CEDH · CASELAW;CLIN;ENG — 7 septembre 2006

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France (dec.) - 28336/02 Decision 7.9.2006 [Section I] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Proportionality of seizure by customs authorities of a large sum of money and of order for confiscation of the sum and payment of a fine for failing to comply with the requirement to declare it: inadmissible, admissible   Article 6 Criminal proceedings Article 6-1 Fair hearing Alleged breach of certain rules of Community law and refusal of French courts to refer a question to the CJEC for a preliminary ruling in the context of proceedings for failure to comply with a customs requirement: inadmissible   Article 7 Article 7-1 Nullum crimen sine lege Applicability of requirement to declare sums of money, securities and assets under the French Customs Code to a Netherlands national convicted by the French courts for failing to comply with this requirement: inadmissible   The applicant, a Dutch national, was stopped by French customs officers on 29 January 1996 on the border between France and Andorra. The officers asked him if he had any currency to declare and he replied that he did not. However, on searching him the officers found a large sum in Dutch guilders, which they confiscated. In a judgment of 8 October 1998 the Criminal Court, under the relevant provisions of the Customs Code, found the applicant guilty of the offence of failing to declare money or securities. It ordered the confiscation of the entire sum and imposed a fine amounting to one half of the undeclared sum. The conviction was upheld on appeal by a judgment in absentia of 4   November 1999. On 11 October 2000 the applicant lodged an application to have that judgment set aside. He alleged that there had been a mistake of law, claiming that a European directive had abolished all restrictions on the movement of capital between persons residing in member States. He further submitted that he had acted in good faith without any fraudulent intention, sought his acquittal and the recovery of the confiscated sum of money, and, in the alternative, requested the Court of Appeal to refer the matter to the European Court of Justice (“the ECJ”) for a preliminary ruling on the conformity of the provisions in the Customs Code with the free movement of capital. In a judgment of 20 March 2001 the Court of Appeal declared his appeal admissible but dismissed it, finding in particular that, having regard to his conduct when he passed through customs, he could not validly claim that he had acted in good faith or allege a mistake of law, that the obligation to declare, which did not hinder the free movement of capital, had to be fulfilled by any individual, whether or not resident in France, and that the relevant provisions of the Customs Code were not contrary to the Community-law principle of proportionality since they had been enacted to help prevent money laundering. The court concluded that it did not need to refer the matter to the ECJ. The applicant appealed on points of law, alleging in particular that there had been a violation of Article 7(1) of the Convention in so far as the Criminal Court had found him guilty of failing to fulfil an obligation to declare, whereas, according to the case-law applicable at the material time (and particularly in the light of a Court of Cassation judgment of 25 June 1998), that obligation had only been applicable to persons resident in France. He further relied on Article 6(1) and (2) of the Convention and Article 1 of Protocol No. 1 to the Convention, claiming that the proportionality principle had not been respected on account of the severity of the penalties imposed on him for what he regarded as a mere breach of an administrative obligation. The appeal to the Court of Cassation was dismissed on 30 January 2002. The court found that, as there had been no amendment to the criminal legislation, the principle of non-retrospective effect did not apply to a mere case-law interpretation, and that the impugned customs penalties, which were intended in particular as a measure to prevent money laundering, had been consistent with the Community-law principle of proportionality and not contrary to the provisions of the Convention on which the applicant had relied. Article 1 of Protocol No. 1 – (i) The decision of the customs authorities not to pursue collection of the fine imposed on the applicant, after wiping off debts from their accounts, was capable of having an impact on his victim status. It was therefore decided to examine this issue at the same time as the merits. (ii) Inadmissible in so far as the applicant complained of the provisional seizure of the sum of money. That seizure, as provided for by the Customs Code, constituted a preventive measure that met the need of providing for the possibility of confiscating money which appeared to have been gained from unlawful activities that were harmful to the community, or whose destination might be contrary to the public interest. That measure did not therefore appear disproportionate within the meaning of Article 1 of Protocol No. 1 to the Convention: manifestly ill-founded. (iii) Admissible in so far as the applicant complained of the order for the confiscation of the sum and of the fine imposed. Inadmissible under Article 7(1) of the Convention – In so far as the applicant had complained of the retrospective application by the Court of Cassation of recent case-law which, he claimed, was unfavourable to him, it was noted that, according to the text that had been applicable at the material time, the applicable provision of the Customs Code referred to “individuals” making transfers – a broad form of words which was foreseeably applicable to both residents of France and non-residents. Moreover, the Court of Cassation’s judgments referred to by the applicant had post-dated the facts of the present application and had been delivered in a single case, the second judgment resulting from an appeal by the customs authorities and reversing the first: manifestly ill-founded . Inadmissible under Article 6(1) and (2) – The applicant complained that the proceedings had been unfair, on the ground that certain rules of Community law had been breached and that his request for referral to the ECJ for a preliminary ruling had been dismissed by the Court of Appeal. The Court could not examine the complaints based on an alleged violation of Community law: incompatibleratione materiae . As to the question of the preliminary ruling, Article 6(1) did not enshrine any absolute right to have a case referred to the ECJ for a preliminary ruling, even though, in certain circumstances, a refusal by a domestic court dealing with a case at last instance might infringe the principle of the fairness of proceedings, especially where that refusal appeared arbitrary. However, in the present case, the Court of Appeal had only been requested on an alternative basis to refer the matter to the ECJ and that request had not been reiterated before the Court of Cassation. Lastly, the breach of the obligation to declare, which had not been disputed by the applicant, constituted an offence of which he had been found guilty. Accordingly, in the present case there was no appearance of a breach of his right to the presumption of innocence: manifestly ill-founded .   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes