DIDIER - France (N^o 58188/00)

Decision 27.8.2002 [Section II]

The Stock Exchange Transactions Board (Commission des opérations en bourse – hereinafter COB) applied to the Financial Transactions Council (Conseil des marchés financiers - hereinafter CMF) to have disciplinary proceedings instituted against the applicant. The CMF, ruling as a disciplinary board, decided to deprive him of his professional permit for six months and imposed a pecuniary penalty of 5 000 000 francs. The applicant appealed to the Conseil d’Etat in an administrative law action (recours de pleine juridiction) requesting annulment and stay of the execution of the impugned decision. The Conseil d’Etat dismissed the applicant’s appeal. It noted that although the CMF sitting as a disciplinary board was not a court in the eyes of domestic law, an infringement of the principle of impartiality deriving from Article 6 could be invoked before the Conseil d’Etat in support of an appeal against a CMF decision. The applicant complained to the Court, in particular, of a violation of the presumption of innocence since the appeal to the Conseil d’Etat had no suspensive effect. He also claimed that the non-disclosure of the findings of the Government Commissioner of the Conseil d’Etat had violated his right to a fair hearing. He further considered that the participation of the CMF’s rapporteur in the deliberations after preparing the case had infringed the principle of an impartial tribunal. Finally, he contended that the CMF was not a "tribunal" within the meaning of Article 6(1) and that consequently he had not been able to benefit from two-tier jurisdiction within the meaning of Article 2 of Protocol No. 7.

Inadmissible under Article 6(2): As to the applicant’s contention that the principle of presumption of innocence is infringed by the non-suspensive nature of the appeal proceedings before the Conseil d’Etat, this complaint required the Court to determine whether it was proper to refuse the applicant’s request for a stay of execution. Stay of execution is never granted as of right, and is outside the jurisdiction of the Court ratione materiae: incompatible ratione materiae.

Inadmissible under Article 6(1): a) Regarding the non-disclosure of the Government Commissioner’s findings, proceedings before the Conseil d’Etat afford a claimant sufficient guarantees, and no problem over the right to a fair hearing arose as far as the inter partes proceedings were concerned (Kress v. France, judgment of 7 June 2001): manifestly ill-founded).

b) Regarding the participation of the rapporteur responsible for the preparation of the case in the deliberations which preceded the judgment, it should firstly be established whether, having regard to the nature and extent of the rapporteur’s functions and given his through knowledge of the case, the rapporteur had displayed an inclination during the preparatory enquiry and subsequent deliberations to prejudge the eventual decision of the CMF. Where a judge does not draw up an indictment, his thorough knowledge of the case does not give cause to question his impartiality in deciding on the merits. Now, under the system at issue, the rapporteur, being appointed after the referral of the case to the CMF by the President of the COB, cannot actuate the referral. Nor is he involved in formulating the complaints, and has no power to dismiss the case or, conversely, to broaden the scope of the referral. His task is to "record in writing the outcome of these operations". Accordingly, while the rapporteur dealt with the same questions as those on which he later ruled as a member of the CMF, he did so without drawing up an indictment and his intervention was limited to verifying the truth of the facts and then recording in writing the outcome of these operations. Thus, even if the rapporteur took part in the deliberations, his having gained an exact knowledge of the case by conducting the preparatory enquiry does not infringe the principle of impartiality. In so far as it is to be determined whether the rapporteur’s preliminary appraisal could be deemed to anticipate the final determination, the latter is made on the basis of a case file kept at the disposal of the person charged. The file is presented by the rapporteur at a sitting which precedes the hearing. The person charged and, if applicable, the counsel for the defence, must be allowed to address the disciplinary board last. The final determination, arising from the deliberations, is made with the decision and is founded on points discussed during the hearing. In conclusion, there was no objective reason for thinking that the nature and extent of the rapporteur’s functions in the preparatory phase impaired his objective impartiality in the deliberations: manifestly ill-founded.

Inadmissible under Article 6(1) and Article 2 of Protocol No. 7: Article 8 of decree no. 96-872 of 3 October 1996 on CMF disciplinary boards provides for an administrative law action before the Conseil d’Etat under its general jurisdiction (recours de pleine juridiction). Consequently, neither Article 2 of Protocol No. 7 nor Article 6(1) has been violated. Indeed, however it may be designated in domestic law, the CMF can be considered a "tribunal" according to an independent interpretation of Article 6. Now, the construction which this provision places on "tribunal" is also that of Article 2 of Protocol No. 7. The review of the CMF’s decisions performed by the Conseil d’Etat is comprehensive, so that in performing this review the Conseil d’Etat is also a judicial body with full jurisdiction, ie a "tribunal". The applicant was therefore secured the right to two-tier jurisdiction in a criminal case: manifestly ill-founded.