CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 11 juin 2009

.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 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   462 11.06.2009   Press release issued by the Registrar   CHAMBER JUDGMENT DUBUS S.A. v. FRANCE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Dubus S.A. v. France (application no. 5242/04).   The Court held unanimously that there had been:   a violation of Article 6   §   1 (right to a fair trial) of the European Convention on Human Rights on account of the lack of independence and impartiality of the disciplinary proceedings opened by the Banking Commission against the applicant company; and, no violation of Article 6   §   1 of the Convention in respect of the complaints about the unfairness of the proceedings before the Conseil d’Etat.   Under Article 41 (just satisfaction) of the Convention, the Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained and awarded the applicant company 15,000   euros   (EUR) for costs and expenses. ( The judgment is available only in French .)   1.     Principal facts   The applicant is Dubus S.A., an investment company whose registered office is in Lille. Its business consists of receiving, transmitting and executing orders for third parties and trading on its own behalf. In 2000 it was inspected by the Banking Commission, the supervisory authority responsible for credit and investment establishments, chaired by the Governor of the Bank of France (“the Commission”), following which notice of a regulatory offence was served on it, together with a request to take remedial action.   On 28 September 2000, on the strength of the inspection report, the Banking Commission decided to open disciplinary proceedings against Dubus S.A. The company was accused, in particular, of failure to comply with the regulations concerning the reporting of its clients’ deposits, the insufficiency of its own funds, and breaches of the rules of management, book-keeping and transmission by investment firms of their annual accounts and periodical documents. The Chair of the Commission informed the applicant company of the reasons.   On 28 December 2000 Dubus S.A. filed observations in reply, challenging the lawfulness and the impartiality of the proceedings with regard to Article 6   §   1 of the European Convention. In particular the applicant company objected to the fact that the Commission was all at once a prosecuting, investigating and judicial authority. The Secretariat of the Commission submitted observations in reply to the applicant company on 1 June 2001, and invited it to attend the hearing to be held on 11 July.   In a decision of 8 October 2001, served by its Secretary General, the Commission gave the applicant company a reprimand and stated that there had been no irregularities in the proceedings. In July 2003 the Conseil d’Etat dismissed an appeal by the applicant company on points of law. After rejecting the complaints concerning the Commission’s combined powers, its power to take up a case of its own motion, its alleged lack of impartiality and its failure to respect the rights of the defence, it found that the decision of 8 October 2001 had been sufficiently well-reasoned.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 29 January 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Rait Maruste (Estonia), Jean-Paul Costa (France), Karel Jungwiert (the Czech Republic), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), Zdravka Kalaydjieva (Bulgaria), judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [2]   Complaint   Relying on Article 6   §   1 (right to a fair hearing), the applicant company complained of the lack of impartiality and independence of the Banking Commission in disciplinary proceedings the latter had taken against it, and also of the unfairness of the proceedings before the Commission and the Conseil d’Etat .   Decision of the Court   Article 6   §   1   Lack of impartiality and independence   The Court underlined the lack of precision of the texts governing proceedings before the Commission and noted the lack of any clear distinction between the functions of prosecution, investigation and adjudication in the exercise of its judicial power. While the combination of investigative and judicial functions was not, in itself, incompatible with the need for impartiality, this was subject to their being no "prejudgment” on the part of the Commission.   Like the Conseil d’Etat , the Court found no fault with the Commission’s power to open a case of its own motion, but it stressed the need for stricter controls, to avoid giving the impression that guilt had been established from the very start of the disciplinary proceedings.   The Court noted that the applicant company might reasonably have had the impression that it had been prosecuted and tried by the same people, and had doubts about the decision of the Commission, which, in its various capacities, had brought disciplinary proceedings against it, notified it of the offences and pronounced the penalty. The Court noted that the role of the Secretariat and Secretary General of the Commission had added to the confusion. The Secretariat had carried out administrative investigations on the instructions of the Commission, setting disciplinary proceedings in motion where necessary. It had then replied to the submissions of the respondent party, thereby intervening in the judicial process. Lastly, the investigation had been carried out on behalf of the Commission, which had subsequently pronounced the sanction.   The Court was therefore unconvinced by the French Government’s argument that there was an effective separation in the Commission’s role between the disciplinary proceedings and the administrative investigation.   It accordingly found a violation of Article 6   §   1 in so far as the applicant company’s doubts about the Commission’s independence and impartiality were objectively justified because of the lack of any clear distinction between its different functions.   Inequality of arms   The Court did not consider it necessary to examine the applicant company’s complaint under Article 6   §   1 concerning the inequality of arms between the Secretariat of the Commission and the persons against whom it took action.   As to the proceedings before the Conseil d’Etat , the Court considered that the latter had examined the impartiality of the impugned proceedings in full, and had justified the principle of the Commission being able to open a case of its own motion in view of the particular situation of independent authorities whose role was to regulate the markets. It had therefore not failed to give reasons for its decision.   The Court further referred to its conclusions concerning appeals to the Conseil d’Etat and the second level of jurisdiction they afforded. It found accordingly that there had been no violation of Article 6   §   1 with respect to the complaints concerning the unfairness of the proceedings before the Conseil d’Etat .     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   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. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.