European Court of Human Rights - Case of Pierre Bloch v. France (21 October 1997)

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF PIERRE-BLOCH v. FRANCE

(120/1996/732/938)

JUDGMENT

STRASBOURG

21 October 1997

(Excerpts)

SUMMARY1

Judgment delivered by a Chamber

France – proceedings before the Constitutional Council, sitting as body that adjudicates election disputes in respect of members of Parliament

I. Article 6 § 1 of the Convention

Fact that proceedings have taken place before a constitutional court does not suffice to remove them from ambit of Article 6 § 1 – it had to be ascertained whether the ones in the instant case had related to "the determination of … civil rights and obligations" or of a "criminal charge".

A. Whether there had been a "contestation" (dispute) over "civil rights and obligations"

Not in issue that there had been a "contestation".

The right to stand for election to the National Assembly and keep one’s seat was a political one and not a "civil" one, so that disputes relating to the arrangements for the exercise of it lay outside the scope of Article 6 § 1 – the pecuniary interests also at stake in the proceedings did not make them "civil" ones.

B. Whether there had been a "criminal" charge

Not disputed that there had been a "charge" – Court applied the three criteria laid down in its case-law in order to determine whether the "charge" had been a criminal one.

1. Legal classification of offence in French law and very nature of it

Relevant provisions belonged not to French criminal law but to financing and capping of election expenditure and therefore to electoral law – nor could breach of a legal rule governing such a matter be described as "criminal" by nature.

2. Nature and degree of severity of penalty

Disqualification: penalty directly one of the measures designed to ensure proper conduct of parliamentary elections and thus lay outside the "criminal" sphere – limited to a period of one year from date of election and applicable only to election in question.

Obligation to pay Treasury a sum equal to amount of excess: related to amount by which Constitutional Council had found ceiling to have been exceeded, a fact which appeared to show that it was in the nature of a payment to community of sum of which the candidate had improperly taken advantage to seek votes of his fellow citizens and that it formed part of measures designed to ensure proper conduct of parliamentary elections – differed in several respects from criminal fines in the strict sense.

Penalties provided in Article L. 113-1 of Elections Code: not in issue, as no proceedings had been brought against applicant on that basis.

Conclusion: Article 6 § 1 not applicable (seven votes to two).

II. Article 14 of the Convention

Complaint of discrimination on the ground of political opinions not reiterated by applicant either in his memorial or at hearing – furthermore, no issue can in principle arise under Article 14 taken in isolation.

Conclusion: unnecessary to rule on complaint (unanimously).

III. Article 13 of the Convention

Right of recourse guaranteed in Article 13 can only relate to a right protected by the Convention.

Conclusion: Article 13 not applicable (seven votes to two).

AS TO THE FACTS

I. circumstances of the case

8. In the general election of 21 and 28 March 1993 Mr Jean-Pierre Pierre-Bloch stood as a candidate for the Union for French Democracy (Union pour la démocratie française – UDF) in the 19th administrative district of Paris and was elected as a member of the National Assembly.

A. Examination of the applicant's election campaign accounts and the disqualification from standing for election

1. Before the National Commission on Election Campaign Accounts and Political Funding

9. On 27 May 1993 the applicant submitted his campaign accounts to the National Commission on Election Campaign Accounts and Political Funding.

10. The National Commission gave its decision on 30 July 1993. To the expenditure of 440,603.15 French francs (FRF) declared by the applicant it added a sum of FRF 328,641.65 representing the cost of five issues of a magazine called Demain notre Paris ("Our Paris Tomorrow") that was published by Mr Pierre-Bloch between November 1992 and March 1993, taking the view that "there [could] be no doubt, regard being had to their dates, frequency and, more especially, content, that the publications [had] had an undeniable electoral purpose".

The Commission also added the cost of an opinion poll (FRF 83,020) conducted on 26 October 1992 among voters in the 19th administrative district that had been commissioned by the Union for the Republic (Rassemblement pour la République – RPR), on the grounds that "the main purpose of the poll [had been] to determine who was the best candidate to put up against the outgoing Socialist member of Parliament and the poll [had shown] Mr Jean-Pierre Pierre-Bloch to be at a clear advantage, with the result that he [had been] backed by both the UDF and the RPR". The poll "also investigated voters’ expectations and was therefore designed to find out how the election campaign should be slanted, since the concerns expressed by the majority were addressed at length in the published election material [referred to above]".

As it also noted that the magazine 18ème Indépendant had campaigned in favour of three candidates, including the applicant, the National Commission added one-third of the cost of the February 1993 issue to his accounts (FRF 8,211.66).

After deducting other sums, it thus assessed the expenditure in issue at FRF 816,663.84 and rejected the applicant’s campaign accounts as they exceeded the statutory ceiling by FRF 500,000. It also referred the matter to the Constitutional Council pursuant to Article 136-1 of the Elections Code.

2. In the Conseil d’Etat

11. On 8 September 1993 Mr Pierre-Bloch applied to the Conseil d’Etat to have the National Commission’s decision quashed and reversed. His main contention was that, in breach of Article L. 52-15 of the Elections Code and the adversarial principle, the National Commission had added the cost of the opinion poll and the publications in issue to his campaign accounts without first giving him a hearing.

12. In a judgment of 9 May 1994 the Conseil d'Etat dismissed the application on the following grounds:

"...

The contested decision, whereby the National Commission on Election Campaign Accounts and Political Funding ... revised Mr Pierre-Bloch’s campaign accounts and, having found that the maximum permitted amount of election expenditure had been exceeded, referred the matter to the Constitutional Council, cannot be separated from the proceedings thus instituted before that body. That being so, no appeal lies against the decision to the administrative courts. Mr Pierre-Bloch’s application is therefore inadmissible.

..."

3. Before the Constitutional Council

(a) The decision of 24 November 1993

13. Applications were made to the Constitutional Council on 8 April 1993 by a voter in the 19th administrative district, Mr M., who maintained that the applicant had exceeded the statutory maximum amount of campaign expenditure, and on 3 August 1993 by the National Commission.

14. On 8 September 1993 Mr Pierre-Bloch lodged a pleading. He asked the Constitutional Council to stay the proceedings until the Conseil d’Etat had ruled on the lawfulness of the National Commission’s decision and, in the alternative, to hold that his campaign expenditure had not exceeded the statutory ceiling and that he should not be disqualified from standing for election.

15. In a decision of 24 November 1993 the Constitutional Council rejected Mr Pierre-Bloch’s request to stay the proceedings, disqualified him from standing for election for a year from 28 March 1993 and declared that he had forfeited his seat as a member of Parliament. The decision reads as follows:

"...

Mr Pierre-Bloch’s request to stay the proceedings

...

Section 44 of the Ordinance of 7 November 1958 provides: ‘When ruling on cases submitted to it, the Constitutional Council has jurisdiction to consider all the issues and objections raised in the application ...’ It is thus for the Constitutional Council to rule on all the issues concerning Mr Pierre-Bloch’s campaign accounts. That being so, his application to stay the proceedings cannot be granted.

Mr Pierre-Bloch’s election expenditure

...

The National Commission on Election Campaign Accounts and Political Funding is an administrative authority and not a court. The view it takes when scrutinising a candidate’s campaign accounts consequently cannot prejudice the decision of the Constitutional Council, the body that adjudicates upon the lawfulness of an election under Article 59 of the Constitution.

The inclusion of expenditure relating to the magazine Demain notre Paris

... regard being had to the dates on which it was published, to the extent of its circulation and to its content, this magazine can be seen to be a vehicle for election propaganda. Issues 71 to 75, however, contain numerous pages of general and local news which cannot be directly linked with promoting the candidate or furthering his election programme. Accordingly, those pages must not be viewed as expenditure committed or incurred for election purposes within the meaning of Article 52-12 of the Elections Code. That being so, they should not be included in the expenditure recorded in Mr Pierre-Bloch’s campaign accounts.

On the other hand, other pages in those five issues contain numerous photographs of the candidate or are made up of articles relating to topics addressed during his election campaign. Those pages consequently amount to election propaganda. This is true [of pages ...] ..., which helped to promote the elected candidate. To that extent, the corresponding expenditure must be seen as coming within the expenditure referred to in the first paragraph of Article L. 52-12 of the Elections Code and must be included in the candidate’s campaign accounts. Regard being had to the total cost of the publications concerned and the number of pages to be taken into account, the expenditure incurred under this head amounts to FRF 217,327.47.

...

The inclusion of the cost of an opinion poll

It is clear from the inquiry into the facts that an opinion poll commissioned by the RPR was conducted in the 19th constituency in Paris among a representative sample of voters. The questions asked related firstly to the voters’ main concerns, secondly to their voting intentions and thirdly to their appraisal of various political figures and groups.

The inquiry into the facts revealed that Mr Pierre-Bloch then made use of the poll findings that related to voters’ expectations by choosing his campaign topics on the basis of voter concerns as shown by the findings. Both in issues 71 to 75 of the magazine Demain notre Paris and in various leaflets, he gave priority to the topics so identified. The findings were accordingly used to determine the thrust of the candidate’s election campaign in the constituency.

It follows that the National Commission on Election Campaign Accounts and Political Funding was right to include the opinion poll but in the circumstances of the case it would be just to limit the amount of the cost included to one-third of the sums expended, namely FRF 27,677.33.

The inclusion of the cost of part of issue 122 of the magazine 18ème Indépendant

In issue 122 of February 1993 the magazine 18ème Indépendant, which has a circulation of forty thousand, published an article by Mr Chinaud, the mayor of the district, expressing his support for the three opposition candidates standing, including Mr Pierre-Bloch. That article, which was intended to underline the unity in the local majority party one month before the first round of the election, was an integral part of the whole publication, which thus in its entirety amounts to election propaganda. Responsibility for it must also be attributed to the three candidates who benefited from it. Consequently, one-third of the cost of the publication (FRF 8,211.66) must be included as expenditure in Mr Pierre-Bloch’s campaign accounts, as the National Commission on Election Campaign Accounts and Political Funding ruled.

The inclusion of the cost of various propaganda expenses

Mr M. criticised Mr Pierre-Bloch for omitting various propaganda expenses. It is clear from the very details provided by the candidate that some expenditure was omitted ... On the basis of the figures submitted by Mr Pierre-Bloch himself, the total amount to be taken into account for the purposes of Article L. 52-12 is thus FRF 33,360.68.

It follows from all the foregoing that the sum of FRF 191,164.99 must be added to Mr Pierre-Bloch’s expenditure. The total amount of his expenditure is thus FRF 588,987.14 and the applicant has consequently exceeded the maximum permitted amount of campaign expenditure by FRF 88,987.14.

..."

(b) The application for rectification of a clerical error

16. On 30 November 1993 Mr Pierre-Bloch lodged an application with the Constitutional Council seeking rectification of clerical errors which, in his submission, vitiated the decision of 24 November 1993. He maintained that the Constitutional Council had counted some of his campaign expenditure twice and that it had not ruled on his request that the opinion poll should be left out of account. (Mr Pierre-Bloch argued that Mr M. had failed to prove that he was lawfully in possession of the opinion poll report, marked "confidential exclusive property of client").

17. The applicant lodged a pleading containing further arguments on 7 December 1993. He argued that the Constitutional Council’s decision did not contain its President’s signature or that of the secretary-general or the rapporteur; furthermore, the rapporteur’s name had not been given. He added that he had also been denied any opportunity to lodge final submissions as he had not been informed when his case would be heard.

18. Neither the applicant nor his counsel was informed of the date of the hearing, even though in a letter of 2 December 1993 the lawyer had asked the secretary-general for the date.

19. In its decision of 17 December 1993 the Constitutional Council rejected the applicant’s submissions based on procedural and formal defects on the ground that "in an application seeking rectification of a clerical error it is not permissible to challenge the assessment of the facts of the case or their legal classification or the formal or procedural manner in which the decision [to which the application relates] was rendered". It also reduced the amount of propaganda expenditure to FRF 7,950 and set the amount of expenditure incurred by the applicant at FRF 563,572.46, consequently materially amending its decision of 24 November 1993, while stating that "this rectification [was] not such as to call in question Mr Pierre-Bloch’s disqualification from standing for election or the forfeiture of his seat".

B. Application of Article L. 52-15 of the Elections Code

20. In a decision of 8 April 1994 the National Commission, having deducted the accountant’s fees from the amount assessed by the Constitutional Council, set the amount which Mr Pierre-Bloch was to pay the Treasury pursuant to the last paragraph of Article L. 52-15 of the Elections Code at FRF 59,572.

21. On 8 June 1994 the applicant applied to the Paris Administrative Court to quash this decision. He alleged, in particular, that the National Commission had breached Article 6 § 1 of the Convention.

In a judgment of 14 November 1994 the Paris Administrative Court dismissed his application as follows:

"...

It appears from the inquiry into the facts that the impugned decision was taken by the National Commission on Election Campaign Accounts and Political Funding, which is not a court. It is thus not required to afford the procedural safeguards provided for in [Article 6 § 1 of the Convention]. The applicant is not, however, thereby deprived of the right – which he exercised – to have his case heard by a tribunal. Accordingly, the argument based on a violation of Article 6 § 1 of the Convention ... must fail.

...

... in its decision of 24 November 1993, as amended on 17 December 1993, the Constitutional Council found that Mr Jean-Pierre Pierre-Bloch had exceeded the maximum permitted amount of expenditure in his campaign in the 19th constituency in Paris for the general election on 21 and 28 March 1993 by FRF 63,572.46. Pursuant to the statutory provisions cited above, the National Commission on Election Campaign Accounts and Political Funding was under a duty to require the applicant to pay the amount of the excess. The other grounds relied on by the applicant in order to challenge the decision are consequently invalid and must be rejected.

..."

PROCEEDINGS BEFORE THE COMMISSION

40. Mr Pierre-Bloch applied to the Commission on 6 April 1994. He maintained that he had not had a fair hearing before the Constitutional Council, in breach of Article 6 § 1 of the Convention. He also alleged that there had been a violation of his right to an effective remedy within the meaning of Article 13 and complained of discrimination on account of his political views, contrary to Article 14.

41. The Commission declared the application (no. 24194/94) admissible on 30 June 1995. In its report of 1 July 1996 (Article 31), it expressed the opinion that there had not been a violation of Article 6 § 1 (nine votes to eight), Article 13 (nine votes to eight) or Article 14 (unanimously). The full text of the Commission’s opinion and of the two dissenting opinions contained in the report is reproduced as an annex to this judgment1.

FINAL SUBMISSIONS TO THE COURT

42. In his memorial the applicant stated that he "reiterate[d] his earlier submissions".

The Government asked the Court to "dismiss Mr Pierre-Bloch’s application".

AS TO THE LAW

I. Alleged violation of article 6 § 1 of the convention

43. The applicant maintained that he had not had a fair hearing before the Constitutional Council, in particular because the proceedings had been neither adversarial nor public. He relied on Article 6 § 1 of the Convention, which provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law …"

44. It must first of all be determined whether that provision is applicable in the instant case.

  1. The arguments of those appearing before the Court

45. In Mr Pierre-Bloch’s submission, the fact that the proceedings in question took place before the Constitutional Council could not of itself have the consequence that Article 6 § 1 was inapplicable, since the Council had not in the instant case adjudicated upon a constitutional matter.

Furthermore, while, on account of the political nature of the rights in issue, proceedings in election disputes were not in principle subject to supervision by the Convention institutions, the Constitutional Council had in this instance determined a "mixed" dispute, in which what was at stake also included the payment by the applicant of a sum corresponding to the amount by which his election campaign expenditure had exceeded the permitted maximum and the reimbursement by the State of that expenditure. That pecuniary element gave the "contestation" (dispute) a sufficient "civil" connotation to bring the instant case within the ambit of Article 6 § 1.

At all events, the proceedings in issue had also related to a "quasi-criminal" charge and were on that account covered by Article 6 § 1. In support of that argument the applicant maintained, firstly, that the "offence" of exceeding the maximum permitted amount of election expenditure was one that concerned not solely a particular group of individuals but all citizens who could stand for election. He added that the nature of the penalties laid down reflected a punitive aim and that this gave them a criminal connotation. Disqualification from standing for election was a penalty provided in the Criminal Code and imposed on persons convicted of various serious offences; and the obligation to pay the Treasury the amount of the excess was not designed to compensate for damage but to punish conduct. It also had to be taken into account that it was possible to incur the penalties provided in Article L. 113-1 of the Elections Code (a fine of FRF 360 to FRF 15,000 and/or from one month’s to one year’s imprisonment), even though the Constitutional Council had no jurisdiction either to make a direct finding that the offence laid down by that provision had been committed or to institute criminal proceedings. It was in fact a "strict liability" offence, and a finding by the Constitutional Council that the maximum permitted amount of expenditure had been exceeded would be binding on any criminal court before which the case was brought. Lastly, the seriousness of the aforementioned penalties – which were dishonouring – likewise lent support to the view that they were criminal in nature.

46. The Government maintained that election disputes related to the exercise of political rights and therefore came exclusively within the sphere of public law. The Constitutional Council’s finding that the ceiling on election expenditure had been exceeded had admittedly had economic consequences for Mr Pierre-Bloch in that he had had to pay the Treasury a sum corresponding to the excess. That obligation, however, was but an indirect effect of the proceedings in the Constitutional Council as it flowed from a separate decision of the National Commission on Election Campaign Accounts and Political Funding ("the National Commission"). Furthermore, it was apparent from the case-law and practice of the Convention institutions that the existence of a pecuniary stake did not automatically give a "civil" connotation to a case. However that might be, in the instant case the public-law aspects (nature of the legislation, the subject matter of the dispute and the nature of the rights in issue) clearly outweighed that single private-law aspect.

Nor had there been any "criminal charge". To begin with the "offence" in issue was not classified as a "criminal" one in French law. Furthermore, the relevant legislation applied only to a limited number of persons – candidates in elections – and was part of a body of provisions designed to guarantee the democratic nature of the poll, not to punish individual conduct. Nor did the nature and degree of severity of the penalties give the offence any criminal connotation. Disqualification from standing for election, for instance, was a typical measure in the law governing elections since it was a penalty for other breaches of the Elections Code than exceeding the ceiling on campaign expenditure and affected other persons, such as judges or civil servants, quite independently of any punitive aim; moreover, it was limited to a period of one year from the date of the election and applied only to the election in question, such that it had only limited effects. The obligation to pay the Treasury a sum equal to the amount of the excess was essentially the quid pro quo for State financing of political parties; it was not subject to the rules applicable to criminal fines in the strict sense, such as an entry in the criminal record, non-imposition of consecutive sentences for multiple offences and imprisonment in default, and – contrary to what applied in the case of criminal fines – the amount to be paid was neither determined according to a fixed scale nor set in advance. The size of the sum to be paid by Mr Pierre-Bloch also had to be put into perspective. At all events, the obligation in question arose not from the Constitutional Council’s finding that the ceiling on authorised expenditure had been exceeded but from a separate decision of the National Commission. The penalties provided in Article L. 113-1 of the Elections Code were certainly criminal in nature but were not relevant in the instant case as no prosecution had been brought against the applicant on that basis.

In short, Article 6 § 1 was not applicable.

47. The Commission agreed with that argument in substance.

  1. The Court’s assessment

48. The Court reiterates that under its case-law the fact that proceedings have taken place before a constitutional court does not suffice to remove them from the ambit of Article 6 § 1 (see, for example and mutatis mutandis, the Pammel v. Germany judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1109, § 53).

It must be ascertained whether the proceedings in issue in the instant case did or did not relate to "the determination of … civil rights and obligations" or of a "criminal charge".

  1. Whether there was a "contestation" (dispute) over "civil rights and obligations"

49. As it was not in issue that there had been a "contestation" (dispute), the Court’s task is confined to ascertaining whether the dispute related to "civil rights and obligations".

50. It observes that, like any other parliamentary candidate, Mr Pierre-Bloch was required by law not to spend more than a specified sum on financing his campaign. The Constitutional Council held that the sum in question had on this occasion been exceeded and disqualified the applicant from standing for election for a year and declared that he had forfeited his seat, thereby jeopardising his right to stand for election to the National Assembly and to keep his seat. Such a right is a political one and not a "civil" one within the meaning of Article 6 § 1, so that disputes relating to the arrangements for the exercise of it – such as ones concerning candidates’ obligation to limit their election expenditure – lie outside the scope of that provision.

51. It is true that in the proceedings in question the applicant’s pecuniary interests were also at stake. Where the Constitutional Council has found that the ceiling on election expenditure has been exceeded, the National Commission assesses a sum equal to the amount of the excess, which the candidate is required to pay the Treasury. The proceedings before the National Commission are not separable from those before the Constitutional Court since the National Commission has no discretion and is required to adopt the amount determined by the Constitutional Council (see paragraph 35 above). Furthermore, reimbursement in whole or in part of the expenditure recorded in campaign accounts, where provided for by law, is not possible until the accounts have been approved by the National Commission (see paragraph 33 above).

This economic aspect of the proceedings in issue does not, however, make them "civil" ones within the meaning of Article 6 § 1. The impossibility of securing reimbursement of campaign expenditure where the ceiling has been found to have been exceeded and the obligation to pay the Treasury a sum equivalent to the excess are corollaries of the obligation to limit election expenditure; like that obligation, they form part of the arrangements for the exercise of the right in question. Besides, proceedings do not become "civil" merely because they also raise an economic issue (see, for example and mutatis mutandis, the Schouten and Meldrum v. the Netherlands judgment of 9 December 1994, Series A no. 304, p. 21, § 50, and the Neigel v. France judgment of 17 March 1997, Reports 1997-II, p. 411, § 44).

52. Article 6 § 1 accordingly did not apply in its civil aspect.

  1. Whether there was a "criminal charge"

53. As it was not disputed that there had been a "charge", the Court’s task is confined to ascertaining whether it was a criminal one. For this purpose it has regard to three criteria: the legal classification of the offence in question in national law, the very nature of the offence and the nature and degree of severity of the penalty (see, in particular, the Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 35, § 82, and the Putz v. Austria judgment of 22 February 1996, Reports 1996-I, p. 324, § 31).

(a) Legal classification of the offence in French law and the very nature of the offence

54. The Elections Code establishes the principle of capping election expenditure by parliamentary candidates (Article L. 52-11 – see paragraph 22 above) and monitoring compliance with that principle (see paragraphs 23–32 above). The National Commission examines the campaign accounts of all candidates and, if it considers that the maximum permitted amount has been exceeded by one of them, it refers the case to the Constitutional Council, the body with jurisdiction over the election of MPs (to which application can also be made by private individuals). Where the Constitutional Council subsequently finds that the maximum permitted amount has been exceeded, the candidate in question can be disqualified from standing for election for a period of a year (Articles L. 118-3, L.O. 128 and L.O. 136-1 – see paragraph 37 above) and he is required to pay the Treasury a sum equal to the amount of the excess as determined by the National Commission (Article L. 52-15 – see paragraph 34 above). Those provisions – the only ones relevant in the instant case – clearly do not belong to French criminal law but, as the title of the Elections Code chapter in which they appear confirms, to the rules governing the "financing and capping of election expenditure" and therefore to electoral law. Nor can a breach of a legal rule governing such a matter be described as "criminal" by nature.

(b) Nature and degree of severity of the penalty

55. Three "penalties" are or may be imposed on candidates who do not keep within the statutory limit on expenditure: disqualification from standing for election, an obligation to pay the Treasury a sum equal to the amount of the excess, and the penalties provided in Article L. 113-1 of the Elections Code.

  1. Disqualification

56. The Constitutional Council may disqualify from standing for election for a period of one year any candidate whom it finds to have exceeded the maximum permitted amount of election expenditure; if, as in the instant case, the candidate has been elected, the Council declares him to have forfeited his seat.

The purpose of that penalty is to compel candidates to respect the maximum limit. The penalty is thus directly one of the measures designed to ensure the proper conduct of parliamentary elections, so that, by virtue of its purpose, it lies outside the "criminal" sphere. Admittedly, as the applicant pointed out, disqualification from standing for election is also one of the forms of deprivation of civic rights provided in French criminal law. Nevertheless, in that instance the penalty is "ancillary" or "additional" to certain penalties imposed by the criminal courts (see paragraph 39 above); its criminal nature derives in that instance from the "principal" penalty to which it attaches.

The disqualification imposed by the Constitutional Council is, moreover, limited to a period of one year from the date of the election and applies only to the election in question, in this instance the election to the National Assembly.

57. In short, neither the nature nor the degree of severity of that penalty brings the issue into the "criminal" realm.

(ii) The obligation to pay the Treasury a sum equal to the amount of the excess

58. Where the Constitutional Council has found that the maximum permitted amount of election expenditure has been exceeded, the National Commission assesses a sum equal to the amount of the excess, which the candidate is required to pay to the Treasury. The Court has already indicated that the proceedings before the National Commission are not separable from those before the Constitutional Council (see paragraph 51 above).

The obligation to pay relates to the amount by which the Constitutional Council has found the ceiling to have been exceeded. This would appear to show that it is in the nature of a payment to the community of the sum of which the candidate in question improperly took advantage to seek the votes of his fellow citizens and that it too forms part of the measures designed to ensure the proper conduct of parliamentary elections and, in particular, equality of the candidates. Furthermore, apart from the fact that the amount payable is neither determined according to a fixed scale nor set in advance, several features differentiate this obligation to pay from criminal fines in the strict sense: no entry is made in the criminal record, the rule that consecutive sentences are not imposed in respect of multiple offences does not apply, and imprisonment is not available to sanction failure to pay. In view of its nature, the obligation to pay the Treasury a sum equal to the amount of the excess cannot be construed as a fine.

59. In short, the nature of the penalty in the instant case likewise does not bring the issue into the "criminal" realm.

(iii) The penalties provided in Article L. 113-1 of the Elections Code

60. Article L. 113-1 of the Elections Code provides that a candidate who has exceeded the ceiling on election expenditure is liable to a fine of FRF 25,000 and/or a year’s imprisonment (see paragraph 38 above), penalties which would be imposed by the ordinary criminal courts. The nature of those penalties is the less in doubt as Article L. 113-1 is included in the "Criminal provisions" chapter of the relevant part of the Elections Code. These penalties are not, however, in issue in this case as no proceedings were brought against the applicant on the basis of that Article.

(c) Conclusion

61. Having regard to all the foregoing considerations, the Court concludes that Article 6 § 1 did not apply in its criminal aspect either.

II. Alleged violation of Article 14 of the convention

62. The applicant’s complaint under Article 14 of the Convention that he had suffered discrimination on the ground of political opinions, which the Commission declared admissible (see paragraphs 40–41 above), was not reiterated either in his memorial or at the hearing before the Court. That being so, and inasmuch as no issue can in principle arise under this provision taken in isolation (see, for example and mutatis mutandis, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22), the Court sees no reason to consider it of its own motion.

III. alleged violation of article 13 of the convention

63. Mr Pierre-Bloch stated, lastly, that he had not had an effective remedy that would have enabled him to put forward his complaints in that no appeal lay against the Constitutional Council’s decision. He relied on Article 13 of the Convention, which provides:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

64. Like the Government and the Commission, the Court reiterates that the right of recourse guaranteed in Article 13 can only relate to a right protected by the Convention. Accordingly, having regard to its decisions on the complaints based on Articles 6 § 1 (see paragraphs 52 and 61 above) and 14 (see paragraph 62 above), the Court holds that Article 13 is not applicable.

for these reasons, the court

  1. Holds by seven votes to two that neither Article 6 § 1 nor Article 13 of the Convention applies in this case;
  2. Holds unanimously that it is unnecessary to consider the complaint based on Article 14 of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 21 October 1997.

Signed: Rudolf Bernhardt

President

Signed: Herbert Petzold

Registrar