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.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
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.
B. Relevant domestic law and practice
1. Constitution of 4 October 1958, Part XII (Territorial Authorities), Article 72, first paragraph
“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.”
2. Article L. 2132-5 of the General Code of Territorial Authorities.
“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.”
3. The case-law of the Conseil d’Etat
“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.)
Relying on Article 6 §§ 1 and 3 (d) and Articles 13 and 14 of the Convention, the applicant complained of the unreasonable length of the proceedings and their outcome and of the fact that it was impossible to examine a key witness; he also complained that there was a risk of interference with the impartiality and independence of the Court of Cassation judges sitting in plenary, no effective remedy and, finally, discrimination between those who are answerable to the law.
The applicant alleged a violation of Article 6 §§ 1 and 3 (d) and Articles 13 and 14 of the Convention.
The Court considers it necessary first of all to examine whether the applicant is entitled to submit an application under Article 34 of the Convention, which provides:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
In the instant case, it notes that the applicant was given leave to join the proceedings as a civil party in place of the City of Paris in a judicial investigation into alleged offences of which the City of Paris had been victim. In other words, the applicant, notwithstanding the fact that he was given the leave in his capacity as a taxpayer in the municipality, stood in the City of Paris’s shoes in order to defend its interests as regards its civil rights and obligations.
Accordingly, the applicant was not acting in his personal capacity but, to borrow the terms used in Article L. 2132-5 of the General Code of Territorial Authorities, for “any action which he or she believes the municipality should bring or defend”. Moreover, the Court notes that, before granting such leave, the administrative judge must be satisfied that the action contemplated is of sufficient public interest for the municipality and has a prospect of success.
Apart from the fact that the applicant was not the legal representative of the legal entity, which had the sole right to lodge an individual application in its name under Article 34 of the Convention, the Court points out that a municipality is a public-law entity which shares in the exercise of public authority and must be classified, for the purposes of Article 34 of the Convention, as a governmental organisation (see Ayuntamiento de Mula v. Spain (dec.), no. 55346/00, ECHR 2001-I; Danderyds Kommun v. Sweden (dec.), no. 52559/99, 7 June 2001; Municipal Section of Antilly v. France (dec.), no. 45129/98, ECHR 1999-VIII; Hatzitakis, and Thermaikos and Mikra Borough Councils v. Greece (dec.), nos. 48391/99 and 48392/99, 18 May 2000).
The application is accordingly incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
BREISACHER v. FRANCE DECISION
BREISACHER v. FRANCE DECISION