The applicant, Mrs Françoise Richard-Dubarry, is a French national who was born in 1940 and lives in Arcangues.
A. The circumstances of the case
1. Background to the case
The applicant was the mayor of Noisy-le-Grand (Seine-Saint-Denis) for ten years. On 3 September 1993 she resigned from office to look after her husband, who was receiving medical treatment.
A few days later she was accused by a political opponent of mismanaging a semi-public corporation (SOCAREN) of which she had been chairwoman. A communiqué published in the national press on 9 September 1993 indicated that the applicant had resigned on account of her mismanagement and not for family reasons. The author of the communiqué also stated that he had had the case referred to the regional audit office.
On 16 September 1994 the applicant was summoned by a judge of the regional audit office to answer questions about the functioning of SOCAREN and four municipal associations of which she was de jure chairwoman by virtue of her office as mayor of the town.
The applicant was the subject of five sets of proceedings before the regional audit office (see below).
It also referred the entire case to the public prosecutor, who decided to take no action.
The Court of Audit publicly referred to these cases in its 1995 annual report. After the report had been published, many articles appeared in the press, including the Seine-Saint-Denis edition of the daily newspaper Le Parisien. Provisional observations and interim rulings declaring the cases to be ones of de facto management, which had been sent to the applicant under private and confidential cover, were published and commented on.
On 13 February 1995 the newspaper Libération published an article on the cases. The article was photocopied and put into local letter boxes. A copy was sent anonymously to the applicant's parents.
The applicant instituted proceedings against the newspaper in the criminal courts. On 20 October 1995 the editorial director of the newspaper and the author of the article were ordered to pay damages for defamation.
2. Proceedings in the public finance courts
(a) Proceedings relating to the management of SOCAREN
Following the summons of 16 September 1994, the Ile-de-France Regional Audit Office judge informed the applicant of the observations that she intended to submit to the office after examining the accounts and management of the semi-public corporation and asked her for her comments.
At the end of 1997 the Court of Audit dropped the case against the semi-public corporation.
(b) Proceedings concerning the association Michel-Simon Arts production
(i) After the applicant had been summoned on 16 September 1994, the Ile-de-France Regional Audit Office made provisional observations at its session of 9 December 1994, of which the applicant was informed in a confidential letter of 11 January 1995, to which she replied on 11 February 1995.
At that session the regional audit office gave judgment provisionally declaring that the case was one of de facto management and declared the applicant, jointly and severally with the chairman of the association Michel-Simon Arts production, the de facto accountant of public funds irregularly removed and handled since 1989. That judgment was served on her on 13 March 1995, so that she could reply to its provisions. She was ordered to produce several documents relating to the association's income and expenditure and an executory resolution of the Noisy-le-Grand municipal council determining the public interest and municipal benefit in each item of expenditure.
On 17 May 1995 the applicant requested an extension of time in which to submit her reply on account of the difficulties she had encountered in gaining access to the documents necessary for her defence. She sent her pleadings in reply to the regional audit office on 19 September 1995 and additional observations on 27 January 1996, reiterating the difficulties she and the chairman of the association had had in obtaining the documents from the mayor of Noisy-le-Grand.
On 7 February 1996 the regional audit office gave a final judgment, ruling that this was a case of de facto management (served on the applicant on 11 September 1996) and provisionally ordered the applicant to produce documents concerning the association's income and expenditure operations. On 30 October 1996 the applicant submitted observations to the regional audit office on the provisional part of that decision and appealed against the final part to the Court of Audit.
In a judgment of 10 July 1997, served on the parties on 11 September 1997, the Court of Audit declared the appeal admissible and upheld the judgment of 7 February 1996:
“... [The applicant] alleges, in support of her appeal, that the regional audit office wrongly refused to acknowledge the existence of an association with a fully independent board and disregarded the fact that the association's budget had been prepared and the decision to grant the subsidies taken in the mayor's absence.
The memorandum and articles of the association designate the mayor as de jure chairwoman and give her power to nominate the six members of the administrative committee and to designate from among them the four members of the executive board. They state that the municipality is solely liable for the association's undertakings and liabilities. The association has not received any contributions. Subsidies from the municipality account for more than eighty percent of its funds. The regional audit office rightly concluded that the association was entirely dependent on the municipal authorities.
With regard to [the applicant] in particular, she was at one and the same time, in her capacity as mayor, responsible for presenting the municipal budget which contained provision for the payment of subsidies and authorising officer in respect of these subsidies and, in her capacity as chairwoman of the association, beneficiary of the same subsidies. That is sufficient proof that she disposed of municipal funds and that she was accordingly correctly declared to be de facto accountant ...”
On 6 October 1998 the regional audit office gave a third judgment finding a case of de facto management, which was served on the applicant on 12 May 1999. It ordered her, jointly with the chairman of the association, to repay to the Noisy-le-Grand municipal accounts department 315,322.44 French francs (FRF), which was the surplus balance on the de facto management account. It deferred its decision on the application of the fine prescribed in Articles L. 131-11 and L. 231-11 of the Financial Judicature Code.
On 7 July 1999 the applicant submitted observations on the provisional part of the judgment.
On 16 December 1999 the regional audit office gave a fourth judgment concerning the de facto management of the association, which was served on the applicant on 9 February 2000 and maintained the order to produce an executory resolution of the municipal council determining the public interest and municipal benefit in the expenses, as previously stipulated in the judgment of 6 October 1998. The regional audit office stated that the mayor of Noisy-le-Grand had been requested by a letter of 15 May 1999 from the public prosecutor attached to the regional audit office to refer the case to the municipal council, and had replied on 4 November 1999 that he was unable to do so. It added:
“It is essential for the proper course of the proceedings that the municipal council give an explicit decision, since the office cannot examine the compatibility of the expenses incurred by the association with the laws and regulations unless the deliberating authority has first retroactively passed a resolution making available the funds that have been used or expressly refusing to make all or part of the funds available.”
On 30 January 2003 the Treasury wrote to the applicant's lawyer in the following terms:
“In your above-mentioned letter you refer to a resolution which in the above-cited case should allow the regional audit office to determine the balance on the de facto management account definitively.
Can you tell me whether that document has been sent to you?
In your letter you request an extension of time for payment on your client's behalf. I might be willing to grant that request if I am given guarantees. ...”
In a letter of 24 February 2003, the applicant's lawyer replied as follows:
“The best thing I can do in response is to send you the judgment of 16 December 1999 (later than the one you refer to) from which you will see that it is not my client who is requesting an extension of time for payment, but the regional office granting her one.
I also attach a copy of my letter of 7 July 1999 to the regional audit office and a copy of the balances of the accounts.
These documents show, particularly the balance of the Association's accounts in 1999 (when Mrs Richard left), that the amount claimed appears as a credit and was subsequently used by Mr P., Mrs Richard's successor.
Lastly, as regards the proceedings, I filed additional pleadings with the regional office in August 2001, seeking to have the proceedings set aside in their entirety.”
(ii) The applicant was also the subject of two sets of criminal proceedings in connection with the examination of the accounts of the association Michel-Simon Arts production. The first investigating judge made an order finding that there was no case to answer. In connection with the second complaint, the applicant was charged in May 1998 and the proceedings dropped in April 1999.
(c) Proceedings relating to the association Centre culturel Michel-Simon
After the applicant had been summoned on 16 September 1994, the Ile-de-France Regional Audit Office, at its session on 6 December 1994, made provisional observations. They were served on the applicant in a confidential letter of 9 February 1995.
On 6 December 1994 the regional audit office gave judgment provisionally declaring that the case was one of de facto management and declaring the applicant, jointly and severally with two other persons, de facto accountant of public funds wrongfully removed and handled since 1989. The judgment was served on the applicant on 16 March 1995.
The applicant submitted observations dated 17 May 1995, 19 September 1995 and 27 January 1996, in which she requested a three-month extension in order to assemble all the documents necessary for her defence. The applicant also reiterated that she had been chairwoman of the association Centre culturel Michel-Simon by virtue of her function as mayor, but had never played any role in the association.
The judgment giving a final ruling that the case was one of de facto management is dated 7 February 1996 and was served on the applicant on 6 September 1996.
On 29 October 1996 the applicant appealed against the final provisions of that judgment to the Court of Audit and submitted her observations on the provisional part to the regional audit office.
On 10 July 1997 the Court of Audit dismissed the appeal and upheld the judgment of 7 February 1996. The judgment was served on the applicant on 29 September 1997.
A third judgment ruling that the case was one of de facto management was delivered on 6 October 1998. It was served on the applicant on 15 May 1999. As the regional audit office's ruling was provisional, the applicant submitted observations in reply on 6 July 1999.
On 16 December 1999 the regional audit office gave a fourth judgment regarding the de facto management of the association. It was served on the applicant on 9 February 2000. It stayed its final ruling pending production of an executory resolution of the municipal council determining the public interest and municipal benefit in the expenses, as had already been stipulated in its previous judgments.
(d) Proceedings relating to the Noisy-le-Grand municipal staff association
After the applicant had been summoned on 16 September 1994, the Ile-de-France Regional Audit Office made provisional observations at its session of 22 November 1994. They were served on the applicant in a confidential letter of 22 December 1994. The applicant replied in a letter of 20 January 1995 in which she requested, among other things, a hearing so that she could supplement her observations orally.
On 22 November 1994 the regional audit office gave judgment provisionally finding a case of de facto management and declaring the applicant, jointly and severally with the staff association and another person, de facto accountant of the public funds irregularly removed and handled since 1988 and ordering the production of a number of documents.
The president of the regional audit office interviewed the applicant on 9 February 1995.
In letters of 11 February, 23 February and 6 April 1995, the applicant informed the regional audit office of the difficulties she had been having in obtaining the requested documents. She also complained of a press article reproducing the confidential provisional observations made by the office on the management of the association.
On 17 May 1995 the applicant's lawyer asked for a three-month extension of time on account of the difficulties in assembling all the documents necessary for her defence.
The final judgment ruling that the case was one of de facto management was delivered on 7 February 1996 and served on the applicant on 24 May 1996. She appealed against the final provisions of the decision on 19 July 1996 and submitted, among other things, that she had merely been de jure chairwoman of the association and had never exercised any function.
In a judgment of 16 January 1997, the Court of Audit dismissed the appeal and upheld the judgment of 7 February 1996. The decision was served on the applicant on 21 March 1997.
On 10 July 1998 a third judgment finding a case of de facto management, dated 7 April 1998, was served on the applicant. A number of orders to produce documents were definitively lifted and others provisionally replaced.
In a letter of 14 September 1998, the applicant submitted her observations on the provisional part of the judgment. She stressed in particular that the accounts for 1988 and 1989 contained errors and asked the regional audit office to clarify the position.
On 25 May 1999 the regional audit office gave a fourth judgment regarding de facto management. The judgment was served on the applicant on 30 July 1999.
In letters of 30 August and 27 September 1999, the applicant submitted her observations on the provisional part of the judgment and pointed out that the figures were wrong again.
On 12 October 1999 the regional audit office judge acknowledged that there was a clerical error in the operative provisions of the fourth judgment, but explained that the error did not alter the outcome and had not affected the accounts sheet.
On 16 December 1999 the regional audit office made a repayment order, the balance due to the municipal accounts department having been fixed at FRF 4,191,160. The office found that it was not necessary to levy the fine prescribed by Articles L. 131-11 to 13 and L. 123-1 of the Financial Judicature Code. The judgment was served on the applicant on 9 February 2000.
On 4 April 2000 the applicant appealed against that decision to the Court of Audit. On 20 April 2000 an appeal lodged by another person, who had been declared joint and several debtor in respect of the funds, was served on the applicant.
On 23 March 2001 the applicant lodged additional pleadings.
On 1 October 2001 the Court of Audit requested the applicant to produce documents proving that she had ceased her functions as mayor and as chairwoman of the association. The applicant sent the most important documents on 10 October 2001.
In a judgment of 30 May 2002 (no. 32499), served on the applicant on 19 August 2002, the Court of Audit varied the judgment of 16 December 1999, fixing the repayment to the municipal accounts department at FRF 4,126,705 (629,112.13 euros (EUR)):
“The repayments for 1988 to January 1990 ordered against the staff association and [the applicant] are fixed at EUR 224,936.71, broken down as follows:
(i) EUR 194,014.39 in additional remuneration in the form of a technical skills bonus;
(ii) EUR 30,922.32 in additional remuneration in the form of gifts.
The repayments for February 1990 to 1993 ordered against the staff association, [the applicant] and Mr B. are fixed at EUR 404,175.42, broken down as follows:
(i) EUR 248,307.89 in additional remuneration in the form of technical skills bonus;
(ii) EUR 155,867.53 euros in additional remuneration in the form of gifts.”
The Court of Audit also ruled on “the compliance by the regional audit office with the adversarial nature of the proceedings” in the following terms:
“... there has not been a breach of the concept of “reasonable time” enshrined in the European Convention on Human Rights because the separate phases of finding a case of de facto management and determining the final balance do not attract the protection of that Convention. The length of the proceedings was largely a result of the de facto accountant's refusal to cooperate with part of the operations and the interested parties' – entirely legitimate – decision to lodge two appeals.
Other than when giving a final ruling on a fine, the regional audit office does not rule on civil obligations or criminal charges, and the proceedings do not fall within the scope of application of the Convention. Consequently, until the enactment of the Law of 21 December 2001, its judgments, other than those giving a final ruling on a fine, were properly delivered at a private hearing ...”
On 25 October 2002 the applicant appealed on points of law to the Conseil d'Etat.
(e) Proceedings relating to the association Noisy Communication
After the applicant had been summoned on 16 September 1994, the regional audit office made provisional observations at its session of 22 November 1994. They were served on the applicant in a confidential letter of 22 December 1994.
On 22 November 1994 the regional audit office also gave judgment provisionally finding the case to be one of de facto management and declaring the applicant, jointly and severally with the association Noisy Communication and another person, de facto accountant of public funds irregularly removed and handled since 1986. The judgment was served on the applicant on 28 December 1994.
On 20 January 1995 the applicant submitted her observations on the temporary provisions of that decision to the regional audit office and requested a hearing. On 17 May 1995 her lawyer requested a period of three months in which to assemble and submit the documents necessary for her defence.
On 19 September 1995 the applicant filed her defence.
On 5 October 1995 the applicant was served with the other parties' observations.
On 31 October 1996 the regional audit office gave a final judgment finding the case to be one of de facto management, which was served on the applicant on 28 February 1997.
On 28 April 1997 the applicant appealed to the Court of Audit against the final provisions of that decision and submitted her replies to the provisional part to the regional audit office.
In a judgment of 2 October 1997, the Court of Audit dismissed the appeal and upheld the judgment of the regional audit office of 31 October 1996.
On 7 and 28 April 1998 the regional audit office gave a third judgment finding the case to be one of de facto management, which was served on the applicant on 13 July 1998.
On 28 September 1998 the applicant submitted to the regional audit office observations in reply to the provisional part of that judgment.
On 25 May 1999 the regional audit office made a repayment order against the applicant, the association and the chairman of the association and fixed the balance payable to the municipal accounts department at FRF 789,348. It provisionally ordered the applicant and the chairman of the association to pay a fine of FRF 5,000 and stayed its final order discharging the accountant pending full compliance with the repayment order and payment of the fine to be definitively imposed.
The applicant appealed to the Court of Audit against the final provisions of that decision on 30 September 1999. She lodged further and supplementary pleadings on 29 March 2001.
In a judgment of 30 May 2002 (no. 32501), the Court of Audit set aside the final provisions of the judgment of 25 May 1999 because the applicant had not been informed of the date of the session before the first-instance court and thus had not been provided with an opportunity to exercise her statutory right to be heard. After examining the case, it fixed the balance payable to the municipal accounts department at FRF 783,348 (EUR 119,420.63).
On 25 October 2002 the applicant appealed on points of law to the Conseil d'Etat against the judgment of 30 May 2002.
On 15 November 2002 the Treasury informed the applicant that on 14 November 2002 her aggregate debt arising from the two repayment orders (judgments nos. 32499 and 32501), both in capital and interest, amounted to EUR 1,123,675.72.
In a letter of 9 December 2002, the applicant requested an extension of time for payment.
In a decision of 20 December 2002, the Paymaster General rejected her request on the ground that the appeals did not have suspensive effect.
The applicant also applied to the Conseil d'Etat for a stay of execution of the Court of Audit's judgments.
B. Relevant domestic law and practice
Regional audit offices were set up by Law no. 82-213 of 2 March 1982 on the rights and freedoms of the municipalities, the départements and the regions. Section 1 of that decentralisation law provides that “municipalities, départements and regions shall be freely administered by elected councils” and that “the apportionment of powers among the municipalities, departments, regions and the State shall be provided for by statute”.
In order to counterbalance the lack of a supervising authority, regional audit offices were set up in each region and are staffed by judges who cannot be removed from office. The main tasks of these new State bodies, set out in the above-mentioned law and henceforth in the Financial Judicature Act (Articles L. 211-1 et seq.), are to examine the accounts drawn up by public accountants of territorial authorities and their public institutions, examine the management of territorial authorities and that of all bodies directly or indirectly dependent on them or in receipt of financial aid and assist in supervising the budgetary measures of the territorial authorities and their public institutions.
Regional audit offices give judgment at the end of adversarial proceedings. Their final judgments discharge the accountant or declare that the accounts disclose a debit, that is, order the accountant to pay a sum back to the authority. An appeal lies against these final judgments to the Court of Audit. Judgments delivered by the Court of Audit on appeal may, like all other judgments delivered by that court, be appealed against on points of law to the Conseil d'Etat.
A judicial examination by a regional audit office is conducted as follows:
(i) production of the accounts by the public accountant;
(ii) adversarial investigation;
(iii) report by the investigating judge;
(iv) deliberations by the regional audit office;
(v) interim ruling: orders;
(vi) accountant's reply;
(vii) deliberations by the regional audit office;
(viii) final (public) judgment: discharge or repayment order.
The relevant provisions of the Financial Judicature Code read as follows:
Article L. 211-1
“Regional audit offices audit, within their jurisdiction, all accounts issued by public accountants of territorial authorities and their public institutions and the accounts of persons that they have declared to be de facto accountants. An appeal lies to the Court of Audit.”
Article L. 231-2
“Subject to the provisions of Articles L. 211-2 and L. 231-6, regional audit offices make either interim or final rulings at first instance regarding the accounts issued by public accountants of territorial authorities and the public institutions situated in their district.”
Article L. 231-11
“Under the conditions laid down in Article L. 131-11, regional audit offices can order de facto accountants to pay a fine if they have wrongfully assumed the functions of a public accountant.”
The Conseil d'Etat has ruled that proceedings ending with a ruling by the Court of Audit that the case is one of de facto management constitute a single set of proceedings even where several judgments are delivered in the course of the proceedings (Conseil d'Etat – “CE”, 14 December 2001, Société Réflexions, Médiations, Ripostes).
In declaring a manager of public funds a de facto accountant, the Court of Audit merely exercises its powers as auditor and does not determine a criminal charge. Accordingly, neither the provisions of an amnesty law nor the delivery of a judgment in criminal proceedings finding that the offence has been amnestied precludes such a declaration (CE, 12 December 1969, Darrac). Similarly, in another judgment of the Conseil d'Etat, Article 6 of the Convention was held not to apply to audits by the Court of Audit of accounts issued by public accountants (CE, 19 June 1991, Ville d'Annecy c. Dussolier, Recueil Lebon, p. 242) because the decisions delivered by that court do not relate to a “criminal charge” within the meaning of Article 6 (CE, 3 April 1998, Madame Barthélémy, Recueil Lebon, p. 130).
A final judgment of the Court of Audit declaring the case to be one of de facto management determines neither a criminal charge nor civil rights and obligations. Accordingly, the provisions of Article 6 § 1 of the Convention are not applicable to such judgments (CE, 6 January 1995, Nucci, Recueil Lebon, p. 7).
When judging conduct liable to give rise to the fines for de facto management listed under point XI of section 60 of the Law of 23 February 1963, the terms of which are now reproduced, inter alia, in Articles L. 131-11 and L. 231-11 of the Financial Judicature Code, the Court of Audit and regional audit offices do, however, have to be regarded as determining a criminal charge within the meaning of Article 6 § 1 of the Convention (CE, 16 November 1998, SARL Deltana et M. Perrin, Recueil Lebon, p. 415). Similarly, prior to Guisset v. France (no. 33933/96, ECHR 2000-IX), the Conseil d'Etat had held that proceedings against an authorising officer before the Disciplinary Offences (Budget and Finance) Court amounted to a criminal charge (CE, 30 October 1998, Lorenzi, Recueil Lebon, p. 374).
More recently the Conseil d'Etat has held that, “having regard to the nature of the Court of Audit's powers and to the consequences of its decisions for the parties concerned, both the principle of impartiality and that of the rights of the defence preclude the Court of Audit from properly delivering a judicial decision on a case of de facto management where ... it has previously mentioned this case in a public report and found the facts to have been unlawful” (CE, 23 February 2000, Société Labor Métal; CE, 13 February 2002, Abran).
Lastly, the Conseil d'Etat has held that “the participation in the deliberations of the bench required to rule on a declaration of de facto management of the judge rapporteur entrusted with the task of inspecting the management of the organisation whose funds are in issue renders the composition of the bench defective” (CE, 6 April 2001, S.A. entreprise Razel Frères). Article L. 241-13 of the Financial Judicature Code, enacted by Law no. 2001-1248 of 21 December 2001, now provides that “the judgments, opinions, proposals, investigative reports and observations of regional audit offices shall be considered and adopted collectively in accordance with adversarial proceedings. Where a regional audit office makes a ruling relating to de facto management and fines, it shall deliberate without the judge rapporteur being present. Judgment shall be delivered at a public hearing.”
1. The applicant complained of the length of proceedings in the public finance courts and relied on Article 6 § 1 of the Convention.
1. The applicant complained of a breach of Article 6 § 1 of the Convention, the relevant provisions of which read as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal established by law.”
A. Applicability of Article 6 to the dispute
The Government's principal submission was that the provisions of Article 6 § 1 of the Convention were inapplicable to the present dispute.
They reiterated the principle of the French law of public accounting, which is the separation of the powers of authorising officers and accountants: the authorising officer has authority to deal with income and expenditure and the accountant is responsible for debt recovery and payments. Organically distinct from authorising officers, accountants have a duty to produce their accounts annually for settlement either by the public finance court or by the administrative authority designated by statute. In order to ensure compliance with the principle that the rendering of accounts is mandatory, this duty has been extended by the French courts to persons who de facto handle public funds. This principle has been enshrined in section 60-XI of the Law of 23 February 1963, according to which:
“Anyone who, without having the status of a public accountant or acting under the supervision and on behalf of a public accountant, interferes with the collection of revenue earmarked or destined for a public body having an accountant's department or being dependent on one shall, notwithstanding any proceedings that may have been instituted in the criminal courts, account to the public finance courts for the use of funds or securities that they have irregularly held or handled.
The same shall apply to anyone who directly or indirectly receives or handles monies or securities irregularly removed from the funds of a public body.”
The Government then pointed out that a finding of “de facto management” actually comprised three distinct phases. In the first instance the judge noted that the persons accounting for the use of public funds were de facto accountants. Secondly, these de facto managers submitted their unauthorised accounts to the judge: if there was surplus revenue as compared to the authorised expenditure and if they had not paid an amount equivalent to that surplus into public funds, de facto accountants were deemed to owe the balance to the public body. Lastly, the judge could decide to impose a fine on de facto managers for wrongly assuming public accountant functions.
These three phases were independent and each gave rise to a final decision against which lay an ordinary appeal or an appeal on points of law. They complied with the traditional “double judgment” rule, which obliged judges not to find accountants personally liable without having first sent them an interim decision putting them on notice to reply. Accordingly, there were special features to de facto management proceedings which did not all appear to attract the provisions of the Convention.
Firstly, many features distinguished declarations of de facto management from criminal charges. While the public prosecutor's submissions initiated the prosecution, a declaration that there had been a case of de facto management was not a punitive measure since it aimed merely to re-establish budgetary and accounting norms, that is, to include hitherto unrecorded operations in the public accountant's books. It was not a penalty and was made without the judge having to consider the concept of negligence or fraudulent intention. The only obligation imposed was to account for irregular operations before the public finance courts.
Secondly, during the settlement of accounts phase, the judge assessed the material evidence produced by the accountants. Repayment orders against them were limited to establishing that the documents submitted for the judge's assessment were inadequate. They did not reflect on the personal conduct of the accountants. According to the Conseil d'Etat, which the Government quoted, a decision to declare a de facto accountant a debtor of the public authority “is merely an objective ruling on the accounts and did not legally provide any legal assessment of the facts giving rise to the de facto management” (CE, 28 September 2001, Nucci).
Lastly, with regard to the possibility of imposing a fine, the Government did not dispute that this amounted to a penalty designed to penalise an interference with the special powers of public accountants and a failure to observe the separation between authorising officers and accountants or financial public policy. This third phase therefore fell within the scope of application of the Convention and the attendant guarantees (CE, 16 November 1998, SARL Deltana et M. Perrin, Recueil Lebon, p. 415). In their view, this was not relevant to the present case, however, since no final order to pay a fine had been imposed on the applicant.
The Government also argued that de facto management was not a matter of civil obligations either. They submitted that, unlike in civil proceedings, no contractual or extra-contractual obligation existed, prior to the final declaration, between the body whose funds had been irregularly handled and the future de facto accountants. Since the Tregloze judgment of 3 January 1957, the Court of Audit had ruled out regarding instances of unauthorised agency for the purposes of Article 1372 of the Civil Code as de facto management.
In the Government's submission, pecuniary interests were clearly at stake for de facto managers. However, according to the decision in Muyldermans v. Belgium (no. 12217/86, Commission decision of 17 January 1989, unreported, and judgment of 23 October 1991, Series A no. 214-A, opinion of the Commission), a possible obligation to repay was not sufficient to regard the obligation as a civil one for the purposes of the Convention.
In the instant case the Government pointed out that the public finance courts' power of appreciation was limited to the substance of the accounts. They judged accounts and not accountants. De facto accountants could be required to return public funds of which they had been the provisional and unauthorised depositaries, but that had to be distinguished from civil-law disputes aimed at obtaining compensation for damage or penalising non-compliance with an obligation. More generally, it was not the public body which brought an accountant before the public finance courts to claim compensation for the damage it alleged to have incurred on account of their conduct. Accordingly, the courts could not be regarded as having dealt with litigation, that is, a dispute brought before the judge by one of the litigants (see Benthem v. the Netherlands, judgment of 23 October 1985, Series A no. 97, pp. 14-15, § 32). The Government added that the accountant's financial position was not in actual fact governed by the public finance courts, which confined themselves to ruling on the accounts submitted to them and “balancing” the income and expenditure, but by the Minister of Finance, who had a statutory power to discharge accountants in respect of their management or order them to repay a deficit in the event of force majeure or absence of negligence.
The Government therefore submitted that, unlike the Belgian Court of Audit (see Muyldermans, cited above), or, for example, the Disciplinary Offences (Budget and Finance) Court, which determined criminal charges (see Guisset v. France, no. 33933/96, ECHR 2000-IX), the French Court of Audit and regional audit offices could not, when auditing accounts, judge the failings of accountants in the exercise of their functions. In their submission, it was clear from the established case-law of the Conseil d'Etat that the decisions of public finance courts were based on the actual substance of the accounts submitted for their examination and did not extend to an assessment of the accountant's personal conduct. The Government concluded from this that, in the wake of Schouten and Meldrum v. the Netherlands (judgment of 9 December 1994, Series A no. 304) and Pierre-Bloch v. France (judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI), Article 6 § 1 under its civil head was not applicable to de facto management proceedings.
The Government added, lastly, that in Pellegrin v. France ([GC], no. 28541/95, §§ 66-67, ECHR 1999-VIII) the Court held that disputes concerning public servants who exercise sovereign power in their dealings with the authorities were excluded from the scope of application of Article 6 § 1 regardless of the stakes involved in the dispute, even if they are exclusively financial. In the present case, although mayors were not subject to the general rules on the civil service and could not be regarded as public servants in the strict sense, it was nevertheless the “considerable responsibilities in the field of ... public finances, which is, par excellence, a sphere in which States exercise sovereign power” which had founded the de facto management proceedings brought against the applicant. The fact that in the present case municipal finances were in issue rather than State finances did not affect the manner in which the case should be treated.
The Government concluded that neither the civil nor the criminal provisions of Article 6 § 1 could apply to proceedings relating to de facto management or judgments regarding accounts issued by de facto accountants.
The applicant reiterated the position long adopted by the Conseil d'Etat and the Court of Audit according to which proceedings relating to de facto management could not attract Article 6 of the Convention. She asserted that there was a progressive trend in French law towards applying the Convention principles to proceedings relating to de facto management. She referred to the submissions of Principal State Counsel at the Court of Audit, Mrs Gisserot, who, in an opinion of the plenary Court of Audit of 7 October 1996, referred to the applicability of Article 6, and, after asserting “the need for a development in the case-law” regarding the European Convention on Human Rights, went on: “It is not beyond the bounds of possibility that the length of certain proceedings before the public finance courts, particularly concerning de facto management and late charges as a result of a succession of interim judgments or rulings, will draw criticism on grounds of the right to a fair hearing within a reasonable time.”
The applicant submitted that the legal reality – the risk of a fine and repayments that could run into very high sums – gave a very clear criminal connotation to the proceedings and imposed civil obligations on de facto accountants.
The Court reiterates that, generally speaking, proceedings before the courts of audit fall within the scope of application of Article 6 § 1 (see Francesco Lombardo v. Italy, judgment of 26 November 1992, Series A no. 249-B, Bottazzi v. Italy [GC], no. 34884/97, ECHR 1999-V, and Logothetis v. Greece, no. 46352/99, 12 April 2001; for the applicability of Article 6 § 1 to the Disciplinary Offences (Budget and Finance) Court, see Guisset, cited above).
The Court is required to determine whether, in the present case, the regional audit offices and the Court of Audit were asked to “determine civil rights and obligations” or “a criminal charge” against the applicant within the meaning of Article 6 § 1 of the Convention.
Firstly, the Court notes that, according to domestic case-law, proceedings in which the Court of Audit rules that there has been a case of de facto management constitute a single set of proceedings. It will not therefore split the proceedings up when examining the applicability of Article 6 of the Convention to them.
The Court reiterates that, in accordance with its established case-law, “Article 6 § 1 extends only to 'contestations' (disputes) over (civil) 'rights and obligations' which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for (civil) 'rights and obligations' in the substantive law of the Contracting States” (see The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80, and Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001-V). It will, however, only apply to disputes of a “genuine and serious nature” concerning “the actual existence of the ... right” and the scope or manner in which it is exercised (see Benthem, cited above, pp. 14-15, § 32).
The Court reiterates that the public finance courts have the task of auditing accounts issued by public accountants of territorial authorities and their public institutions and examining the management of those authorities and that of all bodies directly or indirectly dependent on them or in receipt of financial aid. They are thus judicial monitors of the regularity of operations by public accountants. In the event of irregular management, the accountant is ordered to repay a given sum to the authority whose funds he or she has handled. This verification of acts of management can raise an issue regarding the liability of officers and elected representatives of the territorial authorities who are deemed to be de facto accountants and are personally and financially liable for unauthorised accounting. In the instant case the applicant had previously been found to owe certain sums to the public authority in two sets of proceedings resulting in an obligation to repay funds representing the balance on the de facto management account. In the circumstances, the Court considers that a dispute arose from the time when the accounts that were examined showed that there had been mismanagement of public funds to the detriment of the Treasury. The dispute, which is genuine and serious, concerns the issue whether the applicant can obtain a discharge in respect of her obligations for the accounting years examined by the public finance courts. The outcome of the proceedings is therefore decisive for the obligation on the applicant to repay the amounts she has been ordered to repay to the State (see, mutatis mutandis, Muyldermans, opinion of the Commission cited above, pp. 13-14, § 46).
As to whether the dispute concerns civil rights and obligations, the Court reiterates that this notion is an autonomous one that cannot be interpreted solely by reference to the domestic law of the respondent State (see Ferrazzini v. Italy [GC], no. 44759/98, § 24, ECHR 2001-VII). Pecuniary interests are clearly at stake in the proceedings, but merely showing that a dispute is “pecuniary” in nature is not in itself sufficient to attract the applicability of Article 6 § 1 under its “civil” head. In the Government's submission, the obligation in question was not a civil one because it concerned the relations between public servants exercising powers conferred by public law and the authorities (see Pellegrin, cited above, §§ 66-67).
The Court does not share the Government's view on this point. Indeed, in her capacity as chairwoman of associations in receipt of public subsidies, the applicant did not participate in the exercise of powers conferred by public law and did not discharge tasks serving the general interest; moreover, a mayor of a municipality is not a civil servant or public employee in litigation with the State as their employer, but an elected representative having no hierarchical relationship with the State. The applicant is in fact in financial litigation with the State and could be regarded as having committed a tort causing the Treasury to sustain a loss which she has to make good.
In these circumstances, and after noting, moreover, the developments in the relevant domestic case-law, the Court considers that the dispute concerns a civil obligation. It does not therefore consider it necessary to give a ruling on the applicability of Article 6 under its criminal head, since the right which the applicant claims was violated applies in civil matters as well as in the criminal sphere.
The Government's objection cannot therefore be allowed.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits of the case, the applicant's complaint concerning the length of the proceedings;
RICHARD-DUBARRY v. FRANCE DECISION
RICHARD-DUBARRY v. FRANCE DECISION