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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PHAM HOANG v. FRANCE - 13191/87 [1992] ECHR 61 (25 September 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/61.html
Cite as: [1992] ECHR 61, 16 EHRR 53, (1993) 16 EHRR 53
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In the case of Pham Hoang v. France*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of
Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr A. Spielmann,
Sir John Freeland,
and also of Mr M.-A Eissen, Registrar, and Mr H. Petzold,
Deputy Registrar,
Having deliberated in private on 23 April and
29 August 1992,
Delivers the following judgment, which was adopted on
the last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 66/1991/318/390. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 7 June 1991,
within the three-month period laid down by Article 32 para. 1
and Article 47 (art. 32-1, art. 47) of the Convention. It
originated in an application (no. 13191/87) against the French
Republic lodged with the Commission under Article 25 (art. 25)
by a national of that State, Mr Tuan Tran Pham Hoang,
on 20 August 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France
recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Article 6 paras. 1, 2 and 3 (c) (art. 6-1, art. 6-2,
art. 6-3-c).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant
stated that he wished to take part in the proceedings and
designated the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
28 June 1991, in the presence of the Registrar, the President
drew by lot the names of the other seven members, namely
Mr Thór Vilhjálmsson, Mr F. Matscher, Mr J. Pinheiro Farinha,
Mr C. Russo, Mr R. Bernhardt, Mr A. Spielmann and
Sir John Freeland (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr F. Gölcüklü,
substitute judge, replaced Mr Pinheiro Farinha, who had
resigned and whose successor had taken up his duties before
the hearing (Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar,
consulted the Agent of the French Government ("the
Government"), the Delegate of the Commission and the
applicant's lawyer on the organisation of the procedure
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, and after two extensions of time due to an
unsuccessful attempt to achieve a friendly settlement, the
Registrar received the memorials of the applicant, the
Government and the Delegate of the Commission on
4 November 1991, 16 December 1991 and 2 February 1992
respectively.
5. On 21 November 1991 the President had given the Conseil
d'Etat and Court of Cassation Bar leave under Rule 37 para. 2
to submit written comments on a specific issue. These were
received by the Registrar on 20 January 1992 and were
supplemented by the representative of the Chairman of the Bar
in a memorandum of 10 March 1992.
6. On 22 November 1991 the Commission produced the file on
the proceedings before it, as requested by the Registrar on
the President's instructions.
7. In accordance with the President's decision, the
hearing took place in public in the Human Rights Building,
Strasbourg, on 21 April 1992. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs E. Belliard, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr B. Gain, Head of the Human Rights Section,
Department of Legal Affairs, Ministry of
Foreign Affairs,
Miss M. Picard, magistrat, on secondment to the
Department of Legal Affairs, Ministry
of Foreign Affairs,
Mr J. Camut, Deputy Director-General of
Customs, Ministry of the Budget,
Mrs C. Cosson, magistrat, on secondment to the
European and International Affairs Department,
Ministry of Justice,
Counsel;
(b) for the Commission
Mr H.G. Schermers,
Delegate;
(c) for the applicant
Mr A. Lestourneaud, avocat,
Mrs P. Potiez-Lestourneaud, avocate,
Counsel.
The Court heard addresses by Mrs Belliard for the
Government, Mr Schermers for the Commission and Mr
Lestourneaud and Mrs Potiez-Lestourneaud for the applicant, as
well as replies to its question.
AS TO THE FACTS
I. The circumstances of the case
8. Mr Tuan Tran Pham Hoang, a French national who was born
in Saigon in 1963, was unemployed and living at Aulnay-sous-
Bois (France) at the material time.
9. On 3 January 1984 he was arrested in Paris with four
other people from Hong Kong, Cambodia or Vietnam, Mr Cheng Man
Ming, Mr Fu Wing Kin, Mr Ngo Pan and Mr Tran Gia Quong. He
was at the wheel of a car towards which Mr Cheng and Mr Fu
were walking; they had just emerged from a hotel and were
carrying two bags containing 2,750 grams of heroin base and
85 grams of almost pure heroin, together with a pair of
scales, one pan of which bore traces of heroin. Two other
people, Mr Jip Quang Duong and Mr Hanh Phuoc, were arrested
after weapons and 5kg of caffeine were discovered by police
while searching a flat visited by the applicant.
Since the end of December 1983 officers of the Drugs
and Vice Squad had been carrying out surveillance and
shadowing operations; they had got wind of preparations for
heroin trafficking in relation to individuals from Hong Kong.
10. On 7 January 1984 an investigating judge charged the
applicant with an offence under the drugs legislation and
remanded him in custody. The applicant was released under
judicial supervision on 6 March 1984.
A. Proceedings in the Paris tribunal de grande instance
11. In an order of 25 March 1984 the investigating judge
committed the applicant and the six others mentioned above for
trial on the charge that they had "conspired in Paris during
1983-84, in particular up to 3 January, to produce, possess
and supply drugs, namely heroin".
12. At the trial on 2 May 1985 the Director-General of
Customs asked the court to
"Find Cheng, Fu Wing, Ngo, Tran, Hanh, Jip and Pham
guilty of having committed within the French customs
territory from 1 December 1983 to 3 January 1984 as
persons in possession or having an interest in customs
evasion, the class 3 customs offence of smuggling
prohibited goods by means of a self-propelled vehicle
and in a group of more than six individuals;
Sentence them jointly and severally on this charge to
pay the customs authorities:
(a) a sum of 2,835,000 (two million eight hundred and
thirty-five thousand) francs in lieu of forfeiture of
the goods, which will be destroyed (Art. 435 of the CC
[Customs Code]);
(b) a fine of 2,835,000 (two million eight hundred and
thirty-five thousand) francs, being the value of the
smuggled goods (Art. 414 of the CC);
Pass the maximum sentence of imprisonment provided
for in the event of non-payment;
Order that the defendants shall be held in custody,
within the limit of the term of that imprisonment,
until such time as the customs penalties have been paid
(new Article 388 of the Customs Code);
The above measures being pursuant to Articles 38,
215, 343, 373, 382, 388, 392, 399, 409, 416, 417, 419,
435 and 438 of the Customs Code, Article 750 of the
Code of Criminal Procedure and the Order of 11 December
1981 made by the Minister for the Budget;
Without prejudice to the sentence of imprisonment
provided for in Article 416 of the Customs Code and
which the public prosecutor is asked to apply for
pursuant to Article 343-1 of that Code."
The Director-General's submissions included the
following details:
"The defendants' statements and the police
surveillance disclosed the following:
Cheng Man Ming and Fu Wing Kin left Bangkok together
by air on 26 december 1983 carrying a suitcase with a
false bottom containing the heroin subsequently seized.
When they arrived in Athens, Cheng continued his
journey by air to Paris and instructed Fu to bring the
suitcase by rail in order to avoid the thorough checks
made at airports in Paris.
In France Ngo Pan accompanied Cheng to make a number
of purchases: the receptacle which would have served to
mix the heroin and the caffeine [and] the secateurs for
cutting open the hidden compartment in the suitcase.
The heroin subsequently seized was to be transported
in Pham's motor vehicle, and Tran was to drive with it
to the home of Jip Quang Duong and Hanh Phuoc, where
the 5kg of caffeine were seized.
It has therefore been established that the seven
defendants constituted a group of individuals (whether
or not all of them were in possession of the smuggled
goods) formed with a view to importing heroin base,
converting it, possessing it, transporting it and
mixing it with caffeine in order to produce a commodity
whose street value would have been trebled by virtue of
this blending.
...
AS TO THE LAW
The goods in question are mentioned by name in the
Order of 11 December 1981 made by the Minister for the
Budget, which lists the substances to which Article 215
of the Customs Code is to apply.
Those who possess or transport goods specially
designated in orders made by the Minister for Economic
Affairs and Finance must, when first asked to do so by
customs officers, produce either receipts certifying
that the goods have been lawfully imported or invoices,
manufacture notes or any other proof of origin from
individuals or companies lawfully established within
the customs territory.
In the absence of any proof of origin as indicated
above, the goods in question are deemed to have been
imported unlawfully (Art. 419 of the CC).
This constitutes the offence of unlawfully importing
prohibited goods, namely 2,835 grams of heroin base or
almost pure heroin with a value of 2,835,000 F,
punishable under Articles 38, 215, 373, 414, 417, 419
and 435 of the Customs Code; with the following
aggravating circumstances:
1. Heroin is the most strictly prohibited commodity in
customs terms and the most harmful under health
legislation;
2. ... the offence was committed by a group of six or
more individuals (Art. 416 of the CC);
3. ... the goods were to be transported by a self-
propelled vehicle (Art. 416 of the CC).
SPECIAL FEATURES OF CUSTOMS LAW
Art. 373 of the CC: in any proceedings concerning a
seizure of goods, it shall be for the person whose
goods have been seized to prove that he has not
committed an offence.
The defendants cannot avoid their criminal liability
by relying on their good faith, since the latter is of
absolutely no effect in customs law.
Art. 409 of the CC: any attempted offence is
punishable in the same way as the offence itself.
Delivery was going to be taken of the smuggled goods in
Pham's vehicle by Pham, Ngo and Tran.
LIABILITY
The offence described above is imputable to the
above-mentioned persons as being in possession - in
possession in law - or having an interest in customs
evasion.
A person in possession of smuggled goods is deemed
responsible for customs evasion (Art. 392 para. 1 of
the CC).
By Art. 399 of the CC,
1. Anyone who as a person having an interest has
taken part in any way in a smuggling offence or an
offence of undeclared importation or exportation is
liable to the same penalties as anyone committing the
offence and, furthermore, to the loss of rights
provided for in Article 432 of the Customs Code.
2. The following are deemed to have an interest:
(a) owners and members of business undertakings,
insurers, insurance policyholders, moneylenders, owners
of goods and in general anyone who has a direct
interest in customs evasion;
(b) anyone who has contributed in any way to a series
of acts committed by a number of individuals acting in
concert, in accordance with a customs-evasion plan
drawn up in order to achieve the jointly pursued
purpose;
(c) anyone who has knowingly concealed the activities
of smugglers or attempted to help them evade punishment
or has purchased or possessed, even outside the customs
zone, goods obtained by means of a smuggling offence or
an offence of undeclared importation.
3. An interest in customs evasion cannot be imputed
to anyone who has acted from necessity or as a result
of an unavoidable mistake.
Where more than one person is found guilty of a
single customs-evasion offence, they are jointly and
severally liable for the penalties, both as regards
pecuniary penalties in lieu of forfeiture and as
regards fines and costs (Art. 406 para. 1 of the CC).
The owners of smuggled goods, anyone who has
undertaken to import or export them, anyone with an
interest in the customs evasion, accomplices and
adherents are all jointly and severally liable and are
subject to imprisonment for non-payment of fines, sums
in lieu of forfeiture and costs (Art. 407 of the CC).
..."
13. On 31 May 1985 the Paris tribunal de grande instance
(16th Criminal Division) acquitted the applicant, Mr Jip and
Mr Hanh on all the charges against them for lack of sufficient
evidence.
As regards the proceedings in respect of the ordinary
criminal offence (see paragraph 11 above), it held:
"... there is no evidence that Pham Hoang, who was
involved only on an ad hoc basis, knowingly agreed to
transport the goods and those in possession of them in
his car.
..."
As regards the proceedings in respect of the customs
offence (see paragraph 12 above), it said:
"...
As far as the customs offence is concerned, no
physical act of aiding and abetting or of having an
interest in the customs evasion can be proved against
Jip, Hanh and Pham.
It should be noted that the police intervened before
they had been able to do anything to take possession of
the prohibited goods. Accordingly, the question of any
good faith on their part does not even arise.
..."
The other defendants, however, were sentenced to
imprisonment for terms ranging from six to twelve years.
B. Proceedings in the Paris Court of Appeal
14. The Director-General of Customs appealed against the
decision to acquit the applicant, Mr Jip and Mr Hanh of the
customs offence. For the hearing on 23 September 1985 he made
the following submissions:
"As regards Pham, it should be stated that he has
always claimed that he 'knew nothing about the
operation in which he took part'. He cannot be
acquitted on this account, since intention does not
have to be taken into consideration by the court for
the customs offence to be made out (Art. 373 of the
CC).
It was Pham who drove the motor vehicle in which Tran
and then Ngo had travelled. On several occasions the
police saw them going to shops to buy hydrochloric acid
- which is used to turn heroin base into soluble
heroin.
Again driven by Pham, the two men went to Cheng's
hotel. Cheng and Fu were arrested as they were about
to put the heroin base into Pham's vehicle.
It is thus established that Pham was going to be in
possession of 2,835 grams of heroin base. For a reason
beyond his control, the drug did not in the end come
into his possession.
Furthermore, the fact that Pham drove in his own
vehicle two traffickers who firstly went to buy an
ingredient of the smuggled goods, the hydrochloric
acid, and secondly were about to take delivery of a
strictly prohibited commodity, the heroin base,
warrants the assertion that he had an interest in the
customs evasion.
In short, it has clearly been established that Pham,
Jip and Hanh had indeed formed a group of individuals
together with the four others with a view to
possessing, transporting or attempting to transport
consumable heroin and to convert it by attempting to
add hydrochloric acid to heroin base and thereafter
adding caffeine to the heroin hydrochloride in order to
increase both the weight of the goods to be supplied on
the illicit market and, above all, the profit to be
derived from the trafficking.
In respect of the three defendants, the court below
thus disregarded Articles 373, 392, 399 and 409 of the
Customs Code.
Extenuating circumstances:
Pursuant to Article 369 of the CC, the court below
was, however, entitled to find that there were
extenuating circumstances in respect of Pham, Hanh and
Jip and accordingly to reduce the sum to be paid in
lieu of forfeiture and the fine to one-third of the
value of the smuggled goods (2,835,000 * 3 = 945,000 F)
and not make an order for the forfeiture of Pham's
vehicle.
Special features of customs law
Offences under the drugs legislation are inseparable
from smuggling offences.
Customs offences, however, are strict-liability
offences provided for and punishable under a body of
law separate from the ordinary law, and in particular
under:
369 para. 2: good faith is of absolutely no effect
373: where goods have been seized, the burden of
proving that no offence has been committed is on the
person whose goods have been seized
392: possession
399: interest in customs evasion
..."
15. In their written submissions made for the hearing on
2 December 1985 the two counsel for the applicant -
Mr Lestourneaud and Mr Pugliesi-Conti - argued in particular
that Articles 369 para. 2, 373, 392 para. 1 and 399 para. 2 of
the Customs Code were "incompatible with the concepts of a
fair trial and of presumption of innocence contained in
Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the European
Convention on Human Rights".
16. On 10 March 1986 the Paris Court of Appeal found the
applicant "guilty of having, in Paris and within the customs
territory, from 1 December 1983 to 3 January 1984, committed
as a person in possession or having an interest in customs
evasion, the class 2 customs offence of unlawfully importing
prohibited goods by means of a self-propelled vehicle and in a
group of more than three individuals".
He was sentenced to "pay the customs authorities,
jointly and severally with Cheng Man Ming, Fu Wing Kin, Ngo
Pan and Tran Gia Quong:
(a) a sum of 2,835,000 francs in lieu of forfeiture of the
goods, which [were to] be destroyed, and
(b) a fine of 2,835,000 francs, being the value of the
smuggled goods,
his personal liability being limited in both cases to the sum
of 1,000,000 francs".
The judgment contained the following reasons:
"A. As to the defence submissions concerning Pham
In submissions filed with the Court, counsel for Pham
Hoang Tuan Khanh sought to have upheld the defendant's
acquittal and to have dismissed the case put forward by
the customs authorities as sole appellant against the
defendant, on the ground that Articles 392-1, 373,
399-2 and 3, and 369 of the Customs Code were
incompatible with the provisions of Article 6 (art. 6)
of the European Convention for the Protection of Human
Rights and Fundamental Freedoms and Article 14 of the
International Covenant on Civil and Political Rights
signed in New York on 16 December 1966, both of which
have been ratified by France and embody the principles
of a 'fair trial' and 'the presumption of innocence in
criminal proceedings'.
This ground does not amount to a preliminary
objection, seeing that the conventions prayed in aid do
not provide for applications for preliminary rulings to
the supervisory bodies set up to implement them.
As it relates to the lawfulness of the prosecution,
it must be considered, although it was not raised
before any defence on the merits.
The defence submissions do not allege any breach of
the rules governing the procedure followed during the
judicial investigation or at the trial, but it is
argued in them that under the provisions of the Customs
Code relied on by the prosecution a person in
possession of the goods is deemed responsible for
customs evasion, and all those who come within
specified categories are deemed to have an interest in
customs evasion, in both cases regardless of their good
faith or their intention, such that these provisions
provide for a presumption of guilt which makes them
incompatible with the provisions of the European
Convention for the Protection of Human Rights and of
the International Covenant, which provide that
'everyone is entitled to a fair ... hearing' and that
'everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to
law'.
It was pointed out that the European Court of Human
Rights in Strasbourg has held that the presumption of
innocence is one of the ingredients of a fair trial and
that applying provisions which remove the burden of
proof from the prosecution puts the defendant at a
disadvantage, negates the equality of arms to his
detriment, and, ultimately, deprives him of a fair
trial.
But while it is true that the customs authorities do
not have to prove bad faith on the part of the person
in possession of the smuggled goods or of the person
having an interest in customs evasion, they must
establish the physical fact of possession and show that
the defendant in some way took part, as a person having
an interest, in an offence of smuggling or of
undeclared importation or that he belongs to one of the
categories of those who are deemed to have a direct
interest in customs evasion.
It is the special nature of customs offences, which
are complete as soon as the smuggled goods cross the
border, that compels the legislature to define them as
offences which are made out as soon as the physical
acts which disclose their existence have been evidenced
on French territory.
The special nature of these offences does not,
however, deprive the offender of any possibility of
raising a defence, seeing that the law provides that a
person in possession can exonerate himself by proving
force majeure and that an interest in customs evasion
cannot be imputed to anyone who has acted from
necessity or as a result of an unavoidable mistake.
It appears from the evidence in the file that Pham,
who was remanded in custody on 7 January 1984 and
released under judicial supervision on 6 March 1984 and
was acquitted by the court below, was consistently
presumed innocent and had every possibility of putting
forward the grounds allowed him by the law in order to
exonerate himself.
That being so, there is no incompatibility in this
case between the impugned provisions and the principles
laid down in the conventions relied on, seeing that the
customs authorities are prosecuting Pham for an offence
of unlawfully importing strictly prohibited goods,
namely 2,835 grams of heroin base or almost pure
heroin, a commodity whose importation is strictly
prohibited on account of its harmfulness to public
health and of the damage its consumption causes both to
the users' physical health and to the social order.
In the face of a scourge affecting young people more
particularly and which is spreading alarmingly, the
impugned provisions of the Customs Code, which were
applied in conformity with the rules laid down in the
Code of Criminal Procedure, can be seen as the response
made within the constitutional framework and the limits
of a European State's sovereignty to offences that are
particularly serious and call for appropriate special
punishment.
There is accordingly no ground for holding that these
provisions are inapplicable.
B. As to Pham's guilt
It is established that on the afternoon of
3 January 1984 Ngo, who played an important part in the
importation of the heroin, was driven by Pham in his
Peugeot 104 car to buy hydrochloric acid in various
shops to blend the pure heroin brought into France by
Cheng and Fu.
Pham was present in the flat at 110 boulevard de la
Chapelle at 1 p.m. when the 5kg of caffeine were
delivered there by an Asian who was said by the other
defendants to be the head of the trafficking network.
He agreed to drive Tran and Ngo to their rendezvous
with Cheng and Fu.
At the time he was arrested, he was waiting for Cheng
to get into his car so that he could drive him to
Tran's flat in the boulevard de la Chapelle.
He was therefore on the point of being in possession
of the smuggled goods, which only the intervention of
the police prevented from being placed in his vehicle.
The customs authorities therefore rightly argued that
the attempt is regarded in the same way as the offence
itself, that it was for reasons beyond his control that
Pham did not physically come into possession of the
heroin that was going to be placed in his car and that
the fact of his having driven in his own vehicle two
traffickers who were on the point of taking delivery of
the prohibited goods warranted the assertion that he
had an interest in customs evasion.
He did not claim to have acted from necessity, and
the circumstances in which he was implicated in the
operation and arrested do not allow him to maintain
that he acted as a result of an unavoidable mistake."
C. Proceedings in the Court of Cassation
17. On the very day that the Court of Appeal gave its
judgment, Mr Pham Hoang appealed to the Court of Cassation.
Mr Lestourneaud wrote to the Chairman of the Conseil d'Etat
and Court of Cassation Bar on 10 March 1986 applying for
counsel to be officially assigned as his client was not in a
position to meet further costs. The principles which the
applicant intended to assert before the Court of Cassation
were, he said, complex and the advice of a member of the Court
of Cassation Bar was essential for following the proceedings.
He reiterated this request in a letter of 21 March 1986.
18. On 26 March the Chairman of the Bar replied as follows:
"Legal aid is not available to convicted persons, who
are infinitely numerous, in criminal cases which come
before the Court of Cassation.
In certain exceptional cases, where the heaviest
sentences are at stake, I assign one of my colleagues
free of charge for the purposes of studying the file.
But Mr Pham Hoang does not come into this category
and I cannot grant his request."
19. On 7 August 1986 the applicant sent a registered letter
to the registry of the Court of Cassation; he indicated that
he was filing, as pleadings, a copy of the appeal submissions
lodged on 2 December 1985 by his two counsel (see paragraph 15
above).
20. The Court of Cassation (Criminal Division) dismissed
the appeal on 9 March 1987 for the following reasons:
"Having regard to the personal application, which was
properly produced, and to the pleadings in support;
The personal application does not in itself raise any
point of law for determination and does not allege a
breach of any provision. Accordingly, since it does
not comply with the requirements of Article 590 of the
... Code [of Criminal Procedure], it is not admissible.
The Court of Appeal's judgment, moreover, contains no
formal defect."
II. Relevant domestic law
A. The legislation and case-law on customs offences
21. In France customs offences are criminal offences with
various special features.
The Customs Code essentially prohibits smuggling
(Articles 417 and 422) and undeclared importation or
exportation (Articles 423-429). This case is concerned solely
with smuggling. Smuggling is defined as "any importation or
exportation effected outside official customs premises and any
infringement of the statutory provisions or regulations
concerning the possession and transport of goods within the
customs territory" (Article 417 para. 1), for example - but
not exclusively - if importation of the goods is prohibited
(Article 418 para. 1, to be read in conjunction with
Article 38).
22. The following are the main provisions of the Customs
Code that are referred to in the instant case:
Article 369 para. 2
"The courts shall not acquit offenders for lack of
intent."
This paragraph was repealed by Law no. 87-502 of
8 July 1987, which changed tax and customs procedure, but the
Law did not apply to the instant case.
Article 373
"In any proceedings concerning a seizure of goods,
the burden of proving that no offence has been
committed shall be on the person whose goods have been
seized."
Article 392 para. 1
"A person in possession of smuggled goods shall be
deemed responsible for customs evasion."
Taken literally, this provision appears to create an
irrebuttable presumption. The courts have, however, mitigated
its strictness. Thus the Criminal Division of the Court of
Cassation now upholds the unfettered power of courts of trial
and of appeal to assess the "evidence adduced by the parties
before them" (see, for example, the Abadie judgment of
11 October 1972, Bulletin (Bull. crim.) no. 280, p. 723) and
recognises that an accused may exonerate himself by
establishing "a case of force majeure" resulting "from an
event responsibility for which is not attributable" to him and
which "it was absolutely impossible [for him] to avoid", such
as "the absolute impossibility ... of knowing the contents of
[a] package" (see, for example, the Massamba Mikissi and
Dzekissa judgment of 25 January 1982, Gazette du Palais, 1982,
jurisprudence, pp. 404-405, and the Salabiaku judgment of
21 February 1983, extracts from which are reproduced in the
Series A volume no. 141-A, p. 10, para. 15).
Article 399
"1. Anyone who as a person having an interest has
taken part in any way in a smuggling offence or an
offence of undeclared importation or exportation shall
be liable to the same penalties as anyone committing
the offence and, furthermore, to the loss of rights
provided for in Article 432 hereinafter.
2. The following shall be deemed to have an interest:
(a) owners and members of business undertakings,
insurers, insurance policyholders, moneylenders, owners
of goods and in general anyone who has a direct
interest in customs evasion;
(b) anyone who has contributed in any way to a series
of acts committed by a number of individuals acting in
concert, in accordance with a customs-evasion plan
drawn up in order to achieve the jointly pursued
purpose;
(c) anyone who has knowingly concealed the activities
of smugglers or attempted to help them evade punishment
or has purchased or possessed, even outside the customs
zone, goods obtained by means of a smuggling offence or
an offence of undeclared importation.
3. An interest in customs evasion cannot be imputed
to anyone who has acted from necessity or as a result
of unavoidable mistake."
Under French case-law, having an interest is distinct
from the criminal offence of aiding and abetting as defined by
Articles 59 and 60 of the Criminal Code, to which Article 398
of the Customs Code refers (27 April 1967, Bull. crim.
no. 137).
"Unavoidable mistake" is to be understood as a mistake
as to some physical fact, made in circumstances precluding any
fault or negligence on the part of the person making it, such
that the mistake could not be avoided, even after checks had
been made; it is not a simple matter of good faith
(24 November 1980, Bull. crim. no. 313). In a judgment
of 12 November 1985 the Criminal Division of the Court of
Cassation held: "Article 399 para. 2 of the Customs Code
requires, in order for a person to be found guilty of having
an interest in customs evasion committed by third parties,
that the court should find that the defendant knowingly
contributed to an unlawful operation which might result in
customs evasion, even if he was ignorant of the actual
arrangements" (Bull. crim. no. 350).
Article 409
"Any attempted customs offence shall be regarded in
the same way as the offence itself."
B. Criminal appeals on points of law and legal aid
23. Legal representation is not compulsory for applications
to the Court of Cassation in criminal cases. A convicted
defendant can lodge an appeal on points of law himself and set
out his grounds of appeal in writing (Articles 568, 584 and
585 of the Code of Criminal Procedure). Only members of the
Conseil d'Etat and Court of Cassation Bar, however, have the
right of audience.
24. For many years there were no provisions to deal with
the problem of legal aid for persons whose means were
insufficient to ensure the exercise of their rights in the
criminal courts.
Section 4 of Law no. 72-11 of 3 January 1972 on legal
aid and payment of officially assigned or appointed counsel
provided merely:
"Legal aid shall be granted for both contentious and
non-contentious proceedings.
It shall be available for:
Any proceedings brought either before an ordinary
court other than a criminal court or before the Conseil
d'Etat, the administrative courts of appeal, the
administrative courts or the Jurisdiction Disputes
Court;
Any action in courts of trial or of appeal concerning
a person's civil liability;
Any action brought by a civil party to criminal
proceedings before investigating judges or courts and
trial or appeal courts;
Any protective measure;
Any procedure for enforcement of either a judicial
decision or any other legal transaction."
According to the Conseil d'Etat and Court of Cassation
Bar, the situation before the 1991 reform (see
paragraph 25 below) was as follows:
"...
In the absence of any provisions, it has always been
the tradition of the French bars ... to ensure that
persons unable to meet the costs of their defence are
defended by counsel assigned officially by the Chairman
of the Bar. Lack of means is a matter of presumption
for these purposes and there is no kind of means test.
If it becomes apparent that a person to whom counsel
has been assigned officially for proceedings in courts
of trial or of appeal, generally at his own request but
sometimes, to ensure the proper conduct of the
proceedings, at the request of an investigating judge
or of the presiding judge of the court (at the Assizes,
for example), has means of his own, the official
assignment (free of charge) may, at his request, be
converted into an official appointment, the lawyer
initially assigned then having the right to charge
fees, under the supervision of the chairman of the bar.
Counsel at the Conseil d'Etat and the Court of
Cassation have similarly always contributed to the
provision of free representation in criminal cases;
but, given the small size of the Conseil d'Etat and
Court of Cassation Bar and the 'extraordinary' nature
of an appeal to the Court of Cassation, it was
necessary to adapt the procedure.
This adaptation was twofold in nature.
Firstly, the Chairman of the Conseil d'Etat and Court
of Cassation Bar never officially assigned a colleague
directly. Where it was possible for an official
assignment to be made, he would appoint a member of the
Bar to study the file; the latter would report to the
Chairman, and if he had identified a ground of appeal,
the appointment to study the file would be informally
converted into an official assignment.
This preliminary study corresponded to the
preliminary study made by the Legal Aid Office, and the
same resources were available.
Where a ground of appeal could be set out at length,
the appointed member of the Bar would produce pleadings
on a voluntary basis.
Secondly, counsel was not automatically appointed
following an application.
A study of the file was ordered as of right where
there had been a conviction by an assize court and in
the event of a case being remitted to an assize court
or of a prison sentence being passed by a criminal
court where the applicant was in custody pending trial.
Study of the file was also ordered in the cases of
those convicted by a criminal court of first instance
or appeal who were not in custody but whose sentence
was above a certain level, the level apparently having
varied over time.
In all cases, if the Chairman indicated that he was
unable to appoint a colleague, he qualified this by
saying that he would have the file studied by one of
his colleagues if his attention was drawn to a point of
law that could be submitted for review by the Court of
Cassation. Study of the file was in fact ordered
fairly generously once counsel before a court of trial
or of appeal had drawn the attention of the Chairman of
the Bar to a specific point.
It is to be noted that such precautions were
necessary, not only because of the small size of the
Conseil d'Etat and Court of Cassation Bar but also
because appeals to the Court of Cassation in criminal
cases (except in respect of judgments in associated
civil-party proceedings) have a suspensive effect. It
was important that the hearing of appeals that could
not be sustained should not be systematically delayed
on the ground that the file was being officially
studied (or that counsel had been officially assigned
to it).
It must not be overlooked that when a file is
allocated to counsel, he is given a deadline.
Moreover, when pleadings are produced, the Court of
Cassation is obliged to give a reasoned judgment, after
the case has been examined by a reporting judge;
whereas when an appeal is not supported in that way,
the case is automatically entered in a list known as
the 'formal list' because the Court of Cassation
essentially considers only whether the impugned
judgment is free from any formal defect; in actual
fact, it also satisfies itself that the statutory
maximum sentence has not been exceeded.
In 1985 the Chairman of the Conseil d'Etat and Court
of Cassation Bar who had then been elected became
concerned about the increasing number of applications
made to him for official assignment of counsel and the
number of official appointments he had to make for
study of files in accordance with the foregoing
criteria; the number of such appointments had indeed
increased from 110 in 1975 to 200 in 1985.
He felt it his duty, on his own initiative, to make a
slight alteration if not to the actual criteria, at
least to the letter previously sent to those applying
for an official assignment of counsel or to lawyers
applying for it on their behalf. In these replies he
ceased to mention automatically that counsel would be
officially instructed to study the file if a point of
law was brought to his attention; and he also changed
the criterion for an official appointment, in respect
of applicants who were not in custody, to a two-year
prison sentence (instead, apparently, of one year
previously).
When a point of law was notified to him, he did in
fact order an official study of the file, as in the
past; the same applied when it was justified by the
applicant's psychological state.
These measures reduced the number of appointments
made for study of files from 200 in 1985 to 170 in
1986.
The Chairman who was elected in 1988 took a decision
to order study of all files without any distinction
when an application for official assignment of counsel
was made to him; the number of files studied rose from
189 in 1987 to 220 in 1988, and reached 342 in 1990,
falling back to 315 in 1991.
..."
25. It is now provided, in Law no. 91-647 of 10 July 1991
on legal aid:
"Legal aid shall be granted to plaintiffs or
defendants in contentious or non-contentious
proceedings before any court.
It may be granted for all or part of the proceedings.
It may also be granted in respect of the execution of
a judicial decision or of any other authority to
execute."
Following an agreement between the Court of Cassation
and the Conseil d'Etat and Court of Cassation Bar, a system of
legal aid in criminal cases has been set up.
PROCEEDINGS BEFORE THE COMMISSION
26. Mr Pham Hoang applied to the Commission on
20 August 1987. He complained that he had been convicted on
the basis of statutory presumptions of guilt which were
contrary to Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of
the Convention because they were incompatible with the rights
of the defence and with the presumption of innocence. He also
relied on Article 6 para. 3 (c) (art. 6-3-c) in that he had
not been assisted by a lawyer during the hearing of his appeal
on points of law.
27. The Commission declared the application (no. 13191/87)
admissible on 11 May 1990. In its report of 26 February 1991
(Article 31) (art. 31), it expressed the opinion that there
had been no violation of Article 6 paras. 1 and 2 (art. 6-1,
art. 6-2) (by seven votes to five) and that there had been a
violation of Article 6 para. 3 (c) (art. 6-3-c) (unanimously).
The full text of the Commission's opinion and of the
dissenting opinion contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 243 of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the
registry.
_______________
FINAL SUBMISSIONS TO THE COURT
28. At the hearing the applicant asked the Court, firstly,
to reject the Government's preliminary objection that domestic
remedies had not been exhausted and, secondly, to find that
there had been a breach of paragraphs 1, 2 and 3 of Article 6
(art. 6-1, art. 6-2, art. 6-3) of the Convention.
He also sought just satisfaction.
29. The Government confirmed in substance the final
submissions in their memorial. They asked the Court to
dismiss the first complaint, based on Article 6 paras. 1 and 2
(art. 6-1, art. 6-2), on the ground that the applicant had not
exhausted domestic remedies or, in the alternative, because it
was ill-founded, and to dismiss the second complaint, relating
to Article 6 para. 3 (c) (art. 6-3-c), as being unfounded.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 2
(art. 6-1, art. 6-2)
A. The Government's preliminary objection
30. In the Government's submission, the applicant had not
exhausted domestic remedies in that he had not put the Court
of Cassation in a position to try his appeal. He had not
indicated to it either the parts of the Court of Appeal's
judgment that he was challenging or in what way they were
incompatible with domestic law or the Convention.
31. Although the Commission maintained the contrary, the
Court has jurisdiction to entertain the objection (see, as the
most recent authority, the Tomasi v. France judgment of
27 August 1992, Series A no. 241-A, p. 33, para. 77). It
cannot allow the objection, however, as in the circumstances
of the case the refusal of an official assignment of counsel
rendered the remedy in question ineffective (see paragraph 40
below).
B. The merits
32. Mr Pham Hoang submitted that his conviction contravened
the principles of a fair trial and of presumption of
innocence. The Paris Court of Appeal had applied four
presumptions against him - based on Articles 369 para. 2, 373,
392 para. 1 and 399 of the Customs Code (see paragraph 22
above) - and not just one as in the case of Salabiaku v.
France (Court's judgment of 7 October 1988, Series A
no. 141-A), whereas the considerable importance of what was at
stake called for greater vigilance in respecting the rights of
the defence.
He claimed that there had been a breach of paragraphs 1
and 2 of Article 6 (art. 6-1, art. 6-2) of the Convention,
which provide:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing
... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to
law."
The Government disputed this argument and the
Commission did not accept it.
33. As was pointed out in the Salabiaku judgment of
7 October 1988 (p. 16, para. 28 in fine), Article 6 (art. 6)
requires Contracting States to confine presumptions of fact or
of law provided for in their criminal law within reasonable
limits which take into account the importance of what is at
stake and maintain the rights of the defence. However, the
Court is not called upon to consider in the abstract whether
Articles 369 para. 2, 373, 392 para. 1 and 399 of the Customs
Code conform to the Convention. Its task is to determine
whether they were applied in the instant case in a manner
compatible with the presumption of innocence and, more
generally, with the concept of a fair trial (ibid., pp. 14 and
17, paras. 25 and 30).
34. In response to the submissions asking it to hold that
the four provisions of the Code which were impugned by the
applicant were inapplicable, the Court of Appeal said the
following in particular:
"The special nature of [customs] offences does not ...
deprive the offender of any possibility of raising a
defence, seeing that the law provides that a person in
possession can exonerate himself by proving force
majeure and that an interest in customs evasion cannot
be imputed to anyone who has acted from necessity or as
a result of an unavoidable mistake.
It appears from the evidence in the file that Pham,
who was remanded in custody on 7 January 1984 and
released under judicial supervision on 6 March 1984 and
was acquitted by the court below, was consistently
presumed innocent and had every possibility of putting
forward the grounds allowed him by the law in order to
exonerate himself." (See paragraph 16 above)
Mr Pham Hoang was not, in fact, deprived of all means
of defending himself; under paragraph 3 of Article 399, he
could try to demonstrate that he had "acted from necessity or
as a result of unavoidable mistake" (see paragraph 22 above).
The presumption of his responsibility was not an irrebuttable
one. The Court of Appeal found that he had not claimed to
have acted from necessity and that the circumstances did not
allow him to raise a defence of unavoidable mistake either
(see paragraph 16 above).
35. Furthermore, in its judgment of 10 March 1986 the Court
of Appeal did not cite in the reasons for its decision any of
the impugned provisions of the Customs Code when it ruled on
the accused's guilt, even if it in substance took Articles 399
and 409 as its basis for holding that he had had "an interest
in customs evasion" and that he was guilty of an attempted
customs offence (see paragraphs 16 and 22 above). The court
set out the circumstances of the applicant's arrest and took
account of a cumulation of facts. It noted that during the
afternoon of 3 January 1984 he had, in his own car, driven an
important drug trafficker to several shops in order to buy
hydrochloric acid; a little earlier, it added, he had been
present in the flat where the head of the trafficking network
had brought 5kg of caffeine and he had agreed to take Tran and
Ngo to where the heroin was to be delivered. Lastly, it noted
that although he had "not physically come into possession" of
the heroin, this was due only to the intervention of the
police and was thus for reasons beyond his control (see
paragraph 16 above).
36. It therefore appears that the Court of Appeal duly
weighed the evidence before it, assessed it carefully and
based its finding of guilt on it. It refrained from any
automatic reliance on the presumptions created in the relevant
provisions of the Customs Code and did not apply them in a
manner incompatible with Article 6 paras. 1 and 2 (art. 6-1,
art. 6-2) of the Convention (see, mutatis mutandis, the
Salabiaku judgment previously cited, Series A no. 141-A,
pp. 17-18, para. 30).
II. ALLEGED BREACH OF ARTICLE 6 PARA. 3 (c) (art. 6-3-c)
37. Mr Pham Hoang also complained that he had been unable
to secure the official assignment of counsel in the Court of
Cassation. In his submission, the importance and complexity
of the legal principles in issue called for such assistance,
in the interests of justice, seeing that he had proved his
lack of resources. The Chairman of the Conseil d'Etat and
Court of Cassation Bar, however, had refused it without even
ascertaining whether there was a serious ground of appeal. It
followed that there had been a breach of paragraph 3 (c) of
Article 6 (art. 6-3-c) of the Convention, which provides:
"Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require;
..."
The Commission reached the same conclusion.
38. The Government pointed out that legal representation
was not compulsory in criminal cases which came before the
Court of Cassation. The applicant had, moreover, been helped
to make his application to the Court of Cassation by one of
the counsel who had defended him in the Court of Appeal. Only
the problem of his representation during the hearing could
have arisen, but such representation would have been of no
avail since the Court of Cassation dismissed the appeal as
raising no point of law for determination.
39. The Court observes that in the Convention system the
right of a person charged with a criminal offence to free
legal assistance is one element, amongst others, of the
concept of a fair trial in criminal proceedings (see, as the
most recent authority, the Quaranta v. Switzerland judgment of
24 May 1991, Series A no. 205, p. 16, para. 27).
Sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c) attaches
two conditions to this right. The first, lack of "sufficient
means to pay for legal assistance", is not in dispute in the
present case. On the other hand, it is necessary to determine
whether the "interests of justice" required that Mr Pham Hoang
be granted such assistance.
40. The comments by the Conseil d'Etat and Court of
Cassation Bar suggest that the applicant met with the refusal
during a transitional period in which a policy was followed
differing from earlier or subsequent practice (see paragraph
24 above); since then, the authority of the Legal Aid Office
at the Court of Cassation has been extended by legislation to
cover criminal proceedings (see paragraph 25 above).
This does not alter the fact that the proceedings were
clearly fraught with consequences for the applicant, who had
been acquitted at first instance but found guilty on appeal of
unlawfully importing prohibited goods and sentenced to pay
large sums to the customs authorities (see paragraph 16
above).
In addition, and above all, Mr Pham Hoang intended to
challenge in the Court of Cassation the compatibility of
Articles 369 para. 2, 373, 392 para. 1 and 399 para. 2 of the
Customs Code with Article 6 paras. 1 and 2 (art. 6-1,
art. 6-2) of the Convention. At least, this appears to emerge
from his letter of 7 August 1986 to the registry of the Court
of Cassation. In that letter he said that he was filing, as
pleadings, a copy of the appeal submissions which were lodged
on his behalf with the Court of Appeal on 2 December 1985 and
in which the problem was raised (see paragraphs 15 and 19
above). He did not, however, have the legal training
essential to enable him to present and develop the appropriate
arguments on such complex issues himself. Only an experienced
counsel could have undertaken this, for example by trying to
persuade the Court of Cassation to depart from its case-law in
the field under consideration (see, mutatis mutandis, the
Artico v. Italy judgment of 13 May 1980, Series A no. 37,
p. 17, para. 34).
41. The "interests of justice" accordingly required a
lawyer to be officially assigned to the case. Since he was
unable to secure this, the applicant was the victim of a
breach of Article 6 para. 3 (c) (art. 6-3-c).
III. APPLICATION OF ARTICLE 50 (art. 50)
42. Article 50 (art. 50) provides:
"If the Court finds that a decision or a measure taken
by a legal authority or any other authority of a High
Contracting Party is completely or partially in
conflict with the obligations arising from the ...
Convention, and if the internal law of the said Party
allows only partial reparation to be made for the
consequences of this decision or measure, the decision
of the Court shall, if necessary, afford just
satisfaction to the injured party."
43. The Court has not found any breach of paragraphs 1 and
2 of Article 6 (art. 6-1, art. 6-2). Mr Pham Hoang's claims
in respect of the proceedings in the Paris Court of Appeal,
namely an award of 20,000 French francs (FRF) for costs and
expenses and the recognition that there had indeed been a
breach of the Convention in order to compensate the "genuine
sense of injustice" that he had experienced, therefore do not
fall to be considered.
44. In respect of the breach of paragraph 3 (c)
(art. 6-3-c), the applicant first claimed compensation in the
amount of FRF 25,000 for the pecuniary damage sustained as a
result of the loss of an opportunity of winning an appeal to
the Court of Cassation with free legal assistance.
The Court cannot speculate as to the outcome of the
appeal if legal assistance had been granted; the applicant,
moreover, conceded this. Consequently, the claim must be
rejected in the present case.
45. Mr Pham Hoang also alleged that the refusal to grant
him the services of a lawyer had given him "a genuine
impression that he had been abandoned", but the non-pecuniary
damage thus caused could, he said, be reasonably compensated
by a finding that there had been a breach of Article 6
para. 3 (c) (art. 6-3-c). The Court so decides.
46. Lastly, Mr Pham Hoang sought FRF 50,000 for lawyer's
fees in the proceedings before the Commission and the Court
and FRF 13,690.85 for travel and subsistence expenses, less
the FRF 16,155 paid by the Council of Europe in legal aid.
The first of these amounts is too high in view of the
dismissal of the complaint based on paragraphs 1 and 2 of
Article 6 (art. 6-1, art. 6-2). Having regard to the
observations of those appearing before the Court, to the other
information before it and its own case-law in the matter, the
Court considers that the applicant is entitled to
reimbursement of a total net sum of FRF 30,000.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Rejects the Government's preliminary objection;
2. Holds that there has been no breach of Article 6
paras. 1 and 2 (art. 6-1, art. 6-2);
3. Holds that there has been a breach of
Article 6 para. 3 (c) (art. 6-3-c);
4. Holds that this finding of a breach constitutes
sufficient just satisfaction for the non-pecuniary
damage sustained;
5. Holds that the respondent State is to pay the
applicant, within three months, 30,000 (thirty
thousand) French francs in respect of costs and
expenses;
6. Dismisses the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a
public hearing in the Human Rights Building, Strasbourg, on
25 September 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar