CASE OF SOUMARE v. FRANCE
Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 5-4;Damage - finding of violation sufficient;Costs and expenses - claim dismissed
R. Pekkanen
6. Mr Abdourahim Soumare, a Malian national, had no fixed abode in France when he was convicted. He now lives in Mali. 7. He was arrested in Paris and remanded in custody on 22 January 1988 in connection with a heroin-trafficking operation involving five other people. He was charged with illegally importing controlled substances (852 grams of heroin) and of conspiring with a co-accused to import drugs and of being his accomplice. 8. On 10 November 1989 Bobigny Criminal Court sentenced Mr Soumare to ten years' imprisonment and made an order permanently excluding him from French territory. It also ordered confiscation of the drugs that had been seized and imposed a fine of 2,726,000 French francs (FRF) jointly on the applicant and the other convicted defendants in lieu of confiscation and ordered them, pursuant to Article 414 of the Customs Code (“CC”), to pay a like amount, equal to the value of the unlawfully imported substances, to the customs authorities. The applicant’s joint liability was limited to FRF 1,504,000. Lastly, the court ordered Mr Soumare’s continued detention pursuant to Article 388 CC (see paragraph 22 below), for a period not exceeding the maximum period for imprisonment in default – which, under Article L. 627-6 of the Public Health Code (“PHC” – see paragraph 21 below) was two years –, until the customs’ penalties had been paid. 9. On 18 May 1990, on an appeal by Mr Soumare and a cross-appeal by the prosecution, the Paris Court of Appeal upheld both the applicant's conviction and sentence and the orders made in favour of the customs authorities. The applicant's appeal to the Court of Cassation was dismissed on 10 June 1991. 10. On 13 December 1991 the applicant applied to the Ministry of Justice to be transferred to Mali under the Franco-Malian Treaty on the Transfer of Sentenced Persons. On 30 June 1992 the Ministry rejected the application on the ground that the customs fine had not been paid. It added that the application could be reconsidered if all or part of the sum was paid, and that to that end the applicant could, if he so wished, contact the customs authorities with a view to a settlement. 11. On several occasions Mr Soumare, who was held in Toul detention centre, sought a “settlement with the customs authorities”. On 30 June 1992 he applied for the order for imprisonment in default to be discharged offering to pay FRF 6,500. Further applications, in which he offered to pay FRF 7,000 and then FRF 9,000, were unsuccessful as the Director of the Customs Information and Inquiries National Division had fixed the sum required for discharge of the order at FRF 300,000. 12. In a letter of 13 June 1994, Mr Soumare renewed his offer of FRF 9,000 while at the same time asking the customs authorities to advise him urgently what they would consider a “reasonable offer” as his prison sentence for the criminal offences was due to end on 21 June 1994. 13. On 10 August 1994 the customs authorities replied that his offers were too low compared with the penalties imposed, that his tax return showing a nil liability to income tax could not be taken into account as profits derived from drug trafficking were necessarily undeclared and, lastly, that the order for his imprisonment in default would not be discharged until the sum of FRF 300,000, which had previously been indicated, had been paid. That decision would be reviewed once he had served six months’ imprisonment in default. Having regard to the position taken by the customs authorities, the Ministry of Justice also rejected further requests by the applicant to be transferred to Mali. 14. In the meantime the applicant had, on 8 July 1992, lodged an application with the President of the Nancy tribunal de grande instance to have the order for his imprisonment in default discharged as he was insolvent, insolvency being a ground for not enforcing such orders (Article 752 of the Code of Criminal Procedure – “CCP” – see paragraph 20 below). The President rejected that application on 23 July 1992 on the ground that it was devoid of purpose, since the applicant was still detained by virtue of the criminal conviction and sentence, “a sentence unconnected with imprisonment in default”. 15. On 11 August 1994 Mr Soumare renewed his application to the President of the Nancy tribunal de grande instance and enclosed the letter from the customs authorities (see paragraph 13 above) and a certificate attesting that he had no income-tax liability. The President was asked to hear the application in his capacity as urgent applications judge, under Article 756 CCP (see paragraph 20 below). 16. In an order made in that capacity on 23 August 1994 the President asked the public prosecutor’s office, pursuant to the first paragraph of Article 710 and to Article 711 CCP (see paragraph 20 below), to refer the difficulty to the Paris Court of Appeal, which had sentenced the applicant. The order read as follows: “... Mr Soumare asserted that he was insolvent and produced a certificate attesting that he has no liability for ITI (income tax on individuals) for 1993. The urgent applications judge has jurisdiction to order a stay of execution of an order for imprisonment in default if the committal warrant is not prima facie valid. The prima facie validity of a warrant is not in issue if it was issued by a court in a decision that is final... Mr Soumare produced a certificate attesting that he has no liability for ITI for 1993. That document does not by itself suffice to show that he is insolvent or justify discharging the order for imprisonment in default. In these circumstances it is appropriate to ask the public prosecutor’s office to refer the difficulty to the Paris Court of Appeal, which passed the sentence.” 17. At a hearing on 25 November 1994 the Paris Court of Appeal heard the applicant, the lawyer officially assigned to represent him and the customs authorities; the latter submitted that Articles 752 and 756 CCP were not applicable in the case. On 9 December 1994 the Paris Court of Appeal dismissed the application for discharge, holding that: “The Court of Appeal considers that the Criminal Court’s decision to prolong the applicant's detention under Article 388 of the Customs Code is not covered by the ordinary criminal-law procedure laid down in Articles 749 et seq. of the Code of Criminal Procedure giving jurisdiction to the urgent applications judge (Court of Cassation, 2nd Civil Division, 30 June 1993). Consequently, the Court of Appeal holds that Soumare’s application for the order for his imprisonment in default to be discharged is admissible, as it concerns an interlocutory issue over the execution of a sentence, but is unfounded in law.” 18. The applicant was released on 16 January 1995 after paying the sum of FRF 10,000 to the customs authorities. 19. Imprisonment in default is an invention of Roman law originally designed to guarantee execution of a court order to pay a sum of money either to the State or to a private individual. It consists in detaining the recalcitrant debtor in a short-stay prison, where he is not obliged to work. It is not an alternative to payment, as the person against whom the order is made remains liable to pay the sum due (Article 762 CCP – see paragraph 20 below), but it may not be imposed a second time for the same debt. Its scope has gradually been whittled away since the nineteenth century, when it was seen as a real means of punishment available to creditors, who could apply to have insolvent civil debtors committed to prison. It was permanently abolished in civil and commercial proceedings by the Law of 22 July 1867, surviving in respect of debts to the Treasury only (Article 749 CCP – see paragraph 20 below), and the rules governing its enforcement have become more lenient (exempting insolvent individuals from imprisonment in default was the most important feature of a reform introduced on 30 December 1985 by Law no. 85-1407, Article 752 CCP – see paragraph 20 below). Imprisonment in default now serves to guarantee recovery of debts to the State, such as pecuniary penalties – with the exception of those imposed for political or press offences – or any other payment to the Treasury not in the nature of civil damages. It is governed in many respects by the same principles as those governing execution of sentence: it cannot be executed once the time-limit for enforcing sentence has expired. In extradition cases (Law of 10 March 1927) and for the purposes of rehabilitation (Articles 784 and 788 CCP) its execution is deemed the equivalent of payment. The criminal-law principles that sentences must be adapted to the individual and that consecutive sentences must not be imposed apply. In spite of these aspects, imprisonment in default is regarded not as a form of imprisonment in lieu of payment but as a guarantee of enforcement directed at the debtor's person. On 4 January 1995, on an appeal on points of law by an offender sentenced to pay three fines of FRF 300 each for contravening a département health regulation on manure tipping, the Court of Cassation pointed out: “Imprisonment in default is not a penalty. It is a means of enforcement automatically attached to any pecuniary order made by a criminal court and satisfies the requirements of both Article 5 [§ 1] (b) of the Convention ... and Article 2 of Protocol No. 4.” After the judgment in the case of Jamil v. France of 8 June 1995 (Series A no. 317-B, p. 28, § 32), in which the Court held that imprisonment in default was a “penalty” within the meaning of Article 7 § 1 of the Convention, the Criminal Division of the Court of Cassation held that in tax cases imprisonment in default is a “punitive” measure and may be ordered only if there has been a conviction for a criminal offence (29 February 1996, Bulletin criminel (Bull. crim.) no. 100). When a criminal court orders imprisonment in default, it does not have power to vary its duration, which is laid down by law (Articles 749 and 750 CCP – see paragraph 20 below). In certain circumstances, as an exception to the ordinary law, the customs authorities can obtain enforcement of a warrant of committal for default before it becomes final (Article 388 CC). 20. The Code of Criminal Procedure provides as follows: “Any interlocutory issue relating to the execution of a sentence shall be referred to the court which passed sentence, which may also rectify any purely clerical errors in its decisions.” “Where such an issue is referred by the public prosecutor or the convicted person, the court shall rule in chambers after hearing submissions from the public prosecutor’s office, counsel for the convicted person (if counsel so requests) and, where appropriate, the convicted person himself, subject to the provisions of Article 712.” “Where an order to pay a fine or court costs or to pay the Treasury any other sum not in the nature of civil damages is made in respect of an offence which is not political and does not attract a sentence of life imprisonment, the length of imprisonment in default applicable in the event of failure to comply shall be as laid down in Article 750. Where appropriate, the length shall be determined according to the total amount of debt outstanding.” “The length of imprisonment in default shall be: (1) five days, where the fine and the sums whose payment has been ordered amount to at least 1,000 francs, but do not exceed 3,000 francs; (2) ten days, where they amount to more than 3,000 francs, but not more than 10,000 francs; (3) twenty days, where they amount to more than 10,000 francs, but not more than 20,000 francs; (4) one month, where they amount to more than 20,000 francs, but not more than 40,000 francs; (5) two months, where they amount to more than 40,000 francs, but not more than 80,000 francs; (6) four months, where they exceed 80,000 francs.” “Imprisonment in default may not be enforced in respect of convicted persons who prove that they are insolvent by producing: (1) a certificate from their local tax-collector, stating that they are not liable to income tax; or (2) a certificate from their local mayor or police superintendent. The fact that the convicted person is in fact solvent may be proved by evidence in any form.” “If, when in prison, the debtor wishes to lodge an urgent application concerning his imprisonment in default, he shall immediately be brought before the President of the tribunal de grande instance for the place where he was arrested, who shall rule on the application as a matter of urgency, or, if appropriate, refer the case back to the court which shall rule on the application in accordance with the procedure and subject to the conditions laid down in Articles 710 and 711.” “A convicted person who has been imprisoned in default of payment shall not thereby be released from the payment obligation.” 21. Article L. 627-6, second paragraph, of the Public Health Code provides: “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 the fine and any other pecuniary penalties imposed for an offence mentioned in the above paragraph [breaches of provisions of statutory instruments concerning poisonous substances or plants classified as dangerous drugs] or for related customs offences exceed F 500,000.” Article L. 627-6 was repealed by Law no. 92-1336 of 16 December 1992, known as “the transitional law”, on the entry into force of the new Criminal Code and the amendment of certain provisions of criminal law and criminal procedure made necessary by its commencement. It was replaced by Article 706-31 CCP, which came into force on 1 March 1994 and was amended by Law no. 95-125 of 8 February 1995. Article 706-31 provides: “Prosecution for the serious crimes (crimes) defined in Article 706-26 shall be subject to limitation after thirty years. Sentences passed on conviction for one of these offences shall lapse by limitation after thirty years from the date on which the conviction became final. Prosecution for the other major offences (délits) defined in Article 706-26 shall be subject to limitation after twenty years. Sentences passed on conviction for any of these offences shall lapse by limitation after twenty years from the date on which the conviction became final. As an exception to the provisions of Article 750, 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 F 500,000.” 22. The following provisions of the Customs Code are relevant in the present case: “1. Judgments and decisions in customs cases may be executed by any means provided for by law. 2. Judgments and decisions by which persons are convicted of offences against customs legislation shall also be enforceable by imprisonment in default...” “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.” 23. The remedy available to a person who seeks, inter alia on the ground of his insolvency, to challenge an order for his imprisonment in default, is an application to the urgent applications judge under Article 756 CCP. If there is an arguable issue over execution of the order, the urgent applications judge refers the case to the trial or appellate court which made the order (see Article 710, first paragraph, CCP). 24. The issue of the applicability of Article 756 and, therefore, of the ordinary procedure to cases of imprisonment in default of payment to the customs authorities has given rise to conflicting case-law (see paragraph 25 below). In its decision of 9 December 1994 in the instant case, the Court of Appeal held that the ordinary courts have no jurisdiction to review orders for imprisonment in default in customs cases (see, to the same effect, the judgment of the Fort-de-France Court of Appeal of 6 December 1993 – which was however set aside by the Criminal Division of the Court of Cassation on 26 October 1995; and the order of the urgent applications judge of the Bayonne tribunal de grande instance of 27 January 1993). In so doing, it referred to a judgment of the Second Civil Division of the Court of Cassation (Gilborson, 30 June 1993), in which it was held: “... The trial court's decision to prolong the applicant's detention, made under Article 388 of the Customs Code, is not covered by the ordinary criminal-law procedure provided for in Articles 749 et seq. of the Code of Criminal Procedure, which gives jurisdiction to the urgent applications judge.” The Criminal Division of the Court of Cassation also came to the same conclusion in a judgment of 28 October 1987 (Bull. crim. no. 377, p. 999): “No appeal on points of law lies from a decision of the Court of Appeal ruling on an appeal against an order of the urgent applications judge made pursuant to Article 756 of the Code of Criminal Procedure...” In an earlier decision of 19 January 1983 the Second Civil Division of the Court of Cassation had held that the Paris Court of Appeal had jurisdiction to order a stay of execution of an order for imprisonment in default after it had found that the order for detention was not prima facie valid as the sentence imposed on the person concerned had been time-barred thus precluding the execution of the order made against him. The Commercial Division of the Court of Cassation initiated a change in the case-law by its judgments of 18 January and 1 February 1994, in which it held: “... The Court of Appeal did not misdirect itself in law in holding that, by introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 752 and 756 of the Code of Criminal Procedure.” (Commercial Division, 18 January 1994, Bull. IV no. 26) and “The urgent applications judge has the power to suspend the enforcement of an order for imprisonment in default in cases in which he considers that the order has become prima facie invalid in the light of new developments since it was made, in particular, where the debtor claims that he is insolvent. However, in such circumstances, the judge must refer the case to the trial or appellate court which made the order.” (Commercial Division, 1 February 1994, D. 1994, IR 48) That line has also been followed by the Criminal Division of the Court of Cassation in a decision of 26 October 1995, in which it said: “By introducing a particular form of imprisonment in default, Article 388 of the Customs Code did not preclude the application of Articles 710, 752 and 756 of the Code of Criminal Procedure. A judgment declaring inadmissible an application for relief from execution, on the ground of insolvency, of an order for imprisonment in default must be quashed.” (Bull. crim. no. 325) 25. The issue of the extent of the powers of the urgent applications judge on applications for discharge of an order for imprisonment in default has also given rise to inconsistencies in the case-law. The question has been whether the urgent applications judge has jurisdiction only to determine the prima facie validity of the order or whether he also has jurisdiction to decide whether the debtor is insolvent. Some urgent applications judges have held that their jurisdiction is limited to reviewing the prima facie validity of the order for imprisonment in default (see Saintes tribunal de grande instance, 31 October 1994, Gazette du Palais, 10–11 March 1995, p. 26, and Mulhouse tribunal de grande instance, 7 July 1995). Others have referred the insolvency issue to the court that made the order (see Draguignan tribunal de grande instance, 26 May 1993, and Toulouse tribunal de grande instance, 1 July 1994), while still others have held that they were empowered to decide the insolvency issue and to discharge the order for imprisonment in default (see La Rochelle tribunal de grande instance, 12 December 1994, and Mulhouse tribunal de grande instance, 17 February 1995). The Court of Cassation reversed and quashed a judgment of a court of appeal that had held that an urgent applications judge had jurisdiction to decide whether the debtor was insolvent (see the Commercial Division’s decision of 1 February 1994 cited above). The full court of the Court of Cassation held on 5 February 1996 that urgent applications judges do have such power. However, that decision concerned a debtor who was not in prison.