DISSENTING OPINION OF JUDGE DE MEYER

( Translation )

I. General observations

It is very much to be regretted that the Court, after proceeding, as regards Article 6 of the Convention, step by step along the road of an open, “autonomous” interpretation of the concept of “civil rights and obligations” and “criminal charges”, should have felt it necessary in some of its recent judgments – and again today in the present one – to withdraw nervously into the cocoon of a strict, fainthearted interpretation.

Once again, it has missed the opportunity to acknowledge and assert the full extent of the meaning to be given to each of those concepts.

II. Civil nature of the case

On the one hand, the Court says that the right of a French citizen “to stand for election to the National Assembly and to keep his seat” is “a political one and not a ‘civil’ one within the meaning of Article 6 § 1” [5] .

The distinction between civil rights and political rights is strange in itself if one considers the etymology of the two adjectives, seeing that the Latin words from which the former is derived ( civile, civis, civitas ) and the Greek words from which the latter is derived ( politikon , politis, politeia ) mean the same thing.

This distinction – like the one between private law and public law, to which it is linked – has all too often served to remove from the scope of the ordinary law situations affecting the exercise of what is called public authority ( puissance publique ) and to reduce the scope of the protection of citizens in relation to such situations.

Are “civil” rights therefore not essentially, in the most literal meaning of the term, the rights of the citizen ( civis )?

Are not so-called “political” rights themselves rights of that type, “civil” rights par excellence ? Is that not the case with the jus suffragii and the jus honorum , which are precisely what we are dealing with in the instant case?

In reality “political” rights are a special category of “civil” rights. Indeed, they are more “civil” than others in that they are more directly inherent in citizenship and, furthermore, are normally exclusive to citizens.

Where human rights are concerned, and more particularly where disputes over rights or obligations are to be determined, there is nothing to justify treating those who lay claim to a “political” right, such as those who are candidates in an election, more or less favourably than other citizens [6] .

III. Criminal nature of the case

On the other hand, the Court declines to recognise the “criminal” nature of the penalties imposed on the applicant for having exceeded the maximum permitted amount of election expenditure – disqualification from standing for election for a year and the obligation to pay the Treasury a sum equal to the amount of the excess.

“In accordance with the ordinary meaning to be given to the terms” [7] in everyday language [8] , are these not true “penalties” and even rather serious penalties?

There is nothing to warrant the statement that such penalties are not “criminal” by nature or even that they “clearly do not belong to French criminal law” [9] . That cannot simply be inferred from the fact that the relevant provisions “appear in an elections code” and “belong to electoral law” [10] .

A penalty imposed on someone for having done what he was forbidden to do or for not having done what he was under an obligation to do does not cease to be a penalty merely because it is imposed on him under a law that is distinct from the Criminal Code, such as a regulatory offences act or road traffic code [11] , a tax code or tax regulations [12] , a code of criminal procedure [13] or an ordinance concerning the privileges and powers of a parliamentary assembly [14] .

Of similarly small importance is the “degree of severity of the penalty”: even a minor penalty remains a penalty. It is, at all events, surprising in the present case that an amount of 59,572 French francs is not considered sufficiently large for it to constitute a “criminal” penalty for the purposes of Article 6 § 1 [15] , when it was accepted that 60 German marks were sufficient in the Öztürk case [16] , 300 Swiss francs in the Weber case [17] and 250 Maltese liri in the Demicoli case [18] .