MIAILHE v. FRANCE (No. 1) - 12661/87 [1993] ECHR 8 (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. 37. 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). 38. 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 19 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 35 above), appear too lax and full of loopholes for the interferences with the applicants' rights to have been strictly proportionate to the legitimate aim pursued. 39. To these general considerations may be added a particular observation. The seizures made on the applicants' premises were wholesale and, above all, indiscriminate, to such an extent that the customs considered several thousand documents to be of no relevance to their inquiries and returned them to the applicants (see paragraph above). 40. In sum, there has been a breach of Article 8 (art. 8). II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 41. In the proceedings before the Commission, the applicants also relied on Article 13 (art. 13), but they did not do so before the Court, which does not consider that it must examine the issue of its own motion. III. APPLICATION OF ARTICLE 50 (art. 50) 42. 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." 43. The applicants invited the Court to defer its decision on the application of this provision until the criminal proceedings in France against Mr and Mrs Miailhe had been concluded. They asked it, however, to award each of them - in final settlement in the case of Mrs Victoria Miailhe, and on an interim basis in the cases of Mr Miailhe and his wife - 100,000 French francs (FRF) for non-pecuniary damage and FRF 100,000 for costs. The Government and the Delegate of the Commission expressed no opinion. 44. In the Court's view, the question is not ready for decision although the criminal proceedings against Mr and Mrs Miailhe have ended with the Bordeaux Criminal Court's judgment of 2 December 1992 (see paragraph 9 above). Accordingly, it must be reserved and the further procedure must be fixed, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule paras. 1 and 4 of the Rules of Court). 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 unanimously that it is not necessary also to examine the case under Article 13 (art. 13); 4. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision; accordingly, (a) reserves it in whole; (b) invites the Government and the applicants to submit in writing, within three months, their observations on the matter and, in particular, to notify the Court of any agreement they may reach; (c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be. 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