KESLASSY v. FRANCE
Inadmissible
The applicant, Mr Claude Keslassy, is a French national, who was born in 1941 and lives in Paris. He was represented before the Court by Mr V. Delaporte, a member of the Conseil d’État and Court of Cassation Bar. The facts of the case, as submitted by the parties, may be summarised as follows. At the material time the applicant controlled nine private limited companies (société à responsabilité limitée – SARL), either through direct or indirect majority shareholdings, or through de iure managers appointed from members of his family or close contacts, or through the control of the premises from which the companies were operating. By an order of 3 June 1997 a judge delegated by the President of the Paris Tribunal de Grande Instance authorised tax inspectors from the National Head Office for Tax Investigations, the Revenue Department and the National and International Tax Audit Department, assisted by tax controllers from those departments, to search and seize documents on eight sets of business and residential premises used by the applicant, his wife and the managers of the various companies concerned. Among the premises to be searched was the applicant’s home. The order also specified the senior police officers (officiers de police judiciare) with territorial jurisdiction to assist with the authorised operations and to ensure compliance with the rights of the defence. The order was issued pursuant to Article L 16 B of the Code of Tax Procedures following an application by the National Head Office for Tax Investigations. It stated that the aim of the searches was to seek evidence that the nine private limited companies controlled by the applicant had failed to “to calculate and pay income tax in the industrial and trading profits category, and/or corporation tax and value added tax (VAT), by engaging in purchases and sales for which no invoices had been issued and/or by issuing invoices or documents that did not correspond to genuine transactions and/or by knowingly omitting to make or to cause to be made accounting entries or by knowingly causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code...”. Among the evidence that was cited by the judge in the order as giving rise to a presumption of fraud was a typewritten letter dated 10 March 1995 that had been sent to the Revenue Department in Paris and bore a hand-written signature and a note stating that it was from B., the manageress of C. company. In the letter B. said that she was unable to control the conduct of her brother, the applicant, who held 60% of the shares in the company, and that she had no access to the accounts. She also said that the company’s activity generated very substantial cash revenues and that the applicant was in the habit of siphoning off large sums of money from the company with which to purchase paintings. The judge also noted that on 15 January 1997 officials from the Revenue Department had given a statement in which they said that on 31 October 1996 they had received a visit from a person who wished to remain anonymous who had affirmed that the applicant creamed off part of the income of the various companies in which he held a controlling stake of the share capital by appropriating to himself cash and cheques on which the name of the payee had been left blank. The informant had also stated that the money was used to enable the applicant to buy works of art and thus to build up a collection with a view to personal gain. Finally, the informant had added that the applicant held a customer account at Christie’s in London and gave his contacts business cards on which he presented himself as a seller of oriental paintings. The judge also referred to previous proceedings that had been issued on a complaint by the authorities for tax fraud following an audit of the accounts of one of the companies concerned. The Paris Tribunal de Grande Instance had at the time held that the applicant was a de facto manager of the company concerned and found that it had failed to keep any accounts. Furthermore, in a judgment of 17 February 1988 the Paris Court of Appeal had found that the applicant and his wife had fraudulently failed to calculate and pay any income tax for the 1983 tax year. Lastly, in a judgment of 25 November 1994 the Paris Court of Appeal had found that the applicant was the de facto manager of another private limited company and had convicted him of working illegally. In his warrant of 3 June 1997 the judge noted lastly: “[The applicant] does not disclose any income... The telephone number on the business card mentioned by the informant was allocated to [C. company] from July 1989 to July 1996... That telephone number appeared in an advertisement that was placed with the 22/23 May 1995 edition of Le Monde... The advertisement was for the purchase at premium prices of furniture, bronze sculptures, objects and oriental paintings and stated that commission would be paid to any intermediaries... The inference from the advertisement is that substantial funds are available. [The applicant] arranged for a bank account to be opened... by referring to a company registration number [numéro de SIRENE – an acronym for a computer system for the registration of undertakings and places of business, which enables all undertakings to be assigned a registration number] ... [which] does not appear on the list kept by the National Institute of Industrial Property... He is also able to use the ... premises, receives post there and lives there with his partner, by whom he has a child... Thus, the investigations made by the department have enabled the information obtained to be confirmed in so far as it concerns [the applicant’s] activities in the aforementioned companies. The results of the investigation carried out largely match the information provided by the de iure manageress of C. company and the statements made by the person who attended the department’s offices on 31 October 1996... Presumptions exist that the companies which [the applicant] controls ... reduced their business receipts by omitting to enter all its dealings in the accounts and have thus avoided calculating or paying income tax on industrial and business profits and/or corporation tax and value added tax (VAT), by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code... Thus the application is founded and it may be possible to obtain proof of the presumed fraudulent acts by making a search without prior warning.” The applicant, his wife and sons, the managers of the companies and the companies themselves appealed to the Court of Cassation against the order (that being the sole remedy available to them). In particular, they argued that the letter written by B. was inadmissible in evidence and contested its origin (as only the signature was written by hand). They alleged that it could not constitute a witness statement within the meaning of Article 202 of the New Code of Civil Procedure, as it did not satisfy the formal requirements set out in that provision. They also contested the evidential value of the anonymous statement that had been referred to as, in their submission, the judge, who was only entitled to rely on previous offences or convictions for tax fraud as additional circumstantial evidence, had not identified and analysed any other information that corroborated it. They noted too that the judge had, improperly in their submission, omitted to specify the accounting years to which the presumptions of tax fraud applied. They said in conclusion that that evidence was insufficient to raise a presumption of tax fraud justifying a search of residential property and that the judge had failed to give sufficient reasons for his decision in view of his obligations under Article L 16 B of the Code of Tax Procedures. On 23 February 1999 the Commercial, Financial and Economic Division of the Court of Cassation dismissed the appeal in a judgment in which it gave the following reasons: “Firstly, the appellants sought in the first and fifth limbs of the ground of appeal to contest the value of the evidence relied on by the judge as proof that the application was well-founded. Their arguments do not constitute valid grounds for invalidating the order in which, by assessing the evidence that had been adduced by the authorities, the judge sought to establish whether presumptions existed that there had been unlawful conduct that warranted a search being made of all premises, including private premises, for proof thereof and the seizure of any relevant documents. Secondly, reference is made in the order to the origin of the letter dated 10 March 1995, which was produced as Exhibit II-a. A failure to comply with the formal requirements of Article 202 of the New Code of Civil Procedure governing the production of statements in evidence in civil proceedings does not render such statements inadmissible in evidence. It is for the trial court to decide in its unfettered discretion whether a witness statement that does not comply with the formal requirements affords guarantees sufficient to satisfy it. This ground of appeal, the remainder of which the appellants devote to contesting the content of that piece of evidence, fails. Thirdly, the anonymous statement received on 31 October 1996 is corroborated by the letter of 10 March 1995, Exhibit II-a, which was described and analysed in the warrant. Article L 16 B of the Code of Tax Procedures does not render a warrant invalid if the judge fails to specify the accounting years concerned by the presumed fraud. It follows from the above that none of the limbs of the ground of appeal are founded.” At the material time, the relevant provisions of Article L 16 B of the Code of Tax Procedure (as worded prior to the enactment of Law no. 2000-516 of 15 June 2000) provided: “I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make or to cause to be made accounting entries or by knowingly making or causing to be made inaccurate or false entries in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents. II. All searches must be authorised by an order of the president of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located or by a judge delegated by him or her. The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search. The order shall include: (i) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power; (ii) the address of the premises to be searched; (iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search. The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought. If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV. The search and seizure shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations. He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress. The judge may, if he or she considers it appropriate, attend the premises while the operations are under way. He or she may at any time decide to suspend or halt the search. The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with an acknowledgement of receipt form after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the form. If the order is not received, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure. The time-limit and procedure for appealing shall be set out in the documents accompanying postal or personal service. The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order. III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses or shall not be from his or her department or the tax authority. The tax-authority officials referred to in I may be assisted by other tax-authority officials who have been accredited in the same conditions as the inspectors. The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure. The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third sub-paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable. IV. A record stating how the operation was organised and how it proceeded and recording any findings shall be compiled forthwith by the tax-authority officials. An inventory of the evidence and documents seized shall be appended to it. The record and the inventory shall be signed by the tax-authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record. Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time. V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative...” Article 202 of the New Code of Civil Procedure provides: “A witness statement shall contain an account of the facts which the maker has witnessed or has personally observed. It shall state the surname, first names, date and place of birth, home address and occupation of its maker and, if relevant, any relationship by birth or by marriage to the parties, and whether the maker is in the service or employment of or has a community of interest with any of the parties. It shall also contain a statement that it has been made with a view to its being used in evidence and that its maker is aware that false testimony will render him or her liable to prosecution. The statement shall be written, dated and signed by its maker in his or her own hand. The maker of the statement shall append to it an original or photocopy of any official document establishing his or her identity and containing his or her signature.” The trial court may, however, declare witness statements that do not comply with these requirements admissible in evidence and in such cases it will be for the trial court to “decide in its unfettered discretion whether a witness statement that does not comply with the requirements of Article 202 affords guarantees sufficient to satisfy it” (Court of Cassation, Civil Division, 29 April 1981, Civil Bulletin I, no. 143; Court of Cassation, Civil Division, 23 January 1985, Civil Bulletin II, no. 20).