Final resolution DH (99) 446

HUMAN RIGHTS

APPLICATION No. 20509/92

DESBOROUGH AGAINST FRANCE

( Adopted by the Committee of Ministers on 15 July 1999 at the 677th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (97) 410, adopted on 17 September 1997 in the case of Desborough against France, in which the Committee of Ministers decided that there had been in this case a violation of Article 5, paragraph 4, of the Convention and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 19 October 1998;

Whereas, at the 654th meeting of the Ministers' Deputies, the Committee of Ministers, agre e ing with the Commission's proposals, held by a decision adopted on 25 January 1999, in accordance with Article 32, paragraph 2, of the Convention, that no sum of money was to be paid to the applicant as just satisfaction, since the latter had not submitted any claim in this respect;

Whereas the Committee of Ministers invited the Government of the respondent State to inform it of the measures taken following its decision of 17 September 1997, having regard to France’s obligation under Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the Government of the respondent State accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions; this information a p pears in the appendix to this resol u tion;

Declares, after having taken note of the measures taken by the Government of France, that it has exercised its fun c tions under Article 32 of the Convention in this case.

Appendix to Resolution DH (99) 446

Information provided by the Government of France during the examination of the Desborough case by the Committee of Ministers

The French law governing imprisonment in default provides for an application to the president of the tribunal de grande instance , who shall rule on the application as a matter of urgency (Article 756 of the Code of Criminal Procedure).  Article 388 of the Customs Code institutes a particular form of imprisonment in default which, at the request of the customs authorities, may be applied in anticipation.

The application of these provisions has created certain doubts in the minds of the courts concerning, first, the applicability of the provisions of ordinary law to imprisonment in default in customs cases and, secondly, the extent of the powers devolved in such cases to the urgent applications judge.

I. The right to apply to the urgent applications judge concerning imprisonment in default in accordance with the ordinary legal procedure in Article 756 :

In a judgment of 30 June 1993, the Civil Chamber of the Court of Cassation ruled that the ordinary legal procedure did not apply in customs cases ( Cass. Civile , 30 June 1993, Gilborson).

However, this judgment has remained isolated. The Court of Cassation has reasserted the jurisdiction of the urgent applications judge, in this particular field: “in instituting a particular form of the exercise of imprisonment in default, Article 388 has not excluded the application of Articles 752 and 756 of the Code of Criminal Procedure” ( Cass. Com , 18 January 1994, Fook Lung Tse).  The Criminal Chamber of the Court of Cassation reached a similar conclusion when it ruled that the court that had decided on the merits of a case was empowered to rule on the issue of solvency, in the case of the application of imprisonment in default in a customs case (Cass. Crim., 26 October 1995, Barajas Sanabria, Bull., Crim ., No. 325).

Lastly, in a judgment of 20 January 1998, the Criminal Chamber of the Court of Cassation confirmed the applicability of the common law to imprisonment in default in customs cases, in admitting the possibility for persons so imprisoned to be dispensed from execution of this measure on the grounds of Articles 710 and 752 of the Code of Criminal Procedure ( Cass. Crim ., 20 January 1998, Bull. Crim . No. 23).

II. The extent of the jurisdiction of the urgent applications judge :

In accordance with the provisions of Articles 710 and 711, referred to expressly in Article 756, the relevant criminal court also has jurisdiction concerning the urgent applications procedure: while the urgent applications judge is initially empowered to rule on all applications concerning the imposition of imprisonment in default, when the exercise of this form of constraint gives rise to a serious challenge, it is the criminal court that has the authority to rule on the matter ( Cass. Civ ., 19 January 1983, Cass. Com ., 1 February 1994).

This jurisprudence has not always been followed by trial and appeal courts.

Nevertheless, it has been confirmed by the Court of Cassation.  On 5 April 1996, the plenary court ruled that the powers of the urgent applications judge under Article 756 of the Code of Criminal Procedure extended to assessing all aspects of the lawfulness of imprisonment in default.  The Court of Cassation quashed all the findings of a judgment of the Paris Court of Appeal rejecting an application for the suspension of imprisonment in default on the grounds that, principally, in accordance with article 756 of the Code of Criminal Procedure, debtors so imprisoned could only apply to the president of the tribunal de grande instance, acting under the urgent applications procedure in cases where they had already been imprisoned or arrested and, subsidiarily, the powers of urgent applications judges were limited, in such cases, to assessing the apparent lawfulness of the document under the terms of which the constraint was applied ( Cass. Ass. Plenière , 5 April 1996, Borey).

Thus, persons who are liable to imprisonment in default, whether they are at liberty, under arrest or already imprisoned, may lodge an application with the urgent applications judge for the imprisonment in default to be suspended, particularly on the grounds of their insolvency.

The Government of France considers that this clarification of the legislation by the courts is compatible with the requirements of Article 5, paragraph 4, of the Convention, that it will prevent repetitions of the type of violation found in this case and that it has therefore fulfilled its obligations under Article 32 of the Convention.