Information Note on the Court’s case-law No. 116
February 2009
Grifhorst v. France - 28336/02
Judgment 26.2.2009 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Disproportionate customs penalty consisting of automatic confiscation plus a fine:
Facts: In 1996, on his way into France from Andorra, the applicant was stopped by French customs officers. He told the customs officers that he had no money to declare. The officers searched the applicant, his bag and his vehicle and found 500,000 Netherlands guilders (EUR 233,056). The applicant was found guilty of failure to comply with the obligation under Article 464 of the Customs Code to declare money, securities or valuables. He was sentenced, under Article 465 of the Customs Code, to the confiscation of the full amount plus a fine equal to half the amount he had failed to declare, and to immediate imprisonment. The sentence was upheld on appeal and the Court of Cassation dismissed an appeal on points of law.
Law: Concerning the confiscation of the sum the applicant was carrying, although the measure had deprived him of a possession, it had been a form of control of the use of property. It had been provided for by law, in a manner that was adequately clear, accessible and foreseeable, and had pursued an aim that was in the public interest. The only offence the applicant was known to have committed was that of deliberately not declaring the money he had been carrying across the border into France. The penalty imposed on the applicant had combined the confiscation of the full sum he had been carrying and a fine of half that amount. Under Article 465 of the Customs Code as applicable at the material time, failure to declare money automatically led to confiscation of the full amount; the domestic courts could change only the size of the fine (from 25 to 100% of the sum not declared). However, the law had since been amended following a reasoned opinion of the European Commission of July 2001. The version that entered into force on 1 October 2004 no longer provided for automatic confiscation and the fine had been reduced to a quarter of the sum not declared. The undeclared sum was henceforth sequestered for a maximum period of six months, during which time its confiscation could be ordered by the competent courts when there was evidence or a reasonable suspicion that the person had committed or taken part in other offences under the Customs Code. That solution struck a fair balance between the general interest and the need to protect individual rights. Lastly, most of the international and Community instruments applicable referred to the need for penalties to be “proportionate”. In view of the above and in the particular circumstances of the present case, the penalty imposed on the applicant, combining confiscation and a fine, had been disproportionate to the offence committed and a fair balance had not been struck.
Conclusion: violation (unanimously).
Article 41 – The question was not ready for decision and was reserved (six votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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