CHEMINADE v. FRANCE
Inadmissible
The applicant [Mr Jacques Cheminade] is a French national who was born in 1941 and lives in Paris. Before the Court he was represented by Ms A. de Coulhac-Mazérieux of the Paris Bar. The facts of the case, as submitted by the parties, may be summarised as follows. Having collected the signatures of more than five hundred mayors, as required by the Institutional Act of 13 January 1988, the applicant decided to stand as a candidate in the 1995 presidential election. By a decision of 6 April 1995 the Constitutional Council accepted his candidacy and by virtue of his status as a candidate the State paid him an advance of one million French francs (FRF) on the lump-sum reimbursement of his campaign expenses, for which there was a ceiling of FRF 90,000,000 in force for each candidate and FRF 120,000,000 for each candidate in the second round of voting. In the first round of the presidential election, which took place on 23 April 1995, the applicant received 84,959 votes, or 0.28% of the votes cast. He did not take part in the second round of the election on 7 May 1995. In accordance with Article L. 52-12 of the Elections Code, which requires campaign accounts to be lodged within two months of the second round of voting, the applicant lodged his accounts with the Constitutional Council on 7 July 1995. In response to requests for further particulars on 27 July and 15 September 1995 from the scrutineers auditing his accounts, the applicant supplied the information and documents sought on 17 August and 25 September 1995. The applicant’s accounts showed electoral expenses of FRF 4,718,018 and receipts of FRF 4,718,040. The receipts were broken down as follows: an advance from the State of FRF 1,000,000, FRF 350,000 in bank loans, FRF 359,000 in the form of an advance from a party named “Fédération pour une nouvelle solidarité” (Federation for a New Solidarity) and FRF 2,980,990 in loans made by natural persons, which included FRF 2,340,990 interest-free, and FRF 27,550 in donations. It appears from the documents supplied by the applicant that he had personally taken out a bank loan of FRF 200,000 and that it had been stipulated that this loan was to be “paid off by reimbursement of the campaign expenses”. The loans amounting to a total of FRF 2,980,990 were made by twenty-nine individuals during the period from 10 February to 6 July 1995. All but three of these loans were interest-free and were to be repaid in full after Mr Cheminade had received the statutory lump-sum reimbursement to candidates in presidential elections. The loan contracts were sent in by the applicant after his campaign accounts had been lodged in response to the scrutineers’ requests. The receipts of the other candidates in the presidential election amounted, for the candidates in the first round of voting only, to approximately FRF 7,200,000 for Mrs Voynet, FRF 11,300,000 for Mrs Laguiller, FRF 24,000,000 for Mr de Villiers, FRF 41,700,000 for Mr Le Pen, FRF 50,000,000 for Mr Hue and FRF 91,000,000 for Mr Balladur. For the two candidates in the second round the receipts recorded in the campaign accounts were approximately FRF 89,000,000 for Mr Jospin and FRF 120,000,000 for Mr Chirac. Article 3 of the Law of 6 November 1962 on election by universal suffrage to the office of President of the Republic, as amended by the Institutional Act of 19 January 1995 on the financing of political life, provides for a sum of up to 8% of the maximum expenses (that is a maximum of FRF 7,200,000) to be reimbursed in a lump-sum to each candidate who does not obtain more than 5% of the total votes cast in the first round. This lump-sum reimbursement may not, however, exceed the amount of the candidate’s expenses as recorded in his campaign accounts, and no reimbursement is made to candidates whose campaign accounts have been rejected. In the present case, by a decision of 11 October 1995, the Constitutional Council, which was empowered for the first time, pursuant to the Institutional Act of 19 January 1995, to approve, reject or correct the campaign accounts of candidates in a presidential election, rejected the applicant’s campaign accounts on the following grounds: “It appears from the campaign accounts lodged by the candidate that he received a total of FRF 2,340,990 stated to be interest-free loans from natural persons. The investigation has revealed that FRF 1,711,450 out of this sum, or more than a third of all the receipts declared, came from twenty-one loans made after 7 May 1995. In view of the relative weight of these resources in the campaign finances as a whole, the fact that no interest was stipulated gave the candidate in the present case an advantage which must be equated with a donation pursuant to Article L. 52-17 of the Elections Code. Regard being had to the dates of the contracts concerned, and the scale and systematic nature of the advantages thus provided, the campaign accounts must be considered to have been drawn up in breach of Articles L. 52-4, L. 52-5, L. 52-6 and L. 52-8 of the Elections Code and must accordingly be rejected.” The applicant was therefore deprived of the possibility of obtaining a lump-sum reimbursement of his electoral expenses to the value of FRF 3,690,490 and on 18 October 1995 the Minister of the Interior served him with an order to repay the FRF 1,000,000 paid to him by the State as an advance on this reimbursement. On 10 April 1996 the Treasury sent the applicant a notice to pay, which led to nothing. On 26 July 1996 a bailiff drew up a report on a seizure of goods carried out with a view to the sale of furniture from the applicant’s home, namely a period wardrobe, a desk, a bench, an armchair, a folding screen and approximately five hundred books. On 20 August 1996 the applicant applied to the judge at the Paris tribunal de grande instance responsible for the execution of judgments arguing that some of the goods seized were in fact exempt from seizure and that he was entitled to a stay of execution until such time as the European Commission of Human Rights (“the Commission”) had reached a decision on the violations of the Convention alleged in the present application. On 2 August 1996 the Treasury had attached two sums of money available in the applicant’s bank accounts. “Electoral transactions shall be organised according to the rules laid down by Articles ... L. 52-4 to L. 52-11, L. 52-12 and L. 52-16 of the Elections Code ..., subject to the following provisions. The ceiling for electoral expenses laid down by Article L. 52-11 shall be FRF 90,000,000 for a candidate for election to the office of President of the Republic. That figure shall be raised to FRF 120,000,000 for each of the candidates in the second round of voting. Campaign accounts and their annexes shall be lodged with the Constitutional Council within two months of the round of voting from which the successful candidate emerges ... The amount of the advance payment ... must be included in the receipts recorded in the campaign accounts. When the list of the candidates in the first round is published the State shall pay to each of them the sum of FRF 1,000,000 as an advance on the lump-sum reimbursement of their campaign expenses provided for in the following paragraph. Where the amount of the reimbursement does not reach that sum, the surplus must be repaid. A sum of up to one-twentieth of the amount of the relevant ceiling for campaign expenses shall be reimbursed, in a lump-sum, to each candidate. This sum shall be increased to a quarter of that ceiling for each candidate who receives more than 5% of the total votes cast in the first-round ballot. It may not exceed the candidate’s total expenses as recorded in his campaign accounts [exceptionally, for the application of this paragraph of Article 3 of the Law of 6 November 1962 to the first election of a President of the Republic following publication of the present Institutional Act, the proportions of one-twentieth and one-quarter of the ceiling for electoral expenses shall be raised to 8% and 36% of that ceiling respectively]. The lump-sum reimbursement provided for in the previous paragraph shall not be made to candidates ... whose campaign accounts have been rejected.” “During the year preceding the first day of the month in which an election is held and until the date of the round of voting from which the successful candidate emerges a candidate in this election may not have collected funds with a view to financing his campaign otherwise than through an agent designated by him ...” “A financial agent may collect funds only during the period contemplated in Article L. 52-4.” “Donations made by a duly identified natural person to finance the campaign of one or more candidates in the same election may not exceed FRF 30,000.” “Each candidate ... is required to keep campaign accounts recording the source of all receipts and the nature of all the expenses incurred or paid with the election in mind, other than those for the official campaign, by himself or on his behalf, during the period contemplated in Article L. 52-4 ... The campaign accounts must be in balance or in surplus and may not show any deficit.” “Where an item of expenditure recorded in the campaign accounts costs less than the normal price, [the Constitutional Council] shall evaluate the difference and add an equivalent sum to the campaign expenses, after inviting the candidate to produce any documentary evidence which might help to assess the circumstances. The sum thus added shall be considered a donation, within the meaning of Article L. 52-8, made by the natural person or persons concerned. [The Council] shall deal in the same manner with all direct or indirect advantages, services and donations in kind from which the candidate has derived benefit.” “2. Taking receipts into account … (b) The Constitutional Council further notes that in some cases funds paid in have been declared to have come from loans made by natural persons. Such loans, which may in part really constitute donations where no interest is payable, or where the rate of interest payable is lower than the usual money-market rates, make any attempt to exercise scrutiny a hit-or-miss affair. Moreover, the Council is not in a position to verify, once the accounts have been made up, whether the contractual repayments have actually been made. Yet in the absence of such verification the payments owed by the State may be the cause of unjustified enrichment for the candidate. It therefore appears to be desirable for natural persons to be allowed to make only donations within the limits laid down by law, but not loans of any kind.”