CASE OF ACHOUR v. FRANCE
Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - national proceedings;Costs and expenses partial award - Convention proceedings
Christos Rozakis
7. The applicant was born in 1963 and lives in Lyons. 8. On 16 October 1984 the Lyons Criminal Court found the applicant guilty of drug trafficking involving ten kilograms of hashish and sentenced him to three years' imprisonment. 9. In a judgment of 14 April 1997 the Lyons Criminal Court found the applicant guilty of a drug offence, following the discovery in his garage of two bags containing some fifty-seven kilograms of cannabis, and sentenced him to eight years' imprisonment, in addition ordering his exclusion from French territory for ten years. It gave the following reasons for its decision: “We have a young man returning from Guadeloupe in late 1993, with no job or verifiable income, who, having tried his hand in turn at property, trading in linen, crockery, air-conditioners, foie gras and, incidentally, counterfeit 200-franc notes (??), found himself, somehow or other – he repeatedly tried to explain this with a story about profitable 'air-conditioners' – in possession of a considerable pile of money, more than 61 million old francs, at his home (see D351), scattered about and hidden in the unlikeliest places (such as the maintenance hatch under the bath!!). Even better, the arrest on 7 December 1995 in the morning resulted in the seizure, without a warrant, of two bundles of drugs, consisting of more than 50 kilograms of prohibited substances, laid out, packed and wrapped in a manner bearing little resemblance to a craft industry. Nobody claimed them – which one of H. or Achour turned the other one in?? What is more, H. was in possession of 3 kilograms of the same kind of resin (see the expert report, D339) and 33,000 francs in cash, stored in the glovebox of his car. The circumstances outlined above amount to two pieces of evidence against Achour, which elicited nothing more than vague and inconsistent explanations in which he accused H. of being the delivery man, claimed ignorance as to the nature of the two bundles (!!!), and referred again and again, as a kind of 'judicial trump card', to the money-spinning air-conditioners (repeatedly) and the savings of his late brother (A.). A third piece of evidence results from shadowing, tracking and telephone-tapping. Treading stealthily like a Sioux Indian and behaving like a secret agent, before and after 30 October 1995, Achour moved about a good deal, showing a preference for mornings, twisting and turning constantly, keeping a sharp lookout where necessary, and receiving his 'contacts'' vehicles in his garage (albeit for very short amounts of time)... What was going on?? What was going on, his counsel argued, as, subsequently, did counsel for D. and R., was indeed 'trading', but in linen, foie gras (in 'blocks'), counterfeit banknotes, trousers, but never hashish. This cunning strategy was supported by the statements of G. (D322), and indeed those of V. or C. Furthermore, and above all, no air-conditioners, foie gras or trousers were seized on 7 December 1995; what was physically observed in this case was hashish, and a sizeable quantity of it. Accordingly, Couider Achour, who already has several convictions, having, in particular, been sentenced to three years' imprisonment in October 1984 for a drug offence, cannot lay claim to any indulgence, even in view of the particularly well-organised nature of his activities (the court has left aside the pagers, mobile phones, etc. used for 'contacts'). The public prosecutor, for his part, sought an eight-year term of imprisonment and the court endorses and imposes that sentence, which is still mild when it is borne in mind that the defendant is classified in law as a recidivist. A proportionate fine and continued detention, in addition, in order to ensure that the sentence is executed and that the offence is not repeated. Lastly, as an additional penalty, exclusion from national territory for ten years.” 10. The Criminal Court also sentenced the applicant's mother and his partner, S., to two years' imprisonment, suspended, for handling the proceeds of drug offences. 11. In a judgment of 25 November 1997 the Lyons Court of Appeal increased the applicant's sentence to twelve years' imprisonment and upheld the exclusion order. It observed, among other things: “By Article 132-9 of the Criminal Code, a person is deemed to be a recidivist where, having already been convicted with final effect of an offence punishable by ten years' imprisonment, he commits a further offence carrying a similar sentence within ten years of the expiry of the limitation period for enforcing the previous sentence. That was so in the case of Couider Achour-Aoul, who, having been sentenced by the Lyons Criminal Court on 16 October 1984, after adversarial proceedings, to three years' imprisonment for offences under the regulations on buying, possessing, using, trading in and transporting drugs, punishable under Article L. 627, paragraph 1, of the Public Health Code, as applicable at the time, by a term of between two and ten years' imprisonment, and having completed that sentence on 12 July 1986, committed the offences with which he was charged, which likewise carry a sentence of ten years' imprisonment pursuant to Article 222-37 of the Criminal Code, in the course of 1995 and up to 7 December of that year. In convicting him on the charges set out in the order committing him for trial, the court below made a correct analysis of the facts of the case and drew the necessary legal inferences. Its judgment must therefore be upheld as to the finding of guilt. Despite having been convicted on 16 October 1984 of drug offences relating to the possession of 10 kilograms of cannabis resin, Couider Achour-Aoul, with no declared income since 1993, had no hesitation in committing further drug offences, making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly. A total of 57 kilograms of cannabis resin – a substance extremely harmful to the health of young people, in particular those living in poverty, who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home. He had asked Mr H.M., who had sought his help in finding a decent job, to sell hashish for him. Accordingly, both the nature and the seriousness of the accused's conduct, reflecting a deep-seated inclination to crime for financial gain regardless of the risk to other people's lives and occurring at a time when he was liable to be classified as a recidivist, dictate that he should be sentenced to twelve years' imprisonment...” 12. The applicant appealed on points of law, arguing, among other things, that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws, the Court of Appeal having retrospectively applied the harsher provisions of the new legislation. 13. In a judgment of 29 February 2000 the Court of Cassation dismissed his appeal. It held that the Court of Appeal had been justified in deeming him to be a recidivist, on the following grounds: “... where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit – to have been committed after the law's entry into force.” 14. The applicant is due for release on 21 June 2006. 15. The relevant provisions of the Criminal Code, as in force before 1 March 1994, were as follows: “Anyone who, having been sentenced for a serious crime [crime] to a term of imprisonment exceeding one year, commits, within five years of the expiry of that sentence or of the time allowed for its enforcement, a further serious crime or other major offence [délit] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and, at most, twice that penalty.” “The same shall apply to persons who have been sentenced for a major offence [délit] to a term of imprisonment exceeding one year and, within the same period, are found guilty of the same offence or of a serious crime punishable by imprisonment. Anyone who, having previously been sentenced to a shorter term of imprisonment, commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence and, at most, twice the statutory maximum sentence. ...” 16. Article 132-9 of the new Criminal Code, which came into force on 1 March 1994, provides: “Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that may be imposed shall be doubled. Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within five years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a prison sentence of more than one year but less than ten years, the maximum sentence and fine that may be imposed shall be doubled.” 17. As early as 1893 the Criminal Division of the Court of Cassation held: “ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second, which the offender may choose to commit or not to commit. Accordingly, new legislation may, without having retrospective effect, lay down the penalties that may be imposed in future for offences committed while it is in force; the offender cannot request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force, his status as a recidivist being determined by the new legislation.” (Cass. crim., 31 August 1893, D. 1896.1.137) 18. That position has been reiterated in subsequent judgments of the Criminal Division of the Court of Cassation (Cass. crim. 14 June 1945, Bull. crim. no. 68; 29 January 1948, Bull. crim. no. 38; 23 March 1981, Bull. crim. no. 103; 29 February 2000, Bull. crim. no. 95). 19. During the passage through Parliament of a bill amending the general provisions of the Criminal Code, the rapporteur for the Senate stated, among other things (Senate Report no. 271, appended to the record of the sitting of 27 April 1989): “Article 132-9 Recidivism entailing a serious crime or other major offence punishable by seven years' imprisonment and a further offence carrying a sentence of seven years or between one and seven years ... The increased severity of the rules on recidivism applicable where the second offence is punishable by seven years' imprisonment lies in the extension of the 'probationary period' (ten years) within which a convicted person may be deemed to be a recidivist. If the second offence is punishable by a prison sentence of between one and seven years, the rules on recidivism apply only if the 'relapse' occurs within a period of five years. In both cases, the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism. The existing rules on the subject derive from a law of 26 March 1891 and are set out in Article 57 of the Criminal Code. They provide for a conception of recidivism that is general in scope but limited in time (the probationary period being five years) where a person who, having been sentenced for a serious crime to a penalty exceeding one year's imprisonment (i.e. between one year and life), is prosecuted for a further serious crime or other major offence punishable by imprisonment. In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and, at most, twice that penalty ...” 20. Article 769 of the Code of Criminal Procedure, on criminal records, provides, inter alia: “... The following shall be removed from a person's criminal record: entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation, or amended in accordance with a decision to rectify the criminal record. The same shall apply, save in the case of convictions for crimes not subject to limitation, to entries concerning convictions dating back more than forty years which have not been followed by a further conviction for a serious crime or other major offence. Entries concerning the following shall also be removed from the criminal record: (1) personal bankruptcy orders or disqualifications provided for in section 192 of the aforementioned Law no. 85-98 of 25 January 1985 where such measures are expunged by means of a judgment terminating the proceedings on account of the payment of outstanding debts, by means of rehabilitation, or upon the expiry of five years from the date on which the orders in question became final; and also orders for the liquidation of a natural person's assets, upon the expiry of five years from the date on which the orders in question became final, or after the delivery of a judgment rehabilitating the person concerned. However, if the personal bankruptcy order or disqualification is valid for more than five years, an entry concerning these measures shall remain in the criminal record for the same period; (2) disciplinary decisions expunged as a result of rehabilitation; (3) sentences which are wholly or partly suspended, with or without probation, upon the expiry of the periods laid down in Articles 728-4 and 728-7 of the Criminal Code, calculated from the date on which the sentences are to be deemed void; (4) discharges, upon the expiry of a three-year period starting on the date on which the conviction became final; (5) convictions for petty offences [contraventions], upon the expiry of a three-year period starting on the date on which the convictions became final; this period shall be increased to four years where repetition of the offence in question constitutes a more serious offence [délit]; (6) measures carried out under the agreed penalty scheme, upon the expiry of three years from the date on which it is certified that the measure has been carried out, if during that period the person has not been convicted of a serious crime or other major offence or carried out a further measure under the agreed penalty scheme; and (7) measures ordered in accordance with Articles 8, 15, 151, 16, 16 bis and 28 of the aforementioned Ordinance no. 45-174 of 2 February 1945, upon the expiry of three years from the date on which the measure was ordered, if during that period the person has not received a sentence for a serious crime or other major offence, or carried out a measure under the agreed penalty scheme, or been the subject of a further measure ordered in accordance with the aforementioned provisions of the Ordinance.”