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You are here: BAILII >> Databases >> European Court of Human Rights >> MIAILHE v. FRANCE (No. 1) - 12661/87 [1993] ECHR 8 (25 February 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/8.html
Cite as: 16 EHRR 332, (1993) 16 EHRR 332, [1993] ECHR 8
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In the case of Miailhe 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 86/1991/338/411. 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. 12661/87) against the French Republic lodged with the
Commission under Article 25 (art. 25) by three nationals of that State,
Mr William Miailhe, who also has Philippine nationality, his mother
Victoria, née Desbarats, and his wife Brigitte, née Damade, on
11 December 1986.
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 and 13 (art. 8, art. 13).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (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 Crémieux v. France*.
_______________
* Cases nos. 82/1991/334/407 and 83/1991/335/408.
_______________
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 (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 applicants' lawyers on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicants' memorial on
12 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 applicants
Mr D. Baudin, of the Conseil d'Etat and Court
of Cassation Bar,
Mr F. Goguel, avocat, Counsel.
The Court heard addresses by Mr Gain for the Government,
Mr Trechsel for the Commission and Mr Baudin and Mr Goguel for the
applicants.
On 3 November Mr Baudin confirmed his submissions concerning
the possible application of Article 50 (art. 50) of the Convention.
AS TO THE FACTS
I. The circumstances of the case
6. Mr William Miailhe has dual French and Philippine nationality
and has his home at Malate (Greater Manila) in the Philippines. He is
a company director and in early 1983 was also honorary consul of the
Philippines in Bordeaux, having just resigned as French foreign-trade
counsellor in Manila.
Mrs Victoria Miailhe and Mrs Brigitte Miailhe, both of French
nationality, are respectively the mother and the wife of the first
applicant. They are housewives.
A. The house searches and seizures of documents
7. On 5 and 6 January 1983 officers from the Bordeaux customs,
accompanied by a senior police officer (officier de police judiciaire),
made two searches of premises in Bordeaux which housed the head offices
of the companies managed by Mr Miailhe and which served as the
Philippines consulate. The applicants - who in France lived at
Château Siran (Labarde, Gironde) - used to receive there all private
mail that was not sent direct to Manila. The searches took place from
9.15 a.m. to 3.50 p.m. on the first day and from 9.15 a.m. to
12.50 p.m. on the second day, the applicant and his secretary being
present on both occasions.
The officers seized nearly 15,000 documents. They placed them
unsorted in eight cardboard boxes which they sealed and took away to
the customs' regional head office.
Work on removing the seals and classifying the documents began
on 21 January 1983, in the presence of a senior police officer and
Mr Miailhe. The latter asked for and obtained a photocopy of documents
that he said he needed urgently for his work.
After being suspended at the applicant's request, the work
resumed on 28 January in the presence of two senior police officers;
Mr Miailhe's lawyer had indicated by telephone that his client refused
to attend.
In all, the customs registered 9,478 documents. They
considered the remainder to be of no relevance to their inquiries and
returned them in two sealed boxes.
8. The searches and seizures in issue were based on Articles 64
and 454 of the Customs Code (see paragraphs 17-18 below) and were part
of an investigation to determine whether the applicants were to be
regarded as being resident in France and whether they had contravened
the legislation on financial dealings with foreign countries.
B. The court proceedings
1. The criminal proceedings against the applicants
9. On a complaint lodged by the director of customs investigations
on 29 January 1985, the Bordeaux public prosecutor's office began a
judicial investigation in respect of the three applicants on
19 February 1985.
A local investigating judge charged them on 20 June 1985 with
offences against the legislation and regulations governing financial
dealings with foreign countries.
In a final application of 18 June 1991 the Bordeaux public
prosecutor requested the investigating judge to commit Mr and
Mrs Miailhe for trial at the Bordeaux Criminal Court and to discharge
Mrs Victoria Miailhe. On 3 July 1991 the judge made orders to this
effect.
The trial was due to begin on 17 June 1992 but was postponed to
25 November 1992 at Mr and Mrs Miailhe's request. In a judgment
of 2 December 1992 the Criminal Court ruled that the public prosecution
and the proceedings for imposition of customs penalties in respect of
Mr and Mrs Miailhe were barred as a result of changes in the criminal
law. It also ordered the return of the seized documents.
2. The applicants' proceedings to have the reports and
seizures declared null and void
(a) In the Paris District Court
10. On 11 August 1983 the three applicants had instituted
proceedings against the Director-General of Customs and Excise in the
Paris District Court (1st district), which they asked to
"Hold that under domestic law customs officers may make house
searches as provided in Articles 454 and 64 of the Customs Code
only in order to look for goods.
Hold that seizure of documents by customs officers cannot be
regarded as being in accordance with the provisions of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms.
Hold that seizure of letters from lawyers to their clients
amounts to an interference with the rights of the defence.
And consequently,
Declare the seizures of 5 and 6 January 1983 null and void."
11. On 20 December 1983 the court declined jurisdiction in favour
of the Paris tribunal de grande instance.
(b) In the Paris tribunal de grande instance
12. The Miailhes applied to the Paris tribunal de grande instance,
which likewise held that it had no jurisdiction. In its judgment of
16 May 1984 it gave the following reasons:
"That being so, as was held in the aforementioned judgment of
20 December 1983, the ordinary courts have no jurisdiction to
assess the lawfulness of the actions in issue unless there has
been a flagrantly unlawful act (voie de fait).
The customs officers made the seizures under Article 454 of
the Customs Code.
That Article, which empowers authorised officers to establish
offences against the regulations governing financial dealings
with foreign countries as provided in Article 64 of the Customs
Code, lays down a rule that applies not only to searches for
goods held unlawfully but also to those for documents likely to
constitute the subject-matter or evidence of these offences.
The seizures that are alleged to be null and void were
therefore carried out by the authorities within the framework
laid down by law for establishing offences against the
regulations governing financial dealings with foreign
countries, whose constitutionality is not for the Court to
review.
Although the European Convention for the Protection of Human
Rights and Fundamental Freedoms provides in Article 8 (art. 8)
that 'everyone has the right to respect for his private and
family life, his home and his correspondence', interference by
a public authority with the exercise of this right is provided
for in the same Article (art. 8) where such interference 'is in
accordance with the law and is necessary ... in the interests
of ... the economic well-being of the country, [and] for the
prevention of ... crime ...'. The customs' action was taken in
that context.
The provisions of Article 136 of the Code of Criminal
Procedure on house searches relate to operations referred to in
that code and do not apply to searches made under the Customs
Code, which continue to be governed by the special legislation
on the matter. The Act of 29 December 1977, which requires the
intervention of the judicial authorities in respect of house
searches during the investigation and establishment of offences
against tax and business regulations, moreover provides in
section 17 that 'house searches made pursuant to the Customs
Code shall continue to be governed by existing legislation'.
The Constitutional Council's decision on which the plaintiffs
relied is likewise irrelevant to that legislation.
The ordinary courts consequently have no jurisdiction to
review the lawfulness of the seizures made at the home of Mr
and Mrs Miailhe. The Court must decline jurisdiction."
(c) In the Paris Court of Appeal
13. The Miailhes appealed, seeking a declaration that the seizures
on 5 and 6 January 1983 were null and void and an order for return of
the documents held by the customs.
14. On 23 October 1984 the Paris Court of Appeal upheld the
judgment of 16 May 1984 in the following terms:
"The seizures in issue were not challenged on the ground of
any formal defect.
The courts below correctly held that the powers conferred on
customs officers by Articles 64 and 454 of the Customs Code,
special provisions which are not overridden by the more general
ones of Article 136 of the Code of Criminal Procedure and the
Act of 29 December 1977, cover the seizure of documents likely
to constitute the subject-matter or evidence of offences
against the regulations governing financial dealings with
foreign countries.
To this extent the principles relating to the protection of
private life, the home and correspondence cannot be an obstacle
to applying these provisions.
However, although coming within the ambit of the
aforementioned Articles 64 and 454, the unlawful seizure or
retention of purely private documents that were manifestly
irrelevant to the financial or business transactions which
prompted the authorities' intervention could amount to a
flagrantly unlawful act, since such an infringement of civil
liberties would then be wholly severable from the authorities'
powers.
In the instant case it appears from the search and seizure
reports which have been put in evidence that on 5 and
6 January 1983 the authors of them placed a very large number
of documents under seal in the offices of Mr Miailhe and in his
presence, and that he, while protesting against the principle
of the seizure, made no objection based on the nature of any
given document. On 21 January 1983 the seals were removed and
all the documents were classified, and Mr Miailhe and his
secretary availed themselves of the opportunity they were
afforded to take a photocopy of those documents 'which they
needed for their work in the coming days'. Once again,
Mr Miailhe made no reference to the presence of purely private
papers or letters among his business papers.
On 28 January 1983 the same customs officers proceeded to go
through the documents in detail and seized them. Mr Miailhe
had been summoned to attend but made it known that he refused
to do so. Notwithstanding his absence, numerous documents were
exempted from seizure 'as being of no relevance to their
inquiries' and were placed in two sealed cardboard boxes and
returned to Mr Miailhe some days later.
In these circumstances it appears that the officials took the
most meticulous precautions in order not to exceed their powers
under the law and that if it is subsequently shown that they
have inadvertently kept purely private papers unconnected with
their investigation - papers of which the three appellants have
never given any particulars -, Mr Miailhe must be held largely
responsible, and at all events it could only have occurred as
a result of an involuntary mistake and not of a manifest,
deliberate violation of a personal freedom."
(d) In the Court of Cassation
15. An appeal on points of law by the applicants was dismissed by
the Commercial Division of the Court of Cassation on 17 June 1986. Its
judgment read as follows:
"As to the first ground:
The Court of Appeal is criticised for having ruled as it did,
in that, according to the applicants, in confining itself to
noting that the seizure in dispute was made as part of an
investigation into the status as a French resident of
Mr Miailhe, the Philippines consul in Bordeaux, without even
determining whether the purpose of the operation was to seize
documents likely to constitute the subject-matter or evidence
of an offence against the regulations governing financial
dealings with foreign countries, the Court of Appeal infringed
Articles 64 and 454 of the Customs Code.
It appears from the Court of Appeal's own reasons and those
it adopted, however, that the disputed seizures were made
during an investigation to ascertain whether Mr Miailhe had, as
a French resident, committed offences against the legislation
governing financial dealings with foreign countries. The
ground has not been made out.
As to the second ground:
The Court of Appeal is further criticised for having ruled as
it did, in that, according to the applicants, it could not,
without infringing Article 455 of the New Code of Civil
Procedure, omit to answer the submission in which Mr and
Mrs Miailhe argued that, independently of the existence of any
flagrantly unlawful act which might have been committed against
them, Article 66 of the Constitution entrusted the judiciary
with the protection of every aspect of the liberty of the
individual, and in particular the inviolability of the home.
In its judgment, however, the Court of Appeal held that,
although coming within the ambit of the aforementioned
Articles 64 and 454, the unlawful seizure or retention of
purely private papers that were manifestly irrelevant to the
transactions which had prompted the authorities' intervention
could amount to a flagrantly unlawful act, since such an
infringement of civil liberties would then be severable from
the authorities' powers. The Court of Appeal also noted that
the customs officials took the most meticulous precautions in
order not to exceed their powers and that there was no
manifest, deliberate violation of a personal freedom. In so
holding, the Court of Appeal answered the submissions made, and
it follows that the ground is not made out.
As to the third ground:
Lastly, the Court of Appeal is criticised for having ruled as
it did, in that, according to the applicants, by raising of its
own motion the points of pure fact that the customs officers
classified the 15,000 documents seized and then went through
them, which allegedly led to some of them being returned to
Mr Miailhe on account of their irrelevance to the
investigation, the Court of Appeal exceeded its powers and
violated Articles 4, 7, 12 and 16 simultaneously of the New
Code of Civil Procedure.
The Court of Appeal, however, held that the facts it noted
appeared from the search and seizure reports put in evidence,
which have been produced. Its judgment is therefore not
susceptible to the criticism made in this ground."
II. Relevant customs law
16. 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
17. 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
18. When the house searches were made (5 and 6 January 1983),
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
19. 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
20. 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."
PROCEEDINGS BEFORE THE COMMISSION
21. The three applicants applied to the Commission on
11 December 1986. They complained of the searches and seizures made
on premises of theirs by customs officers. They relied on Article 8
(art. 8) of the Convention (infringement of their right to respect for
their private life, their home and their correspondence) and
Article 13 (art. 13) (lack of any effective remedy before a national
authority).
22. The Commission declared the application (no. 12661/87)
admissible on 3 October 1990. 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) or Article 13 (art. 13) (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-C 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
23. In their memorial the Government requested the Court to dismiss
all the complaints raised by the applicants.
24. Counsel for the applicants asked the Court to
"hold [that their clients] ha[d] been victims of a breach of
Article 8 (art. 8) of the Convention ... by the authorities of
the French Republic;
reserve the application of Article 50 (art. 50) of the said
Convention until the conclusion of the criminal proceedings in
France against William and Brigitte Miailhe for offences
against French exchange-control regulations; and
award William and Brigitte Miailhe, on an interim basis, and
Mrs Victoria Miailhe, in final settlement, the sums indicated
in the foregoing reasons in compensation for their non-
pecuniary damage and the expenses incurred in upholding their
rights".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
25. In the applicants' 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
26. As they had done before the Commission, the Government raised
an objection of inadmissibility on the ground that the application to
Strasbourg had been lodged prematurely, as Mr and Mrs Miailhe could,
at the outset of their trial at the Bordeaux Criminal Court on
25 November 1992 (see paragraph 9 above), complain that the customs'
action forming the basis of the prosecution had been unlawful.
27. The Court notes that Mr and Mrs Miailhe brought proceedings to
have customs reports on the facts and on the seizures declared null and
void (see paragraphs 10-15 above) and pursued them to a conclusion,
without omitting to plead Article 8 (art. 8). They cannot be
criticised for not having - or not yet having - made use of a legal
remedy which would have been - or would be - directed to essentially
the same end. The objection must therefore be dismissed.
Besides, the Bordeaux Criminal Court ruled on 2 December 1992
that the criminal proceedings were barred (see paragraph 9 above).
B. Merits of the complaint
28. The Government conceded that there had been an interference
with the applicants' right to respect for their private life, and the
Commission additionally found that there had been an interference with
their right to respect for their home.
The Court considers it pointless in this instance to ascertain
whether the premises occupied by the applicants could be considered as
a home; it refers, mutatis mutandis, to the Niemietz v. Germany
judgment of 16 December 1992 (Series A no. 251-B, p. 34, paras. 30-31).
In the present case, it is sufficient to note that there was an
interference with the applicants' private life and their
correspondence.
29. 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"
30. The applicants contended that the interferences had no legal
basis. As worded at the time, Article 64 of the Customs Code was, they
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)
31. 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 19 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.
32. 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 38-40 below).
2. Legitimate aim
33. 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 applicants' 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"
34. In the applicants' submission, the interferences could not be
regarded as "necessary in a democratic society". The authorities, they
said, had misused their powers under Article 64 of the Customs Code for
the specific purpose of collecting evidence to establish that there had
been an interruption in their permanent residence in Manila (see
paragraph 6 above) at a time of strict exchange controls. In their
view, the needs of the investigation in no way justified either the
mass seizure of all Mr Miailhe's papers, including ones belonging to
other members of the family, or the refusal to return a set of personal
documents (doctor's prescriptions, correspondence with lawyers, etc.).
More generally, the applicants complained that there were no curbs on
customs powers or safeguards against abuse by customs officers, a
situation which they claim had been typical of the French system before
the reform of 1986-89.
35. 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 Bordeaux public prosecutor's final
application (see paragraph 9 above) made clear the scale of the
offences with which Mr and Mrs Miailhe were charged. Secondly, the
latter had never indicated to the national courts what personal
documents the customs had seized wrongly.
36. 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.
37. 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).
38. 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 19 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 35 above),
appear too lax and full of loopholes for the interferences with the
applicants' rights to have been strictly proportionate to the
legitimate aim pursued.
39. To these general considerations may be added a particular
observation. The seizures made on the applicants' premises were
wholesale and, above all, indiscriminate, to such an extent that the
customs considered several thousand documents to be of no relevance to
their inquiries and returned them to the applicants (see paragraph 7
above).
40. In sum, there has been a breach of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
41. In the proceedings before the Commission, the applicants also
relied on Article 13 (art. 13), but they did not do so before the
Court, which does not consider that it must examine the issue of its
own motion.
III. APPLICATION OF ARTICLE 50 (art. 50)
42. 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."
43. The applicants invited the Court to defer its decision on the
application of this provision until the criminal proceedings in France
against Mr and Mrs Miailhe had been concluded. They asked it, however,
to award each of them - in final settlement in the case of
Mrs Victoria Miailhe, and on an interim basis in the cases of
Mr Miailhe and his wife - 100,000 French francs (FRF) for non-pecuniary
damage and FRF 100,000 for costs.
The Government and the Delegate of the Commission expressed no
opinion.
44. In the Court's view, the question is not ready for decision
although the criminal proceedings against Mr and Mrs Miailhe have ended
with the Bordeaux Criminal Court's judgment of 2 December 1992 (see
paragraph 9 above). Accordingly, it must be reserved and the further
procedure must be fixed, due regard being had to the possibility of an
agreement between the respondent State and the applicants (Rule 54
paras. 1 and 4 of the Rules of Court).
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 unanimously that it is not necessary also to examine the
case under Article 13 (art. 13);
4. Holds unanimously that the question of the application of
Article 50 (art. 50) is not ready for decision;
accordingly,
(a) reserves it in whole;
(b) invites the Government and the applicants to submit in
writing, within three months, their observations on the matter
and, in particular, to notify the Court of any agreement they
may reach;
(c) reserves the further procedure and delegates to the
President of the Chamber power to fix the same if need be.
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.