AMAR v. FRANCE

FIFTH SECTION

DECISION

Application no. 4028/23
Patrice AMAR
against France

The European Court of Human Rights (Fifth Section), sitting on 16 April 2024 as a Chamber composed of:

 Georges Ravarani, President,
 Lado Chanturia,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 María Elósegui,
 Mattias Guyomar,
 Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to the above application lodged on 16 January 2023,

Having deliberated, decides as follows:

THE FACTS

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

2.  The applicant, who had been appointed First Deputy Prosecutor at the National Public Prosecutor’s Office for Financial Offences (“the PNF”) in 2014, was responsible for several cases concerning the former French President Nicolas Sarkozy and his lawyer, T.H., including on a charge of bribing G.A., a judge at the Court of Cassation. All three were convicted in respect of those offences by the Paris Correctional Court at first instance, then by the Court of Appeal of Paris on 17 May 2023.

3.  During those proceedings, after the investigating judges had ordered telephone tapping, police officers at the Central Anti-Corruption Office noted that Mr Sarkozy was using a telephone line set up by T.H. under an assumed name, Paul Bismuth. That phone line was also placed under surveillance and, on the basis of the intercepted conversations, the police became convinced that Mr Sarkozy had been informed of the tapping. In consequence, the PNF decided to open a preliminary investigation to identify the individual responsible for a potential breach of professional secrecy. A list of judicial figures and lawyers who might have been involved was drawn up and their telephone bills checked, but the results were inconclusive. One of these lawyers, Éric Dupond-Moretti, described the PNF prosecutors as “spies” and, like T.H., lodged a criminal complaint for breach of professional secrecy on 30 June 2020.

4.  On 1 July 2020 Ms Nicole Belloubet, the then Minister of Justice, instructed the General Inspectorate of the Justice System (“the General Inspectorate”) to carry out an inspection into how the preliminary investigation had been conducted. On 6 July 2020 Ms Belloubet was replaced as Minister of Justice by Mr Dupond-Moretti. In that capacity, Mr Dupond-Moretti was presented on 15 September 2020 with the General Inspectorate’s report, which concluded that there had been no operational shortcomings or professional misconduct.

5.  On 18 September 2020 the director of Mr Dupond-Moretti’s private office instructed the General Inspectorate to carry out an administrative investigation into the conduct of three PNF prosecutors, namely the applicant, one of his colleagues and his former hierarchical superior, head of the PNF at the relevant time. In her letter of instruction, she specifically referred to the previous inspection, noting that the report of 15 September 2020 had highlighted a number of facts that could be interpreted as breaches of the duties of care, professional rigour and fairness.

6.  In a decree of 23 October 2020, the Prime Minister took over responsibility for this file, given the conflict of interest in relation to the Minister of Justice, Mr Dupond-Moretti. On 17 November 2020 the applicant was officially informed of the existence of complaints. On the same day, his lawyer filed a pleading, complaining that the proceedings were unlawful and accusing Mr Dupond-Moretti of attempting to destabilise the PNF prior to Mr Sarkozy’s trial, which was due to open on 23 November 2020. The applicant was interviewed at the beginning of January 2021 by five inspectors general who, on 4 February 2021, submitted their administrative-investigation report on the applicant’s conduct. They found that there had been no breach of his ethical duty.

7.  On 23 February 2021 the Prime Minister’s Legal Adviser wrote to the General Inspectorate of the Justice System, requesting clarifications about the applicant’s performance, concerning, in particular, failings in his conduct towards his former hierarchical superior, the then head of the PNF. The Chief Inspector General replied on 25 February 2021.

8.  On 26 March 2021 the Prime Minister lodged a disciplinary complaint against the applicant with the Judicial Service Commission (Conseil supérieur de la magistrature, “CSM”). On 16 April 2021 the CSM noted that the Prime Minister was not complaining about facts which would justify disciplinary proceedings against the applicant, but was instead requesting an investigation to examine whether the applicant’s conduct might entail disciplinary consequences. In a decision of 16 April 2021, noting that such an investigation did not come within its remit, it concluded that it had not received a report of facts giving rise to disciplinary proceedings.

9.  On 21 April 2021 the Prime Minister again referred the matter to the CSM’s disciplinary panel, this time putting forward acts attributable to the applicant. While noting that the inspection had not found any failing on the applicant’s part, he mentioned various apparent contradictions of a scale which, in his view, justified the referral to the CSM; in particular, he criticised the applicant for making accusations against the former head of the PNF, his hierarchical superior. In this connection, he noted, first, that in a letter dated 17 January 2019 the applicant had used the criminal-law procedure provided for in Article 40 of the Code of Criminal Procedure to lodge a criminal complaint alleging acts capable of amounting to the offences of breach of professional secrecy, unlawful conflict of interest and bullying. Secondly, he considered that, at a meeting with the Principal Public Prosecutor at the Paris Court of Appeal on 4 February 2019, the applicant had made remarks reflecting a lack of regard and contempt for his hierarchical superior (particularly on account of references to “procrastination”, as well as her “incompetence, panic and inexperience”).

10.  Two rapporteurs were appointed within the CSM. The applicant’s two lawyers lodged a statement of defence and made two requests for referral of a priority ruling on constitutionality (questions prioritaires de constitutionnalité - QPC) concerning, first, the provisions relating to the Minister of Justice’s powers and competences in disciplinary matters concerning members of the public prosecution service and, secondly, the provisions concerning the conditions governing the withdrawal of ministers in the event of a conflict of interest.

11.  A public hearing took place before the CSM on 20 and 21 September 2021. The applicant’s counsel argued that he had not been at fault and complained about the proceedings brought against him, which they described as retaliatory. The Director of Judicial Services, representing the Prime Minister, concluded that disciplinary offences had been committed but that sanctions against the applicant were not necessary.

12.  On 19 October 2022 the CSM issued a reasoned opinion. It began by dismissing an argument alleging that the Prime Minister’s formal referral had been unlawful and maintaining that the decree ordering [Mr Dupond-Moretti’s] withdrawal did not entitle him to bring disciplinary proceedings against prosecutors, that being a specific competence conferred on the Minister of Justice alone. The CSM held in this respect that while the lawfulness of a decree in relation to an institutional Act could validly be contested before the administrative courts and, in certain situations, before the judicial courts, a body endowed with merely advisory powers could not conduct this type of review. In addition, it stated that, in the present case, it was not a court of law, and explained its reasoning as follows:

“ ... where the Judicial Service Commission, in its section responsible for public prosecutors, is called upon, under paragraph 7 of Article 65 of the Constitution, to examine the possibility of imposing a disciplinary sanction, it has no decision-making power and merely issues an opinion to the competent authority on the principle of imposing a disciplinary sanction and, if applicable, on its amount. No sanction may be imposed without such an opinion, in accordance with Article 59 of Ordinance no. 58-1270 of 22 December 1958 on institutional law concerning the status of the national legal service (la magistrature). Thus, as the legislation currently stands, the Commission can only note that it is not a court of law.”

13.  Accordingly, the CSM concluded that the lawfulness of the decree, however serious it might appear, was not a matter that could usefully be raised before it in the performance of the part of its remit in issue. It went on to dismiss Mr Dupond-Moretti’s objection that the referral to the General Inspectorate of the Justice System had been unlawful, and held that although the Minister of Justice had been in “an objective situation of a conflict of interest”, this had had no impact on the impartiality and fairness with which the inspectors had performed their task.

14.  With regard to the accusations brought against the applicant, the CSM found that the applicant’s complaint against his direct superior on the basis of provisions of the Code of Criminal Procedure had clearly been inappropriate, with harmful consequences for the PNF and the judiciary, and constituted a breach of his ethical duty of prudence and fairness. Nonetheless, noting that the complaint was the culmination of a serious professional conflict; that it existed in a highly specific and clearly exceptional context; and that the applicant may have acted under difficult work circumstances, while also noting that he had merely received a formal reminder of his ethical obligations at the relevant time, the CSM held that “the breaches of professional ethics found were not so severe as to constitute a disciplinary offence”. It reached the same conclusion about the wording of the accusations made by the applicant, despite the fact that these “undoubtedly ran counter to the obligations of discretion, respect and loyalty towards his official superior”. In this regard, it considered that the use of the terms “procrastinate”, “incompetence”, “panic” and “inexperience” in describing the actions of his hierarchical superior had been insulting, disdainful and vexatious.

15.  In conclusion, the CSM gave its opinion that the applicant had not committed any disciplinary offence and that, accordingly, no sanction was called for.

16.  In an email and a letter of 28 October 2022 the Director of Judicial Services informed the applicant and his lawyers that the Prime Minister had taken formal notice of the CSM’s opinion. The letter specified that the applicant was entitled to request that the documents relating to the proceedings be removed from his file, an automatic right in a situation where those proceedings had been discontinued without a sanction being imposed.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

17.  The relevant provisions of the Code of Criminal Procedure read as follows:

Article 40

“The public prosecutor receives complaints and accusations and subsequently determines the action to be taken as defined by the provisions of Article 40-1.

Any constituted authority, public official or civil servant who, in the performance of his or her duties, has gained knowledge of the existence of an indictable offence is required to inform the public prosecutor thereof without delay and to transmit to that legal officer any information, official reports or documents relating thereto.”

18.  The relevant provisions concerning the CSM read as follows:

Article 65 of the Constitution of 4 October 1958

“The Judicial Service Commission shall consist of a section responsible for judges and a section responsible for public prosecutors.

...

The section responsible for public prosecutors shall be chaired by the Principal Public Prosecutor at the Court of Cassation. It shall comprise, in addition, five public prosecutors and one judge, together with the Conseiller d’État and the lawyer, and the six qualified, prominent citizens referred to in the second paragraph.

...

The section of the Judicial Service Commission responsible for public prosecutors shall give its opinion on disciplinary measures concerning them.

...

The conditions of application of the present article shall be determined by an institutional Act.”

Article 19 of Institutional Act no. 94-100 of 5 February 1994 on the CSM

“The institutional Act pertaining to members of the national legal service shall define the disciplinary measures and procedures applicable to judges.”

Article 59 of Ordinance no. 58-1270 of 22 December 1958 pertaining to the Institutional Act on the status of members of the national legal service:

“No sanction may be imposed against a public prosecutor without the approval of the competent section of the Judicial Service Commission. ...”

19.  The remit of the CSM when acting as the disciplinary board for judges of the judicial order has been summarised in National Union of Journalists and Others v. France (no. 41236/18, §§ 30-31, 14 December 2023). More specifically, the Minister of Justice may submit to the CSM facts which constitute grounds for disciplinary proceedings against a judge or prosecutor. In respect of prosecutors, the CSM merely issues an opinion, as sanctions can only be imposed by the Minister of Justice, whose decision may then be appealed against, by way of judicial review, before the Conseil d’État.

COMPLAINTS

20.  Relying on Article 6 § 1 of the Convention, the applicant submitted that the CSM had not addressed his arguments, specifically those concerning his allegations of “retaliation”, the unlawfulness of the proceedings and his requests for preliminary references on constitutionality to the Constitutional Council. He also complained about the lack of a formal decision subsequent to the CSM’s ruling, which, in his view, had been merely an opinion.

21.  The applicant also alleged that there had been a violation of Articles 8, 10 and 13 of the Convention, arguing, in particular, that in ruling that he had acted unethically the CSM had infringed his right to moral integrity within the meaning of the Court’s case-law in the Vincent Del Campo v. Spain judgment (no. 25527/13, 6 November 2018), and his right to freedom of expression. He had been unable to complain of those interferences subsequently, in that there had been no decision by the Prime Minister.

THE LAW

22.  The applicant complained of a violation of Article 6 § 1 of the Convention, the relevant parts of which provide:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.”

23.  The Court reiterates that disciplinary proceedings as such cannot be characterised as “criminal” and that Article 6 is not applicable to such proceedings under its criminal head, except in certain specific cases, where it can be concluded that there existed a “criminal charge” within the meaning of the criteria laid down in its case-law (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 122-123, 6 November 2018, and the cases therein cited).

24.  However, the Court has previously found Article 6 applicable under its civil head to disciplinary proceedings concerning members of national legal services where sanctions such as dismissals, demotions and salary reductions were at stake (see Ramos Nunes de Carvalho e Sá, cited above, § 120; Di Giovanni v. Italy, no. 51160/06, §§ 36-38, 9 July 2013; Denisov v. Ukraine [GC], no. 76639/11, §§ 44-55, 25 September 2018; and Čivinskaitė v. Lithuania, no. 21218/12, § 95, 15 September 2020).

25.  In the present case, the disciplinary proceedings against the applicant could have resulted in various sanctions that would have affected his employment relationship. They could therefore, in principle, have been decisive for some of his rights under domestic law (see, mutatis mutandis, Miroslava Todorova v. Bulgaria, no. 40072/13, § 90, 19 October 2021). However, the Court notes at the outset that no sanction was imposed on the applicant, as the CSM had issued its opinion that he had committed no disciplinary offence, and the Prime Minister had subsequently taken note of that opinion. The Court further notes that the applicant could have requested to have the documents concerning the disciplinary proceedings removed from his file as of right, in that the proceedings had been discontinued without a sanction being imposed (see paragraph 13 above).

26.  In view of these considerations, and given that no decision was taken in his respect, the Court considers that the applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged failure to address the various arguments raised by him raised before the CSM (see, mutatis mutandis, Tanrikulu and Others v. Turkey (dec.), no. 39735/03, 4 March 2008).

27.  In any event, and as a subsidiary consideration, the Court, while emphasising that fairness should be assessed in the light of the proceedings as a whole, including their outcome (see Renard v. France (dec.), no. 3569/12 and others, § 18, 25 August 2015), notes that the CSM did in fact respond to all of the applicant’s arguments, including by addressing in its reasoning issues relating to the lawfulness of the disciplinary proceedings, before dismissing them. As for his requests for QPCs, the CSM implicitly but necessarily denied them, noting that it was not a court and that it was delivering only an opinion (see paragraph 12 above), from which it could be inferred that the CSM, in contrast to the ordinary courts, whether administrative or judicial, did not have jurisdiction to examine those requests. The applicant, assisted as he was by two lawyers and as a legal professional himself, could not have been unaware of this fact. The Court also reiterates that Article 6 of the Convention does not guarantee, as such, the right of access to a court to challenge the constitutionality of a legal provision (see Previti v. Italy (dec.), 12 April 2007, no. 35201/06) and it is only when such a referral mechanism exists that the refusal by a domestic court to refer a preliminary question can, in certain circumstances, infringe the fairness of proceedings (see Renard, cited above, § 22). Moreover, in the French system, the QPC procedure allows a citizen to challenge, in connection with a dispute before an ordinary court, the conformity of a legislative provision with the rights and freedoms guaranteed by the Constitution, but the Court of Cassation and the Conseil d’État are not required to grant the request, the law allowing them some discretion (see Renard, cited above, § 23, and Matis v. France (dec.), no. 43699/13, 6 October 2015).

28.  With regard to the applicant’s claim that his argument alleging “retaliation” was not addressed, the Court, while reiterating that it should not act as a fourth instance (see, in particular, Zubac v. Croatia [GC], no. 40160/12, § 79, 5 April 2018), notes that the CSM found that the applicant “breached his ethical duty of prudence and fairness” and failed to fulfil his “obligations of discretion, respect and loyalty towards his official superior”. Those finding were made after the CSM had held that the conflict of interest on the part of the Minister of Justice, which had justified the use of a decree ordering [Mr Dupond-Moretti’s] withdrawal and the transfer of the file to the Prime Minister’s responsibility, had had no impact on the impartiality or fairness with which the administrative investigation had been conducted (see paragraphs 12 and 14 above).

29.  Lastly, in the Court’s view, the right of access to a court for the purposes of Article 6 of the Convention cannot be interpreted as guaranteeing the right to a decision amenable to appeal should disciplinary proceedings be discontinued, or should the competent authorities find that no disciplinary offence has been committed. This aspect of the complaint is therefore manifestly ill-founded.

30.  It follows that this part of the application must be declared inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.

31.  The applicant alleged a violation of Articles 8, 10 and 13 of the Convention.

32.  The Court refers at the outset to its finding that no sanction was imposed on the applicant, since the CSM found that no disciplinary offence had been committed (see paragraph 25 above).

33.  However, as regards, first, the complaint under Article 8 of the Convention, the Court has already held that disciplinary proceedings and sanctions against judges are not in themselves sufficient to trigger the applicability of that provision (see Denisov, cited above, § 120, and Miroslava Todorova, cited above, § 143). Furthermore, in the present case, the alleged negative effects of the proceedings would not derive from any sanction, as no such measure had been imposed. Any negative effects would be limited to the consequences of the unlawful conduct, which the applicant could have foreseen within the framework of his duties as a prosecutor and his ethical obligations (see Denisov, cited above, § 121, with reference to the exclusionary principle laid down in the Gillberg v. Sweden judgment [GC], no. 41723/06, 3 April 2012).

34.  The applicant cannot therefore claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of Article 8 (see, for example, Tanrikulu and Others, cited above), leaving aside the fact that the complaint is, in any event, incompatible rationae materiae with the provisions of the Convention for the purposes of Article 35 § 3 (a) (see, inter alia, Miroslava Todorova, cited above, § 145).

35.  The Court further notes that, in contrast to the situation in Vincent Del Campo (cited above) relied on in the complaint, the applicant directly and personally accused and was able to defend himself, assisted by his lawyers, from the administrative-investigation stage until the end of the disciplinary proceedings against him.

36.  Concerning, secondly, the complaint under Article 10 of the Convention, the Court reiterates that no sanctions, disciplinary or otherwise, were imposed on the applicant who, furthermore, did not demonstrate that his statements had been censured (see Tanrikulu and Others, cited above, and, mutatis mutandis, M.D. and Others v. Spain, no. 36584/17, §§ 86-91, 28 June 2022). Thus, as the applicant is unable to claim to be a victim of a violation of Article 10, this complaint is incompatible ratione personae with the provisions of the Convention, pursuant to Article 35 § 3 (a). In any event, the Court considers that the circumstances of the present case demonstrate that, on the contrary, the applicant was able to exercise freely his right to freedom of expression in the course of his duties as a public prosecutor, particularly with regard to his official superior, without this resulting in a finding that he committed a disciplinary offence.

37.  Lastly, as Article 13 applies only where an individual has an arguable claim that he or she has been a victim of a violation of another Convention right (see, among many other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131), and as the Court has concluded that the complaints under Articles 6, 8 and 10 of the Convention are inadmissible in the present case, this complaint is incompatible rationae materiae with the provisions of the Convention, within the meaning of Article 35 § 3 (a).

38.  It follows that this part of the application must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in French and notified in writing on 23 May 2024.

 Victor Soloveytchik Georges Ravarani
 Registrar President