PROCEDURE

The case originated in an application (no. 33402/96) against the French Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ali Riza Göktan (“the applicant”), on 11 March 1996.

2. The applicant was represented before the Court by

Ms M.-C. Reminiac, of the Bourg-en-Bresse Bar, and Mr T. Beygo, of the Istanbul Bar. The French Government (“the Government”) were represented by their Agent, Mrs M. Dubrocard, Head of the Human Rights Office, Department of Legal Affairs, Ministry of Foreign Affairs. 3. The applicant alleged a violation of Article 6 § 1 of the Convention and of Article 4 of Protocol No. 7. 4. On 1 November 1998 the application was transferred to the Court after the entry into force of Protocol No. 11 (Article 5 § 2 of Protocol No. 11). 5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 6. By a decision of 27 November 2001, the Chamber declared the application partly admissible. 7. The Government, but not the applicant, filed written observations on the merits (Rule 59 § 1). 8. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1953 and currently lives in Turkey.

He entered France in 1974. At the material time, he worked for a business in Strasbourg.

On 15 March 1991 he and another person, M. B., were arrested by officers from the Strasbourg Regional Police Department (“the SRPJ”) and customs officers on the verge of concluding a drugs deal with a couple, who managed to make their getaway.

The applicant consistently protested his innocence, saying that he had been the victim of a put-up job by customs officers. He explained that he had agreed to act as an “informer”, and in that capacity had cooperated with J.-F. R. of the SRPJ and J.-P. C., a customs inspector and the person allegedly behind his arrest. As for the couple who had “escaped” arrest by the police, they were in fact both customs officers, known as “Maud” and “Serge”.

On 18 March 1991 the applicant was charged with drug trafficking and detained. On 3 June 1991 he was brought before the Strasbourg Criminal Court, which on 25 June 1991 sentenced him and M.B. to the following penalties: (a) five years' imprisonment for the criminal offences of importing, purchasing, possessing and transporting drugs, attempting to supply drugs, and importing, possessing and dealing in drugs without a licence; (b) an order permanently excluding them from French territory; and (c) an order requiring them to pay 1,070,000 French francs (FRF) in lieu of confiscation and a customs fine of FRF 400,000 that was imposed jointly and severally for the customs offence of illegally importing goods.

The Strasbourg Criminal Court also made an order under Article 382 of the Customs Code in the same judgment for the defendants' imprisonment if the sums were not paid.

On 27 June 1991 the public prosecutor sought an order for two years' imprisonment in default, as the customs fine had not been paid.

On 5 November 1991 the Criminal Appeals Division of the Colmar Court of Appeal upheld the Criminal Court's judgment in its entirety, as regards the issues of both criminal law and customs law.

On 6 November 1991 the applicant decided to appeal to the Court of Cassation; however, he later withdrew his appeal and the case was struck out of the Court of Cassation's list on 3 February 1992.

On 4 September 1994 the applicant completed his prison sentence. However, he remained in custody pursuant to the order requiring him to serve two years' imprisonment in default of payment of the customs fine of FRF 1,470,000. He made an urgent application to the President of the Mulhouse tribunal de grande instance, arguing that the order for his imprisonment in default was defective, as the Customs Office had failed to serve him with a demand for payment. The urgent-applications judge dismissed that application in an order of 27 September 1994. In a judgment of 28 November 1994 the Colmar Court of Appeal upheld that order for the following reasons: “Under Article 388 of the Customs Code the court may make an express order for a person who has been convicted of a [customs] offence or offence relating to indirect taxation to remain in custody, even if an ordinary appeal or appeal on points of law has been lodged, until he or she has paid the fiscal penalties imposed on him or her. The courts have consistently held that customs law is a special branch of law and an exception to the general law. In the present case, the express reference in the Customs Code to the Code of Criminal Procedure relates only to the length of the imprisonment in default. Consequently, since the Criminal Court made an express order – upheld by the Court of Appeal – under Article 388 of the Customs Code for enforcement of the order for imprisonment on the ground of anticipatory default, the provisions of Articles 749 et seq. of the Code of Criminal Procedure giving the President of the tribunal de grande instance jurisdiction to hear urgent applications are inapplicable.”

On 26 October 1994 the Court of Cassation ruled that the applicant's appeal on points of law against that decision had lapsed, as he had not lodged written pleadings in support of his appeal within the statutory time-limit.

On 14 March 1996 the applicant made an application for an order for the prison sentence and the term of imprisonment in default to run concurrently, arguing that he was serving two prison sentences for the same offence.

He alleged a violation of Article 4 of Protocol No. 7 to the Convention, which sets out the non bis in idem rule, and of Article 6 of the Convention. He relied in particular on the Court's judgment in Jamil v. France (judgment of 8 June 1995, Series A no. 317-B), in which imprisonment in default was found to constitute a “penalty” for the purposes of the Convention.

In a judgment of 21 May 1996 the Colmar Court of Appeal dismissed the applicant's application on the grounds that, firstly, “the European Court of Human Rights' judgments are declaratory and therefore not binding on the trial court, which is only required to apply the European Convention on Human Rights”; and, secondly, “imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure”. The Court of Appeal concluded from that that Article 5 of the former Criminal Code, which required sentences to run concurrently, had not been infringed by the trial court and could not enable a prison sentence and term of imprisonment in default to be served concurrently.

On 22 May 1996 the applicant appealed to the Court of Cassation against that judgment. In a judgment of 16 September 1997 the Court of Cassation dismissed the appeal for the following reasons: “The appellant cannot validly argue that, by sitting in private in accordance with Article 711 of the Code of Criminal Procedure, the Court of Appeal infringed Article 6 of the European Convention on Human Rights ... The requirement for a public hearing laid down by that provision applies only to proceedings for 'the determination of a criminal charge' and cannot therefore be relied on with respect to proceedings relating, as in the instance case, to an application for a ruling that sentences be served concurrently ... The impugned judgment and procedural documents show that the appellant, Ali Göktan, was found guilty of an offence under the drug-trafficking and customs-offences legislation and, inter alia, sentenced to five years' imprisonment and a customs fine. After being ordered to serve two years' imprisonment in default of payment, he made an application for a ruling that that term should run concurrently with the prison sentence. In dismissing that application, the Court of Appeal found, in particular, that imprisonment in default possesses the legal characteristics not of a penalty, but of a means of enforcement attached to the financial penalties whose recovery they are intended to secure. In these circumstances, the Court of Appeal has justified its decision and the alleged grievance is without foundation ...”

The applicant, who has now completed all the sentences he was required to serve, was deported to Turkey, where he came from, pursuant to the permanent exclusion order.