CASE OF GOKTAN v. FRANCE
Preliminary objection rejected (non-exhaustion);No violation of P7-4;No violation of Art. 6-1
Gaukur Jörundsson
9. The applicant was born in 1953 and currently lives in Turkey. 10. He entered France in 1974. At the material time, he worked for a business in Strasbourg. 11. On 15 March 1991 he and another person, M. B., were arrested by officers from the Strasbourg Regional Police Department (“the SRPJ”) and customs officers on the verge of concluding a drugs deal with a couple, who managed to make their getaway. 12. The applicant consistently protested his innocence, saying that he had been the victim of a put-up job by customs officers. He explained that he had agreed to act as an “informer”, and in that capacity had cooperated with J.-F. R. of the SRPJ and J.-P. C., a customs inspector and the person allegedly behind his arrest. As for the couple who had “escaped” arrest by the police, they were in fact both customs officers, known as “Maud” and “Serge”. 13. On 18 March 1991 the applicant was charged with drug trafficking and detained. On 3 June 1991 he was brought before the Strasbourg Criminal Court, which on 25 June 1991 sentenced him and M.B. to the following penalties: (a) five years' imprisonment for the criminal offences of importing, purchasing, possessing and transporting drugs, attempting to supply drugs, and importing, possessing and dealing in drugs without a licence; (b) an order permanently excluding them from French territory; and (c) an order requiring them to pay 1,070,000 French francs (FRF) in lieu of confiscation and a customs fine of FRF 400,000 that was imposed jointly and severally for the customs offence of illegally importing goods. 14. The Strasbourg Criminal Court also made an order under Article 382 of the Customs Code in the same judgment for the defendants' imprisonment if the sums were not paid. 15. On 27 June 1991 the public prosecutor sought an order for two years' imprisonment in default, as the customs fine had not been paid. 16. On 5 November 1991 the Criminal Appeals Division of the Colmar Court of Appeal upheld the Criminal Court's judgment in its entirety, as regards the issues of both criminal law and customs law. 17. On 6 November 1991 the applicant decided to appeal to the Court of Cassation; however, he later withdrew his appeal and the case was struck out of the Court of Cassation's list on 3 February 1992. 18. On 4 September 1994 the applicant completed his prison sentence. However, he remained in custody pursuant to the order requiring him to serve two years' imprisonment in default of payment of the customs fine of FRF 1,470,000. He made an urgent application to the President of the Mulhouse tribunal de grande instance, arguing that the order for his imprisonment in default was defective, as the Customs Office had failed to serve him with a demand for payment. The urgent-applications judge dismissed that application in an order of 27 September 1994. In a judgment of 28 November 1994 the Colmar Court of Appeal upheld that order for the following reasons: “Under Article 388 of the Customs Code the court may make an express order for a person who has been convicted of a [customs] offence or offence relating to indirect taxation to remain in custody, even if an ordinary appeal or appeal on points of law has been lodged, until he or she has paid the fiscal penalties imposed on him or her. The courts have consistently held that customs law is a special branch of law and an exception to the general law. In the present case, the express reference in the Customs Code to the Code of Criminal Procedure relates only to the length of the imprisonment in default. Consequently, since the Criminal Court made an express order – upheld by the Court of Appeal – under Article 388 of the Customs Code for enforcement of the order for imprisonment on the ground of anticipatory default, the provisions of Articles 749 et seq. of the Code of Criminal Procedure giving the President of the tribunal de grande instance jurisdiction to hear urgent applications are inapplicable.” 19. On 26 October 1994 the Court of Cassation ruled that the applicant's appeal on points of law against that decision had lapsed, as he had not lodged written pleadings in support of his appeal within the statutory time-limit. 20. On 14 March 1996 the applicant made an application for an order for the prison sentence and the term of imprisonment in default to run concurrently, arguing that he was serving two prison sentences for the same offence. 21. He alleged a violation of Article 4 of Protocol No. 7 to the Convention, which sets out the non bis in idem rule, and of Article 6 of the Convention. He relied in particular on the Court's judgment in Jamil v. France (judgment of 8 June 1995, Series A no. 317-B), in which imprisonment in default was found to constitute a “penalty” for the purposes of the Convention. 22. In a judgment of 21 May 1996 the Colmar Court of Appeal dismissed the applicant's application on the grounds that, firstly, “the European Court of Human Rights' judgments are declaratory and therefore not binding on the trial court, which is only required to apply the European Convention on Human Rights”; and, secondly, “imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure”. The Court of Appeal concluded from that that Article 5 of the former Criminal Code, which required sentences to run concurrently, had not been infringed by the trial court and could not enable a prison sentence and term of imprisonment in default to be served concurrently. 23. On 22 May 1996 the applicant appealed to the Court of Cassation against that judgment. In a judgment of 16 September 1997 the Court of Cassation dismissed the appeal for the following reasons: “The appellant cannot validly argue that, by sitting in private in accordance with Article 711 of the Code of Criminal Procedure, the Court of Appeal infringed Article 6 of the European Convention on Human Rights ... The requirement for a public hearing laid down by that provision applies only to proceedings for 'the determination of a criminal charge' and cannot therefore be relied on with respect to proceedings relating, as in the instance case, to an application for a ruling that sentences be served concurrently ... The impugned judgment and procedural documents show that the appellant, Ali Göktan, was found guilty of an offence under the drug-trafficking and customs-offences legislation and, inter alia, sentenced to five years' imprisonment and a customs fine. After being ordered to serve two years' imprisonment in default of payment, he made an application for a ruling that that term should run concurrently with the prison sentence. In dismissing that application, the Court of Appeal found, in particular, that imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure. In these circumstances, the Court of Appeal has justified its decision and the alleged grievance is without foundation ...” 24. The applicant, who has now completed all the sentences he was required to serve, was deported to Turkey, where he came from, pursuant to the permanent exclusion order. 25. Imprisonment in default is a surviving relic of the debtors' prison, and entails jail for the recalcitrant debtor. It is now only available as a remedy to the Treasury and guarantees the recovery of money owed to the State, such as financial penalties or any other sums due to the Treasury apart from civil reparation. 26. When the applicant was convicted, Article L.627-6 of the Public Health Code was still in force and provided: As an exception to the provisions of Article 750 of the Code of Criminal Procedure, the length of imprisonment in default shall be two years where fines and any other pecuniary penalties imposed for any of the offences mentioned in the preceding paragraph or for the related customs offences exceed FRF 500,000.” 27. Article 706-31 of the New Code of Criminal Procedure, which came into force on 1 March 1994, contains identical provisions. 28. Article 382 of the Customs Code provides: “Judgments concerning customs offences may be executed by any means provided for by law. Judgments by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default ...” 29. Article 388 of the Customs Code provides: “A person convicted of a customs offence or an offence relating to indirect taxation may, where the court makes an express order to that effect, be kept in detention, even if an ordinary appeal or an appeal on points of law has been lodged, until he has paid the fiscal penalties imposed on him; save in the case of drug offences, any period of detention served on that account following conviction shall be deducted from the period of imprisonment in default ordered by the court and may not exceed the minimum period laid down in the Code of Criminal Procedure for failure to comply with an order to pay a sum equal to the fiscal penalties imposed.” 30. As an exception to the general law, the customs authorities may, therefore, seek a court order under Article 388 of the Customs Code for the enforcement of an order for imprisonment on the ground of anticipatory default of payment of a customs fine. In practice, this means that, instead of being released, a debtor who has completed his or her prison sentence for a criminal offence will immediately begin to serve the term of imprisonment in default. 31. Traditionally, the courts regarded imprisonment in default as a means of enforcement intended to compel debtors to perform the obligations imposed on them. Following the Court's judgment in Jamil, cited above, the Criminal Division of the Court of Cassation has ruled that imprisonment in default constitutes “a measure of a penal nature, prescribed by law to guarantee compliance with pecuniary orders, fiscal penalties and fraudulently evaded duties, as permitted by Article 5 § 1 (b) of the European Convention on Human Rights” and not “a subsidiary prison sentence that may run concurrently with a custodial sentence pursuant to Articles 132-3 and 132-4 of the former Criminal Code” (Caytarla, Court of Cassation, Criminal Division (“Cass. crim.”), 29 May 1997). The Commercial Division added, in a judgment of 16 May 2000, that “an order for imprisonment in default constitutes a penalty within the meaning of Article 7 of the Convention and, if ordered to ensure the payment of debts due to the customs authorities, is unenforceable unless a demand for payment has been served on the debtor under Article 754 of the Code of Criminal Procedure no less than five days and no more than one year before enforcement commences, as, in providing a special procedure for implementing imprisonment in default, Article 388 of the Customs Code did not exclude the application of Articles 752 to 756 of the Code of Criminal Procedure” (Court of Cassation, Commercial Division (“Cass. com.”), 16 May 2000). 32. This rule is laid down by Article 5 of the Code of Criminal Procedure, which was in force when the applicant was sentenced: “If a defendant is convicted of more than one serious crime [crimes] or other major offence [délits], he shall only receive the longest of the sentences. The same rule shall apply to custodial sentences imposed on a defendant convicted of more than one class-five minor offence.” 33. The rule that sentences shall run concurrently is now contained in Articles 132-2 to 132-7 of the New Criminal Code. 34. The Criminal Division of the Court of Cassation has consistently held that orders for imprisonment in default are not penal in nature, but constitute a means of enforcement. It has ruled in particular that “although statute attaches imprisonment in default to the financial penalties it is intended to secure recovery of, it nonetheless remains a means of enforcement” (Cass. crim., 26 June 1989, 25 July 1991 and 4 January 1995). 35. Consequently, owing to that interpretation of the nature of imprisonment in default, the rule that sentences must run concurrently cannot apply under French law to a prison sentence and a term of imprisonment in default. 36. However, the different Divisions of the Court of Cassation are divided on whether imprisonment in default constitutes a penalty or a means of execution. The Commercial Division considers that it constitutes a penalty within the meaning of Article 7 of the Convention (Cass. com., 16 May 2000, cited at paragraph 31 above).