The ECHR judgment of 6 October 2016 in the case of Beausoleil v. France (application No. 63979/11).
In 2011, the applicant was assisted in preparing the application. Subsequently, the application was communicated to France.
In the case, a complaint was successfully considered for the recognition by the Accounts Tribunal of the applicant of an actual accountant of public funds that were illegally transferred and used in conjunction with the mayor and the municipality. There has been a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The procedure applicable to the cases of "actual management" by public funds encompasses three separate and independent stages, each of which concludes with a final decision on which a simple or cassation complaint can be lodged: first, the court grants the status of "actual accountants" to individuals , responsible for the use of public funds; secondly, the actual accountants submit their reports to the court, which examines their income and expenses, and if the income exceeds the amount allocated for the expenditure and the actual accountants have not paid the amount corresponding to the surplus in the public coffers, they are considered debtors of the missing balance before this public authority ; thirdly, the court may decide to fine the actual governors for intervening in the functions of the public accountant (see Tedesco v. France, judgment of 10 May 2007, application no. 11950/02).
The applicant was a former treasurer of a private-law association - a public committee of the municipality's staff. In 1997, the Court of Accounts made a final decision declaring it to be the actual accountant of public funds that were illegally transferred and used, together with the mayor and the municipality (case "Richard-Dubarry v. France", complaint No. 53929 / 00, Decision of 7 October 2003 and Resolution of 1 June 2004). The Court of Accounts previously referred to these violations in its public annual report for 1995. The text of the document appears to be a misprint: The ECHR decision in the case of Richard-Dubarry v. France (complaint No. 53929/00) is dated 07.05.2003, not 07.05.2010.
Indeed, the European Court issued such acts, but the applicant's name was not mentioned in the case.
In 2008, the Accounts Court determined the final balance for this report. The applicant, the association and the mayor were recognized as joint debtors in paying the municipality more than 400,000 euros. The State Council rejected the applicant's appeal.
After the previous cassation appeal, the State Council rejected the applicant's allegation that there was no impartiality of the court in the following terms:
- in itself, the inclusion of references to the same expenditure in a previous public report published by the Court of Accounts in principle could not be considered prejudicial to the decision on the final balance;
- in the present case, the relevant references in the public report could potentially be considered prejudicial to the existence of transactions that constitute actual management but do not prejudge the assessment made by the Court of Accounts when it determines the final balance after an accurate comparison of the actual management.
ISSUES OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. The only issue that arose in the present case was whether the references in the 1995 report had predetermined the determination of the final balance. Presumably, there was a difference between the stages of establishing the case for actual management and determining the final balance, and during the second stage the court had access to information that did not have when the public report was issued.
Nevertheless, this difference did not exclude the possibility that, in the specific circumstances of the case, the reference to the public report could constitute a predetermination of the determination of the final balance. The State Council allowed such an opportunity.
The Court of Accounts previously presented a clear and detailed version of the illegal transactions involving the association, whose treasurer was the applicant:
- in the public record the case was considered as a whole, and it did not distinguish between the declaration on actual management and the calculation of wrongfully paid amounts, to which he referred;
- the association was explicitly mentioned in the report together with a detailed calculation of these amounts;
- the expense was determined with precise details (for example, a specific "bonus" paid to officials);
- Without a direct mention of the applicant by name, the report allowed him to identify persons familiar with how the association functions or who wish to investigate its operations;
- and, finally, the report referred to "extremely harmful consequences", thereby expressing a judgment on the seriousness of the actions and the scale of the amounts involved.
These factors together were sufficient to establish that the references in the report could cause the applicant on objective grounds to fear that the Court of Accounts may not be impartial in determining the final account balance.
It should also be noted that in subsequent decisions the State Council clarified the limits in which the public report should be considered to have taken a specific position, preventing the Court of Accounts from determining the final balance and applying a fine to the persons concerned.
Thus, in the present case, the Court of Account failed to provide the guarantees of impartiality required by Article 6 § 1 of the Convention at the stage of determining the final balance.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The claim for compensation for pecuniary damage was rejected.