RIHA – France  (N^o 71443/01)

Decision 24.6.2004  [Section III]

The applicant was prosecuted for failure to pay income tax. At first instance and on appeal, the trial judges found him guilty and sentenced him to one year’s imprisonment, suspended, and to a fine, and imposed the additional penalty of a prohibition on practising his profession for five years. The applicant appealed on points of law, arguing that the maximum duration of the additional penalty had been fixed at three years in the applicable legislation. The Criminal Division of the Court of Cassation quashed and annulled the applicant’s sentence of five years’ prohibition on practising his profession, as this duration exceeded the statutory maximum duration of three years. Noting that it was entitled to apply the law directly on the basis of the facts as found and assessed by the lower courts in the exercise of their exclusive jurisdiction, the Court of Cassation decided not to send the case back to the trial court, as the Code of Judicial Organisation authorised it to do in a case of this sort, and determined the dispute with final effect by fixing the duration of the additional penalty at three years. 

Inadmissible under Article 6(1): The bar on professional activity for five years had been imposed by the first-instance court, so that the applicant had had an opportunity to challenge it on appeal and then, successfully, to apply to the Criminal Division arguing that the statutory limit on the duration of such a measure had been disregarded. Equally, the applicant did not allege that the Criminal Division had possibly based its decision on facts other than those “found and assessed by the lower courts in the exercise of their exclusive jurisdiction”. Clearly, in fixing the duration of the prohibition at three years, the Division in question had confined itself to correcting the error in law committed by the lower courts:  manifestly ill-founded.

[Application of the approach taken with respect to a similar complaint concerning proceedings before the Conseil d’Etat; see the judgment in APBP v. France of 21 March 2002, no. 38436/97. See the summary in Case-law Information Note No. 40 of March 2002.]