PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PACTEAU

( Translation )

I concluded with the majority of the Court that the applicant's trial by the Disciplinary Offences (Budget and Finance) Court without a public hearing amounted to a breach of Article 6 § 1.

In truth, the violation was, in principle and per se , indisputable and no difficulty arose in finding it.

After the Commission had decided on 9 March 1998 that the complaint in the present case concerning the lack of a public hearing was admissible, the French Conseil d'Etat actually acknowledged that the Disciplinary Offences (Budget and Finance) Court should hold its hearings in public (see the Lorenzi decision of 30 October 1998).

The main, overriding issue is obviously whether the applicant is a “victim”.

He had such standing in 1989 when, initially, he was convicted. Did he retain it after the Conseil d'Etat quashed the conviction in 1993 and the Disciplinary Offences (Budget and Finance) Court chose not to reconvict him in 1995?

The Court deals with that issue in paragraphs 66 to 70 of the judgment and concludes that, having regard to the reasoning and the operative provisions of the judgment of the Disciplinary Offences (Budget and Finance) Court finally acquitting the applicant in 1995, he did retain standing as a victim.

The Disciplinary Offences (Budget and Finance) Court held that the applicant had “infringed the Rules governing State Income and Expenditure and [was] liable to the penalties laid down ...”, but that the circumstances and context in which that breach occurred justified, as it were, his being exonerated from liability to a fine.

In short, Mr Guisset was not convicted, but his reputation has been tarnished.

Admittedly, the merit of that approach is that it facilitates wide access to the European Court and is realistic.

However, the reasoning in a decision cannot by itself found a complaint other than on the grounds and in the circumstances that undoubtedly existed in the instant case but which should not be defined too broadly.

Otherwise, there is a danger of abuse of process by people who have not been convicted , but nonetheless consider themselves to have been badly treated and who will be encouraged to seek out any word, phrase or innuendo that displeases them in a decision, even though the decision itself has caused them no direct harm. The courts would be inundated with applications of no benefit to the applicants themselves.

It can be seen in the present case that although part of the reasoning in the 1995 judgment appears to be critical of the applicant, the remainder is favourable to him and refers to him in very positive terms. Ultimately, if the applicant was not convicted, it was because he was not found guilty. The significance of the applicant's “acquittal” should not be underestimated: he was found not guilty, although a reference remained in the judgment to the financial irregularity that was part of the actus reus .

In my view, from that standpoint, while defendants who benefit from an acquittal may undoubtedly remain victims, they will only do so in exceptional cases .

To qualify, they will have to show not only that their acquittal formally pointed to a failing on their part, but also that the proceedings against them were liable to affect their personal or professional rights and interests. I also consider that an imperfect acquittal will warrant closer scrutiny if it comes after an initial conviction that was itself procedurally defective.

The judgment in the case of Adolf v. Austria of 26 March 1982, Series A no. 49, which has been cited as an authority, itself draws some careful distinctions. The Court did indeed hold that the reasoning of a legal decision “form[ ed ] a whole with and [could] not be dissociated from the operative provisions” (see p. 18, § 39), but it contained more forthright accusations (“the fault ... may be described as insignificant ..., and his character gives cause to expect that he will conduct himself properly in future” see p. 8, § 12) and the complaint was ultimately dismissed because the Supreme Court had subsequently clearly “cleared [the applicant] of any finding of guilt” (see pp. 18-19, § 40).

What emerges from the present case is that the nature of the charge against the applicant and the potential consequences for him professionally were extremely serious and that he was tried on that charge and initially convicted without a public hearing, before ultimately being acquitted (but without the Disciplinary Offences (Budget and Finance) Court refuting the finding that he had broken the rules which it had previously used to convict him). The applicant's prosecution can therefore be criticised right to the end.

I also agreed with the majority that the length of the proceedings was unreasonable.

The proceedings were most certainly long, even for three levels of jurisdiction.

They could and should have been expedited on a number of occasions, especially after the initial conviction was quashed and the case remitted to the Disciplinary Offences (Budget and Finance) Court, particularly as the case was long-standing and the accused a senior State civil servant.

The wording used in paragraph 84 of the judgment nonetheless appears to me to be too categorical.

The matters before the Disciplinary Offences (Budget and Finance) Court were complex and, in view of their object, sensitive.

The applicant himself contributed to delays by, for instance, waiting until the very end of the two-month period allowed before lodging his appeal to the Conseil d'Etat after his initial conviction and a further four months before lodging additional submissions. He also repeatedly raised preliminary issues and sought adjournments. While that was a perfectly legitimate defence tactic, it did not entitle him to say that the negligence of the national authorities was responsible for all the delays in the examination of the case.

I voted against the majority on the issue of just satisfaction, as I considered that although the award for non-pecuniary damage was small, the decision should really have been to award nominal damages only.

The judgment rightly dismissed the claim for pecuniary damage, giving sound reasons for so doing.

My view is that the non-pecuniary damage itself was minimal and more than amply compensated for by the great moral satisfaction obtained from the findings in this judgment of procedural irregularities. The applicant did indeed have standing to seek a determination that those irregularities had occurred and effectively obtained such a determination.