CASE OF MARTINIE v. FRANCE
Preliminary objection rejected (ratione materiae);Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention and domestic proceedings
Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Gaukur Jörundsson;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych;Wilhelmina Thomassen
7. The applicant, who is a civil servant in the State education service, was born in 1948 and lives in Papeete. 8. In June 1987 the Lycée René-Cassin in Bayonne – of which the applicant had been appointed accountant by a decision of the Director of Education for Bordeaux – and the French Federation of Basque Pelota signed an agreement to set up a centre at the school which would allow young athletes to continue studying during their training: the Basque Pelota National Training Centre (Centre national d’entraînement à la pelote basque – “the CNEA”). The CNEA, which had no separate legal personality, was attached to the school’s budget. The headmaster of the school was the director and authorising officer in respect of expenditure, and the applicant, who was appointed general secretary of the centre, was the accountant. In December 1987 the headmaster instituted a fixed monthly allowance in favour of the director of the CNEA and its general secretary. 9. On an audit of the accounts submitted by the applicant for the years 1989 to 1993, the Aquitaine Regional Audit Office gave interim rulings on 3 May 1996 and 11 March 1997 ordering the applicant to produce certain supplementary evidence. In a judgment of 17 October 1997, the Aquitaine Regional Audit Office declared that the applicant owed the school the following amounts plus interest: 191,893.09 French francs (FRF), FRF 11,407.75 and FRF 17,806.60. Those amounts corresponded to payments made by the applicant in his capacity as public accountant of the school for the years 1989 to 1993. The first sum related to the fixed monthly allowance paid to the headmaster of the school in his capacity as director of the CNEA and to the applicant himself as general secretary; the second sum concerned a cashier’s indemnity paid to the applicant himself out of funds managed by the CNEA’s separate accounting department; and the third concerned the transfer of holiday compensation into the CNEA’s separate accounting department in favour of the director of the centre and the applicant himself. In its judgment, the Regional Audit Office noted that there was no resolution by the board of governors of the Lycée René-Cassin authorising these allowances – whereas that was the only body with power to set up a system of allowances – and, referring to the relevant provisions, pointed out that “the public accountant must satisfy himself that the documents he submits in support of the payments for which he takes charge are issued by the appropriate authority”. 10. The applicant appealed to the Court of Audit, which gave judgment on 20 October 1998 upholding the main parts of the Regional Audit Office’s judgment but partly varying the total amount to be repaid, which it reduced to FRF 191,893.09. 11. In a decision of 22 October 1999, the Conseil d’Etat declared an appeal on points of law lodged by the applicant “inadmissible”. The decision is worded as follows: “Under section 11 of the Law of 31 December 1987 reforming administrative proceedings, ‘an appeal on points of law to the Conseil d’Etat is first subjected to an admissibility procedure. Leave to appeal is refused by judicial decision if the appeal is inadmissible or not based on a genuine ground of appeal’. In applying for the judgment of 20 October 1998 [of] the Court of Audit ... to be set aside, Mr Martinie submitted that the judgment had been given in breach of the provisions of Article 6 § 1 of the Convention ..., since he had neither been summoned to appear nor invited to submit his observations; he had not been aware of the date of the hearing fixed by the Court of Audit; and the reporting judge and counter-reporting judge had taken part in the deliberations of the Court of Audit. In his submission, the Court had misdirected itself in law in considering that only an executory resolution of the school’s board of governors could have constituted justification for the payment; the accountant could not be held liable for the expenditure paid by the [CNEA] prior to 21 February 1992, which was the date of his appointment as accountant of the ‘direct accounting department’ that had borne the irregular expenditure; and, lastly, the Court of Audit had further misdirected itself in law by ordering repayment of the sum in question to the Lycée René-Cassin. None of these grounds justifies granting leave to appeal.” 12. On 7 June 2001, on a non-contentious application, the Minister of Finance granted the applicant partial remission of the surcharge levied by the Court of Audit, in the sum of 21,953.91 euros (EUR), with EUR 762.25 thus remaining payable by him. 13. Section 60-I of Finance Law no. 63-156 of 23 February 1963 provides that public accountants are personally and financially liable for the audits they are required to carry out of income, expenditure and assets on the terms set forth in the general public accounting rules. In that connection, Articles 12 and 13 of Decree no. 62-1587 of 29 December 1962, which lay down general rules governing public accounting, provide as follows: “Accountants are required: ... B – in connection with expenditure, to check that the authorising officer or his delegate has the requisite capacity to act; that the funds are available; that the expenditure is accurately attributed to the appropriate heads, in accordance with its nature or purpose; that the claims are valid according to the terms set forth in Article 13 below; that payment has been effected in accordance with the statutory conditions for discharging the debtor. ...” “With regard to the validity of the claims, accountants shall check that the service has actually been rendered and the amounts accurately calculated; that the statutory controls have been effected and the supporting documents produced. In addition, in so far as provided by the rules specific to each public institution, public accountants shall check that the financial controllers’ stamp of approval has been affixed to the liabilities and payment authorisations issued by the main authorising officers. Public accountants shall also check that the rules on limitation periods have been applied.” Public accountants who have been found liable or whose liability is in issue may, in cases of force majeure, be fully or partly discharged from liability; they may also obtain remission, on a non-contentious application, in respect of amounts for which they remain liable (section 60-IX of Law no. 63-156). The Government indicated that decisions on this type of application were made by the Minister of Finance, who “differentiated between what was a personal failing and what was a case of force majeure or circumstances capable of mitigating the accountant’s liability (such as inadequacy of the resources attached to the post)”. 14. Accounts rendered by public accountants are subjected to judicial scrutiny. This task is entrusted to regional audit offices in respect of accounts rendered by public accountants of territorial authorities and their public institutions (Articles L. 211-1 et seq. of the Financial Judicature Code). They carry out a judicial inspection of the regularity of operations by accountants regarding both revenue and expenditure. The procedure is a mandatory one in which the regional audit offices give judgment clearing and settling the accounts irrespective of whether or not irregularities have been disclosed. The purpose of the inspection is not only to check that the accounts are in order, but also that the accountant has properly carried out all the necessary checks concerning, inter alia, the basis and the amount of any revenue or expenditure, and has not negligently caused a loss to the local authority. Final judgments discharge the accountant or levy a surcharge against him, that is, require him to pay a sum back to the local authority (Article L. 231-7 of the Financial Judicature Code) and thus personally bear the financial consequences of an irregularity in management of the accounts. This judicial scrutiny is conducted in the following stages: production of the accounts by the local public accountant; adversarial investigation; report by the investigating judge; deliberations by the regional audit office; interim ruling; accountant’s reply; deliberations by the regional audit office; final judgment (discharge or surcharge). 15. The accountant concerned or his heirs, the local authority or public institution, the Government Commissioner attached to the regional audit office (who acts as State Counsel before the regional audit office and is the correspondent of Principal State Counsel at the Court of Audit (procureur général près la Cour des Comptes) – Article L. 212-10 of the Financial Judicature Code), or Principal State Counsel at the Court of Audit may appeal to the Court of Audit against any final judgment delivered by the regional audit office (Articles L. 111-1, L. 211-1, L. 243-1 and R. 243-1 et seq. of the Financial Judicature Code). 16. The appeal is either lodged with the registry of the regional audit office, and an acknowledgment of receipt obtained, or sent to the registry by registered post with recorded delivery. Fifteen days after registration of the appeal, the Government Commissioner communicates it to the other persons having a right of appeal and simultaneously sends a copy to Principal State Counsel at the Court of Audit (Article R. 243-8 of the Financial Judicature Code). The parties have one month from the transmission of the appeal in which to consult all the documents annexed to the appeal at the registry of the regional audit office and to lodge defence pleadings. During the same period State Counsel (the Government Commissioner) can submit observations. A copy of the pleadings and observations is served by State Counsel on the appellant and the other parties, who may, within one month of transmission, lodge a reply, which is itself sent to the parties, and to which a rejoinder can be lodged within fifteen days. State Counsel may submit observations on the defence pleadings and replies lodged by the various parties. These observations are served on the interested parties (Article R. 243-9 of the Financial Judicature Code). If further documents are added to the file, the appellant and the other parties have fifteen days in which to inspect them and, if they wish, file their observations with the registry of the regional audit office (Article R. 243-10 of the Financial Judicature Code). Once these time-limits have expired, State Counsel (the Government Commissioner) sends the appeal, a copy of the judgment, the documents produced by the appellant and the pleadings and documents produced by the other parties and the observations by State Counsel to Principal State Counsel at the Court of Audit (Article R. 243-11 of the Financial Judicature Code; since Decree no. 2002-1201 of 27 September 2002 came into force, the Government Commissioner notifies the appellant and the other parties that these documents have been sent to Principal State Counsel). 17. Principal State Counsel at the Court of Audit sends the appeal file to the Court of Audit (Article R. 112-8, paragraph 4, of the Financial Judicature Code) in a document which – the Government specify – “is customarily referred to as an ‘application’ but does not imply any personal initiative on the part of Principal State Counsel (Conseil d’Etat, 6 January 1995, Gouazé; 27 October 2000, Mme Desvignes)”. The reporting judge at the court prepares his report on the basis of the appeal file. Reports relating, inter alia, to surcharges and appeals against judgments delivered by regional audit offices have to be sent to Principal State Counsel, who makes written submissions on them (Article R. 112-8, paragraph 5, of the Financial Judicature Code); in doing so, he gives an opinion that the bench is free to follow or reject. He may attend the sessions of the divisions or sections and submit oral observations, but does not take part in the deliberations (Decree no. 2002-1201 of 27 September 2002, codified in Article R. 112-8 in fine of the Financial Judicature Code; the Government indicated that, prior to the entry into force of that decree, this principle had already been hallowed by usage). In the light of the appeal file, the report and the submissions of Principal State Counsel, the counter-reporting judge – who, according to the Government, sits on the bench hearing the appeal – expresses orally, during the hearing, his opinion on the reporting judge’s proposals (Article R. 141-8 of the Financial Judicature Code). 18. Where the Court of Audit hears an appeal against a judgment of a regional audit office levying a surcharge against a public accountant, the hearings before it are not public and the parties are not informed in advance of the date of the appeal hearings (the converse situation applies where the Court of Audit gives a final ruling in a case concerning de facto management of public funds or the imposition of a fine – Articles R. 141-9 to R. 141-13 of the Financial Judicature Code, added to the Code by Decree no. 2002-1201 of 27 September 2002; Articles L. 131-2 and L. 131-13 of the Financial Judicature Code specify, moreover, that in the former case – de facto management – the judgments of the Court of Audit “are deliberated upon after hearing submissions, at their request, from the appellants and other interested parties” and that, in the latter case – imposition of a fine – the same applies in favour of the “persons concerned”). The procedure to be followed at the hearing is set out in Article R. 141-8 of the Financial Judicature Code (as amended by Decree no. 2002-1201): “The reporting judge shall present his report to the bench hearing the appeal. The counter-reporting judge shall express his view on each of the proposals submitted. If the report has been sent to Principal State Counsel, the latter’s submissions shall be read out. Where Principal State Counsel, or one of the advocates-general, is present at the hearing, he shall make his submissions and take part in the proceedings. The bench shall then deliberate. It shall give a decision on each proposal. If a vote has to be taken, the president shall ascertain, in turn, the opinion of the reporting judge, of each of the extraordinary senior members for cases they are empowered to hear under Article L. 112-5, then of each of the senior members in reverse order of seniority at that grade. The president states his opinion last. In the event of an equal number of votes, he shall have the casting vote. However, in cases concerning de facto management or the imposition of a fine, the bench shall deliberate without the reporting judge being present. ...” 19. Where the Court of Audit rules the appeal inadmissible, its judgment is final. If it considers that the appeal is admissible, it can rule immediately on the merits or order investigative measures by an interim judgment that is served on the accountant and the interested parties. It may order production of the accounts that are the subject of the judgment being appealed and of any documents that it considers necessary to enable it to give a ruling (Article R. 131-41 of the Financial Judicature Code). 20. According to the Conseil d’Etat, when the Court of Audit scrutinises accounts rendered by public accountants, it does not determine a criminal charge or civil rights and obligations within the meaning of Article 6 § 1 of the Convention (see, inter alia, Conseil d’Etat (“CE”), 19 June 1991, Ville d’Annecy c. Dussolier, Recueil Lebon, p. 242, and CE, 3 April 1998, Mme Barthélémy, Recueil Lebon, p. 129). The position is only different when it gives a ruling in cases in which a fine may be imposed (CE, 16 November 1998, SARL Deltana et M. Perrin). 21. Decree no. 2005-1586 of 19 December 2005 is worded as follows: “... The first paragraph of Article R. 122-5 of the Code shall be replaced by the following paragraph: ‘Government Commissioners shall be appointed by a decision of the Vice-President of the Conseil d’Etat adopted on a proposal by the President of the Judicial Division.’ The first paragraph of Article R. 222-9 of the Code shall be replaced by the following paragraph: ‘The president shall inform the National Council of Administrative Courts and Administrative Courts of Appeal of his opinion regarding the career progression of the members of the court of which he is president.’ The first paragraph of Article R. 222-23 of the Code shall be replaced by the following paragraph: ‘In each administrative court, according to its needs, one or more judges or senior judges shall be designated, by a decision of the Vice-President of the Conseil d’Etat adopted on a proposal by the president of the court and following approval of the decision by the National Council of Administrative Courts and Administrative Courts of Appeal, to exercise the functions of Government Commissioner.’ Title III of Book VII of the Code shall now be entitled ‘Conduct of the hearing and deliberations’. The following five Articles shall be inserted after Article R. 731-4 of the Code: ‘Art. R. 731-5 – After the Government Commissioner’s submissions have been made, any party to the proceedings may send the presiding judge of the bench a memorandum for the deliberations. Art. R. 731-6 – Deliberations shall take place without the parties being present. Art. R. 731-7 – The Government Commissioner shall be present at the deliberations. He shall not participate in them. Art. R. 731-8 – In addition to the members of the court and their assistants, the following persons may be authorised to attend deliberations: judges, trainee lawyers, university professors and lecturers undergoing a period of training at the court or admitted, exceptionally, to follow its activities, be they of French or foreign nationality. Authorisation shall be issued by the head of the court, after seeking the opinion of the presiding judge of the bench, or, at the Conseil d’Etat, by the presiding judge of the bench. Art. R. 731-9 – Anyone who, in any capacity whatsoever, takes part in or attends deliberations shall be bound to respect the secrecy of the deliberations. Failure to do so may result in the imposition of a penalty under Article 226-13 of the Criminal Code.’ The words ‘After deliberations without the parties being present, and’ shall be deleted from Article R. 741-1 of the Code. The following new paragraph shall be inserted after the third paragraph of Article R. 741-2 of the Code: ‘If a memorandum for deliberations is produced, this fact shall also be recorded.’ ...”