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You are here: BAILII >> Databases >> European Court of Human Rights >> CRÉMIEUX v. FRANCE - 11471/85 [1993] ECHR 5 (25 February 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/5.html Cite as: (1993) 16 EHRR 357, 16 EHRR 357, [1993] ECHR 5 |
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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.