Right to a fair trial (Article 6 ECHR): The French public rapporteur finally saved from European waters By Nicolas Hervieu

In a case that particularly attracted the attention of specialists and actors in French administrative litigation, the European Court of Human Rights finally lifted the sword of Damocles which weighed on a key institution of the administrative process : The public rapporteur. For European judges, his privileged access to the rapporteur’s draft decision does not conflict with the fairness of the trial. This issue is important. For a condemnation of France would certainly have led to great changes for the former “commissary of government”, whose role and place are so singular. Such a European solution is not illegitimate. It is regrettable, however, that the Court has reached the end of a genuine change in case-law which does not dare to say its name. This dispute nevertheless merited much more than a simple decision of inadmissibility, which leaves too much room for speculation and uncertainty.

Has the time of the denouement finally sounded for the interminable contentious saga involving the public rapporteur? After watching so many actors and observers, causing a considerable amount of doctrinal ink to flow, his epilogue seems to be on the horizon. In a decision in Marc-Antoine v. France adopted on June 4, 2013, but made public only today, on June 13, the European Court of Human Rights lifted a serious conventional threat that weighed on the future of this key institution of the French administrative process. In a novel way, the European court has decided a crucial question: does the fact that only the public rapporteur, and not the parties to the proceedings, obtains communication of the draft decision of the rapporteur advisor violates the right to trial (Article 6)? A positive response would certainly have profoundly changed the administrative contentious situation, risking to marginalize the public rapporteur. But it was ultimately in the negative that the Court replied.

It was certainly not the first time that this institution passed under the European caudine forks. At the end of a resounding condemnation in Strasbourg, its physiognomy was significantly modified during the 2000s. The loss of its historical name of “government commissioner” was one of the most eloquent testimonies. It would, however, be futile to pretend in these places to retrace this very long contentious history, already so often recounted and studied. At the outset of the Marc-Antoine v. France, opportune initiatives have moreover perfectly placed this litigation in its rich context.

Under the impulse of Serge Slama, an original “Day of reflection on legal blogs on the public rapporteur” was organized on June 15, 2012. Besides a summary of the different “seasons” of this litigation, rich contributions were drafted for the ” (See “New challenge to the public prosecutor: a quartet to avoid requiem”, in BDA, Caroline Lantero and Samuel Déliancourt, “MM-A., A life in the service of the law, or in any case of its evolution “In Lantero & Déliancourt, Roseline Letteron,” The Public Reporter, or the Besieged Royal Palace, “in Antoine Matter,” The Public Reporter, Storyteller of Administrative Stories in Sentence “, in UPDD, Geneviève Koubi,” The “public reporter” takes “note” and gives “meaning” “, in LawcriTIC; Laure Milano,” Euro-compatibility of the public rapporteur, once again in question “, in RDLF). This first initiative was followed on 28 June 2012 by a no less rich conference-debate, organized by Frédéric Rolin and Serge Slama (“Towards a new challenge to the public rapporteur before the ECHR?”, In Revue de droit public, November 2012, No. 6, pp. 1491-1521).

Such attention to the Marc-Antoine affair was amply justified. Again, a conviction would have had important consequences for administrative justice. It is therefore all the more ironic that this threat has arisen from the very interior of this last cenacle. It was in fact an administrative magistrate who, after vainly contending before the Conseil d’Etat of the decrees relating to his promotion (§ 7), turned to the European Court of Human Rights to raise the complaint concerning the Communication of the draft decision of the rapporteur to the rapporteur. Divided for the first time by a declaration that some have described as “providential” (Cour EDH, 5th Sect, 30 June 2009, Federal Consumer Union “What to Choose” from Côte d’Or v. France, No. 39699/03), the difficulty could no longer be avoided.

Although the institution of the public prosecutor had never before had the opportunity to be tested in this specific legal context, the European court had already ruled in 1998 against its quasi-judicial counterpart: Advocate General before the Court of Cassation. By a Grand Chamber judgment, the Court had then condemned France on the ground that the transmission to the advocate-general of the report and of the draft judgment of the judge-rapporteur “does not accord with the requirements of a fair trial” and thus violates Article 6 (ECtHR, GC, 31 March 1998, Reinhardt and Slimane-Kaïd v. France, Reports Nos. 23043/93 and 22921/93, § 98). In the aftermath of this conviction, the Court of Cassation took drastic consequences: the Advocate General no longer had access to the draft judgment and no longer participated in the pre-hearing conference.

Other more nuanced solutions might have been envisaged to implement Reinhardt and Slimane-Kaïd, without having to marginalize the Advocate General. But it is clear that the European reasoning of 1998 was, mutatis mutantis, perfectly transposable to the situation of the public rapporteur. Consequently, in the words of Laure Milano in her remarkable analysis, “if one takes the standpoint of European jurisprudential orthodoxy, there is no valid justification for not condemning the” Privileged information of the public rapporteur “(Laure Milano,” Euro-compatibility of the public rapporteur, once again in question “, in RDLF, 15 June 2013). This is not, however, the conclusion reached by the Court in June 2013. In its decision of inadmissibility it considers that “the applicant can not claim to have been placed, owing to the communication of the draft decision of the Rapporteur in a situation contrary to the requirements of Article 6 § 1 of the Convention “(§ 37).

Reject the argument of the French Government (§ 13) relying on the inapplicability of Article 6 (§ 25) or dismissing that of the applicant (§ 19) as regards “the possibility of replying to the observations of the public rapporteur at the hearing” (§ 35-36) was easy for the Court. These questions have already been answered in Strasbourg (on the applicability of Article 6 to the civil service, see ECtHR, GC 19 April 2007, Vilho Eskelinen and Others v. Finland, Req. 63235/00, on the reply to the public rapporteur, v. ECtHR, GC 7 June 2001, Kress v. France, Re. No. 39594/98, § 76).

More delicate was the examination of the central complaint relating to the communication of the report. In the light of two elements of the broader notion of a fair trial: “the principle of equality of arms” and “the right to an adversarial procedure” (§ 30 – v. ECtHR, GC 15 December 2011, Al-Khawaja and Tahery v. The United Kingdom, Re No. 26766/05 – ADL of 18 December 2011). Faced with this challenge, the Court has answered two questions which it is important, in essence, to distinguish.

1 ° / – First, should the report of the advisor to the Council of State be sent to all the parties to the proceedings, including the applicant? Such a question arises, of course, under the “right to adversarial proceedings”, which “implies in principle” the right of the parties to the criminal or civil proceedings to take cognizance of any document or submission made to the judge, An independent magistrate, with a view to influencing and discussing his decision “(§ 30 – v. ECtHR, GC 15 December 2011, Al-Khawaja and Tahery v. United Kingdom, No. 26766/05 – ADL Of 18 December 2011). In answering this question, the Court analyzes the nature of the report. In the past it had referred to it as a “simple summary of the documents in the case” (ECtHR, 2nd Dec. 21, 2006, Flament v. France, Re. 28584/03), which was strongly criticized As the “testimony of total ignorance of the reality of the content of the report” (Laure Milano, supra).

In June 2013, the European judges refused to concede explicitly any error of analysis and recalled their past jurisprudence (§ 28). However, not very subtly but skilfully, the Court tries to overcome the difficulty by adjusting its contentious target: in its view, what is at issue in this case is not “communication to the sole public reporter … A report containing only a “mere summary of the documents” of the file, but of the draft decision of the adviser rapporteur “(§ 29). This argumentative acrobatics is not all-round, especially since the Court persists in making “reference only to the draft decision of the motions master, while the report contains other documents of interest to the parties” (Laure Milano , Cited above). But at least it allows him to progress in the examination of the grievance, without having to rush frontally.

Thus, and not surprisingly, the Court can affirm that this “working document internal to the formation of a judgment, covered by secrecy, can not be subject to the principle of the right to a fair hearing guaranteed by Article 6 § 1 of the Convention” (§ 31). This is because it emanates from the “adviser rapporteur, who is a magistrate of the formation of judgment charged with examining the file”. This report is therefore not “a document produced by a party and capable of influencing the judicial decision, but rather an element established within the court in the process of drawing up the final decision” (§ 31). In other words, Article 6 does not in itself require that this report be transmitted to all the parties to the proceedings.

2 ° / – But more than the lack of communication of the report to the parties, it was the privileged information of the public rapporteur that was at the heart of the litigation. The second question therefore presented a remarkably different angle. Secondly, could the report of the councilor-rapporteur before the Council of State be transmitted to the public prosecutor before the hearing, when the applicant did not have access to it? In this respect, the right to a fair trial was essentially mobilized under the “principle of equality of arms” which “requires each party to be afforded a reasonable opportunity to present its case under conditions that do not place it in a Situation of disadvantage compared to his opponent “(§ 30).

In order to answer the other question in the negative, the European Court starts by analyzing the status of the public rapporteur in the administrative case. However, it detonates literally in the light of its past jurisprudence. What is surprising is certainly not the description of the ambiguous situation of the public rapporteur, who is a “member of the Council of State, to whom he accedes in the same way as his colleagues sitting in the formations of judgment” “Distinguish [by] the particular functions entrusted to it temporarily” (§ 32). Nor is it surprising that the Court welcomed its “independence” (§ 32). As early as 2001, the judgment in Kress v. France recognized the “sui generis nature of the French administrative dispute system” of the former government commissioner as well as his “independence [and] impartiality” (ECtHR, GC 7 June 2001, Kress v. France, Req. No 39594/98, § 69 and 71).

But the continuation of European reasoning in June 2013 is infinitely more unexpected. The Fifth Section asserts that “the applicant does not demonstrate how the public prosecutor could be qualified as an adversary or a party to the proceedings as a prerequisite for being able to allege a breach of equality of arms” (§ 32). However, this reading is in flagrant contradiction with that set out in Kress v. France (confirmed by the ECtHR, G.C. 12 April 2006, Martinie v. France, Rejoinder No 58675/00). In 2001, in order to condemn France because of the participation of the government commissioner in the deliberations, the Grand Chamber affirmed that under “the theory of appearances”, “the government commissioner could legitimately be regarded by the parties as taking Cause for one of them “. He could, according to the case, be perceived by a party sometimes as “an adversary”, sometimes “as his ally” (§ 81). More broadly, and up to now, the corpus of case-law clearly suggests that “the advocate-general and the public rapporteur are assimilated to parties”, which “entails their submission to the adversarial principle which, in the European definition , Applies also in the relations between the parties and the judge “(Laure Milano, cited above).

Even if the Fifth Section does not recognize it, there can be no doubt: by totally avoiding the “theory of appearance”, the Court proceeds with a major inflection, which is more a result of the reversal of jurisprudence than of a simple relaxation. Obviously, judges have been sensitive to the many criticisms, which have stressed, among other things, that “to become a party is not to become a party, even if that party inevitably ends up espousing the claims of one or the other party to the Litigation “(Mattias Guyomar,” Towards a new challenge to the public rapporteur before the ECHR? “, In Revue de droit public, Nov. 2012, n ° 6, pp. 1491 et seq.).

Moreover, if the Court regrettably refuses to assume its reversal, it is nevertheless trying – and not innocently – to justify its position. Thus, it strongly endorses’ the conclusions of the public rapporteur ‘in that they’ are such as to enable the parties to perceive the decisive elements of the case and the reading of the case by the court, Before the judges have ruled “(§ 32). What is conceived as a “procedural peculiarity” is therefore positively assessed by the European judges, in so far as it “permits individuals to grasp the reflection of the court as it prepares itself and to make their final observations known before The decision is not taken, does not affect the fairness of the trial “(§ 32). In doing so, the Court offers neither more nor less a true label of conventionality to the institution of the public rapporteur and his public conclusions.

This, in turn, is to justify the importance of the transmission of the report. For it is “in that they integrate the analysis of the adviser rapporteur” (§ 32) that the conclusions of the public rapporteur can play that role of interface between the formation of judgment and the parties. It is also because he “relies in particular on the draft decision” of the councilor-rapporteur that “the public prosecutor may adopt the position which he publicly submits to the formation of a judgment” (§ 32). But again, the reversal of perspective is striking in the light of Kress v. La France. Because the intermediate and ambiguous position of the public prosecutor – one foot within the trial court and another outside – which was the basis of the conviction of France in 2001 is mobilized in 2013 to justify the conventionality of the administrative process French.

In short, the Court wishes to reinforce this change, which does not mention its name by referring at length to the third intervention of the “Bar Association of the Conseil d’Etat and the Court of Cassation, as well as the Conseil National des Barreaux” ( § 33 – v. § 20-22). The latter asserted that they “wished to maintain the present system and denounce the negative consequences that its disappearance would entail” (§ 33). This approach has obtained the “support” of associations such as GISTI, CIMADE or Ligue des Rights (§ 20). Such an evocation is however only the emergent part of an – understandable – lobbying work carried out at the highest level by the French Council of State to avoid a conviction in the Marc-Antoine case.

Obviously, the European Court was not insensitive to these interventions attesting a certain unity of view in France. Yet this only part of the inadmissibility decision puts a new corner in Kress v. La France. The Court had clearly emphasized in 2001 that “the mere fact that the administrative court and the Government Commissioner in particular have existed for more than a century and are, according to the Government, satisfactory to all, can not justify a Breach of the current rules of European law “(§ 70 – underlined by us).

In isolation, the operative part of the Marc-Antoine v. France is struggling to raise criticism. To refuse to see in the communication of the draft decision to the public prosecutor alone a violation of the right to a fair trial is not illegitimate. It is difficult to deny that this practice “placed the applicant in no position at a disadvantage vis-à-vis anyone, any more than it was prejudicial to the defense of his civil interests, the only ones at issue here , In the context of this administrative procedure “(§ 34). Moreover, and in order to deliberately use an administrative metaphor, the “cost-benefit” assessment of a questioning of the privileged information of the public rapporteur urged the European Court to be cautious.

Many commentators have pointed out the risks of a conviction and the “real upheaval in the practice of administrative jurisdictions” (Laure Milano, supra). In this respect, “the record of the radical application of the Slimane-Kaïd judgment”, which is a factor in the “separation of the Advocate General from the Court of Cassation”, is instructive: How a similar development of the public prosecutor is “a huge false good idea that will have no other consequence than a loss for the administrative justice” of which “the litigant will suffer” (Patrice Spinosi, New challenge to the public rapporteur before the ECHR? “). Consequently, even if “the analysis of the European Court [in its Kress et seq.] Has had rather happy consequences” on the French administrative trial, “pushed to its conclusion, [it would have] Very negative for litigants “(Johann Morri,” Towards a new challenge to the public rapporteur before the ECHR? “).

From a more pragmatic, if not strategic, point of view, it is, moreover, not certain that the European Court of Human Rights had an interest in engaging in a trial of strength on a subject where there was little Obvious. At a time when its authority is being challenged on more crucially important issues (see ADL of 30 January 2013), it was doubtless wiser that the Court should be careful not to open a new contentious front. At least without casus belli flagrant.

But if many arguments converged towards the solution ultimately chosen, it would still have been necessary for the Court to use the appropriate method to achieve it. That is precisely where the problem lies. The European judges could not conclude that there had been no violation of Article 6 in the case of Marc-Antoine v. France without calling into question a particularly unusual body of case-law. Such a reversal was certainly not beyond their reach. On the one hand, it is regularly stressed in Strasbourg that “it is in the interests of legal certainty, predictability of law and equality before the law that the Court does not depart without just cause Of its precedents “,” the abandonment by it of a dynamic and evolving approach would risk obstructing any reform or improvement “(ECtHR, GC 12 November 2008, Demir and Baykara v. Turkey, Req No. 34503 / 97, § 153 – ADL of 14 November 2008). On the other hand, such an entitlement to reversal could easily have been exploited in the present case. For there are many arguments which justified a certain gentleness towards the particular situation of the public reporter in France.

To this end, the Court could even have argued a recent trend in its own case-law on the basis of the right to a fair trial. Not only has it recognized the “variety of legal systems existing in Europe” and “great [State] freedom in the choice of means of enabling their judicial system to respect the requirements of Article 6” (see ECtHR , GC 16 November 2010, Taxquet v. Belgium, Req No. 926/05, § 83-84 – ADL of 16 November 2010, see also ADL of 11 January 2013). But moreover, European judges have recently championed a global approach to the fairness of the trial, in order to tolerate certain national specificities (see ECtHR, GC 15 December 2011, Al-Khawaja and Tahery v. The United Kingdom, no. United Kingdom, Reports No. 26766/05 and 22228/06 – ADL of 18 December 2011). The latter case of December 2011 is eloquent because it was the scene of a divergence of analysis between the Supreme Court of the United Kingdom and the European Court of Human Rights. The latter took the trouble to take account of the British judges’ point of view in order to somewhat relax its own, by explicitly assuming that case-law concession.

Against all logic, the Fifth Section acted very differently. Not content with ignoring a glaring reversal of its own case-law, it merely considered the complaint “manifestly ill-founded” (§ 38). This is certainly not the first time that the Court has chosen the route of manifest inadmissibility (Article 35.3 (a)), where a judgment on the merits was necessary (see ADL of 15 December 2011 on the ECtHR, Sect., Dec. 29, 2011, VF v. France, Revision No. 7196/10, Update on June 17: for a similar criticism, read Stijn Smet, “Manifestly ill-founded by a majority”, in Strasbourg Observers, 17 June 2013). But in the Marc-Antoine affair, this choice leaves nothing to be desired. It is, to say the least, curious, indeed surreal, that a mere ruling of inadmissibility contradicts at the outset at least three concordant judgments adopted in solemn formation of Grand Chamber (see ECtHR, GC 7 June 2001, Kress v. France, Req. No. 39594/98 Confirmed by the ECtHR, GC 12 April 2006, Martinie v. France, Rejoinder No. 58675/00, ECtHR, GC, 31 March 1998, Reinhardt and Slimane-Kaïd v. France, Req. 23043/93 and 22921/93). In order to strike the French minds unfamiliar with the European Court, it would be necessary to imagine a subsection of the Council of State which would declare an appeal not admissible, knowingly placing itself in flagrant contradiction with a constant jurisprudence formulated by the Assembly of the Litigation.

Beyond the considerations relating to the internal hierarchy and coherence of the formations of judgment in Strasbourg, the use of the decision of inadmissibility by the Fifth Section to significantly influence the case-law is irrelevant because of the uncertainty Arouses. In particular, is it possible to deduce an act of death from Reinhardt and Slimane-Kaïd v. La France ? Would it then be possible to return to the Advocate General before the Court of Cassation his right of access to the draft judgment and to the pre-hearing conference? Since it is not necessary to dissociate the Advocate General from the public prosecutor under Article 6 (see Laure Milano, cited in point I (2)), that conclusion seems to be necessary. By referring to the complainant’s “defense of civil interests” (§ 34) in 2013, the Court encompasses the scope of the administrative trial as well as that of the judicial process, excluding criminal litigation.

Whatever its outcome, the Marc-Antoine v. France should have been a major turning point: either a condemnation synonymous with an upheaval in the administrative process or a finding of non-violation marking the end of an endless litigation. But by limiting itself to a simple decision of inadmissibility, the European Court leaves uncertainty over its jurisprudence, now contradictory according to the formations of judgment. This is undesirable, although litigation related to the conventionality of the administrative process does not cease in France (see, for example, a recent judgment – EC, 28 March 2013, Trade Union of Administrative Magistrates (USMA) In respect of which the applicant organization is considering a request for review, as well as referral to the European Court on the dispensation of findings).

To close these few remarks, the ellipsis is necessary. For the question which was the starting point of this comment can now be answered: “Has the time of the denouement finally sounded for the endless litigation saga involving the public rapporteur? “. Obviously, the response tends to be negative. Alas, three times alas.

Court of Human Rights, 5th Sect. Dec. 4, 2013, Marc-Antoine v. France, Req. No 54984/09 – Press release

Related Jurisprudence:

– The case of the public prosecutor (ex-commissioner of the Government) and the Advocate General: ECtHR, Dec. 5th Sect. 15 September 2009, Etienne v. France, Req. No 11396/08 – ADL of 13 October 2009; Court HRT, GC April 12, 2006, Martinie v. France, Req. No 58675/00; Court HR, 2nd Sect. Dec. 21, 2006, Flament v. France, Req. No 28584/0; Court HRT, GC 7 June 2001, Kress v. France, Req. No 39594/98; Court HRT, GC, 31 March 1998, Reinhardt and Slimane-Kaïd v. France, Req. No 23043/93 and 22921/93.

– The right to a fair trial in general: ECtHR, 5th Sect. 10 January 2013, Agnelet v. France et al., Req. No 61198/08 – ADL of 11 January 2013; Court EDH, 4th Sect. 17 January 2012, Othman (Abu Qatada) v. United Kingdom, Req. No 8139/09 – ADL of 24 January 2012; Court HRT, GC December 15, 2011, Al-Khawaja and Tahery v. United Kingdom, Req. No 26766/05 – ADL of 18 December 2011; Court EDH, G.C. 20 October 2011, Nejdet Şahin and Perihan Şahin v. Turkey, Req. No 13279/05 – ADL of 23 October 2011; Court EDH, GC 16 November 2010, Taxquet v. Belgium, Req. No 926/05 – ADL of 16 November 2010.

To cite this document:

Nicolas Hervieu, “The French public rapporteur ultimately saved from European waters” [PDF] in CREDOF’s “Nouvelles Droits-Libertés” newsletter, 13 June 2013.

scriptsell.neteDataStyle - Best Wordpress Services