Information Note on the Court’s case-law No. 179

November 2014

Aboufadda v. France (dec.) - 28457/10

Decision 4.11.2014 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Confiscation of a house funded through drug trafficking: inadmissible

Article 8

Article 8-1

Respect for family life

Respect for home

Respect for private life

Confiscation of a house funded through drug trafficking: inadmissible

Facts – In 2005 the applican ts purchased a house, which they paid for through a deposit and by taking out a bank loan. A few months later a judicial investigation revealed a major drug-trafficking operation organised by the applicants’ son. Financial checks were carried out into his assets and those of his entourage, in order to establish whether the offences of failure to justify resources and money laundering had been committed. In 2008 the applicants’ son was sentenced, among other measures, to seven years’ imprisonment and the app licants to three years’ imprisonment, two years of which were suspended. In the applicants’ case the court also ordered that the house purchased in 2005 be confiscated. The court noted, in particular, that the applicants’ son was responsible for managing t he work being carried out on the house and was contributing to the costs, that he was making the mortgage payments and that tapping of the applicants’ telephone line showed that they had been aware of their son’s illegal activities. The applicants were aut horised to remain in the house until May 2011, in exchange for a monthly rent of EUR 900, to enable them to find alternative accommodation. The State took possession of the building on 1 June 2011.

Law – Article 1 of Protocol No. 1: The confiscation in que stion had been provided for by law and pursued the public-interest aim of combatting drug-trafficking by discouraging concealment of unlawfully obtained assets and money laundering. With regard to persons who were in regular contact with a person engaged i n committing crimes or offences punishable by up to five years’ imprisonment and who were unable to show that they had resources corresponding to their lifestyles or to demonstrate the lawful origin of the assets held by them, the legislative framework lai d down a presumption: the persons concerned were presumed to have benefited from the fraudulently obtained resources or assets in full knowledge of the facts. In such a case, all or part of the assets in respect of which they were unable to explain the fin ancial provenance were likely to be confiscated as an additional penalty. The presumption was a rebuttable one, and the applicants could have avoided being convicted had they demonstrated the lawful origin of their resources and assets. Indeed, after havin g noted that their lifestyle was disproportionate to the income declared by them, the domestic courts had duly assessed the evidence submitted in support of their claim. It also took account of the applicants’ conduct, noting in particular that they could not have been unaware of the provenance of the money made available to them by their son. More generally, there was nothing to suggest that the applicants, whose case had been heard before two levels of jurisdiction, who had submitted an appeal on points o f law and who did not claim to be victims of a violation of their right to a fair trial, had not been afforded a reasonable opportunity of putting their case to the authorities.

The Court accepted that it seemed that part of the funding for the purchase of the applicants’ house had a source other than the income from the drug-trafficking in which their son was involved. Indeed, their resources subsequent to 2006 were not in issue. Thus, the mortgage payments due after 2006 amounted to a means of funding the purchase which had not originated in the drug-trafficking for which they had been convicted. However, there was nothing excessive in the conclusion that “most” of these assets had been obtained from the proceeds of the drug-trafficking in which their son was engaged. Moreover, the domestic courts’ decision to confiscate the house in its entirety as a penalty had demonstrated a legitimate wish to punish severely the offences committed by the applicants, which were akin to the concealment of illegally obtain ed assets and which, in addition, had occurred in the context of large-scale drug-trafficking at local level. Given the ravages caused by drugs, it was understandable that the authorities of Contracting States should show great firmness towards those who c ontributed to the propagation of this scourge.

It followed that the interference in the applicants’ right to the peaceful enjoyment of their possessions had not been disproportionate to the general-interest aim pursued.

Conclusion : inadmissible (manifestly ill-founded).

Article 8: The confiscated house was the applicants’ family home. The measure had thus interfered with the exercise of their right to respect for their private and family life and their home. The interference was in accordance with the law, was intended to combat drug-trafficking and to prevent it by discouraging the concealment of illegally obtained assets and money laundering, and was aimed at “the prevention of disorder or crime”. The scope of the States’ margin of appreciation was narrowe r when applying Article 8 of the Convention than when applying the second paragraph of Article 1 of Protocol No. 1. However, the authorities had taken due account of the applicants’ situation by permitting them to remain in their home until such time as th ey were able to move to other premises.

Conclusion : inadmissible (manifestly ill-founded).

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

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