Information Note on the Court’s case-law No. 120

June 2009

Dubus S.A. v. France - 5242/04

Judgment 11.6.2009 [Section V]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Lack of clear distinction between prosecutory , investigative and judicial functions of bank supervisory authority: violation

Facts : The applicant is an investment company whose business consists of receiving, transmitting and executing orders for third parties and trading on its own behalf. In 2000 it was inspected by the Banking Commission, the supervisory authority responsible for credit and investment establishments, following which notice of a regulatory offence was served on it, together with a request to take remedial action. The same year, on the strength of the inspection report, the Banking Commission decided to open disciplinary proceedings against the applicant company. The Chair of the Commission informed the applicant company of the reasons for opening proceedings. The applicant company filed observations in reply, challenging the lawfulness and the impartiality of the proceedings with regard to Article 6 § 1 of the Convention. In particular, it objected to the fact that the Commission was all at once a prosecuting, investigating and judicial authority. The Secretariat of the Commission submitted observations in reply to the applicant company. In a 2001 decision the Commission issued a reprimand to the applicant company and stated that there had been no irregularities in the proceedings. In 2003 the Conseil d’Etat dismissed an appeal on points of law by the applicant company.

Law : The Banking Commission carried out two types of functions. The first was a supervisory function, encompassing administrative supervision and the power to issue orders. The second was disciplinary: the Commission exercised its disciplinary powers by acting like an “administrative court”. The Court noted at the outset the lack of precision in the texts governing proceedings before the Banking Commission with regard to its composition and the prerogatives of the bodies called upon to exercise its various functions. It observed, in particular, the lack of any clear distinction between the functions of prosecution, investigation and adjudication in the exercise of its judicial power. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality guaranteed by Article 6 § 1 of the Convention, it was necessary to ascertain whether the Banking Commission had decided on the disciplinary measure without “prejudgment”, in view of the steps it had taken during the proceedings. Given the manner in which the judicial proceedings had been conducted, the applicant company might reasonably have had the impression that it had been prosecuted and tried by the same people. This was demonstrated in particular by the phase during which the disciplinary proceedings had been opened and the offences notified, when the confusion between the different roles had heightened that impression. The applicant company might have had doubts about the decision of the Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and imposed the penalty. Furthermore, the role of the Secretary General of the Commission had added to the confusion, although he did not appear to have been involved in deciding on the penalty. The Secretariat carried out investigations on the instructions of the Banking Commission, setting disciplinary proceedings in motion where irregularities were found in the administrative checks. It then, through the Secretary General, replied to the submissions of the respondent party, thereby intervening in the judicial process. Lastly, the investigation had been carried out on behalf of the Commission, which had subsequently handed down the penalty. In sum, the Court was unconvinced by the Government’s argument that there was a structural separation within the Banking Commission. The applicant’s doubts about the Commission’s independence and impartiality had been objectively justified because of the lack of any clear distinction between its different functions.

Conclusion : violation (unanimously).

Article 41 – Finding of a violation constituted sufficient just satisfaction.

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

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