CEDH · CASELAW;RESOLUTIONS;EXECUTION;ENG — 16 novembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }       The Committee of Ministers, under the terms of Article 54 (art. 54) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the Convention"),        Having regard to the judgment of the European Court of Human Rights in the Funke case delivered on 25 February 1993 and transmitted the same day to the Committee of Ministers;        Recalling that the case originated in an application against France lodged with the European Commission of Human Rights on 13 February 1984 under Article 25 (art. 25) of the Convention by Mr Jean-Gustave Funke, a French national, and that the Commission declared admissible the complaints relating on the one hand to his criminal conviction for refusal to produce certain documents requested by the customs and on the other to the search and seizure effected at his home by customs officers;        Recalling that the case was brought before the Court by the Commission on 13 December 1991;        Whereas in its judgment of 25 February 1993 the Court:        - dismissed unanimously the Government's preliminary objection;        - held by eight votes to one that, for want of fair trial, there had been a violation of Article 6, paragraph 1 (art. 6-1);        - held by eight votes to one that it was unnecessary to consider the other complaints raised under Article 6 (art. 6);        - held by eight votes to one that there had been a breach of Article 8 (art. 8);        - held unanimously that the respondent state was to pay the applicant, within three months, 50 000 French francs for non-pecuniary damage and 70 000 French francs for costs and expenses;        - dismissed unanimously the remainder of the applicant's claims;        Having regard to the rules adopted by the Committee of Ministers concerning the application of Article 54 (art. 54) of the Convention;        Having invited the Government of France to inform it of the measures which had been taken in consequence of the judgment of 25 February 1993, having regard to France's obligation under Article 53 (art. 53) of the Convention to abide by it;        Whereas, during the examination of the case by the Committee of Ministers, the Government of France gave the Committee information about the measures taken in consequence of the judgment, which information appears in the appendix to this resolution;        Having satisfied itself that at some date before 16 July 1993 the Government of France paid the applicant the sums provided for in the judgment of 25 February 1993,        Declares, after having taken note of the information supplied by the Government of France, that it has exercised its functions under Article 54 (art. 54) of the Convention in this case.                   Appendix to Resolution DH (94) 83           Information provided by the Government of France             during the examination of the Funke case                   by the Committee of Ministers        The Government considers that by adopting the Budget Acts of 30 December 1986 and 29 December 1989   France has complied with its obligations under Article 53 (art. 53) in so far as the violation of Article 8 (art. 8) established by the Court is concerned. According to Article 64, as amended by these two acts, all home searches, except those carried out in connection with a flagrant offence, must be authorised in advance by a reasoned order of the president of the tribunal de grande instance or a judge delegated by him (see also the Committee of Minister's Resolution DH (94) 51 in the Miailhe case).        With regard to the violation of Article 6, paragraph 1 (art. 6-1), the government is of the opinion that the changes in the exchange control regulations and developments of the customs authorities' practice and of the case-law of the courts have solved the problems of a general character resulting from the Court's judgment, thereby preventing the repetition of the violation found.        In January 1990, the exchange control regulations were amended.   Henceforth, all residents may keep assets abroad, in whatever form, and the revenues acquired abroad must no longer be repatriated.   As a consequence, the customs authorities will no longer undertake the kind of searches they carried out in Mr Funke's case.   A person in Mr Funke's situation can, accordingly, no longer be charged with a criminal offence, under Articles 65, paragraph 1, and 413 bis of the customs code.        Moreover, when applying the said Article 65, the custom officers will, henceforth, only request the communication of documents whose existence is required by law or can be proven. Furthermore, the Court of Cassation ensures that the documents, the communication of which is requested by the administration, really exist.   In addition, the Conseil constitutionnel has held that the power to order communication vested in certain governmental officials has to be exercised in accordance with certain conditions relating to the motivation for the communication order, the age of the documents concerned, the manner in which the documents requested are kept by the administration, the possibility to be accompanied by counsel and the recording of the event.        In these circumstances the French Government does not consider it necessary to amend Articles 65, paragraph 1, and 413 bis of the customs code which are the indispensable counterpart to the declaration system in force in custom, fiscal and exchange control matters.