Information Note on the Court’s case-law 44

July 2002

Göktan v. France - 33402/96

Judgment 2.7.2002 [Section II]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Conviction for criminal offence and customs offence concerning the same facts: no violation

Article 6

Criminal proceedings

Article 6-1

Access to court

Lack of competence of judge to assess the length of civil imprisonment for a cust oms debt: no violation

Facts : Having been arrested by police and customs officers when he was about to conclude a drug deal, the applicant was found guilty both of breaching the drug trafficking laws, for which he was sentenced to five years’ imprisonment, and of committing the customs offence of illegally importing goods, for which he was ordered to pay a customs fine. Imprisonment in default for the statutory period of two years was ordered against him for non-payment of the customs fine. The applicant se rved his sentence but remained in prison for a further two years in accordance with the imprisonment in default measure. The applicant’s subsequent appeals proved unsuccessful.

Law : Article 4 of Protocol No.7 – Imprisonment in default was a “penalty” within the meaning both of Article 7 (Jamil judgment, Series A no. 317-B) and of Article 4 of Protocol No. 7 to the Convention. The notion of penalty should not have different meanings under different provisions of the Convention. In the instant case, the applicant had been convicted, by the same court and for the same criminal act, of two separate offences: a general criminal offence and a customs offence. This was a typical example of a single act constituting various offences (see precedent in the case of Oliveira v. Switzerland, Reports 1998-V). In accordance with the case-law, there was no violation of the article relied on.  Article 1 of Protocol No. 4 was inapplicable to the system of imprisonment in default because it prohibited imprisonment for unpaid debts solely in the case of a “contractual obligation”.  Under French law, customs fines were a hybrid measure (damages and criminal penalty), and this might bring them within the sc ope of the reservation which France had entered when ratifying Protocol No. 7. The Court could not base its finding on that reservation because it had not been raised and, furthermore, the customs fine had been imposed by a criminal court; according to the text of the aforementioned reservation, France had accepted Article 4 for cases falling within the jurisdiction of such a court.

Conclusion : no violation (unanimously).

Article 6 § 1 – There was no precedent, under either Article 6 or Article 7, of a deci sion by the Convention bodies criticising the legislature for laying down a fixed penalty or requiring judges to “vary” that penalty according to the circumstances of the case, irrespective of the size of the customs fine imposed. This applied a fortiori t o a measure which constituted at one and the same time damages and a criminal penalty.

Conclusion: no violation (6 votes to 1).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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