C.M. v. FRANCE
Inadmissible
The applicant, C. M., is a French national, born in 1939 and living in Grande Synthe (France). He is represented before the Court by Mr W. Watel, a lawyer practising in Lille. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a private motor vehicle which he also uses in the course of his professional activities with the permission, granted on 1 October 1991, of the regional director for industry, research and the environment. On 22 September 1994 the applicant’s son, accompanied by a friend, was driving the car when he was stopped for a customs inspection. The customs officers found nineteen grams of heroin, whereupon the applicant’s son and his friend admitted that they had been to the Netherlands to acquire drugs for their personal use. On 23 September 1994 the Lille Criminal Court convicted the applicant’s son of drug smuggling and drug use. The Court also ordered that the vehicle used to commit the smuggling offence should be forfeited to the customs authorities. The applicant’s son lodged an appeal against the judgment relating solely to the forfeiture of the vehicle. On 18 January 1995 the Douai Court of Appeal upheld the judgment ordering the forfeiture on the following grounds: “The vehicle was lawfully seized under Article 323 of the Customs Code. Under Article 414 of the Customs Code, any smuggling offence involving prohibited goods results in the forfeiture of the vehicle. Liability to forfeiture is incurred whenever an offence has been committed (Court of Cassation, Criminal Division – “Cass. Crim.”, 1980). Moreover, it is clear that the vehicle was used to commit the offence. The case law provides the following clarification of the position: – The statutory provision requiring the forfeiture of vehicles used for smuggling is general and absolute and makes no exception in respect of vehicles without which it would have been impossible to bring smuggled goods in or out. It suffices that they were used in one way or another. (Cass. Crim. 1956) – Courts which find that a vehicle was used for smuggling cannot refrain from ordering their forfeiture save where they find extenuating circumstances as provided by Article 369 of the Customs Code, which makes no reference to Article 463 of the former Criminal Code and is not covered by section 323 of Law no. 92-1336 of 16 December 1992. Accordingly, this court allows the authorities’ application and upholds the judgment of the Lille Criminal Court since, in view of the seriousness of the offences of which he is accused, [the applicant’s son] is not entitled to plead extenuating circumstances under customs law.” The applicant was not notified of either the judgment of 23 September 1994 or that of 18 January 1995. In a letter of 30 September 1994 the applicant’s lawyer asked the customs authorities to return the applicant’s private vehicle to him along with some personal effects (a pair of gloves, a pair of hunting boots, two knives and a pack of cards). On 28 October 1994 the applicant’s lawyer sent a further letter repeating his request and stating that the applicant refused to pay any sum, however small, to recover his vehicle. In a letter of 18 November 1994 the interregional director of customs stated that the applicant could recover his personal effects, as he had already been told during a telephone conversation on 26 September 1994. Regarding the vehicle, the director informed him that he was “prepared to accept a friendly settlement for the transfer of the vehicle ... in return for payment in cash of FRF 3,000 (three thousand francs)”. The relevant provisions of the Customs Code read as follows: “1. When seized goods are not prohibited an offer to release the vehicle from judicial seizure shall be made subject to security from a reliable guarantor or deposit of the value. 2. That offer and the reply thereto shall be recorded in the official report. 3. The vehicle shall be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession. However, restitution is subject to the reimbursement of any costs incurred by the customs authorities for the holding and safe keeping of the seized vehicle.” “District courts shall adjudicate disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts.” “1. Seized or forfeited objects may not be claimed by the owners, nor may the value of the vehicle, whether deposited or not, be claimed by creditors, including secured creditors, save through action against the party who committed the customs offence. 2. Once time limits for lodging appeals, third party applications and sales have expired, all actions for restitution and other actions shall be inadmissible.” The relevant provisions of the Code of Judicial Organisation read as follows: “District Courts shall hear the following cases, subject to appeal: (9) Disputes relating to refusal to pay customs duties, applications to set aside an order to pay, failure to discharge liabilities imposed by transit bonds and other customs cases; ...” Finance Amendment Law no. 81-1179 of 31 December 1981 amended Article 326 of the Customs Code by adding a third paragraph providing for the establishment of an exceptional procedure where owners have acted in good faith. The reform was intended to resolve problems in applying Article 376 § 1 resulting from the increase in vehicle rental and leasing contracts by allowing the situation of various vehicle rental, leasing and public transport or freight companies to be resolved by absolving them from guarantor and deposit requirements as long as there was proof of good faith and a contract had been negotiated. This statutory system has been progressively supplemented by case-law. The Court of Cassation has clarified that this was the only legal remedy that an owner acting in good faith could use to have his vehicle restored as a civil claim in criminal proceedings against a person who had committed a customs offence would be inadmissible because the loss or damage complained of was not the direct result of the offences at issue (Cass. Crim., 6 March 1989, Bulletin criminel – “Bull. crim.” no. 101). On 12 January 1987 the Criminal Division also established the principle that paragraphs 1 and 3 of Article 326 should be read separately: “Under Article 326 § 3 of the Customs Code, the vehicle must be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession, regardless of the nature of the goods transported.” (Bull. crim. no. 8). Furthermore, in a judgment of 9 April 1991 the Court of Cassation established the principle that the district courts had jurisdiction to hear applications for restitution under Articles 326 and 341 bis-2 of the Customs Code which, when combined with Article 357 of the Code, “assign[ed] jurisdiction to rule on the restitution of vehicles seized during these operations to the district court of the place in which the seizure took place. Under these circumstances and provided that the ship-owner was not implicated in the criminal proceedings the impugned judgment rightly upheld the District Court’s decision that it had jurisdiction”. In this ruling the Court of Cassation also specified that the provisions of Article 326 applied both to the seizure carried out by the customs authorities and to the forfeiture ordered by the courts and moreover that the civil courts were under no obligation to defer their decision pending the outcome of the criminal proceedings. “Under certain circumstances specified therein, Article 362 § 3 of the Customs Code entitles owners acting in good faith of vehicles seized because they were used for smuggling to have their vehicle returned without the need for a guarantor or a deposit even when a criminal court has ordered their forfeiture. It follows that criminal proceedings during which such orders are issued cannot have any influence on any future decisions in civil proceedings to establish ownership.” (Cass. Crim. 9 April 1991, Bull. crim. no. 125; JCP 1991-IV, p. 226). The jurisdiction of the district courts was reconfirmed in a judgment of 21 February 1995 (Crassat case) in the following terms: “District courts hear disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts. Under Articles 356 and 357 of the Customs Code, the criminal courts hear cases relating to petty and lesser indictable customs offences and all customs matters raised as a defence. It follows that the district courts have primary jurisdiction to hear these cases provided that they fall within the jurisdiction of the ordinary courts.” In this judgement, the Criminal Division of the Court of Cassation also extended the scope of Article 326 § 3, taking the view that this provision allowed any vehicle to be returned to owners acting in good faith, without the need for a guarantor or a deposit, even if there was no contract between the owner and the offender who had used the vehicle.