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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: (1993) 16 EHRR 332, [1993] ECHR 8, 16 EHRR 332

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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.