CASE OF FUNKE v. FRANCE
Preliminary objection rejected (victim);Violation of Art. 6-1;Not necessary to examine Art. 6-1 (prompt trial);Not necessary to examine Art. 6-2;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo;N. Valticos
6. Mr Jean-Gustave Funke, a German national, was born in 1925 and died on 22 July 1987. He worked as a sales representative and lived in France, at Lingolsheim (Bas-Rhin). His widow, Mrs Ruth Funke, née Monney, is French and lives in Strasbourg. 7. On 14 January 1980 three Strasbourg customs officers, accompanied by a senior police officer (officier de police judiciaire), went to the house of the applicant and his wife to obtain "particulars of their assets abroad"; they were acting on information received from the tax authorities in Metz. Mr Funke admitted having, or having had, several bank accounts abroad for professional and family reasons and said that he did not have any bank statements at his home. The customs officers searched the premises from 10.30 a.m. to 3.00 p.m., and discovered statements and cheque-books from foreign banks, together with a German car-repair bill and two cameras. They seized all these items and on the same day drew up a report. 8. The customs officers’ search and the seizures did not lead to any criminal proceedings for offences against the regulations governing financial dealings with foreign countries. They did, however, give rise to parallel proceedings for disclosure of documents and for interim orders. 9. During their search on 14 January 1980 the customs officers asked the applicant to produce the statements for the previous three years - that is to say 1977, 1978 and 1979 - of his accounts at the Postsparkasse in Munich, the PKO in Warsaw, the Société de Banque suisse in Basle and the Deutsche Bank in Kehl and of his house-purchase savings plan at the Württembergische Bausparkasse in Leonberg and, lastly, his share portfolio at the Deutsche Bank in Kehl. 10. Mr Funke undertook to do so but later changed his mind. 11. On 3 May 1982 the customs authorities summoned him before the Strasbourg police court seeking to have him sentenced to a fine (amende) and a further penalty (astreinte) of 50 French francs (FRF) a day until such time as he produced the bank statements; they also made an application to have him committed to prison. 12. On 27 September 1982 the court imposed a fine of FRF 1,200 on the applicant and ordered him to produce to the customs authorities the bank statements of his accounts at the Société de Banque suisse in Basle, the PKO in Warsaw and the Deutsche Bank in Kehl and of his savings account at the Württembergische Bausparkasse in Leonberg and all documents concerning the financing of the flat he had bought at Schonach (Federal Republic of Germany), on penalty of FRF 20 per day’s delay. The reasons given for its judgment were the following: "... On 12.2.1980 Mr Funke told the Customs Service that he was unable to make available the documents that he had undertaken to produce. He has provided no reason for this and has submitted no correspondence that would show he took the necessary steps to obtain the required documents or would prove that the foreign banks refused to supply him with any such document. Mr Funke acknowledged that, together with his brother, he bought a bedsitter at Schonach (Federal Republic of Germany) and produced photocopies of the contract of sale and of the entry in the land register; but he refused to produce documents concerning the financing of the purchase. Article 65 of the Customs Code provides: ‘Customs officers with the rank of at least inspector ... may require production of papers and documents of any kind relating to operations of interest to their department’. It appears from the present proceedings taken by the customs authorities that the prosecuting officer has the rank of inspector. The documents sought, namely the bank statements and the documents relating to the financing of the purchase of the flat, can be brought within the category of documents covered by Article 65 of the Customs Code. The same Article 65 provides in paragraph 1(i) that such requests for production may be made ‘on the premises of (chez) any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service’. In this context the term ‘chez’ must not be restricted to ‘at the home of’ (au domicile de) but must be construed as meaning ‘wherever ... may be’ (auprès de). Any other construction would enable the person concerned to evade the Customs Service’s investigations by keeping any compromising papers elsewhere than at his home. The house search and Mr Funke’s own statements provided sufficient evidence that there were bank accounts and financing operations concerning the defendant to enable the Customs Service to exercise their right of inspection in relation to the relevant documents notwithstanding that these were not at Mr Funke’s home. As the holder of an account used abroad, Mr Funke, like any account-holder, must receive statements following any transaction on the account. A statement is an extension, a reflection of the situation, of an account at a given time. The holder of the account is the owner of his statements and may at any time ask for them from his bank, which cannot refuse them." 13. Appeals were brought by Mr Funke, the public prosecutor and the customs authorities. On 14 March 1983 the Colmar Court of Appeal upheld the judgment of the court below other than as regards the inspection of documents relating to the flat at Schonach, and increased the pecuniary penalty to FRF 50 per day’s delay. It dealt with Mr Funke’s argument based on the Convention as follows: "Article 413 bis of the Customs Code, which applies to financial dealings with foreign countries by virtue of Article 451 of the same code, makes any refusal to produce documents and any concealment of documents in the cases provided for, inter alia, in Article 65 of the aforementioned code punishable by imprisonment for a period ranging from ten days to one month and a fine of FRF 400 to 2,000. Under Article 65, customs officers may require production of documents of any kind relating to operations of interest to their department, in general, on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service. In the instant case Funke is liable only to a fiscal penalty: to a fine, therefore. It does not appear that the power conferred by the aforementioned provisions on a revenue authority conflicts with the protection of human rights and fundamental freedoms which it is the purpose of the instrument of international law relied on to guarantee. The defendant had a fair hearing. Obviously, no offences which performance of the duty to produce documents may disclose are yet before the courts; that being so, Funke’s objections of principle are premature. Moreover, while everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law, Article 6 para. 2 (art. 6-2) of the Convention does not otherwise restrict the type of evidence which the lex fori places at the disposal of the prosecuting party in order to satisfy the court. Lastly, the obligation on a defendant to produce in proceedings evidence likely to be used against him by the opposing side is not a special feature of customs or tax proceedings since it is enacted in Article 11 of the New Code of Civil Procedure likewise. On the other hand, while Article 8 (art. 8) of the Convention provides that everyone has the right to respect for his private life and his correspondence, there may be interference by a public authority with the exercise of this right so long as it is in accordance with the law and amounts to a measure which is necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime. In most of the countries signatories to the Convention, moreover, the customs and revenue authorities have a right of direct investigation in banks." 14. On 21 November 1983 the Court of Cassation (Criminal Division) dismissed an appeal on points of law by Mr Funke. The third and final ground, in which Articles 6 and 8 (art. 6, art. 8) of the Convention were prayed in aid, was rejected in the following terms: "The Court of Appeal held that, while everyone charged with a criminal offence was to be presumed innocent until proved guilty according to law, Article 6 (art. 6) of the Convention ... did not otherwise restrict the types of evidence that the lex fori placed at the disposal of the prosecuting party in order to satisfy the court; and that while it was true that Article 8 (art. 8) of the Convention provided that everyone has the right to respect for his private life and his correspondence, there might ... be interference by a public authority with the exercise of this right so long as the interference was in accordance with the law and amounted to a measure which was necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime. In so stating, and irrespective of any superfluous reasoning, the Court of Appeal justified its decision and the ground therefore cannot be upheld." 15. In a report on 30 May 1984 the customs authorities noted Mr Funke’s refusal to comply with the Colmar Court of Appeal’s judgment of 14 March 1983 (see paragraph 13 above). On 2 January 1985 they served a garnishee notice on the applicant’s bank requiring it to pay a sum of FRF 10,750, representing the amount of the penalties owed by its customer for the period from 31 May to 31 December 1984. 16. On an application by Mr Funke, the Strasbourg District Court upheld the notice in question on 27 March 1985, holding that the customs authorities were entitled to recover the sum owed in respect of a pecuniary penalty resulting from an enforceable court decision in the same way as a customs fine and notwithstanding that an application (which did not have any suspensive effect) had been made to the European Commission of Human Rights. 17. On an appeal by Mr Funke, the Colmar Court of Appeal delivered a judgment on 20 February 1989 reversing the lower court’s judgment of 27 March 1985 and quashing the garnishee notice. 18. An appeal on points of law by the customs authorities was dismissed by the Court of Cassation on 18 December 1990. Like the Court of Appeal, the Court of Cassation held that the amount of the customs penalty could not be recovered by means of a garnishee notice. 19. Following this judgment, the customs authorities made no further attempt to collect payment of the penalty in question. 20. On 16 April 1982 the customs authorities applied for an order from the presiding judge of the Strasbourg District Court for attachment of Mr Funke’s movable and immovable property to the value of FRF 100,220. Half of this sum was to be in lieu of confiscation of the undeclared funds, while the other half corresponded to the fine payable. Relying on Article 341 bis-1 (see paragraph 32 below) and Article 459 of the Customs Code, the customs authorities stated that they already had a definite right to payment from the applicant. The documents seized at Lingolsheim showed that he had contravened Article 1 of the decree of 24 November 1968, which provided that any payment made abroad by persons resident in France had to be effected through an approved intermediary (bank or post office) established in France. 21. The District Court made an order granting the application on 21 April 1982. On 26 May 1982 it delivered a judgment dismissing an objection lodged by Mr Funke (Article 924 of the local Code of Civil Procedure). 22. On 28 July 1982 the Colmar Court of Appeal dismissed Mr Funke’s appeal against that judgment, holding that unless attachment orders were granted, it was to be feared that enforcement of the decision to be expected in the criminal trial would become impossible or much more difficult; furthermore, the creditor had made his claim credible by producing reports (Articles 917 and 920 of the local Code of Civil Procedure). 23. The applicant did not appeal on points of law. 24. On 22 November 1989 Mrs Funke made an application for discharge of the attachment order (Article 926 of the local Code of Civil Procedure); by this means she wanted to compel the customs authorities to bring to trial the issue of the existence of the right to payment which had provided the justification for the attachment order. She also sought leave to sell a property. 25. In an order made on 31 May 1990 the Strasbourg District Court gave the Director-General of Customs one month in which to bring proceedings on the merits. The customs authorities decided not to do so and in July 1990 agreed to the discharge of the attachment orders and of the associated mortgage. 26. The criminal provisions of customs law in France are treated as a special body of criminal law. 27. 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." 28. When the house search was made (14 January 1980), 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." 29. 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." 30. Article 65-1 of the Customs Code gives the customs authorities a special right of inspection: "Customs officers with the rank of at least inspector (inspecteur or officier) and those performing the duties of collector may require production of papers and documents of any kind relating to operations of interest to their department; ... (i) ... in general, on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service." 31. Anyone refusing to produce documents is liable to imprisonment for a period ranging from ten days to one month and to a fine of FRF 600 to 3,000 (Article 413 bis-1 of the Customs Code). Furthermore, a pecuniary penalty of not less than FRF 10 per day’s delay may be imposed on him (Article 431) and he may be committed to prison for non-payment (Article 382). 32. Article 341 bis-1 of the Customs Code provides: "Customs reports, where they are conclusive unless challenged as forgeries, shall be a warrant for obtaining, in accordance with the ordinary law, leave to take any necessary interim measures against persons liable in criminal or in civil law, for the purpose of securing customs debts of any kind appearing from the said reports." 33. 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."