1 of the Convention "In his defence, Mr Guisset refers to the above-mentioned Convention, and m particular to Article 6 para 1 thereof, arguing that the task of this court is to determine either disputes as to civil nghts and obligations or cnminal charges. with tlie consequence that Mr Guisset would be entitled to a public heanng within a reasonable time He asserts that more than ten years elapsed between the committal order, which was registered with the office of State Counsel to this court on 9 August 1984, and the letter dated 21 March 1995 whereby Pnncipal State Counsel summoned Mr Guisset to appear before the court on 12 Apnl 1995 and claims that, because of the excessive length of the proceedings, any cause of action against him has lapsed and the proceedings are null and void, by virtue both of the European Convention and of section 30 of the Law of 25 September 1948 Fines imposed under the Law of 20 September 1948 by this court relate neitlier to disputes over civil nghts and obligations nor to cnmmal charges Therefore, they are outwith the scope of the provisions of Article 6 para 1 of the Convention and the applicant cannot rely on those provisions to support his claim that the proceedings are procedurally flawed because the impugned decision was not taken following a public hearing Accordingly, this court must apply the provisions of the final paragraph of sechon 23 of the Law of 25 September 1984 (as amended) [L 314-15], which provide that its heanngs are not to be held in public " 126 After recalling the allegations against the applicant, the Budget and Finance Disciplinary Court then went on to hold that he had breached the procedures for handling State revenue and was liable to the stamtory penalties In that regard, it stated as follows "[The applicant] signed two successive loan agreements in his capacity as French Ambassador, without having received prior instructions to do so from the Ministry of Foreign Affairs He had no power to do so since, under the terms of the Ordinance of 2 January 1959 introducing the Instimtional Act on Finance Acts, the Minister of Finance is the only person empowered to bonow monies under the general authonty given each year m the Finance Act However, by entering into a commitment which appeared to fall within the scope of his competence, the Ambassador exposed the French State to any prejudice which might flow from that commitment However, the applicant had to react quickly to the situation produced by the City of Abu Dhabi's desire to take back the site of the French school (where the number of places was m any event acknowledged to be inadequate) The steps taken by [the applicant] enabled the school to open in time for the new scholastic year m September 1981, as was deemed necessary The central administrative department of the Ministry of Foreign Affairs was slow to respond to his communications and its different sections failed to act in a coordinated manner While the project was being put in place the Ambassador received constant encouragement from the Minister and his pnvate office " The court held that all the above circumstances, taken together, were such as to exonerate the applicant from having to pay a fine and he was, therefore, discharged As the applicant had been discharged, this second judgment of the Budget and Finance Disciplinary Court could not be appealed against to the Conseil d Eta( Despite having been discharged, the applicant was not offered a new posting In February 1997 he was rchred on the grade and spinal point which he had reached in 1978 B Relevant domestic law concerning the Budget and Finance Disciplinary Court as submitted by the respondent Government The pnnciple whereby civil servants entitled to authorise expendimre are separate from accountants is one of the esscnfiat and charactcnstic foundations of French public accounting law 127 Every financial operation earned out by a public body requires action by two separate civil servants, first, a person with power to receive and spend public monies, and second, an accountant in charge of recovery and payment. Law No. 48/1484 of 25 September 1948 introduced a specialist court, the Budget and Finance Disciplinary Court, to deal with civil servants authonsed to deal with receipts and spending, who, until that date, had been liable only to internal disciplinary sanctions or to cnminal penalties. The new court was independent of the Audit Court, albeit having close links with it. The provisions of this Law, which have been amended on a number of occasions, were codified by Law No. 95-851 of 24 July 1995 and now constitute the legislative part of Book III of the Finance Courts Act. The Finance Courts Act, Book III, Part 1 - the Budget and Finance Disciplinary Court Chapter I - Organisation Section L 311-2 (section 11 of the 1948 Act) "The court shall comprise The Senior President of the Audit Court, as President; The President of the Finance Division of the Conseil d'Etat, as Vice-President; Two senior judges of the Conseil d'Etat, and Two senior judges of the Audit Court. ..." Section L 311-3 (section 11 of the 1948 Act) "The senior judges of the Conseil d 'Flat and of the Audit Court to be appointed to the [Budget and Finance Disciplinary] Court shall be so appointed by Cabinet Decree for a five-year term ...". Section L 311-4 (inserted by section 12 of the 1948 Act) "The interests of the State and of the law shall be represented before the court by State Counsel attached to the Audit Court, assisted by an advocate-general and, if necessary, one or more judicial officers {magistrals) of the Audit Court, acting as Government Commissioners." Section L 311-5 (section 13 of the 1948 Act) "Cases shall be investigated by reporting judges, who shall be judges of the Conseil d'Etat or the Audit Court" 128 Chapter II - Persons subject to the junsdiction of the court Section L 312 I (section 1 of the 1948 Act) "The following persons shall be subject to the junsdiction of the Budget and Finance Disciplinary Court b) all permanent or temporary civil servants or members of the armed forces and all staff of any local authonty, any public establishment controlled by a local authonty or any group of local authonties, c) any representative, administrator or agent of any other entity which is subject to the power of review either of the Audit Court or of a Regional Audit Board " Chapter III - Breaches and sanctions Breaches, and the related sanctions, are defined in sections L 311-1 to L 313-14 (sections 2 to 9 of the 1948 Act) The provisions relevant to the present case are sections L 313-1, L 313-4 and L 313-6, which provide Section L 313-1 "Any person falling within one of the categones referred to in section L 312-1, who commits the Slate to expendimre without following the financial momtonng rules on entering into expenditure, shall be liable to a fine of at least FRF 1,000 and at most the equivalent of the gross annual emoluments or salary payable to that person at the date of the breach " Section L 313-4 "Any person falling withm one of the categones referted to in section L 312-1 who breaches, in a maimer other than those descnbed in the preceding sections, the rules governing handhng of the revenue of, or expenditure on behalf of, the State or any of the local authonties, establishments or enhties refened to m that section, or who, having been given supervisory authonty over such local authonties, establishments or entities, approves the impugned decision, shall be hable to a fine of the amount referred to m section L 313-1 " 129 Section L 316-6 "Any person falling within one of the categones referred to in section L 312-1 who, in the course of carrying out his duties or exercising his powers, wrongfully procure or seeks to procure, for a third party, an unjustified advantage, whether pecuniary or in bnd, which entails loss or damage to the Treasury, a local authonty or other relevant entity, shall be liable to a fine of at least FRF 2,000 and at most twice the equivalent of his annual gross emoluments or salary at the date of the breach " Chapter IV - Procedure in the Budget and Finance Disciplinary Court Bnnging proceedings: section L 314-1 (section 16 of the 1948 Act) defines the persons entitled to seize the court. These are, first, the Speakers of both Houses of Parliament and Mimsters and, secondly, the Audit Court and its Pnncipal State Counsel, in his or her capacity as State Counsel to the Budget and Finance Disciplinary Court In fact, the majonty of cases are referred by the Audit Court. The request for an investigation' proceedings in the court are commenced through Pnncipal State Counsel. Pursuant to Section L 314-3 (section 17 ot the 1948 Act), he or she may decide not to proceed with a case Alternatively, he or she sends the case-file to the president of the court under cover of a formal request for an investigation to be opened (requtsUoire). The investigation when the president receives a formal request to open an investigation, he nominates one of the reporting judges attached to the court to investigate the matter. It is for State Counsels Office to inform the persons concerned of the opening of the investigation. Under section L 314-4 (section 18 of the 1948 Act), reportmg judges have extremely wide powers of investigation in relatton to the entities concerned They are entitled to use civil servants to carry out enquiries on their behalf. They may questton the persons accused m the presence of a registrar, a record of the interview being drawn up. Accused persons are entitled to legal assistance. Reportmg judges are free to carry out the mvesligation as they see fit, their only duty being to keep Principal State Counsel informed. Ministers' opinions: when the investigation has been completed, the "case-file IS submitted to Pnncipal State Counsel", who may decide not to proceed further with the matter, pursuant to section L 314-4 (sechon 18 of the 1948 Act). Where, however, Pnncipal State Counsel decides to pursue the matter, the casefile is sent to the Minister of Finance and the Mimster responsible for the official in question, who may submit their opimon on the matter within a period set by the president, which camiot be less than a month. Once this period has expired, the matter may be pursued 130 Committal for tnal after the Mimsters opinions have been received or the relevant time-hmit has expired, the case-file is relumed to Prtncipal State Counsel, who has two weeks in which to decide whether to discontinue the proceedings or to commit the person for tnal before the court Opinion of Joint Staff-Management Committees section L 314-8 (secfion 22 of the 1948 Act) provides that, where the person is committed for tnal, "the casefile shall be communicated to the relevant Joint Committee sitting as, or, where applicable, m lieu of, a disciplinary panel" The Joint Committee has a month in which to give an opinion Where it fails to do so, "the court may proceed to give judgment" The tnal section L 314-8 (section 22 of the 1948 Act) provides that, after the Joint Committee has been consulted, the accused person must be given two weeks to inspect his case-file He has the nght to submit pleadings withm one month after consulting the case-file This procedure culminates in the tnal, the date of which "shall be proposed by State Counsel and fixed by tlie president" Secfion L 314-13 (section 23 of the 1948 Act) provides that "the court cannot validly deliberate unless at least four of Its members are present" The same section provides that "the reporting judge shall be entitled to speak, but not to vote, in relation to a matter on which he is reporting", and he is therefore present at the tnal. at which he "gives an oral summary of his wntten report" and also participates in the deliberations Rights of the defence before the court is seized, the accused person cannot play any part m the proceedings Dunng the invesUgative stage, statute provides that he must be informed of the allegations against him and of his nght to instruct a lawyer and is entitled, after seeing the case-file, to file a defence At the tnal, he can have wimesses called and may be assisted by a hamster (avocai), and he (or his representative) has, by law, the nght to address the court last Section L 314-15 (secfion 23 ot the 1948 Act) provides that the heanngs are not to be held in public Section L 314-20 "Judgments of the court finding that a breach has been committed and imposing a penalty may, if the court so decides, and when they have become final, be published in whole or in part, in the Official Journal of the French Republic" 131 COMPLAINTS (Extract) 1 Under Article 6 para 1 of the Convention, the applicant complains of the excessive length of the proceedings which, according to him, were concerned with the determination of a cnmmal charge against him 2 The applicant further complains, also under Article 6 para 1 of the Convention, of the fact that there was no public heanng belore the Budget and Finance Disciplinary Court, since secfion L 314-15 of the Finance Courts Act expressly excludes such heanngs 3 The applicant also complains that he was not Ined by an impartial tnbunal within the meaning of Article 6 para I of the Convention, in that two of the judges who sat at his tnal on 12 Apnl 1995, as well as the reporting judge, had already dealt with his case in the original tnal of 17 Apnl 1989 THE LAW (Extracts) The applicant complains of a number of violattons of Article 6 para 1 of the Convention which, in so far as relevant, provides as follows "In the determination of his civil nghts and obligations or of any criminal charge against him, everyone is entttled to a fair and public heanng within a reasonable time by an independent and impartial tnbunal ..." The respondent Government raise two prelimmary objections in relation to all the complaints first, that they are incompatible ratione materiae with the provisions of Article 6 para 1 of the Convention, and secondly that the applicant cannot claim to be a "victim" A Applicability oj Article 6 para 1 to the proceedings in question The Government recall that the Convention organs have dealt with many applications concemmg sanctions classified as "disciplinary" in the domestic law of the relevant State, and have recognised that disciplinary proceedings constitute a specific category which is not to be confused either with "a cnminal charge" or with a dispute concermng "civil nghts and obligations" In this regard, the Government emphasise that the Commission has stated that there are offences which are disciplinary by nature (see No 4274/69. Dec 24 7 70, Yearbook 8, p 889) It is only in exceptional cases, where particular condifions are met, that a disciplinary measure may fall under either the civil 132 or cnminal head of Article 6 para I DiscipUnaiy proceedmgs do not ordinanly lead to a contestation (dispute) over civiI nghts or to the determinafion of a criminal charge (see No 23201/94, Dec 3 3 97, DR 88-B, p 25) With regard to the civil head of Article 6 para 1, the Government recall that a wealth ot Convention case-law has established that this provision applies to disciplinary proceedings only if they concem a dispute over "civil nghts and obligafions" in other words if the result of the proceedmgs was decisive for such a nght, and, in very concrete terms, had pecuniary consequences for the person m questton (see Eur Court HR, Diennet v France judgment of 26 September 1995, Senes A no 325-A, p 13, para 27) The proceedings in the present case had no pecuniary consequences for the applicant, since he was discharged Moreover, such pecumary consequences must be direct, which would not be the case for any repercussions the proceedings may have had on the applicant's career (assuming any could be proved) Further, the Government maintain that the dispute in this case does not, by its very nature, fall under the civil head of Article 6 para I They recall that the Court recently took the opportunity to reaffirm that the law of many member States of the Council of Europe draws a basic distincfion between civil servants and employees governed by pnvate law, leading it to conclude that disputes relating to the recmifinent, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 para 1 (see Eur Court HR, Neigel v France judgment of 17 March 1997, Reports 1997-11, vol 32) The only exceptions are where a civil servant is m a situation, vis-a-vis the public authonty employing him, analogous to the positton of a pnvate-scctor employee In the present case, the purpose of the relevant legislation was to pumsh maladmimstratton affecttng the State or vanous forms of local authonty by persons who, in the course of their duties deal with pubhc money It was in his capacity as a civil servant that the applicant had to account for his management of pubhc money Therefore, both the relevant legislation and the subject-matter of the dispute (comphance with the rules of pubhc accounttng) are matters of public law, as are the proceedmgs in this case Further, the Government submit, that even if the Commission chose to employ the so-called "assortment of clues" technique used by the Convention organs in the case of certain so-called "mixed" matters (see Eur Court HR, Muyldemians v Belgium judgment of 23 October 1991, Senes A no 214, p 13), the public-law aspects predominate over the pnvate-law ones In particular, the Budget and Finance Disciplinary Court looks at fault-based, not stnct, liability Any penalty it imposes is not intended to reflect the damage suffered by the State, unlike the situation m ordinary cases of civil liability Its rulings deal exclusively with the question of whether or not a disciphnary offence has been committed, and the sanctions tt imposes are in no way compensatory 133 As regards the cnmmai head of Article 6 para 1, the Government, citing the cnlena developed m the Convention organs' case-law (Eur Court HR, Engel and Others v the Netherlands judgment of 8 June 1976 Senes A no 22 p 33, paras 80 ff), submtt that, as regards the first of those critena (the classification of the measure in domestic law) proceedings m the Budget and Finance Disciplinary Court do not come under the cnminal law but constitute disciplinary proceedings in an adimmstrafive court As regards the second cntenon, (the nature of the offence), the Government argue that the offence in the present case was a breach of professional rules applymg only to persons dealing with public expenditure - rules which do not have the general character necessary for the penalty to be a tnminal one With regard to the third cntenon, the purpose and degree of seventy of the penalty, the Government emphasise that there are several points of distinction between the fine imposed bv the Budget and Finance Disciphnary Court and a cnmmal-law fine For example, the aim of the legislation in question is to protect public fiinds and fines imposed under it unlike cnmmal-law fines, are not subject to the rules of cnmmal law such as those relating to stay of exet-ution repeat offences, the pnnciple thai sentences should be concurrent rather than consecutive, and the rules concerning entry on the criminal rc-ord Consequently, the Government's mam submission is that the applicanon should be dismissed as incompattble raiione materiae widi the provisions of Article 6 para 1 of the Convenfion The applicant, on the other hand maintains that the Budget and Finance Disciplinary Court was incontesiably called upon to determine a cnmmal charge m his case within the meaning of Article 6 para 1 of the Convention He regards this as proven bv the fact that the Finance Courts Act defines both the persons subject to the court s junsdiction and the offences punishable by it in wide terms and that the penalties il provides for are fines - of potentially high amounts, since they can be as much as the equivalent of one or even two, years' gross emoluments or salary for Ihe person accused Further the proceedings, which take the fonn of a prosecution, with State Counsel taking an active role and which take place before a proper court, are in his view intnnsically "criminal" However, the applicant submits that even if the Budget and Finance Disciplinary Court does not have cnmmal junsdiction, Artitle 6 para 1 of the Convenfion still applies in view of the effects of its decisions regarding civil obligations - in particular due to the pecuniary nature of the penalty, the amount of which depends on the salaiy of the person concerned, and to the pracfical and emotional consequences ot the proceedings for that person On this point he recalls that the effect of the proceedings in question was to depnve him of a posting for more than ten years 134 Therefore, the Commission must determine whether, in the present case, the Budget and Fmance Disciplinary Court was dealing with either a dispute as to "civil rights and obligations" or the menls of a "cnminal charge" against the applicant withm the meaning of Article 6 para 1 ot the Convention To this end, the Commission recalls that, in order to delenmne whether the ' charge' brought against the applicant was "cnmmal", Ihe first matter to be ascertained is whether or not the text defining the offence in issue belongs, according to the legal system of the respondent Stale, to cnmmal law, next, the nature of the offence and, finally the nature and degree of seventy of the penalty that the person concerned nsked incumng must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and the laws of the Contractmg State (see Eur Court HR, Engel and others v the Netherlands, op cit, pp 34 35, para 82) In the present case, since French law classifies the matter as "disciplinary", it is necessary to examine the nature ot the offence and the nature and degree of seventy of the penalty In this regard, the Commission notes that the breach in quesfion consisted of a failure to comply wiih tlie procedures for handling Stale revenue, and specifically, in the applicant's case, of a public servant entenng, without pnor authonty, into agreements to bonow money on behalf of the State As for the penalties, which are set out in sections L 313-1 to L 3 13-7 (see section L 313-4) these are essentially financial and range from FRP I 000 up to double the equivalent of the annual gross emoluments or salary of the pubhc servant concerned at the date of the otfence With regard to the nature of the offence the Commission recalls, ' thai the general i,haracter of [a] legal provision", combined with a penalt> whose purpose is 'both deterrent and punitive, [may suffice] to show that [an] offence [is], for ilie purposes of Article 6, criminal in nature" (see Eur Court HR, Lutz v Federal Republic of Gemiaiiy judgment of 25 August 1987, Senes A no 123 A, p 23, para 54) The Commission considers that, m the present case, there is no doubi that the purpose of the penalty was both deterrent and punittve, since it was manifestly aimed at detemng and punishmg, in the public interest, the commission of any fomi of maladminisfraiion of public money prejudicial to the State and to taxpayers Moreover, It lakes the view that tlie rule is indeed a "general" one since it applies, wifiiout exception, to any person who may theorefically be in a position to commit such an offence The Conunission recalls that the cntcna of the nature of the offence and the degree of seventy of the sanction " are altemanve and not cumulative ones tor Article 6 to apply by virtue of the words "cnminal charge", it suffices that the offence m question should by its nature be "cnminal" from the point of view of the Convention or should have made the person concerned liable to a sanction which, in its nature and degree of seventy belongs in general to the "cnmmal sphere" (see Lutz v Federal Republic of Germany, op cii p 23 para 55) 135 Therefore, the above findings can be deemed sufficient to justify the conclusion that the charge brought agamst the applicant was a cnminal one Moreover, the Commission considers that the severity of the potenttal penalty supports this interpretatton In fact, the level of the potential fines considerably exceeds what could be deemed a purely disciplinary sanctton, since the accused person may be ordered to pay twice the equivalent of his gross annual salary It follows that the preliminary objection raised by the Government to the effect that Article 6 para 1 of the Convenfion does not apply cannot be allowed B Whether the applicant qualifies as a "victim" In the alternative, the Government submtt that the apphcatton is inadmissible on the ground that the applicant is not a "victim", since he cannot claim to be the victtm of a violation of Article 6 para 1 of the Convention as he was discharged In this regard, they refer to the established case-law of the Commission, according to which an applicant who has been acquitted or discharged cannot raise complaints concerning the proceedings which led to such acquittal or discharge The applicant, on the other hand, claims that he is a victim He considers that the decision discharging him should have resulted in his career m the civil service resuming its normal course (by way of the offer of a posting or a discussion about how his career might develop), which did not occur He also points out that he was not accorded the benefit of the esiabhshed practice of promoting any civil servant neanng retirement to the next grade up six months before they cease working The Commission recalls that the condifions laid down by the Convention organs for an applicant to cease to qualify as a victim, within the meaning of Article 25 of the Convention, of the violations which he alleges are that the national authonties should have acknowledged, cither expressly or in substance, and then afforded redress for, those violations (see, inter aha, Eur Court HR, Eckle v Federal Republic ot Gennany judgment of 15 July 1982, Senes A no 51, p 30, para 66) It notes that, m the present case, the operafive part of the judgment of the Budget and Finance Disciplinary Court of 12 Apnl 1995 states that the applicant was thereby "discharged" On the other hand, it notes that it is clear from the grounds of that judgment that the court considered the applicant guilty and liable to a fine With regard to the violafions of the Convention alleged by the apphcaitt, the court merely ruled that Article 6 was not applicable to the proceedings The Commission recalls that m the case of Adolf v Austna (Eur Court HR, judgment of 26 March 1982, Senes A no 49,pp 17-18,paras 38 and 39), in which the proceedings against the applicant had also been discontinued, the Court, after notmg that" the reasoning m the decision 136 was m terms that were well capable of being understood as meaning that [the applicant] was guilty of a cnminal offence, albett one that did not ment pumshment". held that that reasoning "[formed] a whole with, and cannot be dissociated from, the operafive provisions" Consequently, the Commission concludes that, taking accoimt of both the reasoning and operative part of the judgment of the Budget and Finance Disciplinary Court of 12 Apnl 1995, the applicant in the present case has not ceased to qualify as a "victim" withm the meaning of Article 25 of the Convenfion, given that that court expresslv dismissed his complaints under the Convention, and his discharge cannot therefore, possibly be deemed to make redress for the alleged violattons It follows that the Government's preliminary objection alleging that the applicant does not qualify as a "victim" cannot be allowed c The applicant also complains that his case was not heard by an impartial tnbunal within the meaning of the above-mentioned Article 6 para I, m that two of the judges who tned him, as well as the reporting judge, had already dealt with the case at the onginal tnal of 17 Apnl 1989 The Government submit that the apphcant is in fact contesting the objecfive impartiality of the court In this regard, they emphasise that the domesfic-law rules intended to avoid doubt as to the independence or impartiality of the persons composing a judicial authonty were complied with Specifically, section II of Law No 87-117 of 31 December 1987, which reformed the rules governing admimstrative litigation, provides that, "if it quashes a decision by an administrative tnbunal of last instance, the Conseil d Etai may either remit the case to the same tnbunal, which shall unless the nature ot the tnbunal makes it impossible, be differently constituted, or remit the case to another tnbunal of the same type, or determine the menls of the case itself where the interests of sound admimsttafion of justice warrant it " The unique nature of the court involved m the present case meant that it was impossible to remit the case to another tnbunal of the same type, and the composition of the court (six judges, of whom at least four must be present for the court to make a valid ruling) meant that it could not constitute itself differently in order to hear the case Moreover, the Government recall that one of the persons singled out by the apphcant, the reporting judge, can only give an opimon, not vote, in deliberafions on cases witli which he or she has been involved Finally, they mamtain, there was no interest of sound admimsttation of justice' requinng that the Conseil d Elai should have the case transfened to it The Government recall tliat the Convention organs have found, in similar cases, that "it caimot be stated as a general mle resulfing from the obhgafion to be impartial that a supenor court which sets aside an adminisfrattve or judicial decision is bound to 137 send the case back to a different junsdictional authonty or to a differently- composed branch of that authonty " (see Eur Court HR, Ringeisen v Austna judgment of 16 July 1971, Senes A no 13, p 40, para 97) In its judgment of 26 September 1995 in the case of Diennet v France, where, as here, a unique judicial authonty was involved, the Court held that, "no ground for legitimate suspicion can be discerned m the fact that three of the seven members ot the disciplinary section [of the National Council of the Ordre des medecins] had taken part in the first decision " In the light of this case-law, the Government consider that the complaint should be dismissed as manifestly ill-founded The applicant argues that the manner in which die Budget and Finance Disciplinary Court was composed, and the very choice of reporting judge, resulted in the same conclusion being reached on two occasions ten years apart, without any account being taken of the fact that, in the meantime, the first loan had been repaid in fiill and the second in large part In his view, this fact was essential to an assessment of his liability At the investigative stage, the reportmg judge had descnbed the loans as constituting a "potenfial nsk" to the State, and the quesfion should, therefore, have been asked whether this nsk had or had not been realised In contrast to the Government, the applicant takes the view that the Consed d'Etat should have had the case ttansferred to tt and dealt with it on the ments The Commission notes that, at the time of the first decision of the Budget and Finance Disciplinary Court in 1989, that court was made up of five judges and a reporting judge In 1995, after the Consed d'Etat had set aside that onginal decision and remitted the case to it, the court compnsed six members, of whom only two had already heard the case in 1989 together vvitti the same reporting judge as in 1989 The Commission emphasises that the relevant provisions of the Finance Courts Act provide that the reporting judge can only speak and not vote and that decisions are taken by a majonty of votes Therefore, the Commission considers that no ground for legitimate suspicion anses out of the fact that two of the six members had taken part in the first decision (see Eur Court HR, Diennet v France judgment of 26 September 1995, Senes A no 325, p 16, paras 36-38) It follows that this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 27 para 2 of the Convention 138