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THE FACTS

1.  The applicant, Mr Michel Martinie, is a French national who was born in 1948 and lives in Papeete. He was represented before the Court by Mr M. Meyer, of the Strasbourg Bar. The Government were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

3.  In June 1987 the lycée René-Cassin in Bayonne – of which the applicant was the accountant – and the French Federation of Basque Pelota signed an agreement to set up a centre at the school which would allow young athletes to continue studying during their training: the Basque Pelota National Training Centre (Centre national d’entraînement à la pelote basque – “the CNEA”). The CNEA, which had no separate legal personality, was attached to the school’s budget. The headmaster of the school was the director and authorising officer in respect of expenditure, and the applicant, who was appointed general secretary, was the accountant. In December 1987 the headmaster instituted a fixed monthly allowance in favour of the director of the CNEA and its general secretary.

4.  On an audit of the accounts submitted by the applicant for the years 1989 to 1993, the Aquitaine Regional Audit Office gave interim rulings on 3 May 1996 and 11 March 1997 ordering the applicant to produce certain supplementary evidence.

In a judgment of 17 October 1997, the Aquitaine Regional Audit Office declared that the applicant owed the school the following amounts plus interest: 191,893.09 French francs (FRF), FRF 11,407.75 and FRF 17,806.60. Those amounts corresponded to payments made by the applicant in his capacity as public accountant of the school for the years 1989 to 1993. The first sum related to the fixed monthly allowance paid to the headmaster of the school in his capacity as director of the CNEA and to the applicant himself as general secretary; the second sum concerned a cashier’s indemnity paid to the applicant himself out of funds managed by the CNEA’s separate accounting department; and the third concerned the transfer of holiday compensation into the CNEA’s separate accounting department in favour of the director of the centre and the applicant himself. In its judgment, the Regional Audit Office noted that there was no executory resolution by the board of governors of the lycée René-Cassin granting these allowances – whereas that was the only body with power to set up a system of allowances – and, referring to the relevant provisions, pointed out that “the public accountant must satisfy himself that the documents he submits in support of the payments for which he takes charge are issued by the appropriate authority”.

5.  On an appeal by the applicant, the Court of Audit gave judgment on 20 October 1998, upholding the main provisions of the Regional Audit Office’s judgment but partly varying it by reducing the total amount payable to FRF 191,893.09.

6.  In a decision of 22 October 1999, the Conseil d’Etat declared an appeal on points of law lodged by the applicant “inadmissible”. The decision is worded as follows:

“Under section 11 of the Law of 31 December 1987 reforming administrative proceedings, ‘an appeal on points of law to the Conseil d’Etat is first subjected to an admissibility procedure. Leave to appeal is refused by judicial decision if the appeal is inadmissible or not based on a genuine ground of appeal’.

In applying for the judgment of 20 October 1998 [of] the Court of Audit to be set aside ..., Mr Martinie submitted that the judgment had been given in breach of the provisions of Article 6 § 1 of the Convention ..., since he had neither been summoned nor invited to submit his observations; he had not been aware of the date of the hearing fixed by the Court of Audit; and the rapporteur and counter-rapporteur had taken part in the deliberations of the Court of Audit. In his submission, the court had misdirected itself in law in considering that only an executory resolution of the school’s board of governors could have constituted justification for the payment; the accountant could not be held liable for the expenses paid by the [CNEA] prior to 21 February 1992, which was the date of his appointment as accountant of the ‘direct accounting department’ that had borne the irregular expenses; and, lastly, the Court of Audit had further misdirected itself in law by ordering repayment of the sum in question to the lycée René-Cassin.

None of these grounds justifies granting leave to appeal.”

B.  Relevant domestic law and practice

1.  Personal and financial liability of public accountants

7.  Section 60 of Law no. 63-156 of 23 February 1963 provides that public accountants are personally and financially liable for the audits they are required to carry out of income, expenditure and assets on the terms set forth in the general public accounting rules. In that connection, Articles 12 and 13 of Decree no. 62-1587 of 29 December 1962, which lay down general rules governing public accounting, provide as follows:

Article 12

“Accountants are required

...

B – in connection with expenditure, to check

that the authorising officer or his delegate has the requisite capacity to act;

that the funds are available;

that the expenditure is accurately attributed to the appropriate heads, in accordance with its nature or purpose;

that the claims are valid according to the terms set forth in Article 13 below;

that payment has been effected in accordance with the statutory conditions for discharging the debtor.

... ”

Article 13

“With regard to the validity of the claims, the accountants shall check

that the service has actually been rendered and the amounts accurately calculated;

that the statutory controls have been effected and the supporting documents produced.

In addition, in so far as provided by the rules specific to each public institution, public accountants shall check that the financial controllers’ stamp of approval has been affixed to the liabilities and payment authorisations issued by the main authorising officers.

Public accountants shall also check that the rules on limitation periods have been applied.”

2.  Judicial supervision of accounts of public accountants (principal source: http://www.ccomptes.fr)

(a)  Regional audit offices

8.  The accounts submitted by public accountants are reviewed by the courts. This task is entrusted to regional audit offices where the accounts of public accountants for territorial authorities and their public institutions are concerned (Article L. 211-1 et seq. of the Financial Judicature Code). They carry out a judicial inspection of the regularity of operations by accountants regarding both revenue and expenditure. The procedure is an obligatory one in which the regional audit offices give judgment clearing and settling the accounts irrespective of whether or not irregularities have been disclosed. The purpose of the inspection is not only to check that the accounts are in order, but also that the accountant has properly carried out all the necessary checks concerning, inter alia, the basis and the amount of any revenue or expenditure, and has not negligently caused a loss to the local authority.

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 (Article L. 231-7 of the Financial Judicature Code) and thus personally bear the financial consequences of an irregularity in management of the accounts.

This judicial inspection is conducted in accordance with the following stages: production of the accounts by the local  public accountant; adversarial investigation; report by the investigating judge; deliberations by the regional audit office; interim ruling; accountant’s reply; deliberations by the regional audit office; final judgment (discharge or repayment order).

9.  The accountant concerned or persons entitled through him, the local authority or public institution, the law officer attached to the regional audit office or Principal State Counsel at the Court of Audit may appeal to the Court of Audit against any final judgment delivered by the regional audit office (Articles L. 111-1, L. 211-1, L. 243-1 and R. 243-1 et seq. of the Financial Judicature Code).

(b)  The Court of Audit

10.  The Court of Audit is assisted by State Counsel’s Office under the supervision of Principal State Counsel, who is appointed to the court by decree issued by the Cabinet. State Counsel’s Office is the court body that acts as guardian of the State’s interests. It is assisted by a Principal Advocate-General and by advocates-general who are court judges.

11.  On an appeal against a judgment of a regional audit office, State Counsel’s Office communicates the appeal to the other persons having a right of appeal (Article R. 243-8, first paragraph, of the Financial Judicature Code) and sends a copy to Principal State Counsel at the Court of Audit (Article R. 243-8, second paragraph).The parties have one month from the transmission of the appeal in which to consult all the documents attached to the appeal at the registry of the regional audit office and to lodge defence pleadings. During the same period, State Counsel’s Office can submit observations. State Counsel’s Office serves a copy of the pleadings and observations on the applicant and the other parties, who may, within one month of transmission, lodge a reply, which is itself sent to the parties, and to which a rejoinder can be lodged within fifteen days. State Counsel’s Office may submit observations on the defence pleadings and the reply lodged by the various parties. These observations are served on the interested parties (Article R. 243-9). If further documents are added to the file the applicant and the other parties have fifteen days in which to inspect them and, if they wish, submit their observations to the registry of the regional audit office (Article R. 243-10). The appeal file is sent to Principal State Counsel at the Court of Audit by State Counsel’s Office at the regional office. State Counsel’s Office notifies the applicant and the other parties. The accounts the judgment being appealed is concerned with can be added to the appeal file, in whole or in part, at the behest of State Counsel’s Office at the regional office or at the request of Principal State Counsel at the Court of Audit (Article R. 243-11).

12.  Where the Court of Audit rules the appeal inadmissible, its judgment is final. If it considers that the appeal is admissible, it can rule immediately on the merits or order investigative measures by an interim judgment that is served on the accountant and the interested parties. It may order production of the accounts that are the subject of the judgment being appealed and of any documents that it considers necessary to enable it to give a ruling (Article R. 131-41 of the Financial Judicature Code).

13.  Where the Court of Audit hears an appeal against a regional audit office’s judgment, only the sessions in which it gives a final ruling on a finding of de facto management or imposing a fine are public. In the event of a public hearing, the parties are given prior notification of the date of the hearing and the court deliberates without the reporting judge or State Counsel being present (Articles R. 149-9 to R. 414-13 of the Financial Judicature Code, incorporated into the Code by Decree no. 2002-1201 of 27 September 2002).

Judgments given on appeal against a judgment of a regional audit office concerning a case of de facto management “shall be the subject of deliberations after evidence is heard, at their request, from the applicants and the other interested parties” (Articles L. 131-2 of the Financial Judicature Code). The same applies in favour of the “persons concerned” where a judgment imposing a fine is delivered (Article L. 131-13 of the Code). The Financial Judicature Code does not contain any provision of this type regarding the other instances of appeal.

3.  Case-law of the Conseil d’Etat

14.  According to the Conseil d’Etat, when the Court of Audit audits accounts submitted by public accountants, it does not determine a criminal charge or civil rights and obligations within the meaning of Article 6 § 1 of the Convention (see, inter alia, Conseil d’Etat (“CE”), 19 June 1991, Ville d’Annecy c. Dussolier, Recueil Lebon, p. 242, and CE, 3 April 1998, Mme Barthélémy, Recueil Lebon, p. 129). The position is only different when it judges cases in which a fine may be imposed (see CE, 16 November 1998, SARL Deltana et M. Perrin).

COMPLAINTS

15.  Relying on Article 6 § 1 of the Convention, the applicant complained of a breach, before the Court of Audit, of his right to a “fair and public hearing ... by an ... impartial tribunal”. He submitted that, prior to the hearing, neither he nor his lawyer had received the reporting judge’s report, and that the latter had taken part in the deliberations of the court despite having previously been involved in investigating the case. He added that he had neither been summoned to the hearing nor invited to submit observations, nor even informed of the date of the hearing, which, moreover, had not been public.

16.  Relying on Articles 6 § 1 and 13 of the Convention, the applicant complained that his appeal on points of law had been declared “inadmissible” by the Conseil d’Etat pursuant to section 11 of the Law of 31 December 1987 without being examined on the merits.

17.  Relying on Article 6 § 1 of the Convention, the applicant complained of a breach of the adversarial principle before the Conseil d’Etat as a result of the failure to communicate the submissions of the Government Commissioner (commissaire du Gouvernement) to applicants or their lawyers prior to the hearing and their inability to reply to them. On the latter point, he acknowledged that the parties were able to send a memorandum for the deliberations (note en délibéré) to the court, but stated that the court was neither obliged to record this in its decision nor to take account of it. Also on the basis of Article 6, the applicant complained of the Government Commissioner’s participation in the court’s deliberations.

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THE LAW

A.  The complaints concerning Article 6 § 1 of the Convention

19.  The applicant complained of several breaches of Article 6 § 1 of the Convention, according to which:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

1.  Applicability of Article 6 § 1 of the Convention

(a)  The parties’ submissions

20.  The Government submitted that, in the proceedings in question, the public finance courts had not been required to determine a criminal charge against the applicant or his civil rights and obligations.

In their submission, public accountants had a responsibility in the general interest and participated in the exercise of powers conferred by public law by wielding a portion of the State’s sovereign power. In Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII), the Grand Chamber of the Court had held that disputes involving public servants performing functions of this type fell outside the scope of Article 6 § 1, the States having a legitimate interest in requiring of these servants a special bond of trust and loyalty.

In any event, there were special features to the procedure for auditing the accounts of public accountants which brought it outside the scope of Article 6 § 1 under its criminal head. The judge’s task was confined to assessing the material documents produced by the accountants, and repayment orders against them were based exclusively on the inadequacy of that evidence and did not reflect on the conduct of the accountant. According to the Government, various specific features of this procedure were “incompatible with the concept of a criminal charge”, namely, the objective nature of the proceedings; the lack of any power by the judge to determine any wrongdoing or intention on the part of the accountant – this being reinforced by the fact that the Minister of Finance had sole power to ascertain whether there were mitigating circumstances; and the extension of an accountant’s liability, in certain conditions, to the actions of his subordinates, predecessors or managers.

Nor did a repayment order determine “civil obligations”. The Government accepted that there were financial stakes involved for accountants at the judgment phase, since the amounts they were ordered to pay by the public finance courts could be levied against their own assets. However, the public finance courts’ power of appreciation was limited to the substance of the accounts documents. They “judged accounts and not accountants”. Where applicable, the aim of a repayment order was not to make good the financial loss caused by a particular accountant to a local authority but to cover the amount of the irregular payment. Moreover, the accountant’s financial position was not in actual fact governed by the public finance courts, but by the Minister of Finance, who had a statutory power to discharge accountants in respect of their accounts or release them from the obligation to repay a deficit in the event of force majeure or absence of negligence. It was thus the minister and not the public finance courts who decided whether accountants were liable in respect of their own assets after assessing their omissions in the exercise of their duties and their ability to pay the amounts in question. The applicant had, moreover, obtained a discretionary ministerial decision on 7 June 2001 reducing the Court of Audit’s repayment order by EUR 21,953.91, with EUR 762,25 remaining payable by him.

The Government added that, unlike the Belgian Court of Audit – whose powers had been examined by the European Commission of Human Rights in Muyldermans v. Belgium (judgment of 23 October 1991, Series A no. 214-A, opinion of the Commission) – or the French Disciplinary Offences (Budget and Finance) Court – which determined “criminal charges” within the meaning of the Convention (the Government referred in that connection to Guisset v. France (no. 33933/96, ECHR 2000-IX)) – the role of the French Court of Audit and the regional audit offices was limited to re-establishing accounting norms.

The Government accordingly concluded that this part of the application was inadmissible as being incompatible rationae materiae with the provisions of the Convention.

21.  The applicant replied that Article 6 § 1 was applicable under its civil head and submitted that the objection raised by the Government should be dismissed.

He pointed out that proceedings for repayment of a deficit in an account, which involved the liability of public accountants in respect of their own assets, “indisputably had financial implications for the persons concerned”.

He added that his functions and those of the CNEA did not in any way involve the exercise of powers conferred by public law or the State’s sovereign power in the sense of Pellegrin, cited above.

He submitted in that connection that the aims of the CNEA were to host and provide transport, board and lodging to top athletes of the French Federation of Basque Pelota, and maintain the equipment and provide the material conditions for training them.

With regard to his own functions, they did not include any specific requirement to safeguard the State’s interests since they were merely accounting duties. As accountant of the lycée René-Cassin in Bayonne, he had only been the CNEA’s accountant because it was an “institution fully attached to the school”. Local State schools did not have public accountants that fell into the category of Public Treasury accountants. Appointed as he was by order of the Director of Education, he was a civil servant in the State education service, so that the hierarchical link between himself and the General Public Accounting Office was “very loose”. Moreover, the budgets of which he was in charge fell within the exclusive jurisdiction of the local authorities and were devoted to the supply of equipment and teaching materials and to the provision of board and lodging to State school pupils. The applicant pointed out in that connection that, in a communication of 18 March 1988, the European Commission found that State school teaching did not involve any participation in the exercise of powers conferred by public law or duties designed to safeguard the general interests of the State or other public authorities. In the applicant’s submission, domestic law followed “the same realistic guideline”. Circular DSS/4 B no. 2001-514 of 22 October 2001 “on the non-requirement of French nationality to occupy a post in a social security department” showed that the Minister of Employment and Solidarity had decided that “foreign nationals shall have access to all functions within the general system, including those ... of public accountants”. That, he argued, was “hard and fast proof that an accountant’s functions were not part of [sic] sovereign power since access was no longer reserved to nationals alone”. The applicant went on to argue that only authorising officers were empowered to enforce collection orders that had been issued. That was where the real mark of public authority lay. In the same way, only the authorising officer could suspend or annul proceedings brought against debtors, the accountant’s task being limited to inspecting the extrinsic regularity of the orders issued. The accountant took charge of those orders, thereby relieving the authorising officer of any financial liability, and executed the revenue orders for which he was responsible. Lastly, the applicant pointed out that, in Frydlender v. France ([GC], no. 30979/96, § 40, ECHR 2000-VII), the Grand Chamber of the Court had indicated that Pellegrin did not cast doubt on the principle that the exceptions to the safeguards afforded by Article 6 § 1 should be interpreted restrictively.

According to the applicant, Article 6 § 1 was also applicable under its “criminal” head to proceedings for repayment of a deficit in an account. Referring to the finding by the Conseil d’Etat that that was the case where a fine was imposed (CE, 16 November 1998, SARL Deltana et M. Perrin, RFDA 1998, 1047), he submitted that it had to be the case even where no fine was imposed, otherwise over-subtle distinctions and niceties were being made.

(b) The Court’s assessment

22.  Firstly, the Court reiterates that the fact that proceedings are conducted before the public finance courts does not suffice to remove them from the scope of Article 6 § 1 of the Convention. Having particular regard to France, it has held that this provision is applicable to proceedings before the Disciplinary Offences (Budget and Finance) Court (see Guisset, cited above), and to proceedings before the Ile-de-France Regional Audit Office and the Court of Audit, the purpose of which was mainly to determine whether the mayor of a Seine-Saint-Denis locality should be declared de facto accountant and ordered to make a repayment (see Richard-Dubarry v. France (dec.), no. 53929/00, ECHR 2003-XI; for examples concerning the courts of other Contracting States, see, among other authorities, 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, bearing in mind that these judgments concern rulings by the Italian and Greek Courts of Audit on disputes concerning government employees’ pensions, which is of course different from audits of accounts submitted by accountants).

23.  In the present case, the applicant complained of a breach of Article 6 § 1 of the Convention before the Court of Audit, which heard an appeal from a judgment of the Aquitaine Regional Audit Office of 17 October 1997 declaring that he owed a debt to the lycée René-Cassin in Bayonne of which he was the accountant, and before the Conseil d’Etat, which subsequently examined an appeal on points of law against the judgment of the Court of Audit of 20 October 1998. The only question which arises is whether or not those proceedings related to “the determination of ... civil rights and obligations” or of a “criminal charge” within the meaning of Article 6 § 1.

24.  The Court notes that it is not in issue that there was a “dispute” over an “obligation” of the applicant. It therefore intends to confine itself to determining whether this “obligation” was a “civil” one.

25.  The Court observes that the French public finance courts have the task of auditing accounts submitted by public accountants of territorial authorities and their public institutions. They are the judicial watchdogs of the regularity of operations by public accountants. The procedure is an obligatory one in which the courts give judgments settling and clearing accounts, whether irregularities have been disclosed or not. The purpose of the inspection is not only to check that the accounts are in order, but also that the accountant has properly performed all the checks that he or she is required to carry out and has not negligently caused a loss to the local authority. Final judgments discharge the accountant or declare that the accounts disclose a debit, that is, order the accountant to repay a sum to the authority and thus personally bear the financial consequences of an irregularity in management of the accounts.

26.  In the instant case, before the Court of Audit, the “dispute” concerned the issue whether the applicant had negligently caused a loss to the lycée René-Cassin in Bayonne by omitting to carry out all the checks that he was required to perform in his capacity as the school’s accountant. The proceedings were to end either with the applicant being discharged or a finding that the accounts disclosed a debit. Thus, the outcome of those proceedings was decisive for the “obligation” on the applicant to bear personally the financial consequences of an irregularity in the management of the accounts. In fact, the Court of Audit upheld the judgment of the Aquitaine Regional Audit Office ordering him to repay a debit and fixed the amount at FRF 191,893.09, which meant that he had to pay that sum.

27.  That “obligation” undoubtedly has a “public” connotation in French law, as is evidenced, in particular, by the fact that the dispute falls within the jurisdiction of specialist administrative courts, subject to final review by the Conseil d’Etat.

The concept of “civil rights and obligations” cannot, however, be interpreted solely by reference to the domestic law of the respondent State. The Court has on several occasions affirmed the principle that these concepts are “autonomous” within the meaning of Article 6 § 1 of the Convention. It considers that any other solution might lead to results incompatible with the object and purpose of the Convention (see, inter alia, Ferrazzini v. Italy [GC], no. 44759/98, § 24, ECHR 2001-VII). Accordingly, the fact that in the system of a particular Contracting State proceedings are a matter of public law cannot alone have the effect of removing them from the scope of Article 6 § 1.

According to the Government, account had to be taken of the fact that the “obligation” in question related to the relationship between public servants performing powers conferred by public law and the authorities. Referring in that connection to Pellegrin (cited above), they concluded that it was not a “civil” one.

The Court does not share this opinion. It reiterates that the criterion of “participation in the exercise of powers conferred by public law” established in Pellegrin is solely intended to enable it to be determined whether disputes relating to the recruitment, careers and termination of service of public servants fall outside the scope of Article 6 § 1 under its civil head. That is not the subject of the proceedings in question here. Pellegrin is therefore irrelevant to the instant case.

28.  On the other side of the scales are the manifestly pecuniary implications of the “obligation” in question for the applicant, which in principle give it a “civil” connotation.

Admittedly, it is not sufficient to show that a dispute is “pecuniary” in nature for it to be covered by the notion of “civil rights and obligations” (see, among other authorities, Pierre-Bloch v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2235, § 51). There may exist “pecuniary” obligations vis-à-vis the State or its subordinate authorities which, for the purpose of Article 6 § 1, are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of “civil rights and obligations”. Apart from fines imposed by way of “criminal sanction”, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society (see, for example, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, pp. 20-21, § 50, and Ferrazzini, cited above, § 25).

However, none of those situations applies here.

The purpose of the “obligation” in issue in the present case is above all to make good the loss caused to the local authority by the public accountant’s negligence in performing the checks he was required to carry out. The applicant was therefore involved in a financial dispute with the local authority and his position was similar to that of a person who has committed a tort and has to make good the damage he or she has occasioned (see, mutatis mutandis, Richard-Dubarry, cited above). However, the dispute is not comparable to that of a taxpayer contesting the principle or amount of a tax being claimed from him or her, as in Ferrazzini, cited above.

29.  The Court concludes from the foregoing that the private-law features predominate in the present case and that the “obligation” in question is a “civil” one within the meaning of Article 6 § 1 of the Convention. The “civil” head of that provision is therefore applicable.

That being so, the Court does not 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 “criminal” matters (ibid.). Moreover, and as a subsidiary consideration, proceedings for restitution of a deficit in an account do not appear to the Court to amount to a “criminal charge”.

30.  Accordingly, the objection raised by the Government regarding the inapplicability of Article 6 § 1 cannot be allowed.

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MARTINIE v. FRANCE DECISION


MARTINIE v. FRANCE DECISION 


MARTINIE v. FRANCE DECISION