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You are here: BAILII >> Databases >> European Court of Human Rights >> MIAILHE v. FRANCE (ARTICLE 50) - 12661/87 [1993] ECHR 60 (29 November 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/60.html Cite as: [1993] ECHR 60

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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,

Mrs E. Palm,

Mr J.M. Morenilla,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar,

Having deliberated in private on 29 October and

25 November 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 AND FACTS

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 French nationals,

Mr William Miailhe, who also has Philippine nationality, his mother

Victoria, née Desbarats, and his wife Brigitte, née Damade,

on 11 December 1986.

2. In a judgment of 25 February 1993 ("the principal judgment")

the Court found that there had been a breach of Article 8 (art. 8) of

the Convention, as house searches and seizures by the customs had

infringed the applicants' right to respect for their private life and

their correspondence (Series A no. 256-C, pp. 87-91, paras. 28-40 and

point 2 of the operative provisions).

Only the question of the application of Article 50 (art. 50) in

the case remains to be determined. For the facts of the case,

reference should be made to paragraphs 6-15 of the principal judgment

(ibid., pp. 78-83).

3. As the question of awarding just satisfaction was not ready for

decision, although the criminal proceedings against Mr and Mrs Miailhe

had already ended, it was reserved in whole in the principal judgment.

The Court invited the Government and the applicants to submit in

writing, within three months, their observations on the matter and, in

particular, to notify it of any agreement they might reach (ibid.,

p. 91, para. 44 and point 4 of the operative provisions).

4. The Registrar received the applicants' memorial on 25 May 1993,

the Government's memorial on 14 September and the observations of the

Delegate of the Commission on 21 October.

5. At the deliberations on 25 November 1993 Mrs E. Palm,

substitute judge, replaced Mr L. Wildhaber, who was unable to take part

in the further consideration of the case (Rules 22 para. 1 and 24

para. 1 of the Rules of Court). The Court decided that in the

circumstances of the case it was unnecessary to hold a hearing.

AS TO THE LAW

6. 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

1. Pecuniary damage

7. Mr Miailhe sought 300,000 French francs (FRF) in respect of

three heads of pecuniary damage: the freezing of his bank accounts and

shares in businesses for eight years owing to the registration of

asset-freezing orders made by the authorities and the impossibility of

taking out mortgage loans needed to finance his wine-growing business;

secretarial expenses incurred in restoring order to his offices and to

the documents seized by the customs; and travel expenses between Manila

and France, in particular in order to attend interviews to which he had

been summoned by the investigating judge.

For their part, Mrs Victoria Miailhe and Mrs Brigitte Miailhe

each sought FRF 20,000 in respect of the deprivation of papers needed

for day-to-day living, their contribution to the work and cost of

reconstituting files, and travel expenses made necessary by the

criminal proceedings.

8. In the Government's submission, the breach found in the

principal judgment had had no influence on the asset-freezing orders,

the journeys or the deprivation of private papers. While certain

filing costs might have been necessary, they were entailed by all

seizures, irrespective of the procedure used. Furthermore, the

applicants had been entitled at any time to seek the return or a

photocopy of any of the papers in question.

9. The Delegate of the Commission did not express any view.

10. The Court discerns no causal link between, on the one hand, the

lack of judicial authorisation for the house searches and the

seizures - a lack it held to be contrary to Article 8 (art. 8) - and,

on the other hand, the pecuniary damage alleged by the applicants, and

it accordingly disallows this part of their claim.

2. Non-pecuniary damage

11. In respect of non-pecuniary damage, Mr Miailhe sought

FRF 300,000 and Mrs Victoria and Mrs Brigitte Miailhe each sought

FRF 100,000. Mr Miailhe pleaded the loss of his consular duties, while

the two Mrs Miailhe relied on their social position at the material

time and the great age of the applicant's mother, whose personal

souvenirs had been violated without notice and without any

consideration for her.

12. The Government relied on the lack of any causal link between

the breach of Article 8 (art. 8) and the alleged damage. As regards

Mr Miailhe, they pointed out that the merits and length of the customs

proceedings were not in issue before the Convention institutions and

that the applicant was honorary consul - and not consul - of the

Philippines in Bordeaux. As regards the two Mrs Miailhe, they said

that if the house searches had been judicially authorised, this would

not have entailed any prior warning or any listing of the documents to

be seized.

13. The Delegate of the Commission thought that the finding of a

breach constituted sufficient compensation.

14. The Court considers that the applicants must have sustained

non-pecuniary damage for which the finding of a breach does not on its

own afford sufficient reparation. Making its assessment on an

equitable basis as required by Article 50 (art. 50), it awards

Mr Miailhe FRF 50,000, Mrs Victoria Miailhe FRF 25,000 and

Mrs Brigitte Miailhe FRF 25,000 under this head.

B. Costs and expenses

15. The applicants also each sought reimbursement of one-third of

the costs and expenses incurred in the French courts and subsequently

before the Convention institutions (lawyers - Mr Goguel: FRF 250,000;

Mr Baudin: FRF 90,000; Mr Boerner: FRF 16,000; and Mr Régnier:

FRF 9,637).

16. The Government maintained that the costs incurred in the

domestic courts were unconnected with the breach found by the Court,

and they referred to the Court's case-law as regards those incurred

before the Convention institutions.

17. The Delegate of the Commission recommended reasonable

compensation.

18. The Court notes that the applicants did not provide any

detailed statements of costs or any vouchers. It considers, however,

that it should, on an equitable basis, take into account the costs

incurred at Strasbourg and part of those that were designed to bring

the breach of Article 8 (art. 8) to an end and secure redress for it.

Applying its usual criteria in the matter, it awards each of the

applicants a lump sum of FRF 60,000.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the respondent State is to pay, within three months,

(a) 50,000 (fifty thousand) French francs to Mr Miailhe,

25,000 (twenty-five thousand) francs to Mrs Victoria Miailhe

and 25,000 (twenty-five thousand) francs to Mrs Brigitte

Miailhe in respect of non-pecuniary damage; and

(b) 60,000 (sixty thousand) francs to each of the applicants in

respect of costs and expenses;

2. Dismisses the remainder of the applicants' claim.

Done in English and in French, and notified in writing on

29 November 1993 pursuant to Rule 55 para. 2, second sub-paragraph, of

the Rules of Court.

Signed: Rudolf BERNHARDT

President

Signed: Marc-André EISSEN

Registrar