APPLICATION/REQUÊTE N" 11471/85 Paul CREMIEUX v/FRANCE Paul CREMIEUX c/FRANCE DECISION of 19 January 1989 on the admissibility of the application DÉCISION du 19 janvier 1989 sur la recevabilité de la requêt e Article 26 of the Convention : a) An applicant must make normal use of those domestir remedies winch are likelv ta be effective onrj saffrcient . When a remedy has been mtempted, use of another remedv whi(h bas essernially the saute objective is flot required. b) ln the case of search of a hume and seizure of private documents, an action ngainst the French (atams authorities on the basis of Article 401 of the Customs Code is nor an effective remedy. Article 26 de la Convention : a) Un requérant doit avoir fait un usage normal des recours internes vraisemblablement efficaces et suffisants. Lorsqu'une voie de recours a été utilisée , l'usage d'une autre voie dont le but est pratiquement le même n'est pas etigé, b) En cas de visite domiciliaire et de saisie de documents privés, l'action en responsabilité de l'administration française des douanes fondée sur l'article 40/ du Code des douanes n'est pas un recours efficace. (TRANSLA 77ON) THE FACTS The applicant, a French national, was born in 1908 in Marseille . He is retired and resides ai the home of his woman friend in Marseille. In the proceedings before the Commission he is represented by Jean and Corinne Imbach, lawyers practising in Strasbourg . The tacts of the case, as submitted by the parties, may be summarised as Iollows. The applicant was prosecuted for infringement of the statutory provisions governing linancial relations with other courtines, when he was chairman and munaging director of the company SAPVIN (Société d'Approvisionnements Vinicoles), which bas its registered office in Marseille . In October 1976, during an inquiry eonducted within the company SODEVIM, documents relating tri commercial transactions between SAPVIN, SODEVIM and toreign companies were seized . 74 Subséquent to these operations, the customs authorities, between 27 January 1977 and 26 February 1980, carried out a succession of 83 inspections in the form of questioning and searches during which further documents were seized . In accordante with customs législation, reports were drawn up of thèse searches made ai SAPVIN'S head office, at the homes and residences of the applicant and others . These searches were conducted in accordance with Articles 64 and 454 of the Customs Code by officiais of the Direction Nationale des Enquêtes Douanières (DNED) accompanied by a police officer and ail were followed by a questioning of the applicant. In particular, on 23 January 1979, at 7 a .m ., officiais of the customs authorities, accompanied by a police officer, arrived at the applicant's home, 64 boulevard de Courcelles, Paris 17° . They were received by the applicant's son, the applicant being absent . A great number of documents - the report mentions 518 - including correspondence, contracts and invoices, which according to the applicant had no real connection with the customs authorities' objective, were seized on that occasion . According tu the reasons adduced for the judgment of the Criminal Chamber of the Aix-en-Provence Court of Appeai dated 30 July 1984, which refers to the customs authorities' report of 23 January 1979, the applicant's son initialled the inventory of documents attached, the applieant arrived ai his home ai 9 .10 a.m., he was informed of the search of his office, the customs officiais had the report signed by the applicant and by his son and the appiicant was able te inspect the documents seized, which the applicant vehemently denies . Also on 23 January 1979, a further search was made ai the home of the applicant's warrant friend, where he stayed most of the lime . His friend's home was therefore also a private residence of the applicant . The DNED officiais arrived at 8 a.m. in order Io carry out an inspection . According to the applicant, they followed his friend, who wished ta put on a dressing gown, into the bathroom . The customs authorities then seized a number of her persona[ documents . On the saure day further house searches were conducted ai the homes of other persons having profession[ links with the applicant and his company . The applieant was questioned the following day on 24 January 1979 . On 16 February 1979 . al SAPVIN'S head office, the applicant's private sale was opened and 17 documents were seized. The accused was once again questioned on 17 May 1979 . Following a complaint by the Direction interrégionale des douanes de la Méditerranée a judicial investigation was opened by the Marseille Public Prosecutor's Office and the case was referred to the investigating judge on 16 Jolie 1981 . 75 In the investigation proceedings that took place before the Marseille Regional Court, the applicant challenged the lawfulness of the searches and the validity of the reports drawn up on these occasions . Moreover, before the investigating judge, the applicant questioned the compatibility of these customs inspection measures carried out under Articles 64 and 454 of the Customs Code with Article 66 of the French Constitution of 4 October 1958, as well as the conformity of this customs législation toi the provisions of Article 8 of the European Convention on Human Rights . The applicant was charged on 29 November 1982 . Because the applicant had complained of formai and substantive defects in the seizures made, vitiating the validity of the reports, the investigating judge, by order of 24 April 1984, requested the opinion of the Marseille public prosecutor concerning the investigation proceedings opened against Paul Cremieux and others, charged with infringing the exchange legislation . Since the customs authorities and the public prosecutor concluded Chat the reports were valid and the searches complained of by the applicant bore no formai or substantive dcfects, the investigating judge, by order of 22 June 1984, referred the matter directly to the Indictments Chamber of the Aix-en-Provence Court of Appeal . In a décision dated 30 July 1984, the Indictments Chambcr of the Court of Appeal declared that it lacked jurisdiction to decide on the constitutionality of Articles 64 and 454 of the Customs Code "in whatever form and for whatever purpose such unconstitutionality is claimed" ; deelared ail the reports challenged valid in form and substance ; but did not give a decision on the matter raised hy the applicant concerning the compatibility of the customs measures at issue with Article 8 of the Convention . The applicant lodged an appeal with the Court of Cassation, which was declared admissible, asking il to quash the decision of the Indictments Chamber of the Court of Appeal . On 21 January 1985 the Court of Cassation dismissed the appeal and considered the Court of Appeal's decision lawful . The reasons given by the Court of Cassation were as follows. The assessment of the constitutionality of Articles 64 and 454 of the Customs Code resulting from an unrepealed law of 1966 "does not fall within the jurisdiction of the judicial courts" ; "moreover, the provisions contained in Articles 64 and 454 comply with the requirements of Article 8 of the European Convention on Human Righis and Fondamental Freedoms" . 76 Since the customs authorities agreed to a settlement with the accused, the prosecution lapsed, the criminal proceedings were discontinued and the applicant was discharged on 16 lune 1987 . Consequently, following the discharge decision, the case was out referred to the eriminal court . COMPLAINTS (Extract ) The applicant alleges essentially the violation of Article 8 of the Convention . He also alleges the breach of Article 6 para . 3 and Article 10 together with Article 8 of the Convention . The applicant stresses the seriousness of the facts by pointing out that, during the searches, private and professional information was seized, along with soute correspondence from the applicant's lawyer . In support of his complaint, the applicant points out that among the documents seized, many had absolutely no connection with the investigation since several of them were returned . In addition, the applicant highlights the "scandalous intrusion" by the customs authorities into his friend's home, which served as one of his private residences, and the seizure of a number of documents from his friend's personal desk . In alleging a breach of Article 8 of the Convention, the applicant points to the absence of a legal basis and the fact that the interference measure was nota necessity . With regard to the absence of a legal basis, he notes that Article 64 of the Customs Code authorises customs officiais, as part of an investigation, to make daytime searches, accompanied by a police officer but without needing letters rogatory from the judicial authority, in other words without prior authorisation being obtained from the judge . Thus, Article 64 of the Customs Code is allegedly in contradiction with Article 66 of the French Constitution, which establishes the judicial authority as protector of individual freedom . This provision of the Constitution bas been the subject of two interpretative decisions concerning respectively vehicle searches and searches made in convection with tax evasion . In the second decision, Article 89 relating to inquiries roto income tax and turnover tas offenees was declared unconstitutional because il permitted investigations such as bouse scarches to be carried out without the prior intervention of the judicial authority, regarded as the protector of "individual freedom in ail its forms" (Conseil constitutionnel, 29 December 1983). By analogy, the applicant maintains the unconstitutionality of Article 64 and its counterpart, Article 454 of the Customs Code and therefore notes the absence of a legal basis to the searches carried out at his home in application of those articles . 77 The applicant also points tu the tact that Articles 64 and 454 of the Customs Code result respectively frein the Act of 6 August 1791 and the Order of 30 May 1945 . At the titre these tests were promulgated , there was no provision in French law for verifying constitulionality . Moreover, lie argues that according to the saying "tex posterior priori derogatthe French Constitution tacitly repealed these texts . This would mean that the interference by the public authorities in the home and residences of the applicant would roi comply with the requirenients of A rticle 8 of the Convention insofar as these rneasures were not based on "a statutory provision stil[ in force whose legal validity bas been duly recognised in the constitutional system" . With regard to Ihe aims of the interference ai issue, the applicant notes that Article 8 of the Conven tion sets out exhaustively Ihe interests deemed wo rthy of protection . Thus the applicant notes that in this case "the interferences under consideration were neither necessary for the interests of national security . nor necessary for public safety, tior necessary for the economic well-being of the country " . The need to prevent crime can also be ruled out , according Io the applicant, since in this case the répression and not the prevention of crime is the matter ai issue . As for the "prevention of disorder", the applicant points out that ibis ami doe ., not dispense the customs authorities front the need Io obtain prior judicial authorisation . The applicant maintains that the prevention of disorder dors not justify the conditions in which the searches and seizures ai issue were carried out . With regard to the necessaty of the interference, the applicant claims that this interference must be "necessary ", in other words that it must ful fil a pressing social need . The applicant refers here tu the Handyside case ( Eur . Court H .R ., judgment of 7 December 1976, Series A no . 24, p . 22, para . 48) . Thus, the applicant complains that the conditions of proportionality between the interférence measure and the legitimate aim of this measure , still according to the Handyside case, were nul fulfilled . The applicant coneludes that Article 64 of the Customs Code is irreconcilable with the Convention and that the Court of Cassation disregarded the violation of Article 8 by customs officiais during their searches ut the homes of the applicant and lits companion under A rticles 64 and 454 of the Customs Code . THE LAW (Extraci) 1 . The applicant 's complaints relate primarily to A rticle 8 of the Convention, b ut lie also alleges a breach of A rt icle 6 para . 3 and a breach of Article 10 together with Article 8 of the Convention . 78 As far as Article 8 of the Convention is concerned, the applicant complains of the searches and seizure of documents made by officials of the Direction Nationale des Enquêtes Douanières, between 27 January 1977 and 26 February 1980, at his home and at his woman friend's home, which served as one of his residences . He claims in this respect that his right to respect for his home, his private life and his correspondence was interfered with insofar as the formalities were not respected and that mort of the documents seized had no connection with the investigation . 2. The respondent Government maintain that the application is inadmissible because domestic remedies were not exhausted insofar as the application is based on the alleged violation of Article 8 of the Convention . They point out that the applicant had two remedies to cal] into question the responsibility of the State by bringing an action for damages . Firstly, the applicant did not appeal to the French courts implicating the responsibility of the customs authorities for the error committed by its officials in the performance of their duties, which appeal is provided for in Article 401 of the Customs Code . The Government note that customs Iaw gives the citizen a guarantee offered neither by tas law nor general lave, namely compensation and the payment of damages in the event of fruitless searches or in the event of unjustified seizure, even in the absence of any error by the department . The compensation provided for under Article 403 of the Customs Code is indeed symbolic but the avinant of damages is not limited to a maximum sum . Secondly, since the applicant regarded these searches as trespass, il was up to him to refer the matter toi the court judge on the basic of Article 184 of the Criminal Code relating tu abuses of authority against individuals . He could in this respect rely on the case-Iaw of the Paris Court of Appeal (Ist Chamber, 23 October 1984) which pointed out that "although relying on the application of Articles 64 and 454 of the Customs Code, the seizure or illegal withholding of purely private documents that are manifestly unconnected with the financial or commercial transactions which prompted the intervention of the customs authorities, could constitute trespass" . The applicant admitted that he used neither of these legal remedies but claims that in the circumstances of the case they had no chance of succeeding and did not therefore constitute effective remedies that would have allowed him at a domestic level to obtain compensation for the damage allegedly suffered . He stressed that lie made use of the appropriate legal remedies as far as the Court of Cassation to ascertain the lawfulness and validity of the seizures carried out and records drawn up subsequently, but chat the Court of Cassation, in its judgment of 21 January 1985, decided Chat the provisions of Articles 64 and 454 of the Customs Code complied with the requirements of Article 8 of the Convention . 79 The Commission recalls that on several occasions il bas stated chat the exhaustion of domestic remedies implies the use of legal remedies only insofar as they arc effective or sufficient, in other words chat they are capable of remedying the situation at issue (sec, in particular, Eur . Court H .R., De Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no . 77, p. 19, para . 39) . The tact is chat an applicant is required to make normal use of chose domestic remedies which are likely Io be effective and adequate to remedy the matters of which he complains (sec . for example, No . 9697/82, J . and Others v . Ireland, Dec . 7 .10 .83 . D .R. 34 p. 131) . With regard to the first legal remedy proposed by the respondent Government, namely Ihat provided for in Article 401 of the Customs Code, the Government do not mention any previous decisions that may tend to the supposition Chat in a case similar to the case in question, such a remedy would be likely to resolve the alleged violation, according to the case-law of the Convention's organs . The Commission notes that the Government were unable to point tu genuinely established case-law which would have given the applicant an effective remedy, in This case, within the meaning of Article 26 of the Convention . With regard to the second legal remedy suggested by the Government, the Commission notes that it applies only tu the formalities of the seizure and the tact of whether the documents seized in this case had any connection with the investigation . Since the applicant had challenged the lawfulness of the reports drawn up, and Iherefixe the validity of the seizures, in the contexi of proceedings that went as far as the Court of Cassation where the highest court look ils decision in a judgmem dated 21 January 1985, he cannot be reproached for failing to use a legal remedy whose objective is essentially the saure, namely to challenge the conformity of the seizures to the requirements of Article 8 of the Convention . Ii follows that the objection raised by the French Government that domestic remedies were not exhausted cannot be accepted . 80