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Cite as: [2007] ECHR 5557

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THIRD SECTION

FINAL DECISION

ON ADMISSIBILITY

of application no. 27521/04
by Jean MOULLET
against France

The European Court of Human Rights (Third Section), sitting on 13 September 2007 as a chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mr J.-P. Costa,
Mrs E. Fura-Sandström,
Mr E. Myjer,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre, judges,
and Mr S. Quesada, Section Registrar,

Having regard to the above-mentioned application lodged on 22 July 2004,

Having regard to the partial decision of 4 April 2006,

Having regard to the observations submitted by the respondent Government and those submitted by the applicant in reply,

Having deliberated, pronounces the following decision:

THE FACTS

The applicant, Mr Jean Moullet, is a French national who was born in 1940 and lives in Marseilles. He was represented before the Court by Mr Boumaza, a member of the Marseilles Bar. The French Government (“the Government”) were represented by their Agent, MrsE. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

On 15 November 1982 the former regional director of the Société Marseillaise d’Assainissement refuse disposal company informed the Marseilles public prosecutor’s office that fraudulent transactions had taken place in the attribution of urban refuse collection contracts concluded between the Marseilles city authorities and various private firms in 1978. He alleged that in order to win a contract firms had had to pay a commission to a municipal councillor in charge of cleaning services in the city and his deputy, in exchange for which the firms were granted very advantageous terms. On 24 June 1983 a judicial investigation was opened for bribery, accepting bribes, fraud and aiding and abetting fraud to the detriment of the city of Marseilles. The city authorities joined the proceedings as a civil party. The ensuing proceedings concerned the participation in 1978 of eleven people – contractors and city officials, including the applicant – in fraudulent transactions connected with household refuse collection contracts in Marseilles. The applicant, as manager of the city’s Transport, Workshop and Warehouse (TWW) department – which was closely connected to the cleaning department in issue – was accused of having participated in those offences and having unduly received 10,000 French francs (FRF) (approximately 1,524 euros (EUR)) on 20 March 1978 and FRF 22,800 (approximately EUR 3,475) on 6 April 1978, in commissions for facilitating the attribution of household refuse disposal contracts to certain firms.

In an order of 3 August 1984 the applicant was suspended pending the outcome of criminal proceedings against him on charges of accepting bribes and aiding and abetting fraud, and his suspension was extended by a second order on 4 December 1984.

By a decision of the Indictment Division of the Dijon Court of Appeal pronounced on 5 November 1987, the applicant was discharged as the offences were subject to a three-year time bar. Having established the background and context of the case, the Division noted that a search carried out at the home of one of the contractors in April 1984 had brought to light secret accounting documents on which the applicant’s initials “J.M.” appeared, as well as cassette recordings of telephone conversations between different protagonists in the case – including the applicant – in May 1978, which revealed that the applicant was “very closely linked to the operations concerned” and had received various sums of money. In his respect the Indictment Division held:

“Mr Moullet acknowledged that it was his voice that I. had recorded, but he nevertheless denied the charges against him, submitting that he had played no part in the attribution of the impugned contracts and that, even assuming that S. had intended to pay him, he had never received any money.

Thanks to the cassettes, it is easy to understand why, early in 1978, Mr Moullet found himself very closely involved in the operations mounted by [the main protagonists in the case] S., T. and I.; the TWW Department he manages is very closely linked to the Cleaning Department, which it supplied with the vehicles it used; so it was only natural that S. should seek Mr Moullet’s support.

Furthermore, S. was also interested in the Marseilles city authorities’ contracts to purchase cleaning vehicles, and Mr Moullet played a central part in that process, the choice of equipment being made in the light of a technical report drawn up by the Cleaning and TWW departments.

The cassette recordings, like I.’s secret accounts, reveal that Moullet received FRF 10,000 on 20 March 1978 and FRF 22,800 on 6 April 1978.

As it has not been established that any other payments were made to him after that date, the limitation period for the charges against Mr Moullet has expired.”

Four of the accused lodged appeals on points of law. In a judgment of 26 July 1989 the Criminal Division of the Court of Cassation set aside the part of the judgment of 5 November 1987 committing the four appellants for trial before the criminal court for fraud and aiding and abetting fraud, while upholding the parts concerning bribery and accepting bribes, and sent the case and the parties before the Indictment Division of the Lyons Court of Appeal. In a judgment of 2 July 1991 that court found that there were no grounds to bring proceedings for fraud and aiding and abetting fraud against certain of the accused and committed the others for trial before the Marseilles Criminal Court. In a judgment of 30 June 1992, the court acquitted one of the accused and found that, for the others, the offences of bribery and accepting bribes were established and that they were amnestied by virtue of the Amnesty Act of 20 July 1988.

2. The applicant’s request to be reinstated

On 9 February 1988 the applicant applied to the mayor to be reinstated in his post. Having received no reply, the applicant applied to the Marseilles Administrative Court to set aside the mayor’s implicit refusal.

In a judgment of 13 November 1990, the court dismissed the application and the applicant lodged an appeal with the Conseil d’Etat. In a judgment of 3 May 1995 the Conseil d’Etat set aside the administrative court’s decision on the grounds that the mayor’s implicit refusal was unlawful: there was no justification for the applicant’s suspension to continue after the proceedings against him had been discontinued.

3. The applicant’s compulsory retirement as a disciplinary measure

On 26 March 1990 the Mayor of Marseilles ordered the applicant’s compulsory retirement as of 1 January 1990, his pension rights being deferred until 12 December 2000, by virtue of the Law of 13 July 1983 on the rights and duties of civil servants.

On 25 May 1990 the applicant applied to the Marseilles Administrative Court for the mayor’s order to be set aside. In a judgment of 13 December 1993 the court set aside the order for failure to give adequate reasons.

On 17 January 1994, basing himself on the findings of the Indictment Division of the Dijon Court of Appeal in its decision of 5 November 1987, the mayor again ordered the applicant’s compulsory retirement as of 1 February 1994, stating the following reasons:

“The evidence in the proceedings before the Indictment Division of the Dijon Court of Appeal in the case of [S.] and Others, and the Indictment Division’s decision of 5 November 1987 confirm that [the applicant], in the performance of his duties, unlawfully received the sum of FRF 10,000 on 20 March 1978 and FRF 22,800 on 6 April 1978.

The criminal court found that prosecution was time-barred, the offences having been committed in 1978.

Disciplinary action by the local authority is not subject to limitation, (...).

Considering the gravity of [the applicant’s] dereliction of his duty of probity, loyalty, professional discretion and neutrality, especially as he occupied a post of confidence and responsibility.”

On 25 July 1994 the applicant applied to the Marseilles Administrative Court for that order to be set aside.

a) The Marseilles Administrative Court’s judgments of 11 February 1999

In a judgment pronounced on 11 February 1999 (no. 944466), the Marseilles Administrative Court set aside the order of 17 January 1994 (point 1 of the operative provisions of the judgment), for the following reasons:

“Firstly, only decisions given by a criminal court trying the merits of the case in criminal proceedings are binding on the administrative courts; this is not the case of the judgments of indictment divisions, no matter what findings they are based on; that being so, the administrative court has full power to assess the material facts alleged against the applicant.

Secondly, the conclusions drawn from the secret accounting documents mentioned above, seized from a third party, simply show entries which have no probative value whatsoever; moreover, the transcripts of the recorded telephone conversations, also relied upon by the Marseilles city authorities, do not establish with any certainty the identity of one of the participants, called Jean, and the applicant denies having taken any part in the conversations, and in any event they do not prove irrefutably that any sums of money were paid to Mr Moullet; and lastly, nor do the records of the hearings before the Indictment Division, during which Mr Moullet always denied the accusations against him, offer any proof, considering the inconclusiveness of the evidence, that he actually received any sums of money in the performance of his duties; under these circumstances, given the inconclusiveness of the evidence in the case file, the acts of which the applicant stands accused cannot be considered to have been established ...”

The court accordingly announced that execution of the judgment required the City of Marseilles to reinstate the applicant in his post, and that the unlawfulness of his suspension gave rise to a cause of action in tort. It ordered the city authorities to reinstate the applicant and to reconstitute his career as of 1 February 1994, awarded him FRF 30,000 (about EUR 4,500) in respect of non-pecuniary damage and disruption to his life, and ordered further investigations to assess the amount due in respect of pecuniary damage from 1 February 1994 onwards (points 2 to 7 of the operative provisions of the judgment).

In another judgment pronounced on 11 February 1999 (no. 944205/956956), the Marseilles Administrative Court set aside the mayor’s implicit refusals to reinstate the applicant and reconstitute his career between 1 October 1984 and 31 January 1994, ordered the retrospective adjustment of his career (point 2 of the judgment), ordered further investigations to assess the pecuniary damage for the period from 1 October 1984 to 31 December 1989 (point 4 of the judgment) and ordered the city authorities to pay FRF 30,000 in respect of non-pecuniary damage and disruption to his life (point 6 of the judgment) plus FRF 1,160,000 in respect of pecuniary damage sustained over the period from 1 January 1990 to 31 January 1994 (point 5 of the judgment).

The applicant and the municipality appealed against the two judgments of 11 February 1999 (appeals 99MA00711, 99MA00727 and 99MA00728).

b) The Marseilles Administrative Court of Appeal’s judgment of 27 June 2000

In a judgment of 27 June 2000 the Marseilles Administrative Court of Appeal joined the appeals. It decided that the sum of FRF 1,160,000 which the Marseilles city authorities had been ordered to pay in respect of pecuniary damage for the period from 1January 1990 to 31 January 1994 should be reduced to FRF 743,416, confirmed the sum awarded in respect of non-pecuniary damage for the same period and rejected the remainder of the parties’ appeals.

The City of Marseilles lodged an appeal on points of law with the Conseil d’Etat against the judgment of 27 June 2000. The applicant lodged a cross-appeal against the same judgment, in so far as it had limited to FRF 30,000 the amount awarded in respect of the non-pecuniary damage and the disruption to his life caused by the administrative sanction imposed on him.

c) Judgment of the Conseil d’Etat of 8 March 2004

In a judgment of 8 March 2004 the Conseil d’Etat set aside the Administrative Court of Appeal’s judgment of 27 June 2000 “in so far as it rejected, on the one hand, the conclusions of the Marseilles city authorities submitted in appeal no. 99MA00727 and, on the other, those submitted in appeal no. 99MA00728 concerning [the applicant’s] compensation for pecuniary damage for the period from 1 January 1990 to 31 January 1994, as well as points 1 to 7 of judgment no. 944466 of 11 February 1999 of the Marseilles Administrative Court of Appeal and points 5 and 7 (in so far as the latter referred to the said point 5) of the same court’s judgment no. 944205/956956 of 11 February 1999. The Conseil d’Etat held, in particular:

“As to the legality of the order of 17 January 1994:

“The file submitted to the trial court contained the judgment of 5 November 1987 to the effect that, after having acknowledged that the acts of which [the applicant] stood accused had been established, the Indictment Division of the Dijon Court of Appeal discontinued the proceedings on the grounds that the prosecution was time-barred; the file also contained the submissions made before the Dijon Indictment Division when criminal proceedings were brought against [the applicant], and several items of evidence gathered during the investigation. The submissions describe in detail the evidence that convinced the prosecution that [the applicant] had been involved in May 1978, together with three accomplices, in dealings aimed at distorting the conditions of reattribution of municipal contracts for the collection of household refuse and charging the contractors various sums intended, at least in part, for their personal gain. The first item in the court’s file was the transcript of a telephone conversation that took place on 26 May 1978, in which [the applicant] confessed to having taken part, and in which [the applicant] expressed concern that the mastermind behind the scheme would keep all the funds collected for himself. The second item in the file was the transcript of another telephone conversation that took place the following day between two [of the applicant’s] accomplices, mentioning that the latter had recently received FRF 10,000, and the third item in the file was the secret accounts kept by one [of the applicant’s] accomplices showing how the payment made by one of the above-mentioned contractors had been divided up in March and April 1978 between the four accomplices, who were designated by their initials. The court would have been denying the evidence had it found that it did not constitute a body of concordant evidence establishing that [the applicant] had committed the offences of which he was accused. The Marseilles city authorities are accordingly justified in applying for the impugned judgment to be set aside in so far as it rejects their grounds of appeal against the second of the judgments of 11 February 1999.

Concerning the compensation for pecuniary damage for the period from 13 June 1984 to 31 January 1994:

The decision of 3 May 1995 of the Conseil d’Etat, acting in its judicial capacity, that the implicit rejection by the Mayor of Marseilles of [the applicant’s] request of 9 February 1988 to be reinstated in his job following the discontinuance of the proceedings against him was unlawful, as the ruling that the criminal proceedings were time-barred, effectively removed the obstacle to his reinstatement. It follows that the Administrative Court of Appeal did not err in law in considering that [the applicant] was entitled to compensation for the pecuniary damage caused to him until 31 December 1989 by the illegal refusal to terminate his suspension.

...

On the appeal submissions of the City of Marseilles and the cross-appeal [by the applicant] against the Marseilles Administrative Court’s judgment no. 944466 of 11 February 1999:

It is clear from the above that the City of Marseilles has good reason to maintain that, by its judgment of 11 February 1999, against which an appeal was lodged, the Marseilles Administrative Court was wrong to find that it had not been established that [the applicant] had committed the offences of which he was accused.

The appeal procedure has the effect of transferring all the issues of fact and law to the Conseil d’Etat, so it is for the latter to examine the other submissions made.

The documents in the case file show that the disciplinary board and the disciplinary appeals board, when called on to examine the case at hand, based their findings on accurate facts.

The reasoning behind the impugned sanction is not faulty in any way and what was said above shows that the reasons on which that decision was based are not materially or factually incorrect.

Lastly, in view of the gravity of the dereliction of the duty of probity by the person concerned, the Mayor of Marseilles made no manifest error of judgment in ordering the [the applicant’s] compulsory retirement.

It follows from the above that the City of Marseilles is justified in requesting that the judgment of 11 February 1999 be set aside in so far as it set aside the judgment of 17 January 1994, awarded [the applicant] compensation, called for investigative measures and pronounced various injunctions.”

B. Relevant domestic law and practice

The disciplinary rules to which local government employees are subject are laid down in the Law of 13 July 1983 on the rights and obligations of civil servants (whose general terms and conditions of service are common to the three public services – State, local authorities and hospitals) and that of 26 January 1984 on statutory provisions relating to public servants in local government. The former law stipulates:

Section 29

“Any fault committed by a civil servant in or during the performance of his duties shall expose him to a disciplinary sanction, without prejudice, where applicable, to the penalties provided for in criminal law.”

Section 30

“In the event of a serious fault committed by a civil servant, through dereliction of professional duty or a breach of the law, the person responsible may be suspended by the relevant disciplinary authority, which shall immediately refer the matter to the disciplinary board.

The civil servant thus suspended shall conserve his salary, residence allowance, family allowance and statutory family benefits. His situation must be fully resolved within four months. If, when that period expires, no decision has been taken by the authority with disciplinary power, unless criminal proceedings have been brought against him, the person concerned shall be reinstated in his post.

If a civil servant is not reinstated in his post pending the outcome of criminal proceedings, up to half his remuneration mentioned in the preceding paragraph may be withheld. He shall nevertheless continue to receive the full family allowance and family benefits to which he is entitled.”

The sanctions applicable to local government employees break down into four groups under section 89 of the Law of 26 January 1984, which provides:

Section 89

“Disciplinary sanctions shall fall into four groups:

First group: warning; reprimand; temporary suspension for no more than three days;

Second group: downgrading; temporary suspension for between four and fifteen days;

Third group: demotion; temporary suspension for between sixteen days and six months;

Fourth group: compulsory retirement; dismissal.

Of the sanctions in the first group, only reprimands and temporary suspensions shall be noted in the civil servant’s record. They shall be automatically erased after three years if no further sanction has been imposed in the meantime.

Temporary suspension from duty, which deprives the person concerned of all remuneration, may be deferred in full or in part. In the case of temporary suspension from duty as provided for in the third group, the aforesaid deferral of this sanction shall not result in the reduction of the duration of the suspension from duty to less than three months. The imposition of a further disciplinary sanction from the second and third groups within five years of the pronouncement of the temporary suspension from duty shall cancel the deferral of the first sanction. On the other hand, if no further disciplinary sanction other than a warning or a reprimand is pronounced against the person concerned within that five-year period, the person shall be fully exempted from that part of the sanction which was suspended.

Disciplinary power shall lie with the local authority after consultation of the joint administrative committee sitting as a disciplinary board. It shall be exercised in the conditions provided for in section 19 of Part I of the Local Government Service Code. The local authority may decide, after consulting the disciplinary board, to make public the decision imposing the sanction and the reasons for it.

For each of the sanctions in the second and third groups as defined in the first paragraph of this section, the conditions and time-limits for deleting the record of the sanctions from the person’s record shall be defined by decree.”

Moreover, Article 13 of decree no. 89-677 of 18 September 1989 on disciplinary procedure applicable to local authority employees provides:

“The disciplinary board shall determine the issue within two months of the day on which the local authority refers the matter to it. That deadline shall not be extended when an inquiry is carried out.

The deadline shall be reduced to one month if the civil servant against whom proceedings have been brought has been suspended from duty.

When meetings of the board are postponed in application of Article 8 of this decree, the deadline shall be extended for the duration of the postponement.

If criminal charges have been brought against the civil servant, the disciplinary board may, by a majority of the members present, suggest suspending the disciplinary proceedings until the court has reached a decision. If the local authority decides to continue the proceedings, however, the board must adjudicate within the prescribed time-limit as from the time of notification of that decision.”

The lawfulness of disciplinary sanctions is subject to review. On an application for judicial review, the administrative court verifies that the sanction imposed is provided for by law and that the rules governing form, substance and competence have been respected. Review of the lawfulness of disciplinary sanctions includes whether the facts alleged against the official have been made out, their legal characterisation and the proportionality of the sanction.

The disciplinary liability of local government staff is distinct from their criminal liability, particularly in terms of how it is established and the procedure followed (Conseil d’Etat, 14 March 2005, Gollnish, no. 278435), the administrative court determining, with regard to the rules governing the civil service and the available evidence, whether a civil servant’s conduct amounts to a failure to fulfil his professional duties capable of rendering him liable to disciplinary action. Lastly, in its judicial capacity the Conseil d’Etat has established the principle that a final criminal judgment is binding on the administrative courts in so far as findings of fact and declarations of guilt in decisions of the trial courts ruling on the merits of the prosecution are concerned (Conseil d’Etat, 12 July 1929, Vesin). The result is that the administrative court is not bound by orders or decisions of the investigating courts to discontinue proceedings (Conseil d’Etat, 5 May 1976, Lerquemain, no. 98276).

COMPLAINT

Relying on Article 6 § 2 of the Convention, the applicant complained of a violation of the presumption of innocence. He considered that the judgment of the Conseil d’Etat of 8 March 2004 mentioned his guilt solely on the basis of facts established by an investigating court. He was subsequently discharged and the proceedings against him were terminated as statute-barred. He accordingly submitted that the judgment of the Conseil d’Etat should not have mentioned those facts.

THE LAW

The applicant complained of a violation of the presumption of innocence. He relied on Article 6 § 2 of the Convention, which reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

A. The parties’ submissions

1. The Government

The Government considered first of all that Article 6 § 2 was inapplicable ratione materiae to the administrative proceedings in question.

They submitted that the proceedings did not concern a criminal charge as the applicant had not been “charged” within the meaning of that provision of the Convention before his employer or before the administrative courts. Pointing out that the “criminal sphere” had to be defined according to the three criteria set forth in the Engel and Others v. the Netherlands judgment of 8 June 1976, and that the case at issue concerned a disciplinary sanction, they argued that what had to be determined was whether the sanction fell within the criminal sphere referred to in Article 6 of the Convention. In the instant case the Government considered that ordering a civil servant to take compulsory retirement did not fall within the criminal sphere, in so far as this was a disciplinary sanction based solely on the applicant’s violation of the deontological obligations inherent in his post, imposed solely in the interest of the service, and which affected the applicant only in his occupational status, unlike criminal sanctions, which usually involved fines and custodial sentences.

The Government considered, secondly, that the administrative disciplinary proceedings had no direct connection with the criminal proceedings brought against the applicant since they had been determined independently. Indeed, because disciplinary proceedings against civil servants were distinct from criminal proceedings, the administrative authorities were free to take disciplinary action or not, without their decision being influenced by the existence, absence or likelihood of criminal proceedings. They submitted that a disciplinary offence was different in nature to a criminal offence, and referred in this connection to the terms of section 29 of the Law of 13 July 1983 reproduced above. They further argued that the applicant’s reference to the provisions of Articles L. 2211-2 and L. 2211-3 of the General Code of Local and Regional Authorities in order to convince the Court that the criminal and disciplinary proceedings were interlinked (see below) was an argument devoid of evidential value, in so far as the provisions concerned had been introduced subsequent to the material events, by the Law of 9 March 2004 adapting the justice system to the changing nature of crime.

In this case, the administrative courts had not sought to establish whether the applicant had committed a criminal offence but simply to determine whether he had failed to act with the integrity required by his position, laying himself open to disciplinary action. Furthermore, the issue before the administrative court was the lawfulness of the disciplinary measures and the conformity of the penalty with domestic law (in terms of the competent authority, the lawfulness of the proceedings and the appropriateness of the punishment); the purpose of judicial review was to determine whether the authority at the origin of the sanction had made an error of judgment in its assessment of the offending acts. Lastly, having regard to the criteria established in the Court’s case-law, the Government considered that the two sets of proceedings were completely unrelated. One of the reasons why orders issued by Indictment Divisions to discontinue proceedings were not res judicata (Conseil d’Etat, 10 July 1996, Lecanu, no. 50705) was that while a time-bar might apply in criminal matters, in disciplinary matters, unless otherwise prescribed by law, acts committed by public officials were not subject to a limitation period (Conseil d’Etat, Judicial Assembly, 27 May 1955, Deleuze) and were open to scrutiny for an unspecified period. That was indeed the case here: although the acts were time-barred in criminal law, they had been established and were quite incompatible with the deontological obligations incumbent on the applicant.

As an ancillary submission, the Government referred to a judgment of the Court of Justice of the European Communities of 11 July 2006, Commission v. Edith Cresson, in which the Court acknowledged that while it could take into account the findings made in the course of criminal proceedings in so far as they related to facts which were the same as those investigated in the context of the disciplinary proceedings, it was not bound by the legal characterisation of the facts made in the context of the criminal proceedings and it was for the Court of Justice, exercising its discretion to the full, to investigate whether the conduct complained of constituted a breach of the obligations arising from the office of Member of the Commission (no. 432/04, §§ 118 to 122).

Secondly, assuming that Article 6 § 2 was applicable, the Government considered the complaint under that provision manifestly ill-founded. Citing the judgments in the cases of Sekanina v. Austria of 25 August 1993, Capeau v. Belgium of 13 January 2005 and Leutscher v. the Netherlands of 26 March 1996, the Government considered that the voicing of suspicions regarding an accused’s innocence was conceivable as long as the conclusion of criminal proceedings had not resulted in a decision on the merits of the accusation. In the present case, however, the proceedings had been terminated only because the time-limit for prosecution had expired. Voicing suspicion about the applicant’s guilt had thus been admissible in this case, and the courts had been able to establish the truth of the accusations brought against the applicant even though they had been unable to prosecute him. Even so, the Conseil d’Etat had made no assessment of the applicant’s guilt, nor voiced the slightest suspicion in that regard, but had confined itself to determining whether, under the laws governing the civil service, the applicant could be considered guilty of misconduct in the performance of his duties that rendered him liable to disciplinary measures. In so doing it had noted the reality of the acts that had led to the adoption of the disciplinary measure, and qualified the applicant’s misconduct as a “serious dereliction of his duty of probity”.

In the alternative, the Government considered that the applicant had been found guilty of a disciplinary offence in proceedings in which the rights of the defence and the adversarial principle had been fully respected. Emphasising the administrative court’s freedom to assess the evidence of the applicant’s guilt, the Government pointed out that he had had the benefit of two levels of jurisdiction and had had an opportunity, before the administrative courts, to make his own submissions regarding the evidence against him in the case file.

2. The applicant

The applicant argued, as his primary submission, that Article 6 § 2 of the Convention applied to the present case.

Citing the Court’s case-law on the subject (in particular the judgments in the cases of Engel and Others v. the Netherlands, 21 February 1984, Ozturk v. Germany, 23 March 1994, Welch v. the United Kingdom, 22 February 1996, Bendenoun v. France, 24 February 1994, and Malige v. France, 23 September 1998), he considered first of all that he had been “charged” with a criminal offence in the course of the impugned administrative proceedings. He pointed out, on the one hand, that the “professional misconduct” alleged against him was punishable under French criminal law and that both the local authority and the Conseil d’Etat had reached their decisions based on the material in the criminal file and having regard to the criminal classification of the offences. He also submitted that the penalty pronounced, which was designed to prohibit the applicant from holding any civil service post, was a particularly serious one, compulsory retirement being the most serious form of punishment for a local government employee.

The applicant further considered that the criminal proceedings and the disciplinary proceedings were indefeasibly and inextricably linked, so that Article 6 § 2 was applicable. Referring to the Sekenina v. Austria case, he submitted that several criteria had to be taken into consideration to determine whether an applicant could rely on Article 6 § 2: the existence of a prior criminal decision, the law and court practice and the evidence on which the decision was based. The applicant pointed out that in this case the judgment of the Indictment Division of the Dijon Court of Appeal of 5 November 1987 had been pronounced well before the order of 17 January 1994 ordering his compulsory retirement. Moreover, concerning the law and practice relating to disciplinary sanctions in France, under the provisions of section 30 of the Law of 13 July 1983 and Article 13 of the decree of 18 September 1989 (reproduced above), it did appear that a link could exist between a disciplinary offence and a criminal offence. The applicant submitted in this regard that even if the link was not automatic, the Court’s case-law did not require it to be so, and that in the instant case disciplinary proceedings had been based on a criminal offence, as he had been suspended pursuant to section 30 of the Law of 13 July 1983 and had not been reinstated in his post on expiry of the four-month deadline, a possibility open only in the event of criminal prosecution. Although they were called by different names, criminal offences and disciplinary offences did overlap. The applicant further stated that under Articles L. 2211-2 and L. 2211-3 of the General Code of Local and Regional Authorities, the local authorities were immediately informed when a civil servant committed an offence, so that they could take the necessary action against the offender. Lastly, the applicant pointed out that the evidence taken into account by the local authorities was the same as that used in the criminal proceedings. The City of Marseilles, which had been a civil party in the criminal proceedings, had thus been in a position to obtain evidence from the criminal file and use it in the disciplinary proceedings. That being so, the disciplinary sanction was a consequence of the criminal proceedings against him, as it was based specifically on the evidence gathered in the criminal proceedings. Furthermore, the evidence should never have been used in so far as the applicant had always denied the facts and had never recognised his voice on the recordings of the telephone conversations.

As to the merits of the complaint, the applicant considered that the presumption of innocence, enshrined in Article 6 § 2 of the Convention, had been violated. First of all, both the local authority and the Conseil d’Etat had weighed the evidence and found it “irrebuttable”, and taken the Dijon Appeal Court judgment of 5 November 1987 to be a de facto indication of guilt. As the criminal proceedings had been terminated by the time the Conseil d’Etat pronounced judgment, it had had no factual or legal basis on which to question the mistaken finding. It was evident, therefore, that the Conseil d’Etat had based itself on incriminating excerpts from the Dijon public prosecutor’s pre-trial submissions in criminal proceedings which the Court of Cassation had subsequently discontinued. Secondly, the applicant challenged the Conseil d’Etat’s appraisal of the facts, considering that it had developed what was in fact a new version, based on an investigation which had subsequently been discontinued. The Conseil d’Etat did not give the names of the accomplices, the businessmen and corrupt officials it mentioned in its decision, or suggest how he might have committed the offences in the course of his duties. Nor did it explain the exact nature of what it simply referred to as the “dealings” of which he was accused. He further submitted that the Conseil d’Etat had failed to take into account any of the evidence adduced by the defence, or to mention the final judgment pronounced by the criminal court in June 1992. The applicant accordingly considered that the alleged offences had not been clearly defined, which explained why the Conseil d’Etat had resorted to the notion of the existence of a body of concordant evidence in its attempt to establish his guilt. Lastly, by way of an example, he submitted that the finding of the Conseil d’Etat in its judgment of 8 March 2004 that the transcript of a telephone conversation that took place on 26 May 1978 had revealed “Mr Moullet’s concern that the main protagonist of these dealings would appropriate all the funds collected” was purely and simply wrong, and that the court had taken part of a recorded telephone conversation between two of the suspects sent before the criminal court and attributed it to the applicant.

B. The Court’s assessment

1. General principles established under the Court’s case-law

First, the Court reiterates that the concept of a “criminal charge” within the meaning of Article 6 is an autonomous one. According to its established case-law, there are three criteria, sometimes called the “Engel criteria”, to be taken into account when deciding whether a person was charged with a criminal offence within the meaning of Article 6, namely the classification of the proceedings under national law, their essential nature and the type and severity of the penalty that the applicant risked incurring (see Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003-X, § 82).

Also according to the Court’s case-law, the presumption of innocence is infringed if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. While the principle of the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 of that Article, it is not merely a procedural safeguard in criminal proceedings. Its scope is more extensive and requires that no representative of the State or a public authority should declare a person guilty of an offence before their guilt has been established by a “court” (see, amongst other authorities, the judgments Allenet de Ribemont v. France, no. 15175/89, 10 February 1995, §§ 35-36; Daktaras v. Lithuania, no42095/98, §§ 41-42, ECHR 2000 X; Lavents v. Latvia, no. 58442/00, § 126, 28 November 2002; and Butkevicius v. Lithuania, no. 48297/99, §§ 50-52, ECHR 2002-II).

Furthermore, the scope of Article 6 § 2 is not limited to criminal proceedings that are pending but may extend to judicial decisions taken after the proceedings end (see, amongst other authorities, the judgments in Minelli v. Switzerland, 25 March 1983, Series A no. 62, and Lutz, Englert and Nölkenbockhoff v. Germany, 25 August 1987, Series A no. 123) or following an acquittal (see Sekanina v. Austria, 25 August 1993; Lamanna v. Austria, no.28923/95, 10 July 2001; Leutscher v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 436, § 29; and Del Latte v. the Netherlands, no. 44760/98, § 30, 9 November 2004), in so far as the issues raised in these cases are a consequence and the concomitant of the criminal proceedings concerned, in which the applicant was the “accused”.

That being so, the Court’s task is first to establish whether the administrative disciplinary proceedings in the instant case gave rise to a “criminal charge” against the applicant within the meaning of Article 6 § 1 of the Convention. If that is not the case, it will then seek to establish whether they were not nevertheless linked to the criminal proceedings – in which the applicant was discharged – in such a way that they fall within the scope of Article 6 § 2.

2. Application of the above principles to the instant case

a) Existence of a criminal charge

Concerning the first of the above-mentioned criteria for determining whether there was a “criminal charge” against the applicant, that is, the classification of the proceedings in the domestic law, the Court observes that the texts applied in the impugned administrative proceedings are all part of the disciplinary system governing local and regional authorities. Although the offence of which the applicant was accused in these proceedings might be classified as both criminal and disciplinary, the disciplinary proceedings themselves were based on the fact that the applicant, in the performance of his duties, had failed in his obligations of “probity, loyalty, professional discretion and neutrality”, in the words of the order issued by the Mayor of Marseilles on 17 January 1994.

As to the second and third criteria, namely the nature of the proceedings and the type and severity of the “sanction” (which the applicant considers was of a punitive nature), the Court considers first of all that even if compulsory retirement is the harshest measure on the scale of disciplinary sanctions, it is a sanction characteristic of a disciplinary offence and cannot be confused with a criminal penalty. Also, proceedings relating to disciplinary sanctions do not, in principle, involve “the determination of a criminal charge”, so that Article 6 § 2 does not generally apply to this type of dispute (see Costa v. Portugal, (dec.), no. 44135/98, 9 December 1999, and also Brown v. the United Kingdom, no. 38644/97, decision of the Commission of 24 November 1998, and J.L. v. France, decision of the Commission of 5 April 1995, no. 17055/90; and contrast Engel and Others v. the Netherlands, judgment of 8 June 1976, series A no. 22, and Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, series A no. 80).

In the Court’s view, the fact that an act which can lead to a disciplinary sanction under administrative law also constitutes a criminal offence is not sufficient reason to consider that a person presented as responsible before the local authority and the administrative court is “charged with a crime” (see, mutatis mutandis, Y. v. Norway, no. 56568/00, §§ 41-43, ECHR 2003 II, and Ringvold v. Norway, no. 34964/97, § 38, ECHR 2003 II, concerning the duality of criminal and civil liability), in so far as it is neither the purpose nor the effect of the provisions of Article 6 § 2 to prevent the authorities vested with disciplinary power from sanctioning misconduct in a civil servant where such misconduct has been duly established (see, on this point, the identical position of the Commission in Dubos v. France, no. 31104/96, decision of 14 January 1998).

However, the Convention must be interpreted in such a way as to protect rights that are not theoretical or illusory but practical and effective; that also applies to the right enshrined in Article 6 § 2 (see, amongst other authorities, Artico v. Italy, 13 May 1980, Series A no 37, pp. 15-16, § 33, and Capeau v. Belgium, no. 42914/98, § 21, ECHR 2005 I ), with the result that if the national administrative decision were to contain a statement imputing criminal liability to the applicant for the misconduct alleged against him in the administrative proceedings, it would raise an issue under Article 6 § 2 (see, mutatis mutandis, Y. v. Norway, and Ringvold, cited above).

The Court will therefore consider whether the Conseil d’Etat used such language in its reasoning as to create a clear link between the criminal case and the ensuing administrative proceedings and thus to justify extending the scope of Article 6 § 2 to cover the latter (see Y v. Norway, cited above, § 43).

In the instant case the Court notes that the applicant was not formally declared guilty by the highest administrative court of the criminal offence of accepting bribes. The file reveals that the Conseil d’Etat, in its judgment of 8 March 2004, confined itself to determining the facts – denied by the applicant, it is true – as reflected in the file submitted to the Administrative Court and freely and adversarially examined, without suggesting any criminal characterisation whatsoever. On this point, the Court emphasises that in so far as decisions of the investigating courts to discontinue proceedings are not binding on the administrative courts, it is the role of these courts to determine with unfettered discretion the truth of the facts alleged against the applicant and the suitability of the sanction imposed in respect of those facts and having regard to the law governing the civil service. Lastly, the fact that in disciplinary matters there is no time bar, unless provided for by law, on instituting proceedings in respect of acts committed by civil servants is insufficient, in itself, to make Article 6 § 2 of the Convention applicable.

Accordingly, the Conseil d’Etat has confined itself to assessing the impact of the alleged facts on the duties and obligations of probity incumbent on all local and regional government staff (see Darracq v. France, decision of the Commission of 31 August 1994, no. 19531/92). In other words, the domestic authorities managed in the instant case to keep their decision within a purely administrative sphere, where the presumption of innocence the applicant relies on did not obtain.

b) Existence of a link between the criminal proceedings and the impugned administrative proceedings

It remains to be determined whether any links existed between the criminal proceedings and the administrative proceedings such as would justify extending the scope of Article 6 § 2 to cover the administrative proceedings.

The Court observes that the outcome of the criminal proceedings was not decisive for the administrative proceedings as, in spite of the fact that the criminal proceedings were discontinued, it was still legally possible to bring proceedings against the applicant before the disciplinary courts. Independently of the decision reached in the criminal proceedings, the administrative proceedings concerned, which were quite independent both in the manner of their institution and in the procedure followed, contrary to what the applicant alleged, were therefore not a direct consequence of the criminal proceedings. In that respect the instant case differs from those cited above (see, in particular, Y. v. Norway, cited above), where the Court found that the proceedings concerned were a consequence and the concomitant of the criminal proceedings and Article 6 § 2 was therefore applicable.

In conclusion, the Court finds that this provision does not apply to the instant case.

It follows that the complaint must be rejected pursuant to Article 35 § 3 of the Convention.

For these reasons the Court unanimously

Declares the remainder of the application inadmissible.

Santiago Quesada Boštjan M. Zupančič
Registrar President