THIRD SECTION

FINAL D ECISION

ON ADMISSIBILITY

of application no. 27521/04 by Jean MOULLET against France

The European Court of Human Rights ( Third S ection), sitting on 13 S eptemb er 2007 as a chamb er compos e d of :

M r B.M. Zupančič , P r e sident , Mr C. Bîrsan , Mr J.-P. Costa , M rs E. Fura-Sandström , M r E. Myjer , M rs I. Ziemele, M rs I. Berro-Lefèvre, ju d ges , and M r S. Quesada, S ection Registrar ,

Having regard to the above-mentioned application lodged on 22 July 2004,

Having regard to the parti al d e cision of 4 Ap ril 2006,

Having regard to the observations submitted by the respondent Government and those submitted by the applicant in reply ,

Having d e lib e r ated , pronounces the following d e cision :

THE FACTS

The applicant , M r Jean Moullet, is a French national who was born in 1940 and lives in Marseille s . He was repr e sent e d before the Cour t by Mr Boumaza, a member of the Marseille s Bar . The French Government ( “ the Government ” ) were repr e sent e d by their A gent, Mrs E. Belliard , D irect or of Legal A ffairs , M inist ry of Foreign Affairs.

A. The circ um stances of the case

The fa c ts of the case, as submitted by the parties, may be summarised as follows .

1. Background to the case

On 15 N ovemb er 1982 the former regional direct o r of the Soci é t é Marseillaise d ’ Assainissement refuse disposal company informed the Marseilles public prosecutor ’ s office that fraudulent transactions had taken place in the attribution of urban refuse collection contracts concluded between the Marseille s city authorities and various private firms in 1978. He alleged that in order to win a contract firms had had to pay a commission to a municipal councillor in charg e of cleaning services in the city and his deputy, in exchange for which the firms were granted very advantageous terms . On 24 June 1983 a judicia l investigation was opened for bribery , accepting bribes, fraud and aiding and abetting fraud to the detriment of the city of Marseille s . The city authorities joined the proceedings as a civil party . The ensuing proceedings concerned the participation i n 1978 of eleven people – contractors and city officials , including the applicant – in fraudulent transactions connected with household refuse collection contracts in Marseille s . T he applicant , as manager of the city ’ s Transport, Workshop and Warehouse (T W W ) department – which was close ly connected to the c leaning d epartment in issue – was accused of having participated in th os e offences and having unduly receiv ed 10 , 000 French francs ( FRF ) (approximately 1 , 524 euros (EUR) ) on 20 March 1978 and F RF 22 , 800 ( approximately EUR 3 ,475 ) on 6 Ap ril 1978, in commissions for facilit ating the attribution of household refuse disposal contracts to certain firms .

In an order of 3 August 1984 the applicant was suspend ed pending the outcome of criminal proceedings against him on charges of accepting bribes and aiding and abetting fraud , and his suspension was extended by a second order on 4 D ecemb er 1984 .

By a decision of the Indictment Division of the Dijon Court of Appeal pronounced on 5 N ovemb er 1987 , the applicant was discharged as the offences were subject to a three-year time bar . Having established the background and context of the case , the Division noted that a search carried out at the home of one of the contractors in Ap ril 1984 had brought to light secret accounting documents on which the applicant ’ s initials “ J.M. ” appeared , as well as cassette recordings of t e l e phon e conversations between diff e rent protagonist s in the case – including the applic ant – in May 1978, which revealed that the applicant was “very closely linked to the op e rations concerned” and had received various sums of money . In his respect the Indictment Division held :

“Mr Moullet acknowledged that it was his voice that I. had recorded, but he nevertheless denied the charges against him, submitting that he had played no part in the attribution of the impugned contracts and that , even assuming that S. had intended to pay him , he had never received any money .

Thanks to the cassettes, it is easy to understand why, early in 1978, Mr Moullet found himself very closely involved in the op e rations mounted by [ the main protagonists in the case ] S., T. and I.; the TWW D epartment he manage s is very close ly linked to the Cleaning Department , which it supplied with the vehicles it used; so it was only natural that S. should seek Mr Moullet ’ s support .

Furthermore , S. was also int e res ted in the Marseille s city authorities ’ contracts to purchase cleaning vehicles , and Mr Moullet played a central part in that process , the choi ce of equipment being made in the light of a technical report drawn up by t he Cleaning and TWW departments.

T he cassette recordings , like I. ’ s secret accounts , reveal that Moullet received F RF 10 , 000 on 20 March 1978 and F RF 22 , 800 on 6 A p ril 1978.

As it has not been established that any other payments were made to him after that date, the limitation period for the charges against Mr Moullet has expired . ”

Four of the accused lodged appeals on points of law . In a judgment of 26 July 1989 the Criminal Division of the Court of Cassation set aside the part of the judgment of 5 November 1987 committing the four appellants for trial before the criminal court for fraud and aiding and abetting fraud , while upholding th e parts concerning bribery and accepting bribes , and sent the case and the parties before the Indictment Division of the Lyons Court of Appeal . In a judgment of 2 July 1991 that court found that there were no grounds to bring proceedings for fraud and aiding and abetting fraud against certain of the accused and committed the others for trial before the Marseille s Criminal Court . In a ju dg ment of 30 June 1992, the court acquitted one of the accused and found that, for the others, the offences of bribery and accepting bribes were established and that they were amnestied by virtue of the Amnesty Act of 20 July 1988.

2. The applicant ’ s request to be reinstated

On 9 February 1988 the applicant applied to the mayor to be reinstated in his post . Having received no reply , the applicant applied to the Marseille s A dministrati ve Court to set aside the mayor ’ s implicit refusal .

In a ju dg ment of 13 November 1990, the court dismissed the applica tion and the applicant lodged an appeal with the Conseil d ’ E tat . In a judgment of 3 May 1995 the Conseil d ’ Etat set aside the administrative court ’ s decision on the grounds that the mayor ’ s implicit refusal was unlawful: the re was no justification for the applicant ’ s suspension to continue after the proceedings against him had been discontinued .

3. The applicant ’ s compulsory retirement as a disciplinary measure

On 26 March 1990 the Mayor of Marseille s ordered the applicant ’ s compulsory retirement as of 1 January 1990, his pension rights being deferred until 12 D e cemb er 2000, by virtue of the L aw of 13 July 1983 on the rights and duties of civil servants .

On 25 May 1990 the applicant applied to the Marseille s A dministrati ve Court for the mayor ’ s order to be set aside . In a judgment of 13 D e cemb er 1993 the court set aside the order for failure to give adequate reasons .

On 17 January 1994 , basing himself on the findings of the Indictment Division of the Dijon Court of Appeal in its decision of 5 November 1987, the mayor again ordered the applicant ’ s compulsory retirement as of 1 February 1994, stating the following reasons:

“The evidence in the proceedings before the Indictment Division of the Dijon Court of Appeal in the case of [S.] and O thers , and the Indictment Division ’ s decision of 5 November 1987 confirm that [ the applicant ] , in the performance of his duties , unlawfully received the sum of F RF 10 , 000 on 20 March 1978 and F RF 22 , 800 on 6 April 1978 .

The criminal court found that prosecution was time-barred , the offences having been committed in 1978 .

Disciplinary action by the local authority is not subject to limitation, (...) .

Consid e r ing the gravit y of [ the applicant ’ s ] dereliction of his duty of probit y , loya lty , profession al discretion and neutralit y , especially as he occupied a post of confi de nce and respons i bilit y . ”

On 25 July 1994 the applicant applied to the Marseille s A dministrati ve Court for that order to be set aside .

a) The Marseilles Administrative Court ’ s judgment s of 11 February 1999

In a judgment pronounced on 11 February 1999 ( no. 944466), the Marseille s A dministrati ve Court set aside the order of 17 January 1994 ( point 1 of the operative provisions of the judgment ), for the following reasons :

“ Firstly, only decision s given by a criminal court trying the merits of the case in criminal proceedings are bindi ng on the administrative courts ; this is not the case of the judgment s of indictment divisions, no matter what findings they are based on ; that being so, the administrati ve court has full power to assess the material facts alleged against the applicant .

Secondly , the conclusions drawn from the secret accounting documents mention ed above , seized from a third party, simply show entries which have no probative value whatsoever ; moreover, the transcript s of the recorded telephon e conversations , also relied upon by the Marseille s city authorities , do not establish with any certainty the identity of one of the participants, called Jean, and the applicant denies having taken any part in the conversations, and in any event they do not prove irr e futabl y that any sums of money were paid to Mr Moullet; and lastly , nor do the records of the hearings before the I ndictment D ivision , during which Mr Moullet always denied the accusations against him , offer any proof, considering the inconclusiveness of the evidence, that he actually received any sums of money in the performance of his duties ; under these circumstances , given the inconclusiveness of the evidence in the case file , the acts of which the applicant stands accused cannot be considered to have been established ... ”

The court accordingly announced that execution of the judgment required the City of Marseille s to reinstate the applicant in his post , and that the unlawfulness of his suspension gave rise to a cause of action in tort . I t ordered the city authorities to reinstate the applicant and to re constitute his career as of 1 February 1994, awarded him FR F 30 , 000 ( about EUR 4 , 500 ) in respect of non-pecuniary damage and dis ruption to his life , and ordered further investigations to assess the amount due in respect of pecuniary damage from 1 February 1994 onwards ( points 2 to 7 of the operative provisions of the judgment ).

In another judgment pronounced on 11 February 1999 ( no. 944205/956956), the Marseille s A dministrati ve Court set aside the mayor ’ s implicit refus al s to reinstate the applicant and reconstitu te his career between 1 Oc tob er 1984 and 31 January 1994, ordered the retrospective adjustment of his career ( point 2 of the judgment ), ordered further investigations to assess the pecuniary damage for the period from 1 O ctob er 1984 to 31 December 1989 ( point 4 of the judgment ) and ordered the city authorities to pay F RF 30 , 000 in respect of non-pecuniary damage and disruption to his life ( point 6 of the judgment ) plus F RF 1 , 160 , 000 in respect of pecuniary damage sustained over the p e riod from 1 January 1990 to 31 January 1994 ( point 5 of the judgment ).

The applicant and the municipality appealed against the two judgment s of 11 February 1999 ( app eal s 99MA00711, 99MA00727 and 99MA00728).

b) The Marseilles Administrative Court of Appeal ’ s judgment of 27 June 2000

In a judgment of 27 June 2000 the Marseilles Administrative Court of Appeal joined the appeals . It decided that the sum of F RF 1 , 160 , 000 which the Marseille s city authorities had been ordered to pay in respect of pecuniary damage for the p e riod from 1 January 1990 to 31 January 1994 should be reduced to F RF 743 ,416 , confirmed the sum awarded in respect of non-pecuniary damage for the same period and rejected the remainder of the parties ’ appeals .

The City of Marseille s lodged an appeal on points of law with the Conseil d ’ E tat against the judgment of 27 June 2000. The applicant lodged a cross-appeal against the same judgment , in so far as it had limit e d to F RF 30,000 the amount awarded in respect of the non-pecuniary damage and the disruption to his life caused by the administrative sanction imposed on him .

c) J udgment of the Conseil d ’ E tat of 8 March 2004

In a judgment of 8 March 2004 the Conseil d ’ E tat set aside the Administrative Court of Appeal ’ s judgment of 27 June 2000 “in so far as it rejected, on the one hand, the conclusions of the Marseille s city authorities submitted in appeal no. 99MA00727 and , on the other , those submitted in appeal no. 99MA00728 concerning [ the applicant ’ s ] compensation for pecuniary damage for the p e riod from 1 January 1990 to 31 January 1994, as well as points 1 to 7 of judgment no. 9 4 4466 of 11 February 1999 of the Marseille s Administrative Court of Appeal and points 5 and 7 ( in so far as the latter referred to the said point 5 ) of the same court ’ s judgment no. 944205/956956 of 11 February 1999 . The Conseil d ’ E tat held, in particular:

“ As to the l e galit y of the order of 17 January 1994 :

“ T he file submitted to the trial court co ntained the judgment of 5 November 1987 to the effect that , after having acknowledged that the acts of which [ the applicant ] stood accused had been established , the Indictment Division of the Dijon Court of Appeal discontinued the proceedings on the grounds that the prosecution was time-barred ; the file also contained the submissions made before the Dijon Indictment Division when criminal proceedings were brought against [ the applicant ], and several items of evidence gathered during the investigation . T he submissions describe in detail the evidence that convinced the prosecution that [ the applicant ] had been involved in May 1978, together with three ac complices, in dealings aimed at distorting the conditions of r e attribution of municipa l contracts for the collection of household refuse and charging the contractors various sums intended , at least in part, for their personal gain . T he first item in the court ’ s file was the transcript of a t e l e phone conversation that took place on 26 May 1978, in which [ the applicant ] confessed to having taken part , and in which [ the applicant ] expressed concern that the mastermind behind the scheme would keep all the funds collected for himself . T he second item in the file was the transcript of another telephone conversation that took place the following day between two [ of the applicant ’ s ] ac complices, mention ing that the latter had recently received F RF 10 ,000 , and the third item in the file was the secret accounts kept by one [ of the applicant ’ s ] ac complices showing how the payment made by one of the above-mentioned contractors had been divided up in March and April 1978 between the four accomplices , who were designated by their initial s . The court would have been denying the evidence had it found that it did not constitute a body of concordant evidence establishing that [ the applicant ] had committed the offences of which he was accused. The Marseille s city authorities are accordingly justified in applying for the impugned judgment to be set aside in so far as it rejects the ir grounds of appeal against the second of the judgment s of 11 February 1999 .

Concerning the compensation for pecuniary damage for the p e riod from 13 June 1984 to 31 January 1994:

T he d e cision of 3 May 1995 of the Conseil d ’ Etat , acting in its judicial capacity , that the implicit rejection by the Mayor of Marseille s of [ the applicant ’ s ] request of 9 February 1988 to be reinstated in his job following the discontinua nce of the proceedings against him was unlawful , as the ruling that the criminal proceedings were time-barred, effectively removed the obstacle to his reinstatement. It follows that the A dministrative C ourt of A ppe a l did not err in law in consider ing that [ the applicant ] was entitled to compensation for the pecuniary damage caused to him until 31 December 1989 by the ill e gal refusal to terminate his suspension.

...

On the appeal submissions of the City of Marseille s and the cross-appeal [ by the applicant ] against the Marseilles Administrative Court ’ s judgment no. 944466 of 11 February 1999 :

It is clear from the above that the City of Marseille s has good reason to maintain that , by its judgment of 11 February 1999 , against which an appeal was lodged, the Marseille s A dministrati ve Court was wrong to find that it had not been established that [the applicant] had committed the offences of which he was accused .

The appeal procedure has the effect of transferring all the issues of fact and law to the Conseil d ’ Etat , so it is for the latter to examine the other submissions made .

The documents in the case file show that the disciplin ary board and the disciplin ary appeals board, when called on to examine the ca se at hand , based their findings on accurate facts .

The reasoning behind the impugned sanction is not faulty in any way and what was said above shows that the reasons on which that decision was based are not materially or factually incorrect.

Lastly , in view of the gravity of the dereliction of the duty of probity by the person concerned , the Mayor of Marseille s made no manifest error of judgment in ordering the [ the applicant ’ s ] compulsory reti rement .

It follows from the above that the City of Ma rseille s is justified in requesting that the judgment of 11 February 1999 be set aside in so far as it set aside the judgment of 17 January 1994, awarded [ the applicant ] compensation , called for investigative me a sures and pronounced various inj u nctions. ”

B. Relevant domestic law and practice

The disciplina ry rules to which local government employees are subject are laid down in the L aw of 13 July 1983 on the rights and obligations of civil servants ( whose g e n e ral terms and conditions of service are common to the three publi c service s – State , local authorities and hospital s ) and that of 26 January 1984 on statut ory provisions relati ng to public servants in local government . The former law stipulates :

Section 29

“Any fault committed by a civil servant in or during the performance of his duties shall expose him to a disciplina ry sanction , without prejudice, where applicable , to the penalties provided for in criminal law . ”

Section 30

“In the event of a serious fau lt committed by a civil servant , through dereliction of professional duty or a breach of the law, the person responsible may be suspend ed by the relevant disciplina ry aut h orit y, which shall immediately refer the matter to the disciplin ary board .

The civil servant thus suspend ed shall conserve his salary , r e sidence allowance , family allowance and statutory family benefits . His situation must be fully resolved within four months . If, when that period expires , no d e cision has been taken by the authority with disciplina ry po w er , unless criminal proceedings have been brought against him, the person concerned shall be reinstated in his post .

If a civil servant is not reinstated in his post pending the outcome of criminal proceedings, up to half his remuneration mentioned in the preceding paragraph may be withheld . He shall nevertheless continue to receive the full family allowance and family benefits to which he is entitle d .”

The sanctions applicable to local government employees break down into four groups under section 89 of the L aw of 26 January 1984 , which provides :

Section 89

“ D isciplina ry sanctions shall fall into four groups:

First group: warning ; reprimand ; tempora ry suspension for no more than three days ;

Second group: downgrading ; tempora ry suspension for between four and fifteen days ;

Third group: demotion ; tempora ry suspension for between sixteen days and six months ;

Fourth group: compulsory retirement ; dismissal .

Of the sanctions in the first group, only reprimands and tempora ry suspensions shall be noted in the civil servant ’ s record . They shall be automati cally erased after three years if no further sanction has been imposed in the meantime .

T empora ry suspension from duty , which deprives the person concerned of all r e mun e ration, may be deferred in full or in part . In the case of tempora ry suspension from duty as provided for in the third group, the aforesaid deferral of th is sanction shall not result in the reduction of the duration of the suspension from duty to less than three months . The imposition of a further disciplina ry sanction from the second and third groups within five years of the pronouncement of the temporary suspension from duty shall cancel the deferral of the first sanction. On the other hand, if no further disciplina ry sanction other than a warning or a reprimand is pronounced against the person concerned within that five-year period , the person shall be fully exempted from that part of the sanction which was suspended .

D isciplina ry power shall lie with the local authority after consultation of the joint administrative committee sitting as a disciplinary board . It shall be exercised in the conditions provided for in section 19 of Part I of the Local Government Service Code . The local aut h orit y may d e cide, after consult ing the disciplinary board , to make public the d e cision imposing the sanction and the reasons for it .

For each of the sanctions in the second and third group s as d e fin ed in the first paragraph of this section , the conditions and time-limits for deleting the record of the sanctions from the person ’ s record shall be defined by decree . ”

Moreover , Article 13 of decree no. 89-677 of 18 S eptemb er 1989 on disciplina ry procedure applicable to local authority employees provides :

“ The disciplin ary board shall determine the issue within two months of the day on which the local authority refers the matter to it . That deadline shall not be extended when an inquiry is carried out .

The deadline shall be reduced to one month if the civil servant against whom proceedings have been brought has been suspended from duty .

When meetings of the board are postponed in application of Article 8 of this d e cree , the deadline shall be extended for the duration of the postponement .

If criminal charges have been brought against the civil servant , the disciplin ary board may , by a majorit y of the memb er s pr e sent, suggest suspend ing the disciplina ry proceedings until the court has reached a d e cision. If the local a ut h orit y decides to continue the proceedings, however , the board must adjudicate within the prescribed time-limit as from the time of notification of that d e cision. ”

The lawfulness of d isciplina ry sanctions is subject to review . On an application for judicial review, the administrati ve court v e rifie s that the sanction imposed is provided for by law and that the rules governing form, substance and comp e tence have been respect e d . Review of the lawfulness of d isciplina ry sanctions includes whether the facts alleged against the official have been made out , their legal characterisation and the proportion ality of the sanction.

The disciplina ry liability of local government staff is distinct from their criminal liability, particularly in terms of how it is established and the proc e dur e followed ( Conseil d ’ E tat , 14 March 2005, Gollnish, no. 278435), the administrati ve court determining, with regard to the rules governing the civil service and the available evidence, whether a civil servant ’ s conduct amounts to a failure to fulfil his profession al duties capable of rendering him liable to disciplina ry action . Lastly , in its judicial capacity the Conseil d ’ E tat has established the princip l e that a final criminal judgment is binding on the administrative courts in so far as findings of fact and d e clarations of guilt in d e cisions of the trial courts ruling on the merits of the prosecution are concerned ( Conseil d ’ E tat , 12 July 1929, Vesin). The result is that the administrati ve court is not bound by orders or decisions of the investigating courts to discontinue proceedings ( Conseil d ’ Etat , 5 May 1976, Lerquemain, no. 98276).

COMPLAINT

Relying on A rticle 6 § 2 of the Convention, the applicant complain ed of a violation of the pr e s u mption of innocence. He consider ed that the judgment of the Conseil d ’ Etat of 8 March 2004 mention ed his guilt solely on the basis of facts established by an investigati ng court . He was subsequently discharged and the proceedings against him were terminated as statute-barred . He accordingly submit ted that the judgment of the Conseil d ’ Etat should not have mention ed those facts .

THE LAW

The applicant complain ed of a violation of the pr e s u mption of innocence. He relie d on A rticle 6 § 2 of the Convention , which reads as follows :

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. T he parties ’ submissions

1. The Government

The Government consid ered first of all that A rticle 6 § 2 was inapplicable ratione materiae to the administrative proceedings in question .

They submitted that the proceedings did not concern a criminal charge as the applicant had not been “charged” within the meaning of that provision of the Convention before his employer or before the administrative court s. Pointing out that the “criminal sphere” had to be d e fin ed according to the three criteria set forth in the Engel and Others v . the Netherlands judgment of 8 June 1976, and that the case at issue concerned a disciplinary sanction , they argued that what had to be determined was whether the sanction fell within the criminal sphere referred to in A rticle 6 of the Convention. In the instant case the Government considered that ordering a civil servant to take compulsory retirement did not fall within the criminal sphere , in so far as this was a disciplina ry sanction based solely on the applicant ’ s violation of the deontological obligations inherent in his post, imposed solely in the interest of the service, and which affected the applicant only in his occupational status , unlike criminal sanctions , which usually involved fines and custodial sentences .

The Government considered , secondly , that the administrative disciplina ry proceedings had no direct connection with the criminal proceedings brought against the applicant since they had been determined independently . Indeed , because disciplina ry proceedings against civil servants were distinct from criminal proceedings , the administrative authorities were free to take disciplinary action or not, without their decision being influenced by the existence, absence or likelihood of criminal proceedings . They submitted that a disciplina ry offence was different in nature to a criminal offence , and referred in this connection to the terms of section 29 of the Law of 13 July 1983 reprodu ced above . They further argued that the applicant ’ s reference to the provisions of A rticles L. 2211-2 and L. 2211-3 of the General Code of Local and Regional Authorities in order to convince the Court that the criminal and disciplina ry proceedings were interlink ed ( see below ) was an argument devoid of evidential value , in so far as the provisions concerned had been introduced subsequent to the material events , by the L aw of 9 March 2004 adapt ing the justice system to the changing nature of crime .

In this case , the administrative court s had not sought to establish whether the applicant had committed a criminal offence but simply to determine whether he had failed to act with the integrity required by his position, laying himself open to disciplinary action . Furthermore, the issue before the administrati ve court was the lawfulness of the disciplinary me a sures and the conformit y of the penalty with domestic law ( in terms of the competent aut h orit y , the lawfulness of the proceedings and the appropriateness of the punishment ); the purpose of judicial review was to determine whether the aut h orit y at the origin of the sanction had made an error of judgment in its assessment of the offending acts . Lastly , having regard to the crit eria established in the Court ’ s case-law, the Government considered that the two sets of proceedings were completely unrelated . One of the reasons why orders issued by Indictment Divisions to discontinue proceedings were not res judicata ( Conseil d ’ E tat , 10 July 1996, Lecanu, no. 50705) was that while a time-bar might apply in criminal matters, in disciplinary matters, unless otherwise prescribed by law , acts committed by public officials were not subject to a limitation period ( Conseil d ’ Etat , Judicial Assembly , 27 May 1955, Deleuze) and were open to scrutiny for an unspecified period . That was indeed the case here : although the acts were time-barred in criminal law , they had been established and were quite incompatible with the deontological obligations incumbent on the applicant .

A s an ancillary submission , the Government referred to a judgment of the Court of J ustice of the European Commun iti es of 11 July 2006 , Commission v . Edith Cresson , in which the Court acknowledged that while it could take into account the findings made in the course of criminal proceedings in so far as they relate d to facts which were the same as those investigated in the context of the disciplinary proce edings, it was not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it was for the Court of Justice , exercising its discretion to the full, to investigate whether the conduct complained of constitute d a breach of the obligations arising from the office of Member of the Commission ( no. 432/04, §§ 118 to 122).

S econd ly, assuming that A rticle 6 § 2 was applicable, the Government considered the complaint under that provision manifest ly ill-founded . Cit ing the judgment s in the cases of Sekanina v . Au stria of 25 August 1993, Capeau v . Belgi um of 13 January 2005 and Leutscher v . the Netherlands of 26 March 1996, the Government considered that the voicing of suspicions regarding an accused ’ s innocence was conceivable as long as the conclusion of criminal proceedings ha d not resulted in a decision on the merits of the accusation . I n the present case , however, the proceedings had been terminated only because the time- limit for prosecution had expired. Voicing suspicion about the applicant ’ s guilt had thus been admissible in this case , and the courts had been able to establish the truth of the accusations brought against the applicant even though they had been unable to prosecute him . Even so , the Conseil d ’ Etat had made no assessment of the applicant ’ s guilt , nor voiced the slightest suspicion in that regard , but had confined itself to determining whether, under the laws governing the civil service, the applicant could be consid e r e d guilty of misconduct in the performance of his duties that rendered him liable to disciplina ry measures . In so doing it had noted the reality of the acts that had led to the adoption of the disciplina ry measure, and qualified the applicant ’ s mis conduct as a “serious dereliction of his duty of probity ” .

In the alternative , the Government consid ered that the applicant had been found guilty of a disciplinary offence in proceedings in which the rights of the defence and the adversarial principle had been fully respected. Emphasising the administrative court ’ s freedom to assess the evidence of the applicant ’ s guilt , the Government pointed out that he had had the b e n e fi t of two levels of juri s diction and had had an opportunity, before the administrative courts, to make his own submissions regarding the evidence against him in the case file.

2. The applicant

The applicant argued, as his primary submi ssion, that A rticle 6 § 2 of the Convention applied to the present case .

Cit ing the Court ’ s case-law on the subject ( in particular the judgment s in the cases of Engel and Others v . the Netherlands , 21 February 1984, Ozturk v . Germany , 23 March 1994, Welch v . the United Kingdom , 22 February 1996, Bendenoun v . France , 24 February 1994, and Malige v . France , 23 S eptemb er 1998), he considered first of all that he had been “charged ” with a criminal offence in the course of the impugned administrative proceedings . He pointed out , on the one hand , that the “ profession al misconduct” alleged against him was punishable under French criminal law and that both the local aut h orit y and the Conseil d ’ Etat had reached their decisions based on the material in the criminal file and having regard to the criminal classification of the offences . He also submitted that the penalty pronounced , which was designed to prohibit the applicant from holding any civil service post, was a particularly serious one, compulsory retirement being the most serious form of punishment for a local government employee .

The applicant further considered that the criminal proceedings and the disciplina ry proceedings were indefeasibly and inextricably linked, so that A rticle 6 § 2 was applicable . Referring to the Sekenina v . Au stria case , he submitted that several criteria had to be taken into consid e ration to d e termine whether an applicant could rely on A rticle 6 § 2: the existence of a prior criminal d e cision , the law and court practice and the evidence on which the d e cision was based . T he applicant pointed out that in this case the judgment of the Indictment Division of the Dijon Court of Appeal of 5 November 1987 had been pronounced well before the order of 17 January 1994 ordering his compulsory retirement . Moreover , concern ing the law and practice relating to disciplina ry sanctions in France , under the provisions of section 30 of the Law of 13 July 1983 and Article 13 of the d e cr ee of 18 S eptemb er 1989 (reprodu ced above ), it did appear that a link could exist between a disciplina ry offence and a criminal offence . The applicant submitted in this regard that even if the link was not automati c, the Court ’ s case-law d id not require it to be so, and that in the instant case disciplina ry proceedings had been based on a criminal offence , as he had been suspended pursuant to section 30 of the Law of 13 July 1983 and had not been reinstated in his post on expiry of the four-month deadline, a possibility open only in the event of criminal prosecution . Although they were called by different names , criminal offences and disciplina ry offences did overlap . The applicant further stated that under A rticles L. 2211-2 and L. 2211-3 of the G e n e ral Code of Local and Regional Authorities , the local a uthorities were imm e diate ly inform e d when a civil servant committed an offence, so that they could take the necessary action against the offender. Lastly , the applicant pointed out that the evidence taken into account by the local authorities was the same as that used in the criminal proceedings. The C ity of Marseille s , which had been a civil party in the criminal proceedings, had thus been in a position to obtain evidence from the criminal file and use it in the disciplina ry proceedings . That being so , the disciplina ry sanction was a consequence of the criminal proceedings against him, as it was based specifically on the evidence gathered in the criminal proceedings . Furthermore , the evidence should never have been used in so far as the applicant had always denied the facts and had never recognised his voice on the recordings of the t e l e phon e conversations .

As to the merits of the complaint , the applicant considered that the pr e s u mption of innocence, enshrined in A rticle 6 § 2 of the Convention, had been violated . First of all , both the local aut h orit y and the Conseil d ’ Etat had weighed the evidence and found it “irrebuttable” , and taken the Dijon Appeal Court judgment of 5 November 1987 to be a de facto indication of guilt . As the criminal proceedings had been terminated by the time the Conseil d ’ Etat pronounced judgment , i t had had no factual or legal basis on which to question the mistaken finding . I t was evident, therefore, that the Conseil d ’ Etat had based itself on incriminating excerpts from the Dijon public p rosecutor ’ s pre-trial submissions in criminal proceedings which the Court of C assation had subsequently discontinued . S econd ly, the applicant challenged the Conseil d ’ Etat ’ s appraisal of the facts , considering that it had d e velop ed what was in fact a new version , based on an investigation which had subsequently been discontinued . The Conseil d ’ Etat did not give the names of the ac complices, the businessmen and corrupt officials it mentioned in its d e cision, or suggest how he might have committed the offences in the course of his duties. Nor did it explain the exact nature of what it simply referred to as the “dealings” of which he was accused . He further submitted that the Conseil d ’ Etat had failed to take into account any of the evidence adduced by the d e fen c e, or to mention the final judgment pronounced by the criminal court in June 1992 . The applicant accordingly considered that the alleged offences had not been clearly defined , which explained why the Conseil d ’ Etat had resorted to the notion of the existence of a body of concordant evidence in its attempt to establish his guilt . Lastly, by way of an example, he submitted that the finding of the Conseil d ’ Etat in its judgment of 8 March 2004 that the transcript of a t e l e phon e conversation that took place on 26 May 1978 had revealed “Mr Moullet ’ s concern that the main protagonist of these dealings would appropriate all the funds collected” was pure ly and simpl y wrong , and that the court had taken part of a recorded t e l e phone conversation between two of the suspects sent before the criminal court and attribu ted it to the applicant .

B. T he Court ’ s assessment

1. G e n e ra l principles established under the Court ’ s case-law

First, t he Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 is an autonomous one . According to its established case-law, there are three criteria , sometimes called the “ Engel criteria”, to be taken into account when deciding whether a person was charged with a criminal offence within the meaning of Article 6, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring ( see Ezeh and Connors v . the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003-X, § 82).

A lso a ccording to the Court ’ s case-law, the presumption of innocence is infringed if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law . It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty . While the princip l e of t he presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 of that Article , it is not merely a procedural safeguard in criminal proceedings . I ts scope i s more extensive and requires that no repr e senta tive of the State or a public aut h orit y should d e clare a person guilty of an offence before their guilt has been established by a “ court ” ( see, amongst other authorities, the judgment s Allenet de Ribemont v. France , no. 15175/89 , 10 February 1995, §§ 35-36 ; Daktaras v . Lit h uani a , no 42095/98, §§ 41-42, ECHR 2000 ‑ X ; Lavents v . L atvia , no. 58442/00, § 126, 28 November 2002 ; and Butkevicius v . Lit h uani a , no. 48297/99, §§ 50-52, ECHR 2002-II).

Furthermore , the scope of Article 6 § 2 is not limited to criminal proceedings that are pending but may extend to judicial decisions taken after the proceedings end ( see, amongst other authorities, the judgments in Minelli v . Switzerland , 25 March 1983, S e rie s A no. 62, and Lutz , Englert and Nölkenbockhoff v . Germany , 25 August 1987, S e rie s A no. 123) or following an acquitt al ( see Sekanina v . Austria , 25 August 1993 ; Lamanna v . Austria , no. 28923/95, 10 July 2001 ; Leutscher v . the Netherlands , 26 March 1996, Reports of J udgment s and D e cisions 1996-II, p. 436, § 29 ; and Del Latte v . the Netherlands , no. 44760/98, § 30, 9 November 2004 ), in so far as the issues raised in these cases are a consequence and the co ncomitant of the criminal proceedings concern e d, in which the applicant w as the “accused” .

That being so , the Court ’ s task is first to establish whether the administrative disciplinary proceedings in the instant case gave rise to a “criminal charge” against the applicant within the meaning of A rticle 6 § 1 of the Convention. If that is not the case , it will then seek to establish whether they were not nevertheless linked to the criminal proceedings – in which the applicant was discharged – in such a way that they fall within the scope of A rticle 6 § 2.

2. Application of the above princip l es to the instant case

a) E xistence of a criminal charge

Concerning the first of the above-mentioned criteria for d e termin ing whether the re was a “criminal charge” against the applicant , that is, the classification of the proceedings in the domestic law, the Court observes that the text s appli ed in the impugned administrative proceedings are all part of the disciplina ry system governing local and regional authorities . Although the offence of which the applicant was accused in these proceedings might be classified as both criminal and disciplinary , the disciplinary proceedings themselves were based on the fact that the applicant , in the performance of his duties , had failed in his obligations of “ probity, loyalty, professional discretion and neutrality ”, in the words of the order issued by the Mayor of Marseille s on 17 January 1994 .

As to the second and third criteria , namely the nature of the proc e edings and the type and severity of the “ sanction ” (which the applicant considers was of a punitive nature), the Court considers first of all that even if compulsory retirement is the harshest me a sure on the scale of disciplina ry sanctions , it is a sanction c h aract e risti c of a disciplina ry offence and cannot be confused with a criminal pe nalty . Also, proceedings relati ng to disciplina ry sanctions do not , in principle, involve “the determination of a criminal charge” , so that A rticle 6 § 2 does not g e n e ral ly apply to this type of dispute ( see Costa v . Portugal , (d e c.), no. 44135/98, 9 December 1999, and also Brown v . the United Kingdom , no. 38644/97, d e cision of the Commission of 24 November 1998, and J.L. v . France , d e cision of the Commission of 5 April 1995, no. 17055/90; and contrast Engel and Others v . the Netherlands , judgment of 8 June 1976, s e rie s A no. 22, and Campbell and Fell v . the United Kingdom , judgment of 28 June 1984, s e rie s A no. 80).

In the Court ’ s view , the fa c t that an act which can lead to a disciplina ry sanction under administrati ve law also constitutes a criminal offence is not sufficient reason to consid e r that a person pr e sent e d as respons i ble before the local authority and the administrati ve court is “charged with a crime” ( see , mutatis mutandis , Y . v . Nor way , no. 56568/00, §§ 41-43, ECHR 2003 ‑ II, and Ringvold v . Nor way , no. 34964/97, § 38, ECHR 2003 ‑ II, concerning the duality of criminal and civil liability ), in so far as it is neither the purpose nor the effect of the provisions of A rticle 6 § 2 to prevent the aut h orit i e s vested with disciplina ry power from sanction ing misconduct in a civil servant where such misconduct has been duly established ( see, on this point , the identi cal position of the Commission in Dubos v . France , no. 31104/96, d e cision of 14 January 1998).

However , the Convention must be interpr eted in such a way as to protect rights that are not theoretical or illusory but practical and effective ; that also applies to the right enshrined in Article 6 § 2 ( see , amongst other authorities , Artico v . Ital y , 13 May 1980, S e rie s A no 37, pp. 15-16, § 33, and Capeau v . Belgi um , no. 42914/98, § 21, ECHR 2005 ‑ I ), with the result that if the national administrative decision were to contain a statement imputing criminal liability to the applicant for the misconduct alleged against him in the administrative proceedings , it would raise an issue under A rticle 6 § 2 ( see , mutatis mutandis , Y. v . Nor way , and Ringvold , cited above ).

The Court will therefore consider whether the Conseil d ’ Etat used such language in its reasoning as to create a clear link between the criminal case and the ensuing administrative proceedings and thus to justify extending the scope of Article 6 § 2 to cover the latter ( see Y v . Nor way , cited above , § 43).

In the instant case the Court notes that the applicant was not form ally declared guilty by the highest administrative court of the criminal offence of accepting bribes . The file reveals that the Conseil d ’ Etat , in its judgment of 8 March 2004, confined itself to determin ing the facts – denied by the applicant , it is true – as reflected in the file submitted to the A dministrati ve C ourt and freely and adversarially examined , without suggesting any criminal c haracteris ation whatsoever . On this point , the Court emphasises that in so far as d e cisions of the investigating courts to discontinue proceedings are not binding on the administrative court s, it is the role of these courts to determine with unfettered discretion the truth of the facts alleged against the applicant and the suitability of the sanction imposed in respect of those facts and having regard to the law governing the civil service. Lastly , the fact that in disciplinary matters there is no time bar, unless provided for by law , on instituting proceedings in respect of acts commi tted by civil servants is insufficient, in itself, to make A rticle 6 § 2 of the Convention applicable .

Accordingly, the Conseil d ’ Etat has confined itself to assessing the impact of the alleged facts on the duties and obligations of probit y inc u mb e nt on all local and regional government staff ( see Darracq v . France , d e cision of the Commission of 31 August 1994, no. 19531/92). In other words, the domestic authorities managed in the instant case to keep their d e cision within a purely administrati ve sphere , where the pr e s u mption of innocence the applicant relies on did not obtain .

b) E xistence of a link between the criminal proceedings and the impugned administrative proceedings

It remains to be d e termine d whether any links existed between the criminal proceedings and the administrative proceedings such as would justif y extending the scope of A rticle 6 § 2 to cover the administrative proceedings .

T he Court observes that the outcome of the criminal proceedings was not d e cisive for the administrative proceedings as , in spite of the fact that the criminal proceedings were discontinued , it was still legally possible to bring proceedings against the applicant before the disciplina ry courts . Ind e pendent ly of the d e cision reached in the criminal proceedings , the administrative proceedings concerned , which were quite independent both in the manner of their institution and in the procedure followed , contra ry to what the applicant allege d , were therefore not a direct consequence of the criminal procee d ings . In that respect the instant case differs from those cited above ( see , i n particul a r , Y. v . Nor way , cited above) , where the Court found that the proceedings concerned were a consequence and the concomitant of the criminal proceedings and A rticle 6 § 2 was therefore applicable.

I n conclusion, the Court finds that this provision does not apply to the instant case .

I t follows that the complaint must be rejected pursuant to Article 35 § 3 of the Convention.

For these reasons the Court unanimously

D e clare s the remainder of the application inadmissible .

Santiago Quesada Boštjan M. Zupančič Registrar Pr e sident