The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights and
Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Funke case delivered on 25 February 1993 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
France lodged with the European Commission of Human Rights on
13 February 1984 under Article 25 (art. 25) of the Convention by Mr
Jean-Gustave Funke, a French national, and that the Commission
declared admissible the complaints relating on the one hand to his
criminal conviction for refusal to produce certain documents
requested by the customs and on the other to the search and seizure
effected at his home by customs officers;
Recalling that the case was brought before the Court by the
Commission on 13 December 1991;
Whereas in its judgment of 25 February 1993 the Court:
- dismissed unanimously the Government's preliminary
objection;
- held by eight votes to one that, for want of fair trial,
there had been a violation of Article 6, paragraph 1 (art. 6-1);
- held by eight votes to one that it was unnecessary to
consider the other complaints raised under Article 6 (art. 6);
- held by eight votes to one that there had been a breach of
Article 8 (art. 8);
- held unanimously that the respondent state was to pay the
applicant, within three months, 50 000 French francs for
non-pecuniary damage and 70 000 French francs for costs and
expenses;
- dismissed unanimously the remainder of the applicant's
claims;
Having regard to the rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of the
Convention;
Having invited the Government of France to inform it of the
measures which had been taken in consequence of the judgment of 25
February 1993, having regard to France's obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of France gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that at some date before
16 July 1993 the Government of France paid the applicant the sums
provided for in the judgment of 25 February 1993,
Declares, after having taken note of the information supplied
by the Government of France, that it has exercised its functions
under Article 54 (art. 54) of the Convention in this case.
Appendix to Resolution DH (94) 83
Information provided by the Government of France
during the examination of the Funke case
by the Committee of Ministers
The Government considers that by adopting the Budget Acts of
30 December 1986 and 29 December 1989 France has complied with its
obligations under Article 53 (art. 53) in so far as the violation
of Article 8 (art. 8) established by the Court is concerned.
According to Article 64, as amended by these two acts, all home
searches, except those carried out in connection with a flagrant
offence, must be authorised in advance by a reasoned order of the
president of the tribunal de grande instance or a judge delegated
by him (see also the Committee of Minister's Resolution DH (94) 51
in the Miailhe case).
With regard to the violation of Article 6, paragraph 1
(art. 6-1), the government is of the opinion that the changes in
the exchange control regulations and developments of the customs
authorities' practice and of the case-law of the courts have solved
the problems of a general character resulting from the Court's
judgment, thereby preventing the repetition of the violation found.
In January 1990, the exchange control regulations were
amended. Henceforth, all residents may keep assets abroad, in
whatever form, and the revenues acquired abroad must no longer be
repatriated. As a consequence, the customs authorities will no
longer undertake the kind of searches they carried out in
Mr Funke's case. A person in Mr Funke's situation can,
accordingly, no longer be charged with a criminal offence, under
Articles 65, paragraph 1, and 413 bis of the customs code.
Moreover, when applying the said Article 65, the custom
officers will, henceforth, only request the communication of
documents whose existence is required by law or can be proven.
Furthermore, the Court of Cassation ensures that the documents, the
communication of which is requested by the administration, really
exist. In addition, the Conseil constitutionnel has held that the
power to order communication vested in certain governmental
officials has to be exercised in accordance with certain conditions
relating to the motivation for the communication order, the age of
the documents concerned, the manner in which the documents
requested are kept by the administration, the possibility to be
accompanied by counsel and the recording of the event.
In these circumstances the French Government does not consider
it necessary to amend Articles 65, paragraph 1, and 413 bis of the
customs code which are the indispensable counterpart to the
declaration system in force in custom, fiscal and exchange control
matters.
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