CEDH · PRESS;GCJUDGMENTS;ENG — 12 avril 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   215 12.4.2006   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT MARTINIE v. FRANCE   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Martinie v. France (application no. 58675/00).   The Court held unanimously, that there had been a violation of Article   6 § 1 (right to a fair hearing) of the European Convention on Human Rights on account of the applicant’s inability to request a public hearing before the Court of Audit; by 14 votes to three, that there had been a violation of Article   6 § 1 of the Convention on account of State Counsel’s position in the proceedings before the Court of Audit; by 14 votes to three, that there had been a violation of Article   6 § 1 on account of the presence of the Government Commissioner at the deliberations of the Conseil d’Etat .   The Court held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. Under Article 41 (just satisfaction), the Court decided, by 15 votes to two, to award the applicant 9,338.54   euros for costs and expenses. (The judgment is available in English and French.)   1.     Principal facts   The applicant, Michel Martinie, is a French national aged 58 who lives in Papeete (France). At the material time he was the accountant for the Lycée René Cassin in Bayonne.   In June 1987 the Lycée René Cassin and the French Federation of Basque Pelota set up the Basque Pelota National Training Centre (CNEA) to allow young athletes to continue studying while they were training. The headmaster of the school was the director of the CNEA and authorising officer in respect of expenditure, and the applicant, who was appointed general secretary, was the accountant. In December 1987 the headmaster set up a fixed monthly allowance in favour of the CNEA’s director (i.e. himself) and general secretary (i.e. the applicant).   On 17 October 1997 the Aquitaine Regional Audit Office considered that the applicant owed the school more than 221,000 francs (FRF) in payments he had made as the school’s public accountant between 1989 and 1993. Those payments concerned, among other things, the fixed monthly allowance and holiday compensation paid to the headmaster as director of the CNEA and the applicant as general secretary. In its judgment the regional audit office noted that those allowances had not been authorised by the board of governors of the Lycée René-Cassin, despite the fact that it was the only body with power to set up a system of allowances.   On appeal to the Court of Audit, the amount payable was reduced to about FRF   191,900. An appeal by the applicant on points of law was declared “inadmissible” by the Conseil d’Etat .   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 15 February 1999 and declared partly admissible on 13 January 2004.   On 3 May 2005 the Chamber of the Court dealing with the case relinquished jurisdiction in favour of the Grand Chamber under Article 30 [2] of the Convention. A Grand Chamber hearing took place in the Human Rights building in Strasbourg on 16 November 2005.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Nicolas Bratza (British), Lucius Caflisch (Swiss) [3] , Ireneu Cabral Barreto (Portuguese), Françoise Tulkens (Belgian) Peer Lorenzen (Danish), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), András Baka (Hungarian), Rait Maruste (Estonian), Snejana Botoucharova (Bulgarian), Antonella Mularoni (San Marinese), Elisabet Fura-Sandström (Swedish), Alvina Gyulumyan (Armenian), Khanlar Hajiyev (Azerbaijani), judges , and also Lawrence Early , Deputy Grand Chamber Registrar .   3.     Summary of the judgment [4]   Complaints   Relying on Article 6 § 1 of the Convention, the applicant complained that the proceedings before the Court of Audit had been unfair because the reporting judge’s report had not been sent to him prior to the hearing (whereas it had been sent to State Counsel) and the reporting judge had participated in the court bench’s deliberations. He complained further 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. Lastly, the applicant also complained that the Government Commissioner had participated in the deliberations of the Conseil d’Etat .   Decision of the Court   Applicability of Article 6 § 1   Having regard to the applicant’s post, which excluded any 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, the Court concluded that Article 6 § 1 was applicable in the present case. Accordingly, it dismissed the French Government’s preliminary objection in that regard.   The proceedings before the Court of Audit   Lack of a public hearing The Court reiterated that the public character of proceedings before the judicial bodies protected litigants against the administration of justice in secret with no public scrutiny and was one of the means whereby confidence in the courts, superior and inferior, could be maintained.   The Court noted that French law did not provide an opportunity of requesting a public hearing either at first instance before the regional audit office or on appeal before the Court of Audit. It accepted that, given the technical nature of the exercise of scrutinising accounts, it was in principle better dealt with in writing than in oral argument.   Thus, as long as the proceedings were limited to the scrutiny of accounts Article 6 § 1 did not prohibit them from being conducted in private.   However, if the proceedings led to a surcharge being levied against the public accountant concerned, his or her financial position was directly affected. It was then understandable that the accountant in question would view the public scrutiny of the accounts as a necessary condition for the protection of the rights that he or she should be able to rely on, at least at the appeal stage.   In conclusion, since proceedings before regional audit offices were conducted in private, the Court considered it essential that public accountants were able to request a public hearing before the Court of Audit on appeal from a judgment of the regional audit office levying a surcharge against them. Where no such request was made, the hearing could remain private, having regard to the technical nature of the proceedings.   As Mr Martinie had not been able to request a public hearing before the Court of Audit, the Court held that there had been a breach of Article 6   § 1.   Fairness of the proceedings The Court considered that there was an imbalance in the proceedings that was detrimental to public accountants on account of State Counsel’s position: unlike the accountant, he was present at the hearing, was informed beforehand of the reporting judge’s point of view, heard the latter’s submissions (and those of the counter-reporting judge) at the hearing, fully participated in the proceedings and could express his own point of view orally without being contradicted by the accountant. It was irrelevant whether State Counsel was or was not regarded as a “party”, since he was in a position, for those reasons together with the authority conferred on him by his functions, to influence the bench’s decision whether to levy a surcharge in a manner that might be unfavourable to the accountant.   In the Court’s view, that imbalance was accentuated by the fact that the hearing was not public and was therefore conducted in the absence of any scrutiny either by the accountant concerned or by the public.   The Court accordingly concluded that there had been a breach of Article 6 § 1 in that respect as well.   The proceedings before the Conseil d’Etat   Regarding the Government Commissioner’s participation in the deliberations of the bench of the Conseil d’Etat , the Court confirmed its settled case-law on the subject, according to which that participation gave rise to a breach of Article 6 § 1.     President Wildhaber made a declaration. Judges Tulkens, Maruste and Fura-Sandström expressed a joint concurring opinion, and Judges Costa, Caflisch and Jungwiert expressed a joint partly dissenting opinion. These are annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts :   Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. [3] Judge elected in respect of Liechtenstein. [4] This summary by the Registry does not bind the Court.