(TRANSLATION) THE FACTS The facts of the case may be summarised as follows : The applicant, who is a Zairese national, was botn in 1951 at Kinshasa . He is a student and resides in Paris . In the proceedings before the Commission he is represented by Jean-Paul Comben8gre, barrister at the Paris Court of Appeal . In July 1979 the applicant, who was at the time planning to marry a young woman of Ivory Coast nationality in France, had asked one of his relatives employed by the Air Zaire company to send him various samples of food from his country . On 25 July 1979 the applicant received through the Paris Agency of the abovementioned company a telex advising him to go to the airport on Saturday 28 July 1979 to collect a "package" for his marriage, arriving on flight QC 010 . On Saturday 28 July he therefore went to the airport to collect this package . However, at the airport he found no package bearing his name . The applicant then spoke to an Air Zaïre official at Roissy, who indicated a trunk which bore no name but which had not been collected . At the same time this official sought discreetly to make it clear to the applicant that this trunk was likely to contain prohibited goods and recommended him not to take it . The applicant nevertheless took possession of the trunk and, since it was larger than the package he had expected, he telephoned his brother to ask him to wait at the Porte Maillot terminal which was close to where they lived, in order to help him carry the trunk . It was in those circumstances that, after having passed through customs without any trouble, the applicant was challenged . He was in the company of three other Zairese nationals whom he had just met at the airport and whom he had engaged in conversation. The applicant immediately admitted that the tmnk was intended for him and ruled out any complicity on the part of his three fellow-country men . When the trunk was opened it was found to contain ten kilograms of cannabis . The applicant's brother was himself arrested at Porte Maillot . However, in the meantime, Air Zaire flight No . QC 010 had left for its final destination, Brussels . It was there that a bag bearing the applicant's name and address was unloaded. It contained African foodstuffs in poor condition . The applicant and his brother were charged with smuggling prohibited goods . In the course of the investigation, two of the three Zairese nationals who were present at the scene in the airport stated that a Zairese woman had also been there and had declared that the contested trunk belonged to her . 106 These statements led tothe charging of M .K., +Lrelative oT this wonnw . By an order tlated 25 August 1980, the investigating judge committed tie two Salabiaku brothers and M.K. for trial before the crirninal court at Bobign y By judgment of 27 Mari ;h 1981, that r.ourt ordered the discharge of the applicant's brother and :W.K. They found the applicant guilty of having (a) "contravened the publlc health provisions concenting poisonous substances classiSed as narcotics (Articles L 626, L 627, L 629 and L 630-1 and R 5165 et seq. of the Public Health Code) ; and (b) "committed the constructive offence of smuggling prohibited g ;oods" (Articles 38-014, 417, 419, 215, 4 .;5 of the Customs Code and 42, 43-1 etc. ; 44 of the Crinilnal Code). It sentericed the applic,anfto two years' imprisonment . In addition, accepting the submissions of the cuslums authoritié<.. in this respect, thc court ordered the applicE .nt to pay ei customs fineof 100,00) FF . The applicantappealed against lhis decision . Before the Court of Appeal, he stressr-d that he had nnt been aware of the real contents of the trmdc which he had raken possession of at P:oissy and had mistakenly believed that he had collected the package which in facr arrived in Brussels and which was intended for him . 'Theapplicant therefore submitted that the court'should order his acquittal in thecrintinal prosecution andthus fmd the civil action brought by the castoms authorities inadmis<.ible. In particular, the applicant emphasisedthat his actien constituted an unavoidable en'or which defeated any presumption of fraud relating to possession of the goods . By ajudgment of 9 February 1982, the Paris Cou:4 of Appeal set aside the judgment and ordered the applicant's acquittal, according him the beneSt of the doubt, in the ciiminal prosecution for breach of the nareotics laws (Public Health Code) . However, tlte court upheld the decision regarding thecustoms offence of smnggling prohibih :d goods (Customs Code) and confirmed the decision ordering the applicant to pay a customs fine of 100,000 The applicam : appealed against this decisionto the Court of Cassation clainilng that by making a presumption of the accused's guilt operating in favour of the customs amhorities the Court of Appeal had infringed: Article 6 para. 1 of the Convention and that b} establishing a virtually itrebuttable presumption of the acvsed's guilt the Court of Appeal had further infringed Articlc 6 para . 2. However, by ajudgment delivered on 21 February .1983, the crimioal chamber of the Court of Cassation dismissed the applicant's aPPed. , . ~ 107 COMPLAINTS The complaints may be summarised as follows : The applicant alleges a violation of Article 6 paras. I and 2 of the Convention . Article 392 of the French Customs Code provides as follows : "A person in possession of smuggled goods is deemed liable for the offence . " This provision does not satisfy certain requirements of A rticle 6 of the Convention . Article 392 of the Customs Code p rovides for a double presumption in respect of the person in possession, namely that of his responsibility for goods and of his guilt . Using this approach the moral element of the offence is reduced to a minimum requirement by the effect of a presumption of responsibility : the law infers from material facts the prior existence of criminal intent ; a mere factual finding points to the existence of the offence . Under the French classification of offences, customs offences, including that provided for in Article 392 of the Customs Code, are offences of "absolute" or "strict" liability . The burden of proof falling on the prosecution (public prosecution or Customs and Excise) is considerably reduced inasmuch as, by showing the existence of facts constituting a breach of criminal law, the prosecution establishes both the factual and the moral element of the offence. Moreover, the person in possession, and therefore presumed guilty, cannot overmrn that presumption . The French courts have shown particular severity in requiring that the existence of unavoidable error be established. As certain academic writers have pointed out, the presumption is in reality "virtually irrebuttable" . The arguments advanced by the French legislature and the authorities to justify the existence of the provisions in question, namely specific policy requirements relating to customs offences, and the need to preserve public order and to safeguard national interests, cannot disguise the fact that they conflict wi th several of the principles laid down in the Convention. Alleged violation of Article 6 para. I of the Convention If one of the parties in a criminal trial is entitled to rely on a principle allowing him to presume directly the accused's criminal intent from a material fact such as the mere possession of an article and benefits from a considerable easing of the burden of proof falling on him, then clearly the theoretical equality of the parties to the proceedings which the general principles of criminal law procedure are supposed to guarantee no longer exists . It follows that Section 392 of the Customs Code overtly infringes the principle of a fair trial . 108 Indeed, in ttte present case ttie Court of Cassation drew attention to the breach of the "fair trial" principle by holding that Article 392 of the Customs Code had not been implicitly repealed by France's accession to thr, Convention and should therefore be applied if the C'ourt of Appeal, which took its decision on the basis of evidence argued before it by both the pariies found Ihat Ihe accused had taken possession of the package in question and inferred from this material fact of possession a prestmtption wltich was not defeated bn any evidence of an e.vent for which the perpetcatoi- of thc offence was not responsible or which it was impossible for him to avoid. 2. Alleged vidlation of Article 6 para . 2 of the Conv.ntion .Similarly,ttiedualpresumptionofresponsibiliryforfactsandofguiltprovide d for in Article 392 of the Customs Code and the very resaictive principles laid down by the criniinal chamber of Ihe French Court of Cassation and lower courts, had the effect of challenging the presumption of innocence ecn which theaeeused is entiiaed to rely. Cnce the material fact such as possession has been established, the accused is virtually precluded from relying on the presumption of innoeence laid down in his favour . On the contrary, it is ultimately a presumplion of guilt which will, to say the least, operate against the accused . In thiis instauce it is particularly significant that the Paris Court of Appeal wa s able to aaluit the applicant, albeit by according him the benefit of the doubt, in the criminal proceedings for the unlawful importation of narcotics, whilst finding him guilty of the customs offene. and ordering him to pay the sum oï 100,000 FF to the customs anthorities . Only the dual presump [ion of responsibility and guili: laid down in the contested legislacion can explain why on the same facts the same accused can be presumed innoce?t in one case and be prevented frorn relying on thc presurnption of innocence in the other. In the appli,ant's view, this state of affairs does not satislÿ the requirements either of paragraph 1 or of paragraph 2 of Article 5. THE LAW The applicant alleges a breach of paragraphs 1 and 2 of Article 6 of the Convention, considering tbat, as applied in this instance, Article 392 of the Customs Code which provides that "the person in possession of the smuggled goods is deerned liable for the offence" does not satisfy certain of the requiremeni :s laid down in Article 6 of the Convention. 109 This provision provides as follows : "1 . In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entided to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . . 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law . The applicant considers that it cannot be argued in this case that the rule of equality of arms inherent in the notion of a fair trial laid down in Article 6 para . 1 of the Convention was complied with where the court accepted a virtually irrebuttable presumption of the accused's guilt in favour of the customs authorities, inferred from mere possession of an article . Nor, in the applicant's view, is it possible to maintain that the principle of the presumption of innocence laid down in Article 6 para . 2 of the Convention was complied with insofar as the reversal of the burden of proof means that, although in the position of accused, the defendant has to provide proof of his innocence . The Government dispute these assertions . They argue that the provisions of Section 392 of the Customs Code, as applied, do not contravene any of the principles laid down in Article 6 of the Convention . In their view these provisions do not establish a presumption of guilt but rather a presumption of liability, which requires only determination of the material responsibility for the facts constituting the offence. Thus modified rules of evidence exist in customs law . The Government also contend that the easing of the burden of proof falling on the prosecution is not incompatible with a fair trial under Article 6 para . 1. Moreover, the Convention does not require that the prosecution bear the entire onus of proof. Finally, according to the Government, the presumption established in Article 392 of the Customs Code is not contrary to the presumption of innocence laid down in Article 6 para . 2 of the Convention and in no way replaces it . They note that, according to the decisions of the Convention organs, Article 6 para. 2 concerns only charges brought against individuals and not evidence produced in domestic courts. It is not disputed between the parties that customs offences such as those covered by Article 392 of the Customs Code fall within the category of criminal offences . They are derived from the body of laws annexed to the Criminal Code and have their own distinct characteristics, particularly the customs offences . The fact remains that the proceedings at issue fall within the scope of Article 6 of the Convention which covers any proceedings concerning the determination of a criminal charge . 110 The question therefore arises whether, as the applic :mt claims, the application of Section 392 of the Customs Code in ttie present case gave rise to an inequality of arms between the parties to the ixial in view of the virtually irrebuttable presuniption operating in favour of one of [hem, on the basis of the possession of an article . Does this state of affairs mean that the trial was unfair, in breach of Article 6 para. 1 of the Convention, whieh requires a certain "balance" or "equal treatment" in the proceedings, as is clear froin the decisions of the E?uropean Commission and Court of Human Rights (Eur . Court H.R., BSnisch judgmem of 6 May 1985, Series A no . 92, para. 28 et seq .) ? The Commission notes in addition ithat where a criminal charge is laid :my defendant or accused is presumed innocent until his guilt has been formally established by a definitive judicial decision, in other words a decision which has become fmal. This presuinption meâüs that the accused orthe defendsmt is accürded the benefit of the doubt and that the ourden of proof lies on the prosecution . It is therefore necessaiy to consider whether the principle of the presurnption of innocence laid down in Article 6 para . 2 of the Convention was complied with despite the doublr, presumption of material responsibility for facts and liability laid down in Article 392 of the Customs Code, which rnighr . lead to an accused being compelled to provide proof of tiis innocence (see No, 5124/71, Dec . 19.7.72, Çollection 42 p. 135) . The Commission take< the view on the basis of a preliminary examination of the patties' submissions, of its oivn previous decisions and those of the European Court of H[uman ]3ights, tha4 the complaints put forward by the applicant in conneotion with Article 6 paras. I and 2 raise questions of interpretation which are sufficientlv complex and importaut to require an examination of the merits of the applicatiori and, accordingly, that the said application caunot be declared manifestly ill-founded withm the meaning of Article 27 para . 2 of the Convention . For these reasons, the Commission DECLARES THE APPLICATION ADMISSIBLE, without in any way prejudging rhe merits of the case. 111