Information Note on the Court’s case-law 85

April 2006

Martinie v. France [GC] - 58675/00

Judgment 12.4.2006 [GC]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings in which a surcharge was levied against a State secondary school’s accountant: article 6 applicable

Fair hearing

State Counsel’s position in proceedings before the Court of Audit on appeal from a judgment levying a surcharge against a public accountant: violation

Fair hearing

Equality of arms

Presence of the “ commissaire du gouvernement ” at the deliberations of the Conseil d’Etat : violation

Public hearing

Inability of public accountant against whom a surcharge has been levied to request a public hearing in the Court of Audit: violation

Facts: The applicant was the accountant of a public institution. On an audit of the accounts submitted by the applicant, the regional audit office declared, at the end of proceedings held in camera, that he owed the institution certain sums of money plus interest. The amounts corresponded to payments made irregularly by the applicant as public accountant of the institution. After a hearing that was not held in public, the Court of Audit gave its ruling on an appeal by the applicant. The Conseil d’Etat subsequently dismissed an appeal on points of law lodged by the applicant. After he was declared personally and financially liable, a surcharge was levied against the applicant and he was ordered to pay a sum in excess of FRF 190,000 back to the local authority. He was later granted partial remission of the surcharge, with EUR 762 remaining payable by him.

Law : Article 6 § 1

Applicability : The Grand Chamber applied the Pellegrin case-law ([GC], ECHR 1999-VIII) and examined the applicant’s post, the nature of his functions and the responsibilities attached to them. The case concerned a civil servant in the employ of the State education service who had been appointed by the Director of Education as accountant of a school and was responsible, in that capacity, for the accounts of a secondary school and of those of a centre attached to it that had no separate legal personality. Neither the nature of the duties carried out by the applicant, nor the responsibilities attached to them, supported the view that he participated in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. In short, Article 6 was applicable.

Lack of a public hearing before the Court of Audit: Since proceedings before regional audit offices were conducted in private, the Court considered it essential that public accountants be able to request a public hearing before the Court of Audit on appeal from a judgment of the regional audit office levying a surcharge against them. Where no such request was made, the hearing could remain private, given the technical nature of the proceedings. In the present case the applicant had been unable to request a public hearing before the Court of Audit because hearings before that court on appeal from a judgment of a regional audit office levying a surcharge against a public accountant were not public.

Conclusion : violation (unanimously).

Fairness of the proceedings before the Court of Audit : Where the issue before the Court of Audit was whether to levy a surcharge against a public accountant, there was an imbalance detrimental to public accountants on account of State Counsel’s position in the proceedings: unlike the accountant, State Counsel was present at the hearing, was informed beforehand of the reporting judge’s point of view, heard the latter’s submissions at the hearing, fully participated in the proceedings and could express his own point of view orally without being contradicted by the accountant. It was irrelevant whether State Counsel was or was not regarded as a “party”, since he was in a position to influence the bench’s decision whether to levy a surcharge in a manner that could be unfavourable to the accountant. That imbalance was accentuated by the fact that the hearing was not public and was conducted in the absence of any scrutiny either by the accountant concerned or by the public.

Conclusion : violation (fourteen votes to three).

Presence of the Government Commissioner at the deliberations of the bench of the Conseil d’Etat: Although the terms “participation”, “presence” and “assistance” of the Government Commissioner were used synonymously in the Kress judgment ([GC], ECHR 2001-VI), the mere presence of the Government Commissioner at the deliberations, be it “active” or “passive”, was deemed to be a violation in that judgment.

Conclusion : violation (fourteen votes to three).

Article 41 – The Court considered that the finding of a violation in itself afforded sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. It awarded a sum for costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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