CEDH · CASELAW;CLIN;ENG — 6 octobre 2016

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France - 63979/11 Judgment 6.10.2016 [Section V] Article 6 Administrative proceedings Article 6-1 Impartial tribunal Lack of impartiality, owing to statements made in earlier public report, of Court of Audit to determine balance of accounts in case concerning the de facto management of public funds: violation Facts – The procedure applicable to cases of “ de facto management” of public funds comprises three distinct and independent stages, each of which ends with a final decision against which an ordinary appeal or an appeal on points of law lies: (1) firstly, a court confers the status of “ de facto accountants” on the persons to be called to account for the use of public funds; (2) secondly, the de facto accountants submit their accounts to the court, which examines their revenue and expenditure; if the revenue exceeds the amount assigned for expenditure and the de facto accountants have not paid a sum corresponding to the surplus into the public purse, they are deemed to be owing the outstanding balance to the public body concerned; and (3) thirdly, the court may decide to fine the de facto managers for interfering with the functions of a public accountant (see Tedesco v.   France , 11950/02, 10   May 2007, Information Note   97 ). The applicant was a former treasurer of a private-law association – a municipality’s staff social committee. In 1997 the Court of Audit gave a final judgment declaring him the de facto accountant of the public funds that had been wrongfully removed and handled, jointly with the association and the mayor of the municipality (see Richard-Dubarry v.   France , 53929/00, decision of 7   October 2003 and judgment of 1 June 2004). The Court of Audit had previously referred to these irregularities in its 1995 public annual report. In 2008 the Court of Audit determined the final balance on the account in question. The applicant, the association and the mayor were declared, jointly and severally, to be owing the municipality more than EUR 400,000. The Conseil d’État dismissed an appeal on points of law by the applicant. Following a previous appeal on points of law, it had dismissed the allegation of a lack of impartiality in the following terms: –     the mere inclusion of references to the same expenditure in a previous public report issued by the Court of Audit could not in principle be regarded as prejudging the decision determining the final balance; –     in the present case, the relevant references in the public report could potentially be regarded as prejudging the existence of transactions amounting to de facto management, but not as prejudging the assessment to be made by the Court of Audit when it came to determine the final balance after the precise scale of the de facto management had been established. Law – Article 6 §   1: The only question arising in the present case was whether the references in the 1995 report had prejudged the determination of the final balance. Admittedly, there was a difference in purpose between the stages of establishing a case of de facto management and determining the final balance; during the second stage the court had access to information that had not been in its possession when the public report had been issued. Nevertheless, this difference did not rule out the possibility that in the particular circumstances of a given case, the references in the public report might be such as to amount to prejudgment of the determination of the final balance. The Conseil d’État had itself accepted that eventuality. The Court of Audit had previously given an explicit and detailed account of the irregular transactions involving the association of which the applicant had been the treasurer: –     the public report had discussed the case as a whole and had not made any distinction between the declaration of de facto management and the calculation of the wrongfully disbursed amounts to which it referred; –     the association had been explicitly mentioned in the report, together with a detailed estimate of the sums involved; –     the expenditure had been identified in precise detail (for example, a specific “bonus” paid to officials); –     without explicitly mentioning the applicant by name, the report had made him identifiable by anyone familiar with how the association functioned or wishing to investigate its operations; –     and lastly, the report referred to “extremely detrimental consequences”, thus casting judgment on the seriousness of the actions and the scale of the sums involved. Those factors taken together were sufficient to find that the references in the report could have caused the applicant to fear, on objectively justified grounds, that the Court of Audit might not be impartial when determining the final balance on the account. It was also to be noted that in subsequent decisions the Conseil d’État had clarified the limits beyond which the public report would be deemed to have adopted a definite position precluding the Court of Audit from determining the final balance and from imposing a fine on the persons concerned. In conclusion, in the present case the Court of Audit had not afforded the guarantees of impartiality required by Article 6 §   1 of the Convention at the stage of determining the final balance. Conclusion : violation (unanimously). Article 41: claim in respect of pecuniary damage dismissed.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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