Information Note on the Court’s case-law 22

September 2000

Guisset v. France - 33933/96

Judgment 26.9.2000 [Section I]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Decision of the Cour de discipline budgétaire et financière concerning a breach of the rules on public accounts which is subject to a fine: Article 6 applicable

Public hearing

Lack of a public hearing before the Cour de discipl ine budgétaire et financière : violation

Reasonable time

Length of proceedings before the Cour de discipline budgétaire et financière : violation

Article 34

Victim

Retention of status of victim followng acquittal, the reasons given indicating that the applicant was regarded as guilty

Facts : Two loans binding on the French State were contracted in June 1980 and May 1981 in order to finance the construction of a large development including a school and a cultural centre in Abu Dhabi. The loans were signed by the applicant both in his capacity as Ambassador to the United Arab Emirates and on behalf of the French Embassy. However, he omitted to request prior authority to sign as he was statutorily required to do under public-accounting regulations. That irregularity was discovered by the Audit C ourt on a routine check. In a decision of 15 February 1984, which was not notified to the applicant, the Audit Court brought him before the Disciplinary Offences (Budget and Finance) Court. After 3 July 1986 the applicant, though continuing to receive his basic salary, was not given any postings or promotion. He was informed on 10 June 1987 that an investigation was pending into his affairs. On 17 April 1989 the Disciplinary Offences (Budget and Finance) Court ordered the applicant to pay a fine of 2,000 Fr ench francs for contravening the regulations governing the allocation of State revenue. On 4 December 1989 the applicant lodged an appeal with the Conseil d’État , which on 29 December 1993 overturned the judgment of the Disciplinary Offences (Budget and Fi nance) Court for lack of reasoning and remitted the case to that court. The decision of the Conseil d’État was forwarded to the Disciplinary Offences (Budget and Finance) Court on 24 January 1994 but it was not until 4 January 1995 that the President of th e latter court informed the applicant that he could consult the case file. The Disciplinary Offences (Budget and Finance) Court delivered its judgment on 12 April 1995. It rejected the applicant’s argument that there had been a violation of Article 6 § 1 o f the Convention, holding that the fines imposed by it under the Law of 1948 providing for penalties for mismanagement of State assets and establishing the Disciplinary Offences (Budget and Finance) Court did not come within the scope of Article 6(1). On t he merits, it held that although the applicant had infringed the rules governing the allocation of State revenue and was on that account liable to the statutory financial penalties, the circumstances of the case taken as a whole – notably, the urgency of t he situation and the applicant’s beneficial action in the face of the inertia of the central authorities – meant that he should escape a fine and be acquitted of the charge. Despite that final acquittal, the applicant was not offered any further posting an d was compulsory retired in February 1997 with the rank and grade he had achieved in 1978. The applicant complained that hearings before the Disciplinary Offences (Budget and Finance) Court were not held in public and of the unreasonable length of the proc eedings against him.

Law : Article 34 – Although in its judgment of 12 April 1995 the Disciplinary Offences (Budget and Finance) Court had acquitted the applicant, it had expressly stated in its reasons that he had infringed the regulations governing the al location of State revenue and was therefore subject to the statutory penalties. The applicant was therefore considered guilty and liable to a fine. The fact that he was ultimately spared the penalty as a result of the special circumstances of the case coul d not be considered as amounting to reparation for the alleged violation. Consequently, regard being had both to the reasoning and the operative provisions of the judgment, the applicant remained a victim.

Article 6 § 1 – Article 6 § 1 was applicable as th e Disciplinary Offences (Budget and Finance) Court had to be regarded as determining a criminal charge within the meaning of the Convention, as was illustrated by the Conseil d’État ’s Lorenzi judgment of 30 October 1998.

As regards the applicant’s right to have his case heard in public, it had to be noted, firstly, that the Government had not invoked any of the grounds set out in Article 6 § 1 to justify the proceedings being conducted in private and the lack of a public hearing before the Disciplinary Offe nces (Budget and Finance) Court and, secondly, the applicant had expressly requested a hearing in public. In addition, the Government had referred to the aforementioned decision of the Conseil d’État , which required the Disciplinary Offences (Budget and Fi nance) Court to hear cases that could result in fines being imposed under the law of 1948 in public. Consequently, in the case before it and in the absence of a public hearing, the Disciplinary Offences (Budget and Finance) Court had infringed the applican t’s right to a fair hearing.

Conclusion : violation (6 votes to 1).

As regards the length of the proceedings, the period to be taken into consideration had begun on 10 June 1987, when the applicant was informed that an investigation into his affairs had bee n started. The proceedings had ended on 9 January 1996 when the judgment of 12 April 1995 was served on the applicant. The proceedings had therefore lasted eight years and almost four months. As regards the issue whether that period was reasonable, no expl anation had been given for the delays attributable to the Government. It followed that the applicant’s case had not been heard within a reasonable time.

Conclusion : violation (unanimously).

Article 41 – Since the applicant had not established a causal link between the alleged pecuniary damage and the violations found by the Court, he was not awarded any compensation on that account. However, he was awarded 100,000 French Francs as compensation for non-pecuniary damage and a certain sum for costs and expense s (5 votes to 2).

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

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