DISSENTING OPINION OF JUDGE LōhmUS

1. I do not share the opinion of the majority of the Court, which concluded, in paragraphs 57 and 59 of its judgment, that neither the nature nor the degree of severity of the penalties brought the issue into the criminal realm and that consequently Article 6 did not apply in the instant case.

2. 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 25,000 French francs (FRF) and/or a year’s imprisonment, penalties which would be imposed by the ordinary criminal courts. It is true that these penalties are not in issue in this case as no proceedings were brought against the applicant on the basis of that Article. Nevertheless, disqualification is a form of deprivation of civic rights and the order to pay the Treasury the sum of FRF 59,372 amounts in a sense to a fine.

3. In the case of Schmautzer v. Austria the federal police authority in Graz had imposed on the applicant a fine of 300 Austrian schillings with twenty-four hours’ imprisonment in default of payment for driving his car without wearing his safety-belt. The Court noted: “although the offences in issue and the procedures followed in the case fall within the administrative sphere, they are nevertheless criminal in nature” (see the Schmautzer v. Austria judgment of 23 October 1995, Series A no. 328-A, p. 13, § 28).

Comparing these two cases, I find it difficult to understand why Article 6 does not apply in the instant case.

4. The Court analysed the nature and the degree of severity of the penalties (disqualification and the obligation to pay the Treasury a sum equal to the amount of the excess). The Court found that neither the nature nor the degree of severity of the penalty brought the issue into the criminal realm. As both of the “deterrent measures” were imposed on the applicant, their combined effect must be taken into account when the nature and the degree of severity of the penalty is being determined.

5. I am not convinced by the fact that the deprivation of civic rights provided in French criminal law is a supplementary punishment and that the disqualification imposed by the Constitutional Council is limited to a period of one year from the date of the election (paragraph 56 of the judgment).

Having regard to the nature and degree of severity of the penalties as a whole, I find there was a “criminal charge” within the meaning of Article 6 § 1.

[1] . This summary by the registry does not bind the Court.

[2] Notes by the Registrar

. The case is numbered 120/1996/732/938. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[4] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission’s report is obtainable from the registry.

[5] . Paragraph 50 of the judgment.

[6] . The Court is accordingly also wrong, in my view, to have said several times that disputes relating to the “recruitment, careers and termination of service of civil servants”, who are distinguished from “employees governed by private law”, “are as a general rule outside the scope of Article 6 § 1” (see, among other authorities, the following judgments: Francesco Lombardo v. Italy, 26 November 1992, Series A no. 249-B, p. 26, § 17; Giancarlo Lombardo v. Italy, 26 November 1992, Series A no. 249-C, p. 42, § 16; Massa v. Italy, 24 August 1993, Series A no. 265-B, p. 20, § 26; and Neigel v. France, 17 March 1997, Reports of Judgments and Decisions 1997-II, p. 411, § 44; and the judgments delivered on 2 September 1997 in the following cases: Spurio v. Italy, Reports 1997-V, pp. 1580-81, § 18; Gallo v. Italy, ibid., p. 1591, § 19; Zilaghe v. Italy , ibid., p. 1602, § 19; Laghi v. Italy, ibid., p. 1614, § 17; Viero v. Italy , ibid., p. 1626, § 16; Orlandini v. Italy, ibid., p. 1637, § 18; Ryllo v. Italy, ibid., pp. 1648-49, § 19; Soldani v. Italy, ibid., p. 1719, § 18; Fusco v. Italy, ibid., p. 1732, § 20; Di Luca and Saluzzi v. Italy, ibid., p. 1744, § 18; Pizzi v. Italy, ibid., p. 1754, § 8; Scarfò v. Italy, ibid., pp. 1767-68, § 18; Argento v. Italy, ibid., pp. 1779-80, § 18; and Trombetta v. Italy, ibid., pp. 1791-92, § 21). It has, however, recognised the “civil character” of “an obligation on the State to pay a pension to a public servant” or “to a judge in accordance with the legislation in force” or to pay, similarly, a reversionary pension to the husband of a public servant. It explained this by remarking that “[the State] may be compared, in this respect, to an employer who is a party to a contract of employment governed by private law” (Francesco Lombardo, Giancarlo Lombardo and Massa judgments cited above). Why only in that “respect”? Very recently, the Court seems similarly to have accepted, more generally, in four cases concerning remuneration issues, that a civil servant relies on a civil right when what is concerned is a “purely economic right legally derived from her work” (see the Lapalorcia v. Italy judgment of 2 September 1997, Reports 1997-V, p. 1677, § 21; see also the judgments delivered on the same day in the cases of De Santa v. Italy, ibid., p. 1663, § 18; Abenavoli v. Italy, ibid., p. 1690, § 16, and Nicodemo v. Italy, ibid., p. 1703, § 18). Why should the same not apply to the other rights attaching to the performance of the duties of what is called the “civil service”?

[7] . Article 31 § 1 of the Vienna Convention on the Law of Treaties.

[8] . See, mutatis mutandis , my dissenting opinion in the Putz v. Austria judgment of 22 February 1996, Reports 1996-I, pp. 329–34, in particular paragraphs 2–7.

[9] . Paragraph 54 of the judgment.

[10] . Ibid. This does not prevent the Court from recognising in paragraph 60 the criminal “nature” of the fines and imprisonment provided in Article L. 131-1 of the same Elections Code for the same offence.

[11] . Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p. 9, § 11, and pp. 18–21, §§ 51–53.

[12] . See the following judgments: Bendenoun v. France, 24 February 1994, Series A no. 284, p. 20, § 47; A.P., M.P. and T.P. v. Switzerland, 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1784, § 19, and p. 1488, § 42; and E.L., R.L. and J.O.-L. v. Switzerland, 29 August 1997, Reports 1997-V, p. 1515, § 19, and p. 1520, § 47.

[13] . Weber v. Switzerland judgment of 22 May 1990, Series A no. 177, pp. 17–18, § 31.

[14] . Demicoli v. Malta judgment of 27 August 1991, Series A no. 210, p. 9, § 11, pp. 12–13, § 20, and pp. 16–17, §§ 32–33.

[15] . The Court remains cautiously silent on this matter in paragraphs 58 and 59 of the judgment.

[16] . Öztürk judgment cited above, p. 9, § 11, p. 10, § 18, and p. 21, § 54. In this case the maximum provided in the Act was 1,000 marks; the Court observed: “The relative lack of seriousness of the penalty at stake … cannot divest an offence of its inherently criminal character.”

[17] . Weber judgment cited above, p. 18, § 34.

[18] . Demicoli judgment cited above, p. 17, § 34.