CASE OF MIAILHE v. FRANCE (No. 1)
Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved
C. Russo;N. Valticos
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. 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. 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. 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. 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." 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." 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." 16. The criminal provisions of customs law in France are treated as a special body of criminal law. 17. Two provisions of the Customs Code are relevant as regards these officials: "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." "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." 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." 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." 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."