Information Note on the Court’s case-law No.
February 1993
Funke v. France - 10828/84
Judgment 25.2.1993
Article 8
Article 8-1
Respect for correspondence
Respect for home
House searches and seizures made by customs officers: violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries. It also covers the following judgments of 25 February 1993: Crémieux v. France (11471/85) and Miailhe v. France (12661/87).]
I.ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION (Funke case)
A.Fairness of the proceedings and presumption of innocence
1.The Government's preliminary objection (lack of victim status)
Applicant's complaints related to proceedings concerning the production of documents and not to criminal proceedings (which had never been taken) for contravening the regulations governing financial dealings with foreign countries.
Conclusion: objection dismissed (unanimously).
2.Merits of the complaint
(a)Article 6 § 1
The customs had secured the applicant's conviction in order to obtain certain documents and had thus attempted to compel him to provide himself the evidence of offences he had allegedly committed – the special features of customs law could not justify such an infringement of the right of anyone "charged with a criminal offence" to remain silent and not to contribute to incriminating himself – no fair trial.
Conclusion: violation (eight votes to one).
(b)Article 6 § 2
Foregoing conclusion made it unnecessary for Court to rule on complaint based on contravention of the principle of presumption of innocence.
Conclusion: unnecessary to examine issue (eight votes to one).
B.Length of proceedings
Complaint based on length of proceedings relating to making and discharge of interim orders.
Conclusion: unnecessary to examine issue (eight votes to one).
II.ARTICLE 8 OF THE CONVENTION
A.The Government's preliminary objections (failure to exhaust domestic remedies in Crémieux case and premature application in Miailhe case)
Applicant had not complained in the ordinary courts of a flagrantly unlawful act or sought compensation (Crémieux case); Mr and Mrs Miailhe had not yet challenged, as they could at the outset of their criminal trial, the lawfulness of the customs' action forming the basis of the prosecution (Miailhe case).
In both cases, applicants had brought proceedings to have customs reports on facts and seizures declared null and void and had pursued them to a conclusion, without omitting to plead Article 8.
Conclusion: objections dismissed (unanimously).
B.Merits of the complaint (in all three cases)
Interference with the private lives and the correspondence of all the applicants and also with the homes of Mr Funke and Mr Crémieux.
1.In accordance with the law
Complaint that interferences had had no legal basis, since, as worded at the time, Article 64 of the Customs Code was contrary to the Constitution because it did not make house searches and seizures subject to judicial authorisation.
Unnecessary to determine the issue, as at all events interferences were incompatible with Article 8 in other respects.
2.Legitimate aim
At any rate "the economic well-being of the country".
3.Necessary in a democratic society
States encountered serious difficulties in the prevention of capital outflows and tax evasion and might consider it necessary to have recourse to measures such as house searches and seizures in order to obtain evidence of exchange-control offences and prosecute those responsible – nevertheless, the relevant legislation and practice had to afford adequate and effective safeguards against abuse.
That had not been so in these cases – at the material time, the customs authorities had had very wide powers, in particular the 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 appeared too lax and full of loopholes for the interferences with the applicants' rights to have been strictly proportionate to the legitimate aim pursued.
Furthermore, the authorities had never lodged a complaint alleging an offence against the regulations governing financial dealings with foreign countries (Funke case) and the seizures had been wholesale and indiscriminate (Miailhe case).
Conclusion: violation (eight votes to one).
III.ARTICLES 6 § 3 AND 10 OF THE CONVENTION (Crémieux case)
Complaints related to same facts as those which Court had held to have contravened Article 8.
Conclusion: unnecessary to examine issues (eight votes to one).
IV.ARTICLE 13 OF THE CONVENTION (Miailhe case)
Before the Court, applicants had abandoned their complaint.
Conclusion: unnecessary to examine issue (unanimously).
V.ARTICLE 50 OF THE CONVENTION
A.Non-pecuniary damage (Funke and Crémieux cases)
Compensated by the award of an indemnity (Funke case) or by the judgment (Crémieux case).
B.Costs and expenses (Funke and Crémieux cases)
Court allowed in part the claims for costs and expenses incurred in national courts and in proceedings before Convention institutions.
C.Question reserved (Miailhe case)
Although the criminal proceedings had ended, question not ready for decision.
Conclusion: respondent State to pay to applicants specified sums for damage and/or costs and expenses (unanimously) – question reserved in respect of applicants in third case (unanimously).
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This summary by the Registry does not bind the Court.
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