CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 12 avril 2006

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text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER             CASE OF MARTINIE v. FRANCE   (Application no. 58675/00)                     JUDGMENT       STRASBOURG   12 April 2006       In the case of Martinie v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Luzius Wildhaber, President ,   Christos Rozakis,   Jean-Paul Costa,   Nicolas Bratza,   Lucius Caflisch,   Ireneu Cabral Barreto,   Françoise Tulkens,   Peer Lorenzen,   Karel Jungwiert,   Volodymyr Butkevych,   András Baka,   Rait Maruste,   Snejana Botoucharova,   Antonella Mularoni,   Elisabet Fura-Sandström,   Alvina Gyulumyan,   Khanlar Hajiyev, judges , and Lawrence E arly, Deputy Grand Chamber Registrar , Having deliberated in private on 16 November 2005 and 8 March 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 58675/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Michel Martinie (“the applicant”), on 15 February 1999. 2.     The applicant was represented by Mr M. Meyer, a lawyer practising in Strasbourg. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3.     The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 January 2004 it was declared partly admissible by a Chamber of that Section composed of Gaukur Jörundsson, President, Jean-Paul Costa, Loukis Loucaides, Karel Jungwiert, Volodymyr Butkevych, Wilhelmina Thomassen and Mindia Ugrekhelidze, judges, and Lawrence Early, Deputy Section Registrar. On 3 May 2005 a Chamber of that Section composed of András Baka, President, Jean-Paul Costa, Ireneu Cabral Barreto, Rıza Türmen, Karel Jungwiert, Antonella Mularoni and Elisabet Fura-Sandström, judges, and Sally Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 4.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. 5.     The applicant and the Government each filed observations on the merits. 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 16 November 2005 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms E. Belliard , Director of Legal Affairs,   Ministry of Foreign Affairs,   Agent , Ms A.-F. Tissier , Deputy Director of Legal Affairs,   Ministry of Foreign Affairs, Ms C. Joly , Drafting Secretary, Human Rights Section,   Legal Affairs Department, Ministry of Foreign Affairs, Mr B. Genevois , President of the Judicial Division,   Conseil d’Etat , Mr J.-Y. B ertucci , Principal Advocate-General   at the Court of Audit, Mr O. O rtiz , President of the Regional Audit   Office of Alsace ,   Advisers ; (b)     for the applicant Mr M. Meyer , lawyer, Ms V. Lechevallier , lawyer,   Counsel .   The Court heard addresses by Mr Meyer and Ms Belliard and by Mr   Genevois and Mr Bertucci. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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. II.     RELEVANT DOMESTIC LAW AND PRACTICE 1.     The personal and financial liability of public accountants 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: Article 12 “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. ...” Article 13 “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)”. 2.     Judicial scrutiny of accounts rendered by public accountants of local authorities and their public institutions (a)     Regional audit offices 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). (b)     Features of the proceedings in the Court of Audit on an appeal from a judgment of a regional audit office levying a surcharge against a public accountant 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, M me 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). 3.     Case-law of the Conseil d’Etat on the applicability of Article 6 § 1 of the Convention to proceedings before the Court of Audit 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, M me   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 ). 4.     Decree no. 2005-1586 of 19 December 2005 amending the regulatory section of the Administrative Courts Code 21.     Decree no. 2005-1586 of 19 December 2005 is worded as follows: “... Chapter II – Provisions relating to the appointment of Government Commissioners Article 2 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.’ Article 3 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.’ Article 4 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.’ Chapter III – Provisions relating to deliberations Article 5 Title III of Book VII of the Code shall now be entitled ‘Conduct of the hearing and deliberations’. Article 6 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.’ Article 7 The words ‘After deliberations without the parties being present, and’ shall be deleted from Article R. 741-1 of the Code. Article 8 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.’ ...” THE LAW I.     ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION 22.     The applicant complained of several breaches of Article 6 § 1 of the Convention, according to which: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” A.     The applicability of Article 6 § 1 and the Government’s preliminary objection 1.     The Chamber decision on the admissibility of the application 23.     In its decision of 13 January 2004 on the admissibility of the application (ECHR 2004-II), the Chamber dismissed the Government’s preliminary objection based on the inapplicability of Article 6 § 1. In particular, in reaching the conclusion that the “obligation” in question in the proceedings was a “civil” one it weighed the private-law features against the public-law features present in the case and found that the former predominated. Replying to the Government’s submission, with reference to Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 ‑ VIII), that account had to be taken of the fact that the “obligation” in question related to the relationship between public servants exercising powers conferred by public law and the authorities, the Chamber held as follows: “The Court ... reiterates that the criterion of ‘participation in the exercise of powers conferred by public law’ established in Pellegrin is solely intended to enable it to be determined whether disputes relating to the recruitment, careers and termination of service of public servants fall outside the scope of Article 6 § 1 under its civil head. That is not the subject of the proceedings in question here. Pellegrin is therefore irrelevant to the instant case.” (§ 27) 2.     The parties’ submissions 24.     As before the Chamber, the Government submitted as their principal argument that the application was incompatible ratione materiae with the provisions of the Convention because Article 6 § 1 was not applicable to the proceedings in question. They referred in that connection to Pellegrin (cited above, § 67) in which the Court held that “no disputes between administrative authorities and employees who occupy posts involving participation in the exercise of powers conferred by public law attract the application of Article 6 § 1 ...”. In their submission, public accountants “had responsibilities affecting matters of general interest and participated in the exercise of powers conferred by public law, wielding a portion of the sovereign power of the State”. They inferred from paragraph 28 of the Chamber decision of 13 January 2004 that the Chamber had unduly extended the solution adopted by the Court in Richard-Dubarry v. France (no. 53929/00, 1 June 2004), concerning de facto management of public funds, to the purely objective procedure of examining accounts rendered by public accountants. They pointed out that the internal rules of procedure followed by the public finance courts when auditing accounts were distinct from those followed in cases of de facto management of public funds, having regard to the difference in nature and subject of those two types of procedure. In the Government’s submission, the position of a public accountant was not comparable to that of a tortfeasor; nor did he incur liability on the basis of obligations comparable to contractual obligations under the civil law. They observed in that connection that judicial audits of accounts were merely intended to check that the accounts rendered were in order. The Government added that a judicial audit of accounts rendered by a public accountant involved only an indirect pecuniary issue for the public accountant in question. Firstly, his only obligation on a judicial audit of his accounts was to produce proof of the entries in the accounts submitted to the audit office for examination and, secondly, it remained entirely uncertain, after judgment was delivered, that he would be surcharged in respect of the deficit disclosed. On the latter point the Government pointed out that, where applicable, the judgment was limited to noting the expenditure paid by the accountant – or the outstanding sums due and not collected by him – without proper or adequate reasons and requesting him, not to repay the amounts in question, but to put the accounts in order. Making good the deficit recorded in the judgment from the accountant’s own assets was only one method of putting the accounts in order. The accountant’s financial position was not determined until a later stage, and then not by the public finance courts but by the Minister of Finance, who had a statutory power to discharge accountants in respect of their accounts or grant them remission, on a non-contentious application, in respect of the deficit in the event of force majeure or if there had been no negligence, after assessing any professional failings on the part of the accountant in the exercise of his duties and his ability to contribute to settling the amounts in question. If the Minister decided in the accountant’s favour, this amounted to regularisation of the accounts to the extent that the accountant had been discharged of liability or granted remission of the deficit. The Government argued on that basis that it was only at that stage, and not when the accounts were being objectively assessed by the public finance courts, that a civil obligation of the accountant could be regarded as being in issue. The Government stated that, on the basis both of the foregoing considerations and of their previous observations on admissibility (see admissibility decision of 13 January 2004, cited above, § 20), they still considered that Article 6 § 1 of the Convention was inapplicable to the present case. 25.     The applicant asked the Grand Chamber to endorse the Chamber’s conclusion with regard to the applicability of Article 6 § 1 in the present case. He laid particular emphasis on the fact that the financial liability of public accountants was akin to contractual obligations under civil law and that the outcome of proceedings relating to a judicial audit of accounts could substantially affect the exercise of property rights by the accountant concerned and his or her assets, since the amount owed corresponded to the capital plus interest. He referred in that connection to the case-law of the Convention institutions (in particular the opinion of the European Commission of Human Rights in Muyldermans v. Belgium (23 October 1991, Series A no. 214-A)). In the observations he submitted at the admissibility stage he had also contended that, in accordance with the judgment in Pellegrin , cited above, Article 6 § 1 was applicable to his case because, as a civil servant in the State education service appointed as a school’s accountant, his employment had not entailed participating in the exercise of powers conferred by public law and the performance of duties designed to safeguard the general interests of the State or of other public bodies. 3.     The Court’s assessment 26.     The Court would emphasise that the issue raised in the present case is, specifically, the applicability of Article 6 § 1 of the Convention to proceedings before the Court of Audit on an appeal from a judgment of a regional audit office levying a surcharge against a public accountant. It points out in this connection that it is common ground that there was a “dispute” ( contestation ) regarding an “obligation” of the applicant. The question that therefore needs to be determined is whether the “obligation” in question is a “civil” one within the meaning of Article 6 § 1. In order to determine that question, the proper approach, in theory, is to weigh the features of private law and public law present in the case against each other (see, for example, Feldbrugge v. the Netherlands , 29 May 1986, §§ 26-40, Series A no. 99). 27.     In the case of Pellegrin , to which the Government referred, the Court was confronted with the issue of the applicability of Article 6 § 1 of the Convention to a dispute between a non-established civil service employee under contract and the administrative authority employing him. Mr   Pellegrin had complained before the domestic courts of the decision removing his name from the establishment list of the Ministry concerned. In Pellegrin (§ 59) the Court began by reiterating the position under the earlier case-law. According to that case-law, the principle was that “disputes relating to the recruitment, careers and termination of service of civil servants are as a general rule outside the scope of Article 6 § 1”. However, this principle of exclusion, the Court observed, had been limited and clarified in a number of cases. In particular, Article 6 § 1 had been considered to apply where the claim in issue related to a “purely economic” or “essentially economic” right and did not mainly call in question “the authorities’ discretionary powers”. The Court held (see § 60): “[A]s it stands, the above case-law contains a margin of uncertainty for Contracting States as to the scope of their obligations under Article 6 § 1 in disputes raised by employees in the public sector over their conditions of service.” In the circumstances the Court wished to “put an end to the uncertainty which surrounds application of the guarantees of Article 6 § 1 to disputes between States and their servants” (see § 61). It considered that it should “adopt a functional criterion based on the nature of the employee’s duties and responsibilities” (see § 64). In its view, “the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities” (see § 66). “In practice, the Court will ascertain, in each case, whether the applicant’s post entails – in the light of the nature of the duties and responsibilities appertaining to it – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities” (ibid.). 28.     Pellegrin was thus a departure from precedent, and has since been confirmed, regarding the principles it established and the criterion of applicability of Article 6 § 1 it laid down, by a large number of judgments and decisions of the Court (see, for example, among other authorities, Frydlender v. France [GC], no. 30979/96, ECHR 2000-VII; Linde Falero v. Spain (dec.), no. 51535/99, 22 June 2000; Rey and Others v. France , nos.   68406/01, 68408/01, 68410/01 and 68412/01, 5 October 2004; and Czech v. Poland , no. 49034/99, 15 November 2005). 29.     It therefore needs to be ascertained whether the applicant’s post entailed – within the meaning of that case-law – direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities. 30.     The Grand Chamber concludes that Article 6 § 1 is applicable, as did the Chamber in its above-mentioned admissibility decision, but by different reasoning. The Chamber mainly had regard to the special nature of the dispute between the applicant and the State in reaching the conclusion that the obligations on the applicant were “civil” ones within the meaning of Article 6 § 1 of the Convention, with private-law features predominating in this case. In the Grand Chamber’s view, in the light of the judgment in Pellegrin regard should rather be had to the applicant’s post, the nature of his duties and the responsibilities attached to the post. The case involved a civil servant in the employ of the State education service who had been appointed by the Director of Education as accountant of a school and was responsible, in that capacity, for the accounts of a secondary school and of those of a centre attached to it that had no separate legal personality. Neither the nature of the duties carried out by the applicant, nor the responsibilities attached to them, support the view that he participated “in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State or of other public authorities”, unless these concepts are to be construed broadly. The correct approach, however, in accordance with the object and purpose of the Convention, is to adopt a restrictive interpretation of the exceptions to the safeguards afforded by Article 6 § 1 (see Pellegrin , cited above, § 64). Accordingly, the Court concludes that, having regard to the nature of his post, the dispute between the applicant and the State does come within the scope of Article 6 § 1 of the Convention. B.     Merits 1.     The complaint relating to a breach of Article 6 § 1 in the proceedings before the Court of Audit (a)     The parties’ submissions 31.     The applicant complained of a breach, before the Court of Audit, of his right to a “fair and public hearing ... by an ... impartial tribunal” within the meaning of Article 6 § 1 of the Convention. He submitted that, prior to the hearing, neither he nor his lawyer had received the reporting judge’s report (whereas it had been sent to State Counsel) and that the reporting judge had taken part in the deliberations of the bench despite having previously been involved in investigating the case. Referring to Guisset v. France (no. 33933/96, §§ 72-74, ECHR 2000 ‑ IX), he added that he had neither been summoned to the hearing nor invited to submit his observations, nor even informed of the date of the hearing, which, moreover, was not public. 32.     The Government submitted that the procedural rules specific to the public finance courts were such as to provide litigants with comprehensive guarantees regarding the requirements of a fair trial and respect for the rights of the defence. They pointed out that, in accordance with various provisions, proceedings in respect of accounts were adversarial and provided for “exceptionally broad protection” of the accountant’s interests. They referred to the following in that connection: the fact that the proceedings were in written form (as provided for in Articles L. 140-7 and   R. 241-27 of the Financial Judicature Code), which excluded any reference to oral evidence such as interviews or examinations – except on a judicial audit of accounts rendered by de facto accountants – and obliged the court to base its judgment solely on the documents submitted by the accountant in support of the accounts; “the settled principle that a final ruling cannot be adopted unless all the parties have been able to reply in writing to an initial interim ruling (known as the ‘double judgment’ rule) within a period of not less than one month; access to the documents on which the final judgment or interim ruling was based, including State Counsel’s findings but excluding the investigation report (other than in cases of de facto management)” ( sic ); the statutory obligation, laid down in Article R. 231-5 of the Financial Judicature Code, to set out and examine, in final judgments, the submissions made by the parties concerned by interim rulings (injunctions, reservations); the absolute principle that decisions are made collegially (Articles L. 241-13, R. 141-1 and R. 241-1 of the Financial Judicature Code), which prevented the reporting judge from taking a decision alone and obliged him, under Article R. 141-7 of the Code, to put forward reasoned proposals in the light of which the court must rule; and the systematic appointment, before the Court of Audit, of a “counter-reporting” senior judge having, among other duties, the task of giving his opinion on each of the proposals submitted by the reporting judge (Articles R. 141-7 and R. 141-8 of the Financial Judicature Code), this being possible in the regional audit offices as well. 33.     The Government acknowledged, nevertheless, that hearings on appeal to the Court