PROCEDURE

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).

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).

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).

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.

On 21 November 1991 the President had given the Conseil d’État 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.

On 22 November 1991 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.

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:

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;

for the Commission Mr H.G. Schermers, Delegate;

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

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.

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.

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

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“.

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. ...