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THE FACTS

The applicant, Jean-Louis Didier, is a French national who was born in 1962 and lives in Neuilly-sur-Seine. He was represented before the Court by Mr C. Bremond, of the Paris Bar.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is head of the arbitrage department of Dynabourse SA, a company, and is in charge of the transactions carried out by Dynabourse Arbitrage, a commercial partnership in which Dynabourse SA has a stake of more than 77%.

In the light of a report drawn up by its inspectors following an inquiry, the Stock Exchange Regulatory Authority (Commission des opérations de bourse) applied to the Financial Markets Board (Conseil des marchés financiers – “the FMB”) to have disciplinary proceedings instituted against the applicant.

On 1 July 1998 the chairman of the FMB notified the applicant of the complaints against him.

On 27 January 1999 the Financial Markets Board, exercising its disciplinary powers, decided to suspend the applicant’s trading licence for six months and fined him 5,000,000 French francs.

On 30 April 1999 the applicant brought an action in the Conseil d’Etat, seeking to have the decision in issue quashed and its execution stayed.

On 3 December 1999 the Conseil d’Etat dismissed the applicant’s action. It held, in particular, that when dealing with a case concerning acts for which disciplinary penalties could be imposed, “the Financial Markets Board must be regarded as determining criminal charges within the meaning of the aforementioned provisions of the ... Convention for the Protection of Human Rights and Fundamental Freedoms”.

The Conseil d’Etat further held:

“Seeing that an action may be brought in the Conseil d’Etat in respect of a decision by the Financial Markets Board, the fact that proceedings before the Board might not satisfy the requirements of Article 6 § 1 in every respect cannot be taken to constitute an infringement of the right to a fair hearing in all such cases.

However, even though the Financial Markets Board, when exercising its disciplinary powers, is not a court under domestic law, the ground of appeal to the effect that the manner in which it dealt with the case contravened the principle of impartiality set forth in the aforementioned Article 6 § 1 may, having regard to its nature, membership and functions, be validly relied on in support of an action in the Conseil d’Etat in respect of a decision by the Board.

... the rapporteur, who does not initiate the referral process, plays no part in the formulation of complaints. He does not have the power to discontinue proceedings or, conversely, to broaden the scope of a case. The investigative powers he enjoys in assessing the validity of the complaints and of the observations of the person against whom proceedings have been brought do not authorise him to make searches or seizures or to take any other coercive measures during the investigation. In the present case ... it has not been established, or even alleged, that in performing his duties the rapporteur exceeded the powers which were conferred on him by the provisions cited above and which are no different from those available to the Financial Markets Board’s disciplinary panel itself. Consequently, his participation in the deliberations and vote that resulted in the imposition of a penalty on Mr Didier did not give rise to any breach of the principle of impartiality as set forth in Article 6 § 1 of the ... Convention for the Protection of Human Rights and Fundamental Freedoms.”

B.  Relevant domestic law

The relevant provisions of Decree no. 96-872 of 3 October 1996 on the disciplinary panels of the Financial Markets Board are worded as follows:

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Article 8

“The decision shall be served on the person concerned and on the Government Commissioner by means of a registered letter with recorded delivery. The Board shall, where appropriate, notify its decision to the referring entity. Persons on whom penalties are imposed and the Minister for Economic Affairs and Finance shall have two months to bring an action in the Conseil d’Etat; in the Minister’s case, that time shall start to run from the date on which the decision is served on the Government Commissioner. ...”

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COMPLAINTS

1.  The applicant submitted, firstly, that on account of the severity of the penalty imposed on him, he should have been tried at first instance by a proper “tribunal” within the meaning of Article 6 § 1, a designation which, according to the Conseil d’Etat, did not apply to the FMB. That requirement also followed from the right to a review by a higher tribunal within the meaning of Article 2 of Protocol No. 7.

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THE LAW

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3.  The applicant complained that he had not been tried at two levels of jurisdiction despite being the subject of a criminal charge, in breach of Article 6 § 1 of the Convention and Article 2 of Protocol No. 7, which provides:

“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.

2.  This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”

The Court reiterates that the Contracting States dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right (see, mutatis mutandis, Haser v. Switzerland (dec.), no. 33050/96, 27 April 2000, and Krombach v. France, no. 29731/96, § 96, ECHR 2001-II).

The Court notes that Article 8 of Decree no. 96-872 of 3 October 1996 on the FMB’s disciplinary panels provides for the possibility of bringing an action in the Conseil d’Etat. It accordingly considers that neither Article 2 of Protocol No. 7 nor Article 6 § 1 of the Convention has been breached. The Court takes the view that, in the light of the principles established in its case-law and its autonomous interpretation of the term “tribunal” in Article 6 § 1 of the Convention, the FMB has to be regarded as a “tribunal” for the purposes of those provisions, irrespective of its classification in domestic law (see, among other authorities, Sramek v. Austria, judgment of 22 October 1984, Series A no. 84, p. 17, § 36). It further observes that a “tribunal” within the meaning of Article 6 is also one within the meaning of Article 2 of Protocol No. 7 (see Hauser v. Austria, Commission decision of 16 January 1996, Decisions and Reports 84-A, p. 164). The Court lastly notes that when reviewing decisions by the FMB, the Conseil d’Etat is competent to deal with all aspects of the case, so that in that respect it too is a “judicial body that has full jurisdiction”, and thus a “tribunal” (see, for the converse, Diennet v. France, judgment of 26 September 1995, Series A no. 325-A, p. 15, § 34). That being so, the Court considers that the applicant was afforded the right of appeal in a criminal matter, in accordance with the first paragraph of Article 2 of Protocol No. 7.

It follows that this complaint must likewise be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

DIDIER v. FRANCE DECISION


DIDIER v. FRANCE DÉCISION