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URL: http://www.bailii.org/eu/cases/ECHR/1993/5.html
Cite as: (1993) 16 EHRR 357, [1993] ECHR 5, 16 EHRR 357

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In the case of Crémieux v. France*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention")** and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr N. Valticos,

Mr J.M. Morenilla,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 24 September 1992 and

27 January 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 83/1991/335/408. The first number is the case's

position on the list of cases referred to the Court in the relevant

year (second number). The last two numbers indicate the case's

position on the list of cases referred to the Court since its creation

and on the list of the corresponding originating applications to the

Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came into

force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 December 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. 11471/85) against the French Republic lodged with the

Commission under Article 25 (art. 25) by a national of that State,

Mr Paul Crémieux, on 11 March 1985.

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 Articles 8, 6 para. 3 and 10 (art. 8, art. 6-3,

art. 10).

2. 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).

3. On 24 January 1992 the President of the Court decided, under

Rule 21 para. 6 and in the interests of the proper administration of

justice, that a single Chamber should be constituted to consider the

instant case and the cases of Funke and Miailhe v. France*.

_______________

* Cases nos. 82/1991/334/407 and 86/1991/338/411.

_______________

The Chamber to be constituted for this purpose 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 the same day, 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 C. Russo, Mr N. Valticos, Mr J.M. Morenilla, Mr M.A. Lopes Rocha and

Mr L. Wildhaber (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. 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

proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the applicant's memorial on

16 June 1992 and the Government's memorial on 19 June. On 17 July the

Secretary to the Commission informed the Registrar that the Delegate

would submit his observations at the hearing.

On 24 July the Commission produced the file on the proceedings

before it, as requested by the Registrar on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 September 1992. The Court had held a preparatory meeting

beforehand. Mr R. Bernhardt, the Vice-President of the Court, replaced

Mr Ryssdal who was unable to take part in the further consideration of

the case (Rule 21 para. 5, second sub-paragraph).

There appeared before the Court:

(a) for the Government

Mr B. Gain, Head of the Human Rights Section,

Department of Legal Affairs, Ministry of

Foreign Affairs, Agent,

Miss M. Picard, magistrat, on secondment to the

Department of Legal Affairs, Ministry of

Foreign Affairs,

Mr J. Carrère, magistrat, on secondment to the

Department of Criminal Affairs and Pardons,

Ministry of Justice,

Mrs C. Signerinicre, Head of the Legal Affairs Office,

Department of Customs, Ministry of the Budget,

Mrs R. Codevelle, Inspector of Customs,

Department of Customs, Ministry of the Budget,

Mr G. Rotureau, Chief Inspector of Customs,

Strasbourg Regional Head Office of Customs, Counsel;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Ms C. Imbach, avocate, Counsel.

The Court heard addresses by Mr Gain for the Government,

Mr Trechsel for the Commission and Ms Imbach for the applicant.

AS TO THE FACTS

I. The circumstances of the case

6. Mr Paul Crémieux, a French citizen born in 1908, is retired and

lives at his female companion's home in Marseilles. At the material

time he was chairman and managing director of SAPVIN, a wholesale wine

firm, whose head office is in Marseilles.

A. The house searches and seizures of documents

7. In October 1976, in the course of an investigation into the

SODEVIM company, customs officers seized documents relating to business

transactions between SAPVIN and foreign firms.

8. Thereafter, from 27 January 1977 to 26 February 1980, the

customs authorities carried out eighty-three investigative operations

in the form of interviews and of raids on SAPVIN's head office, on the

applicant's home and at other addresses of his and on the homes of

other people, during which further items were seized.

Each of the house searches was made under Articles 64 and 454

of the Customs Code (see paragraphs 19-20 below). They were conducted

by officials from the National Customs Investigations Department ("the

DNED") in the presence of a senior police officer (officier de police

judiciaire); a report was made on each of them and they all led to

Mr Crémieux's being subsequently interviewed.

9. Several such searches were made on 23 January 1979.

One of them began at 7 a.m. at the applicant's Paris home, in

his absence. The customs officers were received by Mr Crémieux's son;

they inspected the office and took away 518 documents, some of which,

according to Mr Crémieux, had no connection with the customs

investigation. The son initialled the inventory of documents. The

applicant, who had arrived at 9.10 a.m., signed the report together

with his son; he denied having been able, as the Government maintained,

to go through the documents.

Another search began at 8 a.m. at the home of Mr Crémieux's

female companion, whom, the applicant claimed, the DNED officials had

followed into the bathroom when she said she wanted to put on a

dressing-gown. Numerous personal papers were seized.

Searches were also made of the homes of other people, who had

business relations with the applicant and his company.

10. On 24 January and 17 May 1979 Mr Crémieux was questioned by

customs officers.

On 16 February 1979 they opened the private strongbox he had

at SAPVIN's head office and took seventeen documents from it.

B. The court proceedings

1. The criminal proceedings against the applicant

11. On a complaint by the Mediterranean Interregional Head Office

of Customs, the Marseilles public prosecutor's office began a judicial

investigation in respect of Mr Crémieux and seven other people and

passed the case to a local investigating judge on 16 June 1981.

12. On 29 November 1982 this judge charged the eight with offences

against the legislation and regulations governing financial dealings

with foreign countries.

The customs agreed to compound with those charged (see

paragraph 23 below) - Mr Crémieux was to pay 1,400,000 French francs

(FRF) and SAPVIN FRF 20,000,000 - and the judge accordingly issued a

discharge order on 16 June 1987.

2. The applicant's proceedings to have the reports and

seizures declared null and void

(a) Before the Marseilles investigating judge

13. On 8 August 1983 and 4 and 11 April 1984 Mr Crémieux applied

to the Marseilles investigating judge for a declaration that the

customs officers' reports on the facts and on the seizures were null

and void.

On 24 April 1984 the judge made an order that the file on the

investigation in respect of Mr Crémieux and those charged with him

should be sent to the Marseilles public prosecutor for an opinion.

The customs authorities and the public prosecutor's office

submitted that the relevant reports were valid and the house searches

lawful.

(b) In the Indictment Division of the

Aix-en-Provence Court of Appeal

14. On 22 June 1984 the investigating judge made an order whereby

the case was referred directly to the Indictment Division of the

Aix-en-Provence Court of Appeal for a decision on the lawfulness of the

proceedings (Article 171 of the Code of Criminal Procedure).

15. On 30 July 1984 the Indictment Division held that all the

impugned reports were valid.

In the terms set out below, it dismissed an application by

Mr Crémieux for a declaration that Articles 454 and 64 of the Customs

Code had ceased to have effect in the light of the principles laid down

in the Constitutional Council's decision of 29 December 1983 (Official

Gazette (Journal officiel), 30 December 1983, p. 3871):

"Paul Crémieux relied on the fact that in this decision the

Constitutional Council held that 'in order expressly to

satisfy the requirements not only of the liberty of the

individual and the inviolability of the home but also of the

fight against customs evasion, the provisions of Article 89 of

the Budget Act 1984 should have been accompanied by provisions

and clarifications precluding any improper interpretation or

practice and, accordingly, could not, as they stood, be held

to be constitutional'.

The Indictment Division, however, cannot rule on the

constitutionality of Articles 454 and 64 of the Customs Code

in whatever form or context such unconstitutionality is

pleaded.

This is because Article 27 of the Criminal Code provides

that 'any judge ... who stays or suspends the application of

a statute ...' shall be guilty of criminal malfeasance in

public office."

The Indictment Division did not rule on the issue - raised by

the applicant before the investigating judge - whether the disputed

customs measures were compatible with Article 8 (art. 8) of the

Convention.

(c) In the Court of Cassation

16. Mr Crémieux appealed on points of law. In the first of his

three grounds he relied on, inter alia, the Convention:

"Violation on account of the refusal to apply Articles 62

and 66 of the Constitution of 4 October 1958 and Article 8

(art. 8) of the Convention ..., violation through improper

application of Articles 64 and 454 of the Customs Code and of

Article 593 of the Code of Criminal Procedure;

In that the Court of Appeal in the judgment appealed against

upheld the validity of the house searches made by customs

officers accompanied by a senior police officer (officier de

police judiciaire) between 27 January 1977 and

26 February 1980 under Articles 64 and 454 of the Customs

Code, and in particular the one made on 23 January 1979 at the

applicant's home;

On the grounds that the Indictment Division cannot rule on

the constitutionality of Articles 454 and 64 of the Customs

Code in whatever form or context such unconstitutionality is

pleaded and that Article 127 of the Criminal Code indeed

provides that 'any judge ... who stays or suspends the

application of a statute' shall be guilty of criminal

malfeasance in public office;

Whereas, firstly, Article 66 of the Constitution of

4 October 1958 makes the right of State officials to search

the home of an offender subject to prior judicial leave, and

Articles 64 and 454 of the Customs Code, which did not provide

for any such safeguard, before the promulgation of the

Constitution of 4 October 1958, were thus implicitly but

necessarily abrogated by the Constitution, which, by

Article 62, is directly binding on the courts without that

entailing any review of the constitutionality of legislation;

and the Indictment Division therefore contravened the

aforementioned provisions;

Whereas, secondly, the provisions of Articles 64 and 454 of

the Customs Code are incompatible with those of Article 8

(art. 8) of the Convention ..., which are directly binding on

national courts, Article 8 (art. 8) providing for the

inviolability of the home; and the Indictment Division thus

also contravened the provisions of that treaty;

Whereas, in the alternative, Articles 64 and 454 of the

Customs Code, assuming that they remained in force after the

promulgation of the Constitution of 4 October 1958, require,

in accordance with the provisions of the Constitution, that

when administrative officials search a person's home they must

have sought and obtained prior judicial leave; and that the

report on the house search is null and void unless it mentions

that this formality was complied with; on this account

likewise the Indictment Division infringed the aforementioned

provisions."

17. The Criminal Division of the Court of Cassation dismissed the

appeal on 21 January 1985. In relation to the foregoing ground it

held:

"Articles 454 and 64 of the Customs Code, as enacted by the

Act of 28 December 1966, are legislative in nature and have

never been repealed. It is accordingly not within the

jurisdiction of the ordinary courts to review their

constitutionality. Furthermore, the provisions they contain

satisfy the requirements of Article 8 (art. 8) of the

Convention ..., paragraph 2 (art. 8-2) of which allows

interference by a public authority with an individual's home

where such interference is, inter alia, 'in accordance with

the law and is necessary in a democratic society in the

interests of national security, public safety or the economic

well-being of the country, [and] for the prevention of

disorder or crime'."

II. Relevant customs law

18. The criminal provisions of customs law in France are treated

as a special body of criminal law.

A. Establishment of offences

1. Officials authorised to establish offences

19. Two provisions of the Customs Code are relevant as regards

these officials:

Article 453

"The officials designated below shall be empowered to

establish offences against the legislation and regulations

governing financial dealings with foreign countries:

1. customs officers;

2. other officials of the Ministry of Finance with the rank

of at least inspector;

3. senior police officers (officiers de police judiciaire).

The reports made by senior police officers shall be

forwarded to the Minister for Economic Affairs and Finance,

who shall refer cases to the prosecuting authorities if he

thinks fit."

Article 454

"The officials referred to in the preceding Article shall be

empowered to carry out house searches in any place as provided

in Article 64 of this code."

2. House searches

(a) The rules applicable at the material time

20. When the house search was made (23 January 1979), Article 64

of the Customs Code was worded as follows:

"1. When searching for goods held unlawfully within the

customs territory, except for built-up areas with a population

of at least 2,000, and when searching in any place for goods

subject to the provisions of Article 215 hereinafter, customs

officers may make house searches if accompanied by a local

municipal officer or a senior police officer (officier de

police judiciaire).

2. In no case may such searches be made during the night.

3. Customs officers may act without the assistance of a

local municipal officer or a senior police officer

(a) in order to make searches, livestock counts, and

inspections at the homes of holders of livestock accounts or

owners of rights of pasture; and

(b) in order to look for goods which, having been

followed and kept under uninterrupted surveillance as provided

in Article 332 hereinafter, have been taken into a house or

other building, even if situated outside the customs zone.

4. If entry is refused, customs officials may force an entry

in the presence of a local municipal officer or a senior

police officer."

(b) The rules applicable later

21. The Budget Acts of 30 December 1986 (section 80-I and II) and

29 December 1989 (section 108-III, 1 to 3) amended Article 64, which

now provides:

"1. In order to investigate and establish the customs

offences referred to in Articles 414-429 and 459 of this code,

customs officers authorised for the purpose by the Director-

General of Customs and Excise may make searches of all

premises, even private ones, where goods and documents

relating to such offences are likely to be held and may seize

them. They shall be accompanied by a senior police officer

(officier de police judiciaire).

2. (a) Other than in the case of a flagrant offence

(flagrant délit), every search must be authorised by an order

of the President of the tribunal de grande instance of the

locality in which the customs headquarters responsible for the

department in charge of the proceedings is situated, or a

judge delegated by him.

Against such an order there shall lie only an appeal on

points of law as provided in the Code of Criminal Procedure;

such an appeal shall not have a suspensive effect. The time

within which an appeal on points of law must be brought shall

run from the date of notification or service of the order.

The order shall contain:

(i) where applicable, a mention of the delegation

by the President of the tribunal de grande instance;

(ii) the address of the premises to be searched;

(iii) the name and position of the authorised

official who has sought and obtained leave to make the searches.

The judge shall give reasons for his decision by setting out

the matters of fact and law that he has accepted and which

create a presumption in the case that there have been unlawful

activities of which proof is sought.

If, during the search, the authorised officials discover the

existence of a bank strongbox which belongs to the person

occupying the premises searched and in which documents, goods

or other items relating to the activities referred to in

paragraph 1 above are likely to be found, they may, with leave

given by any means by the judge who made the original order,

immediately search the strongbox. Such leave shall be

mentioned in the report provided for in paragraph 2(b) below.

The judge shall take practical steps to check that each

application for leave made to him is well-founded; each

application shall contain all information in the possession of

the customs authorities that may justify the search.

He shall designate the senior police officer responsible for

being present at the operations and keeping him informed of

their progress.

The search shall be carried out under the supervision of the

judge who has authorised it. Where it takes place outside the

territorial jurisdiction of his tribunal de grande instance,

he shall issue a rogatory letter, for the purposes of such

supervision, to the President of the tribunal de grande

instance in the jurisdiction of which the search is being

made.

The judge may go to the scene during the operation.

He may decide at any time to suspend or halt the search.

The judicial order shall be notified orally to the occupier

of the premises or his representative on the spot at the time

of the search, who shall receive a complete copy against

acknowledgement of receipt or signature in the report provided

for in paragraph 2(b) below. If the occupier of the premises

or his representative is absent, the judicial order shall be

notified after the search by means of a registered letter with

recorded delivery. Notification shall be deemed to have been

made on the date of receipt entered in the record of delivery.

Failing receipt, the order shall be served as provided in

Articles 550 et seq. of the Code of Criminal Procedure.

The time-limits and procedures for appeal shall be indicated

on notification and service documents.

(b) Searches may not be commenced before 6 a.m. or

after 9 p.m. They shall be made in the presence of the

occupier of the premises or his representative; if this is

impossible, the senior police officer shall requisition two

witnesses chosen from persons not under his authority or that

of the customs.

Only the customs officers mentioned in paragraph 1 above,

the occupier of the premises or his representative and the

senior police officer may inspect documents before they are

seized.

The senior police officer shall ensure that professional

confidentiality and the rights of the defence are respected in

accordance with the provisions of the third paragraph of

Article 56 of the Code of Criminal Procedure; Article 58 of

that code shall apply.

The report, to which shall be appended an inventory of the

goods and documents seized, shall be signed by the customs

officers, the senior police officer and the persons mentioned

in the first sub-paragraph of this section (b); in the event

of a refusal to sign, mention of that fact shall be made in

the report.

Where an on-the-spot inventory presents difficulties, the

documents seized shall be placed under seal. The occupier of

the premises or his representative shall be informed that he

may be present at the removal of the seals, which shall take

place in the presence of the senior police officer; the

inventory shall then be made.

A copy of the report and of the inventory shall be given to

the occupier of the premises or his representative.

A copy of the report and the inventory shall be sent to the

judge who made the order within three days of its being drawn

up.

3. Customs officers may act without the assistance of a

senior police officer

(a) in order to make searches, livestock counts and

inspections at the homes of holders of livestock accounts or

owners of rights of pasture; and

(b) in order to look for goods which, having been

followed and kept under uninterrupted surveillance as provided

in Article 332 hereinafter, have been taken into a house or

other building, even if situated outside the customs zone.

4. If entry is refused, customs officers may force an entry

in the presence of a senior police officer."

B. Prosecution of offences

22. Article 458 of the Customs Code provides:

"Offences against the legislation and regulations governing

financial dealings with foreign countries may be prosecuted

only on a complaint by the Minister for Economic Affairs and

Finance or one of his representatives authorised for the

purpose."

C. Compounding

23. The customs authorities may, in certain circumstances, compound

with persons being prosecuted for customs offences or for offences

against the legislation and regulations governing financial dealings

with foreign countries (Article 350 of the Customs Code).

PROCEEDINGS BEFORE THE COMMISSION

24. Mr Crémieux applied to the Commission on 11 March 1985,

complaining of the searches and seizures made by customs officers at

his home and at other addresses of his. He relied on three provisions

of the Convention: Article 8 (art. 8) (infringement of his right to

respect for his private life, his home and his correspondence);

Article 6 para. 3 (art. 6-3) (non-compliance with mandatory

formalities); and Article 10 (art. 10) (failure to respect his freedom

of expression).

25. The Commission declared the application (no. 11471/85)

admissible on 19 January 1989. In its report of 8 October 1991 (made

under Article 31) (art. 31), the Commission expressed the opinion that

there had been no breach of Article 8 (art. 8) (by eleven votes to

seven), Article 6 para. 3 (art. 6-3) (unanimously) or Article 10

(art. 10) (unanimously). The full text of the Commission's opinion and

of the dissenting opinion contained in the report is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 256-B of Series

A of the Publications of the Court), but a copy of the Commission's

report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

26. In its memorial the Government asked the Court to dismiss all

the complaints made by Mr Crémieux.

27. Counsel for the applicant asked the Court to

"hold that there ha[d] been in the instant case a breach of

Articles 8, 10 and 6 para. 3 (art. 8, art. 10, art. 6-3) of

the ... Convention ...;

award just satisfaction under Article 50 (art. 50), having

regard to the substantial non-pecuniary damage sustained, in

the sum of FRF 500,000;

award costs and expenses, to be paid by the French Republic,

in the amount of FRF 100,000;

..."

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

28. In the applicant's submission, the house searches and seizures

made in the instant case were in breach of Article 8 (art. 8), which

provides:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance

with the law and is necessary in a democratic society in the

interests of national security, public safety or the economic

well-being of the country, for the prevention of disorder or

crime, for the protection of health or morals, or for the

protection of the rights and freedoms of others."

A. The Government's preliminary objection

29. As they had done before the Commission, the Government raised

an objection of inadmissibility on the ground that domestic remedies

had not been exhausted in that Mr Crémieux had not complained in the

ordinary courts of a flagrantly unlawful act (voie de fait) on the part

of the customs officers and had not sought compensation for it.

30. Like the applicant and the Commission, the Court notes that

Mr Crémieux brought proceedings to have customs reports on the facts

and on the seizures declared null and void (see paragraphs 13-17 above)

and pursued them to a conclusion, without omitting to plead Article 8

(art. 8). He cannot be criticised for not having made use of a legal

remedy which would have been directed to essentially the same end, is

hardly ever used and would in any case probably have been doomed to

failure. The objection must therefore be dismissed.

B. Merits of the complaint

31. The Government conceded that there had been an interference

with Mr Crémieux's right to respect for his private life, and the

Commission additionally found that there had been an interference with

his right to respect for his home.

Like Mr Crémieux, the Court considers that all the rights

secured in Article 8 para. 1 (art. 8-1) are in issue, except for the

right to respect for family life. It must accordingly be determined

whether the interferences in question satisfied the conditions in

paragraph 2 (art. 8-2).

1. "In accordance with the law"

32. The applicant contended that the interferences had no legal

basis. As worded at the time, Article 64 of the Customs Code was, he

claimed, contrary to the 1958 Constitution because it did not make

house searches and seizures subject to judicial authorisation.

Admittedly, its constitutionality could not be reviewed, since it had

come into force before the Constitution had. Nevertheless, in the

related field of taxation the Constitutional Council had rejected

section 89 of the Budget Act for 1984, concerning the investigation of

income-tax and turnover-tax offences, holding, inter alia:

"While the needs of the Revenue's work may dictate that tax

officials should be authorised to make investigations in

private places, such investigations can only be conducted in

accordance with Article 66 of the Constitution, which makes

the judiciary responsible for protecting the liberty of the

individual in all its aspects, in particular the inviolability

of the home. Provision must be made for judicial

participation in order that the judiciary's responsibility and

supervisory power may be maintained in their entirety."

(Decision no. 83-164 DC of 29 December 1983, Official Gazette

(Journal officiel), 30 December 1983, p. 3874)

33. The Government, whose arguments the Commission accepted in

substance, maintained that in Article 64 of the Customs Code, as

supplemented by a fairly substantial body of case-law, the power to

search houses was defined very closely and represented a transposition

to customs legislation and the regulations governing financial dealings

with foreign countries of the power of search provided for in ordinary

criminal procedure. Provision was first made for it in an Act of

6 August 1791 and subsequently in a legislative decree of 12 July 1934,

and it had been widened in 1945 to cover investigations into exchange-

control offences and confirmed on several occasions. In the

Government's submission, its constitutionality could not be put in

doubt, any more than that of Article 454 of the same code, since review

of the constitutionality of statutes took place between their enactment

by Parliament and promulgation and was within the sole competence of

the Constitutional Council, to the exclusion of all other courts.

As to the "quality" of the national legal rules vis-à-vis the

Convention, it was ensured by the precision with which the legislation

and case-law laid down the scope and manner of exercise of the relevant

power, and this eliminated any risk of arbitrariness. Thus even before

the reform of 1986-89 (see paragraph 21 above), the courts had

supervised customs investigations ex post facto but very efficiently.

And in any case, Article 8 (art. 8) of the Convention contained no

requirement that house searches and seizures should be judicially

authorised in advance.

34. The Court does not consider it necessary to determine the issue

in this instance, as at all events the interferences complained of are

incompatible with Article 8 (art. 8) in other respects (see

paragraphs 40-41 below).

2. Legitimate aim

35. The Government and the Commission considered that the

interferences in question were in the interests of "the economic well-

being of the country" and "the prevention of crime".

Notwithstanding the applicant's arguments to the contrary, the

Court is of the view that the interferences were in pursuit of at any

rate the first of these legitimate aims.

3. "Necessary in a democratic society"

36. In Mr Crémieux's submission, the interferences could not be

regarded as "necessary in a democratic society". Their scope was

unlimited and they had also been carried out in an unacceptable manner.

In the first place, their sheer scale was, he said, striking: eighty-

three investigative operations spread over three years, although the

case was neither serious nor complex and ended with a composition;

furthermore, none of the documents removed had proved that any

exchange-control offence had been committed. The interferences further

reflected a lack of discrimination on the part of the customs officers,

who took possession of purely private papers and correspondence and

lawyer's letters and subsequently returned a very large number of the

documents seized, which they deemed unnecessary for the investigation.

Lastly, the interferences illustrated the authorities' hounding of the

applicant, with the customs searches (visites domiciliaires) being

turned into thoroughgoing general searches (perquisitions).

37. The Government, whose contentions the Commission accepted in

substance, argued that house searches and seizures were the only means

available to the authorities for investigating offences against the

legislation governing financial dealings with foreign countries and

thus preventing the flight of capital and tax evasion. In such fields

there was a corpus delicti only very rarely if at all; the "physical

manifestation" of the offence therefore lay mainly in documents which

a guilty party could easily conceal or destroy. Such persons, however,

had the benefit of substantial safeguards, strengthened by very

rigorous judicial supervision: decision-making by the head of the

customs district concerned, the rank of the officers authorised to

establish offences, the presence of a senior police officer (officier

de police judiciaire), the timing of searches, the preservation of

lawyers' and doctors' professional secrecy, the possibility of invoking

the liability of the public authorities, etc. In short, even before

the reform of 1986-89, the French system had ensured that there was a

proper balance between the requirements of law enforcement and the

protection of the rights of the individual.

As regards the circumstances of the case, the Government made

two observations. Firstly, the composition agreed to by the

authorities was tantamount to acknowledgement by Mr Crémieux of the

offence committed; far from demonstrating that the case was of little

importance, it was an efficient procedure commonly used by the customs

to obviate more cumbersome proceedings with identical consequences.

Secondly, the many house searches had been made necessary by the number

of different places where Mr Crémieux might keep documents.

38. The Court has consistently held that the Contracting States

have a certain margin of appreciation in assessing the need for an

interference, but it goes hand in hand with European supervision. The

exceptions provided for in paragraph 2 of Article 8 (art. 8-2) are to

be interpreted narrowly (see the Klass and Others v. Germany judgment

of 6 September 1978, Series A no. 28, p. 21, para. 42), and the need

for them in a given case must be convincingly established.

39. Undoubtedly, in the field under consideration - the prevention

of capital outflows and tax evasion - States encounter serious

difficulties owing to the scale and complexity of banking systems and

financial channels and to the immense scope for international

investment, made all the easier by the relative porousness of national

borders. The Court therefore recognises that they may consider it

necessary to have recourse to measures such as house searches and

seizures in order to obtain physical evidence of exchange-control

offences and, where appropriate, to prosecute those responsible.

Nevertheless, the relevant legislation and practice must afford

adequate and effective safeguards against abuse (see, among other

authorities and mutatis mutandis, the Klass and Others judgment

previously cited, Series A no. 28, p. 23, para. 50).

40. This was not so in the instant case. At the material time

- and the Court does not have to express an opinion on the legislative

reforms of 1986 and 1989, which were designed to afford better

protection for individuals (see paragraph 21 above) - the customs

authorities had very wide powers; in particular, they had exclusive

competence to assess the expediency, number, length and scale of

inspections. Above all, in the absence of any requirement of a

judicial warrant the restrictions and conditions provided for in law,

which were emphasised by the Government (see paragraph 37 above),

appear too lax and full of loopholes for the interferences with the

applicant's rights to have been strictly proportionate to the

legitimate aim pursued.

41. In sum, there has been a breach of Article 8 (art. 8).

II. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 3 AND ARTICLE 10

(art. 6-3, art. 10)

42. The applicant also relied on Article 6 para. 3 and Article 10

(art. 6-3, art. 10).

The alleged infringements of the rights of the defence and of

freedom of expression relate to the same facts as those which the Court

has held to have contravened Article 8 (art. 8); in the circumstances

of the case, it is unnecessary to consider them separately.

III. APPLICATION OF ARTICLE 50 (art. 50)

43. 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 injured party."

A. Damage

44. Mr Crémieux claimed, firstly, that he had sustained non-

pecuniary damage; he put this at 500,000 French francs (FRF) but left

it to the Court to determine in its discretion and in the light of its

case-law.

The Government and the Delegate of the Commission expressed no

opinion.

45. The Court considers that the applicant must have suffered non-

pecuniary damage but that this judgment affords him sufficient

compensation for it.

B. Costs and expenses

46. Mr Crémieux also sought reimbursement of the costs and expenses

he had incurred in the French courts and in the proceedings before the

Convention institutions. He assessed these on a lump-sum basis at

FRF 100,000; given that the case went back a long way in time and that

his first counsel had died, he acknowledged that he was unable to

provide a detailed statement of costs.

The Government and the Delegate of the Commission did not put

forward any view on the issue.

47. Applying its usual criteria, the Court awards the applicant

FRF 50,000.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's preliminary objection;

2. Holds by eight votes to one that there has been a breach of

Article 8 (art. 8);

3. Holds by eight votes to one that it is unnecessary to consider

the case also under Article 6 para. 3 and Article 10

(art. 6-3, art. 10);

4. Holds unanimously, as regards the non-pecuniary damage

sustained by the applicant, that the present judgment

constitutes in itself sufficient just satisfaction for the

purposes of Article 50 (art. 50);

5. Holds unanimously that the respondent State is to pay the

applicant, within three months, 50,000 (fifty thousand) French

francs in respect of costs and expenses;

6. Dismisses unanimously the remainder of the applicant's claims.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 25 February 1993.

Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of the Rules of Court, the dissenting

opinion of Mr Thór Vilhjálmsson is annexed to this judgment.

Initialled: R.B.

Initialled: M.-A.E.

DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

I have voted against the finding of a violation of Article 8

(art. 8) of the Convention in this case. My reasons are much the same

as those set out by the majority of the Commission in its report.

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