Resolution CM/ ResDH (2010)124 [1]

Execution of the judgment of the European Court of Human Rights

Martinie , Richard- Dubarry and Siffre , Ecoffet and Bernardini against France

(Application No. 58675/00, judgment of 12 April 2006 - Grand Chamber

Application No. 53929/00, judgment of 1 June 2004, final on 1 September 2004

Application No. 49699/99+, judgment of 12 December 2006, final on 12 March 2007, rectified on 27 March 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concerns breaches of the right to fair trial due to the lack of a public hearing and the prosecutor ’ s position in proceedings before the Court of Audit as well as the Government Commissioner ’ s presence in deliberations of the Conseil d ’ Etat in the Martinie case and the excessive length of civil proceedings in the financial courts (violations of Article 6, paragraph 1);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments of the Court;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state has paid the a p plicants the just satisfaction for which the judgments provided (see details in Appendix),

Recalling that a finding of a violation by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violation and erase its consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)124

Information on the measures taken to comply with the judgments in the cases of

Martinie , Richard- Dubarry and Siffre , Ecoffet and Bernardini against France

Introductory case summary

These cases mainly concern proceedings before financial courts (regional boards of audit/ Chambres régionales des comptes and the Court of Audit/ Cour des comptes ) responsible among other things for exercising judicial supervision over the regularity of transactions carried out by public financial administrators. The proceedings at issue in these cases concern civil rights and obligations.

The Martinie case concerns infringements of the right to a fair trial in proceedings before the Court of Audit (1998) against the former financial administrator of a secondary school and of an organisation without legal personality dependant on the secondary school ’ s budget (violations of Article 6§1). The European Court noted that the applicant had had no opportunity to request a public hearing before the Court of Audit. It also noted an imbalance in his disfavour stemming from the prosecutor ’ s role in the proceedings. The Court also found a violation of the right to a fair trial before the Conseil d ’ Etat (1999) due to the presence of the Government Commissioner at the deliberation of the trial bench (violation of Article 6§1). On this last point, the Court reaffirmed its case-law in the Kress case (judgment of 07/06/2001, Grand Chamber).

The cases of Richard- Dubarry and Siffre , Ecoffet and Bernardini concern the excessive length of proceedings before financial courts (violations of Article 6§1). In the Richard- Dubarry case, four sets of proceedings began in November and December 1994 and were still pending when the European Court gave its judgment (nearly 9½ years). In the Siffre , Ecoffet and Bernardini case, the proceedings lasted from 1995 to 2000.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Martinie (58675/00)

-

-

9 338.54 euros

9 338.54 euros

Paid on 24/07/2006

Richard- Dubarry (53929/00)

-

12 000 euros

-

12 000 euros

Paid on 29/11/2004

Siffre , Ecoffet and Bernardini (49699/99+)

-

12 000 euros

9 000 euros

21 000 euros

Paid on 12/06/2007

b) Individual measures

1. Martinie case

Before the European Court, the applicant claimed a sum of 762.25 euros (see §§12 and 57 of the judgment) plus interest at the statutory rate, in respect of the sum still owed by him at the end of the domestic proceedings which had led to reduction/remission of the amount which the applicant had been ordered to pay to the school in respect of disbursements carried out on behalf of the establishment.

Where this possible pecuniary damage was concerned, the European Court considered that it could not speculate as to the outcome of the contested proceedings if the violation had not taken place. It therefore rejected the applicant ’ s claim in this respect. Furthermore, the applicant made no request at the stage of supervision by the Committee of Ministers of the execution of the European Court ’ s judgment.

As to the non-pecuniary damage, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction. No other individual measure therefore seemed to be necessary.

2. Richard- Dubarry case

The European Court granted just satisfaction in respect of the non-pecuniary damage sustained by the applicant. When the judgment was delivered in 2004, four sets of proceedings were still pending. The two sets pending before the regional board of audit culminated in decisions on the merits in 2007. In the two other sets of proceedings, the Court of Audit, taking account of the case-law of the European Court in this case and in the Martinie case, took steps to transfer directly to itself examination of the merits of the cases (thus reducing the time taken to give judgement) and issued a final ruling on the merits of the cases in two judgments in 2008.

The applicant appealed against these decisions and judgments.

The applicant also lodged a new application with the European Court of Human Rights in 2006 (application No. 46719/06) in which, relying on Article 6, paragraph 1 of the Convention, she complains of the length and unfairness of the financial proceedings. In its admissibility decision of January 2010, the European Court declared both of the applicant ’ s complaints inadmissible for failure to exhaust domestic remedies, in pursuance of Article 35, paragraphs 1 and 4 of the Convention.

3. Siffre , Ecoffet and Bernardini case

The proceedings at issue have been closed, and the European Court has awarded just satisfaction in respect of the non-pecuniary damage suffered by the applicants.

II. General measures

1. Proceedings before financial courts

a. Unfairness of proceedings

The French authorities have taken several sets of measures, some of these prior to the Martinie judgment (but subsequent to the facts at issue), such as amendments to the Financial Courts Code instituting adversarial proceedings before regional boards of audit and, in some cases, providing for exclusion of the rapporteur from deliberations. Immediately after the Martinie judgment, the First President of the Court of Audit took interim measures (applied from 16 May 2006 by the financial courts), introducing inter alia public hearings at first instance and at appeal, excluding the reporting judge and the prosecution from all deliberations, and authorising the parties to consult the file and obtain communication of any document. The Financial Courts Code was further amended by Decree No. 2007-543, authorising the parties to make oral observations at the hearing to amplify or add detail to written observations already submitted.

The final measures were adopted by Law No. 2008-1091 relating to the Court of Audit and the regional boards of audit, which came into force on 1 January 2009. This law was explicitly designed to meet the requirements of Article 6 of the Convention and of the European Court ’ s judgments in these cases (see the relevant explanatory memorandum). It consolidates the provisional measures taken in May 2006 and introduces some new ones. In view of the European Court ’ s findings in the Martinie case, it should be noted in particular that:

- public hearings are now the norm in proceedings before financial courts. Only exceptionally, after the prosecutor has been consulted, can the president of the bench decide that a hearing will be held or continued in private, where required by considerations of public order or by the confidentiality of intimate personal information or secrets protected by law;

- the adversarial nature of the proceedings has been reinforced. The financial administrator under examination (as well as the official authorising the expenditure under consideration) may henceforth present his/her observations, either in person or through counsel during the debate, and have the last word. He/She also benefits from an adversarial written procedure, having access to the file and the right to request a copy of any document, of the existence of which he/she is systematically informed. In addition, the investigation, prosecution and judgment functions are kept rigorously separate: proceedings may only be opened on application by a prosecutor (the rapporteur is no longer competent in this respect). Neither the investigating judge nor the prosecutor takes part in the deliberations of the bench.

It should be noted that, under the transitional provisions, the new law does not apply to cases in progress which gave rise to legal proceedings on a provisional basis and notified before 1 January 2009. These cases nonetheless benefit from the provisional measures previously adopted.

b. Excessive length of proceedings

Law No. 2008-1091 on the Court of Audit and the regional boards of audit mentioned above is intended to reduce the length of proceedings. Its purpose is to "satisfy" the "reasonable time requirement". Two main measures may be mentioned in this respect:

- abolition of the "double judgement" rule (provisional decision followed by final decision);

- the court order discharging a financial administrator against whom charges are not upheld may be issued by a single judge.

More generally, procedures have been simplified and harmonised between regional boards and the Court of Audit, thus increasing their efficiency. The authorities state that the time required to reach decisions on financial cases has thereby been reduced.

Finally, in cases to which this law cannot yet be applied, it is pointed out that judges, duly informed of the findings of violations in Richard- Dubarry and Siffre , Ecoffet and Bernardini , apply the Convention directly and ensure compliance with Article 6§1, which covers among other things the reasonable time requirement.

c. Remedies against excessive length of proceedings

Remedies exist enabling complaints to be made about excessive length of proceedings in financial courts. One such remedy is an action to invoke the responsibility of the state before the Conseil d ’ Etat . Another is a complaint to the financial administrative courts themselves (internal supervision). Parties may ask the Court of Audit, in the context of its mandate to supervise the regional boards of audit, to draw up recommendations if proceedings before a regional board are lengthy. Furthermore, in similar cases, parties may always request the president of the court to take the necessary measures, exercising his or her powers as the person responsible for that court.

It is also pointed out that heads of courts ’ awareness of the question of excessive length of proceedings has been heightened by the supervision of the performance of public services which has been intensified since the entry into force of the Institutional Law on Finance Acts of August 2001. This performance monitoring expressly includes the average length of proceedings

2. Proceedings before the Conseil d ’ Etat

As regards the violation stemming from the presence of the Government Commissioner at the deliberations of the bench of the Conseil d ’ Etat , general measures were adopted following the judgement in the case of Kress against France case (see Resolution CM/ ResDH (2007)44) and in another five cases concerning the right to a fair trial before the Conseil d ’ Etat .

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the state has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies