Funke v France (Case A/256-A) European Court of Human Rights [1993] 1 CMLR 897 25 February 1993

Human rights. Search and seizure. Customs. Free movement of capital. Where customs authorities use their 'police power' of search and seizure to engage in a fishing expedition to obtain documents which they suspect but do not know to exist and which if found might provide evidence for a prosecution, and not finding any use daily penalties and fines to force surrender of such documents, they are infringing the right, protected by Article 6(1) ECHR, of anyone 'charged with a criminal offence' (within the autonomous meaning of that phrase in Article 6 ECHR) to remain silent and not to incriminate himself.

FACTS:

The applicant, a German living in France with his French wife, was visited by the French custom authorities as a result of a tip they received from the tax authorities in Metz. The French custom officials entered the applicant’s house without a warrant and proceeded to search his house for 4 hours. During the search they seized certain documents that were not enough to convict him of any wrong doing. They also ordered him to produce certain back documents as well as other financial documents. When the applicant refused to produce the required documents, he was prosecuted and fined. In addition, he was ordered to pay a daily fine until such date when he produced the required documentation. The applicant unsuccessfully appealed the orders. He files this suit alleging that his rights were violated under Articles 6 and 8 of European Convention on Human Rights. The relevant articles afford the defendant the opportunity to remain silence and not say anything that may incriminate him.

DECISION:

1. Article 6(1)

The court held that in this case, the customs official did not require the applicant to confess to an offence or to provide evidence that would incriminate him. They had merely asked him to give them particulars of evidence found by their officers to which he had admitted, namely the bank statements and check-books discovered during the house search.

Nevertheless, the Court also found that the special features of customs law cannot justify such an infringement of the right of anyone 'charged with a criminal offence,' within the autonomous meaning of this expression in Article 6, to remain silent and not to contribute to incriminating himself. There has accordingly been a breach of Article 6(1).

2. ARTICLE 8 violations

In this case, the court examine the three prongs of Article 8, namely that a search be ‘in accordance with the law’, ‘ has a legitimate aim, and ‘necessary in democratic society. It the determined that the case in question satisfied the three prongs and thus there was no violation of Article 8.

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