BREISACHER v. FRANCE
Inadmissible
The applicant, Mr Michel Breisacher, is a French national who was born in 1945 and lives in Paris. He was represented before the Court by Mr P.-F. Divier, of the Paris Bar. On 23 July 1986 a part publicly owned company, the Société d’économie mixte parisienne de prestations (SEMPAP), was set up, with the City of Paris as its majority shareholder. The chairperson of its board of directors was also chairperson of the tenders committee. SEMPAP, which was formed to replace the City of Paris Stationery Office (Imprimerie municipale de la ville de Paris), entered into a number of contracts with suppliers. The City of Paris Inspectorate General reported unfavourably on its operations in 1989, 1992 and 1995. On 30 October 1997, following the forwarding of a report from the Ile-de-France Regional Audit Office to the Paris public prosecutor on 29 September 1997, a judicial investigation was opened at the Paris tribunal de grande instance against an unnamed person for favouritism in the award of public contracts for supplies and printing services by SEMPAP. Two investigating judges from the court were put in charge of the investigation. On 24 September 1999 the judges’ remit was extended to cover embezzlement of public funds, misappropriation of corporate assets, acquiring or retaining a prohibited interest or complicity therein, receipt of stolen goods and aiding and abetting. By a judgment of 7 July 2000, the Paris Administrative Court gave the applicant leave under Article L. 2132-5 of the General Code of Territorial Authorities, “at his own risk and expense, to join the proceedings as a civil party in place of the City of Paris in the judicial investigation opened into the alleged over-billing of the City of Paris for contracts made through SEMPAP’s intermediary”. On 21 November 2000 the applicant asked the investigating judges to order the examination, as a witness, of Mr Chirac, who was the mayor of Paris until 1995 and has been President of the French Republic since then. By an order of 14 December 2000 the judges, who noted that the request had been written in accusatory terms that effectively levelled charges against Mr Chirac, held that, in the absence of specific case-law from the Court of Cassation concerning the Constitutional Council’s position (decision of 22 January 1999) with regard to the President of the Republic’s immunity, they did not have jurisdiction to order such a measure. On 29 June 2001 the Investigation Division of the Paris Court of Appeal, before which the applicant had revised his request, now seeking an order for Mr Chirac to be placed under investigation, upheld the order of 14 December 2000. By a judgment of 10 October 2001 the Court of Cassation, sitting in plenary, held that proceedings could not be brought before the ordinary criminal courts for the duration of the President’s term of office, during which period the right to prosecute was suspended. The appeal judgment had therefore erred in holding that the appeal was admissible and that the investigating judges did not have jurisdiction, but would not be reversed as the investigating judges did not in fact have power to order an investigative measure of this sort. “The territorial authorities of the Republic shall be the municipalities, the départements, the regions, the special-status areas and the overseas territories to which Article 74 applies. Any other territorial authority shall be established by statute, where appropriate in place of one or more authorities referred to in this paragraph.” “Any taxpayer registered on the municipal electoral roll shall be entitled, at his or her own risk and expense and with the leave of the administrative court, to bring or defend any action which he or she believes the municipality should bring or defend but has refused or neglected to do so after being put on notice to consider the matter.” “When examining a request submitted by a taxpayer on the basis of [Article L. 2132-5 of the General Code of Territorial Authorities], the administrative court, ruling in its capacity as an administrative authority, and the Conseil d’Etat, on a full appeal against a decision by the administrative court, shall, without acting as the trial judge and in the light of the evidence before them, check whether the action contemplated is of sufficient public interest for the municipality and has a prospect of success.” (See, among many other authorities, judgments no. 249303 of 14 March 2003; no. 242768 of 13 January 2003, published in the Tables du Recueil Lebon; no. 233036 of 22 February 2002; no. 226385 of 15 October 2001; no. 210088 of 24 May 2000; no. 197017 of 28 July 1999.)