CASE OF PIERRE-BLOCH v. FRANCE
Not necessary to examine Art. 14
C. Russo;John Freeland
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. 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. 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. ...” 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. 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. ...” 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”. 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. ...” 22. The election expenditure of (in particular) parliamentary candidates must not exceed a statutory ceiling (Article L. 52-11 of the Elections Code). 23. Within two months of the ballot in which the election was won, each candidate who took part in the first round must file his campaign accounts, certified by an accountant, at the prefecture. The accounts are then sent to the National Commission on Election Campaign Accounts and Political Funding (Article L. 52-12). 24. The National Commission on Election Campaign Accounts and Political Funding has nine members appointed for five years by decree: three members or former members of the Conseil d’Etat nominated by the Vice-President of the Conseil d’Etat after consultation of its Judges’ Council; three members or former members of the Court of Cassation nominated by the President of the Court of Cassation after consultation of its Judges’ Council; three members or former members of the Audit Court nominated by the President of the Audit Court after consultation of its divisional presidents (Article L. 52-14). 25. The Commission publishes the campaign accounts (Article L. 5212). It approves them and, “after adversarial proceedings”, rejects or amends them (Article L. 52-15). Where the amount of a declared item of expenditure is less than the usual price, the Commission calculates the difference and adds it to the campaign expenditure after asking the candidate to provide any evidence relevant to an assessment of the facts. The same procedure is applied in respect of all direct or indirect benefits, services and gifts in kind received by the candidate (Article L. 52-17). 26. If the accounts have not been filed within the prescribed period, if they have been rejected or if – where appropriate after amendment – they show that the maximum permitted amount of election expenditure has been exceeded, the Commission refers the case to the body that adjudicates election disputes (Articles L. 52-15 and L.O. 136-1), which is the Constitutional Council in respect of the election of members of Parliament (Article 59 of the Constitution). 27. The Constitutional Council has nine members, appointed for a non-renewable nine-year term. Three of them are appointed by the President of the Republic, three by the Speaker of the National Assembly and three by the Speaker of the Senate. In addition to those nine members, former presidents of the Republic are life members of the Constitutional Council as of right. The President of the Constitutional Council is appointed by the President of the Republic. In the event of a tie, he has the casting vote (Article 56 of the Constitution). 28. Within the Constitutional Council there are three sections, each comprising three members drawn by lot. Lots are drawn separately among the members appointed by the President of the Republic, those appointed by the Speaker of the Senate and those appointed by the Speaker of the National Assembly. Each year the Constitutional Council draws up a list of ten deputy rapporteurs from among the middle-ranking members of the Conseil d’Etat and the Audit Court; they are not entitled to vote (section 36 of Ordinance no. 58-1067 of 7 November 1958 on the Constitutional Council – “the Ordinance”). 29. In addition to the application of Article L.O. 136-1 of the Elections Code (see paragraph 26 above), the election of a member of Parliament may be challenged before the Constitutional Council within ten days of the election results being announced, by means of a written application by anyone on the electoral roll of the constituency in which the election was held or by anyone who stood for election (sections 33–34 of the Ordinance and Rule 1 of the Rules of Procedure of 31 May 1959 as amended by the Constitutional Council’s decisions of 5 March 1986, 24 November 1987 and 9 July 1991 – “the Rules of Procedure”). 30. As soon as he receives an application, the President allocates it to one of the sections to examine in order to prepare the case for hearing and appoints a rapporteur, who may be selected from among the deputy rapporteurs (sections 37–38 of the Ordinance). Where the application is not declared inadmissible or manifestly ill-founded (section 38 of the Ordinance), the member of Parliament whose election is being challenged and, where applicable, his substitute are given notice of it. They may designate a person of their choice to represent them and to assist them with the various steps in the proceedings. The section of the Constitutional Council allots them a period of time for inspecting the application and the documents at the Council’s secretariat and producing their written observations (section 39 of the Ordinance and Rule 9). When a case is ready for hearing, the section hears the report of the rapporteur. In this he sets out the issues of fact and law and submits a draft decision (Rule 13). The section discusses his proposals and refers the case to the Constitutional Council for its ruling on the merits (Rule 14). The President of the Constitutional Council determines when a case is to be entered in its list. Proceedings in the Constitutional Council are not public, and only since the Constitutional Council's decision of 28 June 1995 amending the Rules have applicants and members of Parliament whose election is in issue been able to seek leave to address the Council. The secretary-general and the rapporteur for the case attend the Council’s deliberations. The rapporteur drafts the decision taken as a result of those deliberations (Rule 17). 31. The Constitutional Council gives its ruling in a reasoned decision, which indicates the members who took part in the sitting at which it was taken. The decision is signed by the President, the secretary-general and the rapporteur (section 40 of the Ordinance and Rule 18) and is published in France's Official Gazette (Rule 18). 32. No appeal lies against the Constitutional Council’s decisions (Article 62 of the Constitution and Rule 20). They are binding on the public authorities (pouvoirs publics) and on all administrative and judicial authorities (Article 62 of the Constitution). The Constitutional Council may, however, of its own motion or at the request of an interested party, rectify clerical errors affecting its decisions (Rules 21–22). 33. Reimbursement in whole or in part of expenditure recorded in campaign accounts, where provided for by law, is not possible until the campaign accounts have been approved by the National Commission (Article L. 52-15 of the Elections Code). 34. Where it has been found in a final decision that the maximum permitted amount of election expenditure has been exceeded, the National Commission orders the candidate to pay the Treasury a sum equivalent to the amount of the excess. The sum is recovered in the same way as debts owed to the State other than taxes and debts relating to State property (Article L. 52-15). 35. The National Commission has no discretion; it is required to apply the Constitutional Council’s final decision and to base its calculation of the sum payable to the Treasury by the candidate solely upon the amount by which the statutory ceiling on election expenditure has been exceeded (judgment of the Paris Administrative Court, 12 February 1993). 36. As to the nature of the payment, the Paris Administrative Court has held (in the judgment cited above): “... even if it is accepted that the requirement to pay the State a sum equivalent to the amount by which the maximum permitted amount of election expenditure has been exceeded represents a penalty, that penalty is only an administrative penalty. It cannot be regarded as criminal in nature or intended to punish an offence. It does not therefore come within the scope of Article 7 of the Convention ... Moreover, where the ceiling on election expenditure has been exceeded, Article L. 113-1 of the Elections Code makes provision for the penalties of fines and imprisonment; these are criminal in nature and are not in issue in the instant case. The argument based on an infringement of the provisions of Article 7 of the European Convention in the contested decision must consequently fail.” 37. A person who has not filed his campaign accounts in accordance with the requirements and within the time-limit laid down in Article L. 5212 or whose campaign accounts have been rightly rejected is disqualified from standing for election for a period of one year from the date of the election. Anyone who has exceeded the maximum permitted amount of campaign expenditure as laid down in Article L. 52-11 may likewise be disqualified from standing for election for the same length of time (Article L.O. 128, second paragraph, of the Elections Code). Where appropriate, the Constitutional Council disqualifies the person from standing for election and, if that person was the candidate elected, it declares in the same decision that he has forfeited his seat (Article L.O. 1361). 38. Article L. 113-1 of the Elections Code provides: “A fine of FRF 25,000 and a sentence of one year’s imprisonment, or only one of those penalties, shall be imposed on any candidate (in the case of a poll to elect a single candidate) or any candidate heading a list (in the case of a poll to elect candidates from party lists) who ... (3) has expended more than the maximum permitted amount laid down pursuant to Article L. 52-11; (4) has not complied with the formal requirements for drawing up campaign accounts laid down in Articles L. 52-12 and L. 52-13; (5) has declared in his campaign accounts or the appendices to them amounts that have knowingly been reduced; ...” It is the duty of the National Commission to send a case to the public prosecutor’s office where it finds irregularities which appear to contravene, in particular, Article L. 52-11 of the Elections Code (Article L. 52-15). 39. Where so provided by law, a serious crime (crime) or other major offence (délit) is punishable with one or more “additional” penalties (Article 131-10 of the New Criminal Code), including deprivation of civic, civil and family rights, which may include the right to stand for election (Article 131-26). Notwithstanding any provision to the contrary, such a deprivation cannot follow automatically from a criminal conviction (Article 132-31).