CRÉMIEUX v. FRANCE - 11471/85 [1993] ECHR 5 (25 February 1993)

judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and the need for them in a given case must be convincingly established. 39. Undoubtedly, in the field under consideration - the prevention of capital outflows and tax evasion - States encounter serious difficulties owing to the scale and complexity of banking systems and financial channels and to the immense scope for international investment, made all the easier by the relative porousness of national borders. The Court therefore recognises that they may consider it necessary to have recourse to measures such as house searches and seizures in order to obtain physical evidence of exchange-control offences and, where appropriate, to prosecute those responsible. Nevertheless, the relevant legislation and practice must afford adequate and effective safeguards against abuse (see, among other authorities and mutatis mutandis, the Klass and Others judgment previously cited, Series A no. 28, p. 23, para. 50). 40. This was not so in the instant case. At the material time - and the Court does not have to express an opinion on the legislative reforms of 1986 and 1989, which were designed to afford better protection for individuals (see paragraph 21 above) - the customs authorities had very wide powers; in particular, they had 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, which were emphasised by the Government (see paragraph 37 above), appear too lax and full of loopholes for the interferences with the applicant's rights to have been strictly proportionate to the legitimate aim pursued. 41. In sum, there has been a breach of Article 8 (art. 8). II. ALLEGED VIOLATIONS OF ARTICLE 6 PARA. 3 AND ARTICLE 10 (art. 6-3, art. 10) 42. The applicant also relied on Article 6 para. 3 and Article (art. 6-3, art. 10). The alleged infringements of the rights of the defence and of freedom of expression relate to the same facts as those which the Court has held to have contravened Article 8 (art. 8); in the circumstances of the case, it is unnecessary to consider them separately. III. APPLICATION OF ARTICLE 50 (art. 50) 43. Under Article 50 (art. 50), "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 44. Mr Crémieux claimed, firstly, that he had sustained non- pecuniary damage; he put this at 500,000 French francs (FRF) but left it to the Court to determine in its discretion and in the light of its case-law. The Government and the Delegate of the Commission expressed no opinion. 45. The Court considers that the applicant must have suffered non- pecuniary damage but that this judgment affords him sufficient compensation for it. B. Costs and expenses 46. Mr Crémieux also sought reimbursement of the costs and expenses he had incurred in the French courts and in the proceedings before the Convention institutions. He assessed these on a lump-sum basis at FRF 100,000; given that the case went back a long way in time and that his first counsel had died, he acknowledged that he was unable to provide a detailed statement of costs. The Government and the Delegate of the Commission did not put forward any view on the issue. 47. Applying its usual criteria, the Court awards the applicant FRF 50,000. FOR THESE REASONS, THE COURT 1. Dismisses unanimously the Government's preliminary objection; 2. Holds by eight votes to one that there has been a breach of Article 8 (art. 8); 3. Holds by eight votes to one that it is unnecessary to consider the case also under Article 6 para. 3 and Article 10 (art. 6-3, art. 10); 4. Holds unanimously, as regards the non-pecuniary damage sustained by the applicant, that the present judgment constitutes in itself sufficient just satisfaction for the purposes of Article 50 (art. 50); 5. Holds unanimously that the respondent State is to pay the applicant, within three months, 50,000 (fifty thousand) French francs in respect of costs and expenses; 6. Dismisses unanimously the remainder of the applicant's claims. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 February 1993. Signed: Rudolf BERNHARDT President Signed: Marc-André EISSEN Registrar In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the dissenting opinion of Mr Thór Vilhjálmsson is annexed to this judgment. Initialled: R. B. Initialled: M.-A. E. DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON I have voted against the finding of a violation of Article (art. 8) of the Convention in this case. My reasons are much the same as those set out by the majority of the Commission in its report. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII