Daoudi v France - 19576/08 [2011] ECHR 1552 (14 September 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”)^²,

Having regard to the judgments listed below, transmitted by the Court to the Committee once they had become final;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an Action Plan concerning the measures proposed to execute each of the judgments listed in the table above;

Having, in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, examined the Action Report for each case provided by the government (see appendices);

Having noted that the respondent state paid the applicant the just satisfaction, as provided in the judgments;

DECLARES, that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and DECIDES to close the examination thereof.

This case concerns the risk that the applicant, an Algerian national, convicted of preparing an act of terrorism and using a forged document, might be subjected to treatment contrary to Article 3 of the Convention, if he were deported to Algeria.

The Court awarded the applicant just satisfaction in respect of legal costs (€4 500). This just satisfaction, plus default interest, was paid to the applicant on 8 November 2010.

As in the case of Boutagni against France (No. 42360/08 of 18 November 2010), the deportation of the applicant was prevented by a decision of the National Court of Asylum (CNDA), on 31 July 2009 (cf. §28 of the Daoudi judgment).

Furthermore, as in the Boutagni judgment (§48), in which the Court found that “the Government’s assertion that the applicant will not be returned to Morocco is sufficient for the Court to conclude that the latter is no longer at risk of being subjected to treatment contrary to Article 3 of the Convention”, the French government has undertaken not to return the individual concerned to Algeria as long as circumstances require.

This is a sufficient measure for full compliance with the judgment of 3 December 2009, given that in any event, as the Court itself observed in the aforementioned Boutagni case, were the decision to return him to be enforced after all, “remedies remain open to the applicant under which his situation could be re-examined (§48)”.

The Court’s decision has been brought to the attention of the Private Office of the Interior Minister, the General Directorate of National Police and the legal department responsible for matters relating to deportations on public order grounds and the execution of expulsion orders.

In the government’s view, no further general measure is necessary, given the particular nature of the circumstances which led to the finding of a violation.

This case concerns the violation of the right of the applicant company to a fair hearing due to the lack of independence and impartiality of disciplinary proceedings initiated by the Banking Commission against the applicant company (violation of Article 6§1).

The Court underlined the lack of precision of the texts governing proceedings before the Banking Commission and the need to make a clear distinction between the functions of prosecution, investigation and sanction.

The sums awarded as just satisfaction, 15 000 €, were paid to the applicant on 2 December 2009, i.e. within the time limit set for the government.

The applicant did not claim pecuniary damages and the claim concerning non-pecuniary damages was rejected by the Court who considered that the finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damages.

Therefore, from the government’s point of view, no other individual measure ensues from the judgment.

Publication and dissemination of this judgment present no practical benefits in relation to the Banking Commission, as the other general measures, described below, deal radically with the source of the violation found.

Nevertheless, the judgment at issue is an illustration of the Court’s recent case-law on the subject of the impartiality of "courts" – besides of the Banking Commission – in respect of the separation of the functions of prosecution, investigation and sanction. It therefore deserved to be published, which was done with a letter of the Directorate of legal affairs of the Ministry of Finance dated 25 June 2009 (copy attached), which has been available on the Ministry’s Intranet site since that date.

The merger of the banking and insurance licensing and supervisory authorities within a single authority (the Prudential Supervisory Authority), is the result of Order No. 2010-76 of 21 January 2010, which, inter alia, amends the Monetary and Financial Code (COMOFI). This merger gave the opportunity to take into account the requirements stemming in particular from the Dubus judgment.

a. The Order sets up a Sanctions Committee, which is responsible solely for imposing sanctions.

The Court noted (§56) "the lack of precision of the texts which govern proceedings before the Banking Commission, as regards the composition and powers of the bodies required to exercise the different functions which are devolved to it". It was therefore appropriate to organise a separation between the body which establishes facts likely to constitute deficiencies and formulates the complaints and that which establishes deficiencies and sanctions them.

The architecture of the Prudential Supervisory Authority is thus distinguished from that of the Banking Commission. The articles of the Monetary and Financial Code stemming from the Order provide that "the Prudential Supervisory Authority shall comprise a College [of 16 members] and a Sanctions Committee [of 5 members]" (Article L 612-4 of the COMOFI). "The functions of a member of the Sanctions Committee are incompatible with those of a member of the College" (Article L 612-9 of the COMOFI).

The Sanctions Committee is chaired by a member of the Conseil d’Etat and comprises one judge from the Cour de Cassation and three personalities qualified in the Authority’s fields of responsibility.

b. The Order clarifies the division of powers between the different organs of the Prudential Supervisory Authority in sanctions proceedings.

The Court found that no clear distinction emerged from the Monetary and Financial Code, or from any internal rule, between the functions of prosecution, investigation and sanction in the exercise of the judicial power of the Banking Commission (§57).

It pointed out in this respect that the role of the Secretary General aggravated this confusion (§60). The Secretary General was in fact in charge of the administrative function of supervision, but also played an active role in the opening of judicial proceedings leading to the sanction: the information that he supplied was used for the notification of complaints and he could also file observations in reply and was responsible for notifying the sanction decision.

The Order which sets up the Prudential Supervisory Authority precisely determined the division of powers during disciplinary proceedings, in order to comply with the European Court’s requirements within three distinct bodies.

Appointed by an order of the Minister for Economic Affairs, the Secretary General manages the departments of the Authority. Like the secretaries general of other French administrative authorities, he is not part of the College of the Prudential Supervisory Authority. Pursuant to Article L 612-23 of the COMOFI, the Secretary General is responsible for the organisation of document-based and on-the-spot inspections.

The Secretary General of the Prudential Supervisory Authority may ask persons subject to his supervision for information and for documents, in any medium, and may obtain copies thereof, and may ask for any clarification or justification needed for the exercise of his role.

When an on-the-spot inspection is conducted, a report is drawn up. The draft report is drawn to the attention of the managers of the person undergoing the inspection, who may make their observations, which are included in the final report.

- The College alone has the power to decide to open sanctions proceedings following the establishment of deficiencies during inspections.

The College has administrative policing powers which are clearly defined in the COMOFI and separate from the sanctioning power pursuant to Articles from L. 612-30 to L. 612-37 of the COMOFI (warning, notice to remedy a state of affairs, approval of a recovery programme, appointment of a temporary administrator, etc).

It is also for the College to decide whether to open sanctions proceedings, on the basis of an inspection report. The Chairman of the College is responsible for notifying complaints to the persons concerned and for forwarding notification thereof to the Sanctions Committee (Article L 612-38 of the COMOFI).

- The Sanctions Committee has sole power to impose disciplinary sanctions and ensures compliance with the adversarial principle.

The Sanctions Committee ensures compliance with the adversarial nature of the proceedings. It conducts communications with and summons to appear all persons subject to the notification of complaints. All persons summoned to appear have the right to be assisted or represented by counsel of their own choice. The Sanctions Committee may use the services of the Authority (registry) for the conduct of the proceedings.

The member of the College appointed by the formation of the College which decided to open sanctions proceedings is summoned to the hearing. He or she is present without the right to vote. The Sanctions Committee deliberates without the presence of the parties, the government commissioner, the member of the College and the departments of the Authority responsible for assisting or representing it.

In view of these elements, the government considers that the judgment has been executed.

1 Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies

2 See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.

	Case name (App. No.)	Judgment of	Final on
1	Daoudi (19576/08)	3 December 2009	3 March 2010
2	Dubus (5242/04)	11 June 2009	11 September 2009

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You are here: BAILII >> Databases >> European Court of Human Rights >> Daoudi v France - 19576/08 [2011] ECHR 1552 (14 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1552.html Cite as: [2011] ECHR 1552