CASE OF JAMIL v. FRANCE

1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 13 April 1994, 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. 15917/89) against the French Republic lodged with the
Commission under Article 25 (art. 25) by a Brazilian national,
Mr Abdallah Jamil, on 13 November 1989.
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 7 (art. 7) of the Convention.
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
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 26 April 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Macdonald, Mr N. Valticos, Mrs E. Palm,
Mr A.N. Loizou, Mr A.B. Baka, Mr M.A. Lopes Rocha and
Mr G. Mifsud Bonnici (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43). Subsequently, Mr P. Jambrek, substitute judge,
replaced Mr Valticos, who was unable to take part in the further
consideration of the case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the French Government
("the Government"), the applicant's lawyer and the Delegate of the
Commission on the organisation of the proceedings (Rules 37 para. 1 and
38). Pursuant to the order made in consequence, the Registrar received
the applicant's and the Government's memorials on 14 and
26 September 1994 respectively. On 11 October 1994 the Secretary to
the Commission informed the Registrar that the Delegate of the
Commission would submit his observations at the hearing.
5. On 25 November 1994 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
23 January 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
Miss M. Picard, magistrat, on secondment to the
Ministry of Foreign Affairs, Agent,
Mrs R. Codevelle, Inspector of Customs,
Department of Customs and Indirect Taxes,
Mr X. Samuel, magistrat, on secondment to the
Department of Criminal Affairs and Pardons,
Mrs M. Dubrocard, magistrat, on secondment to the
Ministry of Foreign Affairs, Advisers;
Mr X. Lécussan, avocat, Counsel.
The Court heard addresses by Mr Soyer, Mr Lécussan and
Miss Picard. The Government filed various documents at the hearing.
7. Mr Abdallah Jamil, a Brazilian national, was formerly a
photographer and lived in Marseilles.
8. On 4 June 1986 customs officers arrested him at Roissy-Charles
de Gaulle Airport, Paris, as he and another person were about to
collect a package containing 2,614 grams of cocaine.
9. Mr Jamil was charged with smuggling prohibited goods and
conspiracy to smuggle prohibited goods, the fact that he was a foreign
national being mentioned on the charge sheet. On 9 June 1986 he was
10. On 22 June 1987 the Bobigny Criminal Court sentenced him to eight
years' imprisonment and ordered that he should subsequently be deported
and permanently excluded from French territory. The court also ordered
confiscation of the goods seized and sentenced the defendants to pay
a fine, with imprisonment in default, to the customs, which was a
co-prosecutor and had also joined the proceedings as a civil party.
The customs fine, of 2,091,200 French francs (FRF), was equivalent to
the value of the imported drugs, determined by the court as being
FRF 800 per gram (Article 414 of the Customs Code - see paragraph 18
below). The court ordered that the detention of both convicted
offenders should continue until the whole of the fine had been paid,
up to the maximum term of imprisonment in default, which was four
months (Article 750 of the Code of Criminal Procedure ("CCP") - see
11. The applicant, the public prosecutor and the customs appealed and
the Paris Court of Appeal gave its decision on 5 May 1988. It upheld
the sentences imposed by the court below and, at the request of the
customs authorities, specified that imprisonment in the event of
default would be subject to the conditions recently laid down in
Article L. 627-6, second paragraph, of the Public Health Code (see
paragraph 19 below). This provision had been inserted by Law
no. 87-1157 of 31 December 1987 on the prevention of drug trafficking
(published in the Official Gazette (Journal officiel) of
5 January 1988), that is to say after the offence had been committed;
it increased the maximum term of imprisonment in default to two years
where fines and other pecuniary penalties exceeded FRF 500,000.
12. Mr Jamil lodged an appeal on points of law, alleging in
particular a violation of Article 7 (art. 7) of the Convention (see
paragraph 25 below) and infringement of the principle that offences and
penalties must be defined by law, in that, as imprisonment in default
was a custodial penalty of a punitive nature, the Law of
31 December 1987, which had made the provisions governing it more
severe, could be applied only to offences committed after it had come
The Court of Cassation dismissed the appeal in a judgment of
18 July 1989. In respect of this ground of appeal it held as follows:
"In so deciding, the Court of Appeal applied the law correctly.
Imprisonment in default is indeed a means of enforcement, not a
penalty, and procedural provisions such as those relating to
enforcement of penalties are applicable immediately to situations
that already existed when the provisions came into force;"
13. Mr Jamil was released on 22 April 1992 after serving the sentence
imposed under the ordinary criminal law.
He did not serve any period of imprisonment under the warrant of
committal for default, as the Bobigny public prosecutor had rescinded
it on 20 March 1992 at the request of the customs authorities after the
sum of FRF 6,000 had been paid by the applicant.
II. Relevant domestic law and practice
14. Like fiscal fines, customs fines have always been regarded as
hybrid measures, with elements of both compensation and punishment.
As damages, such fines can be reduced by the customs authorities.
The latter estimate the value of the contraband goods and give this
figure to the court, which, for the calculation of the base figure for
the fine, may not substitute its own assessment without ordering an
independent expert opinion. In a judgment delivered on 24 October 1994
the Court of Cassation pointed out that customs fines partook of the
nature of damages. Only one fine may be imposed for each offence, but
pecuniary penalties are aggregated and are governed by the same rules
on limitation as damages. The customs authorities' power to compound
made it possible to set penalties at a level reflecting the seriousness
of the offence at a time when the courts had no discretion to vary the
fine prescribed by law. This power has survived despite the
introduction of the practice of taking mitigating circumstances into
Customs fines are also similar to criminal penalties. Only the
courts are empowered to impose them, after determining their amount
within the limits allowed by law. They are payable only by the
offender personally, are covered by the rules concerning reoffending
and are entered in the offender's criminal record. Liability is
incurred by mere commission of the offence, so that customs fines may
be imposed even where there has been no loss to the public purse.
Failure to pay renders the offender liable to imprisonment.
15. Imprisonment in default is an invention of Roman law originally
designed to guarantee execution of a court order to pay a sum of money
either to the State or to a private individual. It consists in
detaining the recalcitrant debtor in a short-stay prison, where he is
not obliged to work. It is not an alternative to payment, as the
convicted person is still liable to pay the sum due (Article 762 CCP -
see paragraph 17 below), but it may not be imposed a second time for
the same debt. Its scope has gradually been whittled away since the
nineteenth century, when it was seen as a real means of punishment
available to creditors, who could apply to have insolvent civil debtors
committed to prison. It was permanently abolished in civil and
commercial proceedings by the Law of 22 July 1867, surviving in respect
of debts to the Treasury only (Article 749 CCP - see paragraph 17
below), and the rules governing its enforcement have become more
lenient (imprisonment of an insolvent debtor is prohibited under
Article 752 of the CCP - see paragraph 17 below).
Imprisonment in default now serves to guarantee recovery of debts
to the State, such as pecuniary penalties (with the exception of those
imposed for political or press offences) or any other payment to the
Treasury not in the nature of civil damages.
It is governed in many respects by the same principles as
execution of sentence: it cannot be executed once the time-limit for
enforcing sentence has expired; in extradition cases (Law of
10 March 1927) and for the purposes of rehabilitation (Articles 784 and
788 CCP) its execution is deemed the equivalent of payment; and the
criminal-law principles that sentences must be adapted to the
individual and that consecutive sentences must not be imposed apply.
In spite of these aspects, imprisonment in default is regarded
not as a form of imprisonment in lieu of payment but as a guarantee of
enforcement directed at the debtor's person. On 4 January 1995, on an
appeal on points of law by an offender sentenced to pay three fines of
FRF 300 each for contravening a département health regulation on manure
tipping, the Court of Cassation pointed out: "imprisonment in default
is not a penalty. It is a means of enforcement automatically attached
to any pecuniary order made by a criminal court and satisfies the
requirements of both Article 5 [para. 1] (b) (art. 5-1-b) of the
Convention ... and Article 2 of Protocol No. 4" (P4-2). Thus the laws
that govern imprisonment in default are applicable immediately, even
to situations which arose before they came into force, and time spent
in pre-trial detention is not set off against the term of imprisonment
When a criminal court orders imprisonment in default, it does not
have power to vary its duration, which is laid down by law
(Articles 749 and 750 of the CCP - see paragraph 17 below; Court of
Cassation, Criminal Division, 25 July 1991, Juris-Classeur périodique
1991, IV, 383). In certain circumstances, as an exception to the
ordinary law, the customs authorities can obtain enforcement of a
warrant of committal for default before it becomes final (Article 382
of the Customs Code - see paragraph 18 below).
16. Three different codes are relevant to this case.
(a) The Code of Criminal Procedure
17. The Code of Criminal Procedure provides as follows:
"Where an order to pay a fine or court costs or to pay the
Treasury any other sum not in the nature of civil damages is made
in respect of an offence which is not political and does not
attract a sentence of life imprisonment, the length of
imprisonment in default applicable in the event of failure to
comply shall be as laid down in Article 750.
Where appropriate, the length shall be determined according to
the total amount of debt outstanding."
The reference to court costs was deleted by Law no. 93-2 of
"The length of imprisonment in default shall be
1. five days where the fine and the sums whose payment has
been ordered amount to at least 1,000 francs but do not exceed
2. ten days where they amount to more than 3,000 francs but
3. twenty days where they amount to more than 10,000 francs
but not more than 20,000 francs;
4. one month where they amount to more than 20,000 francs but
5. two months where they amount to more than 40,000 francs but
6. four months where they exceed 80,000 francs."
"Imprisonment in default may not be enforced in respect of
convicted persons who prove that they are insolvent ..."
"A sentence of imprisonment in default shall be served in a
short-stay prison, in the wing designated for that purpose."
"Any person who has been sentenced to imprisonment in default may
prevent or terminate its enforcement either by paying or
depositing a sum sufficient to extinguish his debt or by
providing a surety recognised as suitable.
The surety's recognisance shall be taken by the collector of
taxes. Where the surety's suitability is contested, the issue
shall be determined by the president of the tribunal de grande
instance, exercising his jurisdiction to make interim orders on
The surety must discharge the debt within one month, failing
which proceedings may be taken against him.
Where the debt has not been paid in full, and subject to the
provisions of Article 760, an application for a new warrant of
committal may be made in respect of the outstanding sum."
"Where imprisonment in default has ended, for whatsoever reason,
it may not be imposed again either in respect of the same debt
or in respect of orders to pay made before its enforcement,
unless these orders are for sums in respect of which the term of
imprisonment in default is longer than the term already served,
in which case the first period of imprisonment must always be
"Imprisoned debtors shall be subject to the same regime as
convicted persons, without however being required to work."
"A convicted person who has been imprisoned in default of payment
shall not be absolved from the obligation to make the payments
in respect of which he has been imprisoned."
18. The following provisions of the Customs Code are relevant:
"1. Judgments concerning customs offences may be executed by
2. Judgments by which persons are convicted of offences
against customs legislation shall also be enforceable by
"A person convicted of a customs offence or an offence relating
to indirect taxation may, where the court makes an express order
to this effect, be held in custody, even if an ordinary appeal
or an appeal on points of law has been lodged, until he has paid
the fiscal penalties imposed on him; save in the case of drug
offences, any period of detention served on that account
following conviction shall be set off against the imprisonment
in default ordered by the court and may not exceed the minimum
period laid down in the Code of Criminal Procedure for failure
to comply with an order to pay a sum equal to the fiscal
"Smuggling and undeclared importation or exportation shall be
punishable, where the contraband goods are prohibited or attract
a high rate of duty within the meaning of this Code, by a term
of imprisonment not exceeding three years, confiscation of the
contraband goods, confiscation of the means of transport,
confiscation of articles used to conceal the offence and a fine
of not less than the value and not more than twice the value of
19. Article L. 627-6, second paragraph, of the Public Health Code
"As an exception to the provisions of Article 750 of the Code of
Criminal Procedure, the length of imprisonment in default shall
be two years where fines and any other pecuniary penalties
imposed for one of the offences mentioned in the preceding
paragraph [breaches of provisions of statutory instruments
concerning poisonous substances or plants classified as dangerous
drugs] or for the related customs offences exceed
20. Article L. 627-6 was repealed by Law no. 92-1336 of
16 December 1992, called "the adapting law", on the entry into force
of the new Criminal Code and the amendment of certain provisions of
criminal law and criminal procedure made necessary by its commencement.
It was replaced by Article 706-31 CCP, which came into force on
"Prosecution for the offences defined in Articles 222-34 to
222-38 of the Criminal Code shall be subject to limitation after
ten years. The sentence pronounced on conviction of one of these
offences shall be subject to limitation after twenty years from
the date on which the conviction became final.
As an exception to the provisions of Article 750, the length of
imprisonment in default shall be two years where fines and any
other pecuniary penalties imposed for one of the offences
mentioned in the preceding paragraph or for the related customs
offences exceed 500,000 francs."
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Jamil applied to the Commission on 13 November 1989. He
complained that the Paris Court of Appeal's order that the term of
imprisonment in default should be increased breached Article 7
22. The Commission declared the application (no. 15917/89) admissible
on 30 November 1992. In its report of 10 March 1994 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 7 (art. 7). The full text of the Commission's
opinion and of the concurring opinion contained in the report is
reproduced as an annex to this judgment (1).
1. Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 317-B of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
23. In their memorial the Government asked the Court "to hold that
there has been no violation of Article 7 (art. 7) of the ... Convention
24. The applicant asked the Court "to hold that imprisonment in
default in connection with drug offences is a penalty, to which
Article 7 (art. 7) of the ... Convention ... is applicable".
I. ALLEGED VIOLATION OF ARTICLE 7 para. 1 (art. 7-1) OF THE
25. Mr Jamil complained of the prolongation - by twenty months - of
the term of imprisonment in default ordered by the Paris Court of
Appeal pursuant to a law enacted after the offence was committed. He
contended that this infringed the principle that penalties must not be
applied retrospectively, as enunciated in Article 7 (art. 7) of the
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
2. This Article (art. 7) shall not prejudice the trial and
punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations."
A. Applicability of Article 7 para. 1 (art. 7-1)
26. The main question to be resolved is whether the measure provided
for in Article 749 of the Code of Criminal Procedure is a penalty
within the meaning of the second sentence of Article 7 para. 1
27. The applicant asserted that Article 749 prohibited the imposition
of imprisonment in default in a civil matter. He emphasised that, in
addition to criminal proceedings, the public prosecutor's office could
bring an ancillary action on behalf of the customs for the imposition
of fiscal penalties. It followed that imprisonment in default and the
fine whose payment it was intended to ensure were penalties, as the
fine could not be a substitute for customs duties not collected when
prohibited goods were illegally imported. The applicant also
complained that the imposition of imprisonment in default was automatic
and that the fines for drug trafficking were so heavy that in practice
convicted offenders had no means of paying them.
28. The Commission agreed with Mr Jamil's argument in substance.
29. The Government contended that Article 7 (art. 7) was not
applicable in the case as imprisonment in default was not a penalty.
Customs fines, even supposing that they determined the nature of
imprisonment in default, were intended to indemnify and compensate.
They were calculated on the basis of the value of the contraband goods,
not the debtor's ability to pay, and were designed to make good the
pecuniary and non-pecuniary damage sustained by the customs through the
illegal import of prohibited goods.
Deprivation of liberty through imprisonment in default, which was
in any event permitted under Article 5 para. 1 (b) (art. 5-1-b) of the
Convention, did not belong to the "criminal" sphere (matière pénale)
within the meaning of Article 6 (art. 6) thereof. It was a means of
enforcing payment of a debt to the State directed against the debtor's
person, not imprisonment in lieu of payment, and punished not the
commission of an offence but failure to comply with a pecuniary order.
It was similar to seizure of movable or immovable property, which
resulted in deprivation of possessions.
Failure to pay a sum of money was not a criminal offence in
French law, and only a particular category of persons could be
defaulters. The rule complained of did not therefore concern virtually
the whole population, but only debtors whose solvency had been proved
and who refused to discharge their debt. The severity of the detention
was not by itself the decisive factor, and the conditions of that
detention also took it out of the criminal sphere. The prisoner was
not entitled to remission, pardon, parole or rehabilitation. There was
no qualifying period for external placements, semi-liberty or leave.
The prisoner could not be prosecuted for escape, and the period of
detention on remand was not set off against imprisonment in default.
Above all, enforcement of imprisonment in default did not extinguish
the debt or absolve the debtor from the obligation to pay, since he was
released only if he paid part of the fine or furnished proof of his
insolvency. There was no criminal justice system in which an
obligation would continue to exist in this way after enforcement of a
30. The Court reiterates that the word "penalty" in Article 7
para. 1 (art. 7-1) is autonomous in meaning. To render the protection
afforded by Article 7 para. 1 (art. 7-1) effective, the Court must
remain free to go behind appearances and assess for itself whether a
particular measure amounts in substance to a "penalty" within the
meaning of this provision (art. 7-1) (see, as the most recent
authority, the Welch v. the United Kingdom judgment of 9 February 1995,
Series A no. 307-A, p. 13, para. 27).
31. The wording of Article 7 para. 1 (art. 7-1), second sentence,
indicates that the starting-point in any assessment of the existence
of a penalty is whether the measure in question is imposed following
conviction for a "criminal offence". Other factors that may be taken
into account as relevant in this connection are the characterisation
of the measure under national law; its nature and purpose; the
procedures involved in the making and implementation of the measure;
and its severity (see the Welch judgment previously cited, p. 13,
32. The Court notes that the sanction imposed on Mr Jamil was ordered
in a criminal-law context - the prevention of drug trafficking. It
observes, however, that in France imprisonment in default is not
confined to this single, ordinary-law field. As it is a means of
enforcing the payment of debts to the Treasury other than those
partaking of the nature of civil damages, it can also be attached to
penalties for customs or tax offences, among others.
In order to determine how imprisonment in default should be
classified for the purposes of Article 7 (art. 7), it is therefore
necessary also to ascertain its purpose and the rules which govern it.
The measure in question is intended to ensure payment of fines, inter
alia, by enforcement directed at the person of a debtor who cannot
prove his insolvency, and its object is to compel such payment by the
threat of incarceration under a prison regime. This regime is harsher
than for sentences of imprisonment under the ordinary criminal law,
mainly because it is not attenuated as they are by such measures as
parole or pardon. Imprisonment in default is a survival of the ancient
system of imprisonment for debt; it now exists only in respect of debts
to the State and does not absolve the debtor from the obligation to pay
which led to his committal to prison. Although he can no longer
thereafter be compelled to pay by means directed against his person,
his goods are still subject to distraint. It is not a measure which
can be likened to the seizure of movable or immovable property referred
The sanction imposed on Mr Jamil was ordered by a criminal court,
was intended to be deterrent and could have led to a punitive
deprivation of liberty (see, mutatis mutandis, the Engel and Others v.
the Netherlands judgment of 8 June 1976, Series A no. 22, p. 35,
para. 82, and the Öztürk v. Germany judgment of 21 February 1984,
Series A no. 73, p. 20, para. 53). It was therefore a penalty within
the meaning of Article 7 para. 1 (art. 7-1) of the Convention.
Admittedly, the applicant was absolved from the obligation to pay
a substantial part of the customs fine, although he had never been made
to serve any period of imprisonment in default, a fact for which the
Government have not supplied any explanation. However, that exemption
does not suffice to invalidate the foregoing analysis.
33. In short, Article 7 para. 1 (art. 7-1) is applicable in the case.
B. Compliance with Article 7 para. 1 (art. 7-1)
34. The Court notes that at the time when the offences of which
Mr Jamil was convicted were committed, the maximum period of
imprisonment in default to which he was liable was four months (see
paragraphs 10 and 17 above). The Paris Court of Appeal nevertheless
applied a new law which had increased the maximum to two years (see
35. No one contested that in the instant case this law on the
prevention of drug trafficking was applied retrospectively (see
36. It follows that there has been a breach of Article 7 para. 1
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
37. Under Article 50 (art. 50),
"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
38. Mr Jamil first claimed compensation for non-pecuniary damage,