Right to respect for private and family life, home and correspondence (Article 8 of the Convention)
THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 ( c), ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION 21. The applicants complained that the procedure for the search and seizure of documents at their place of business had breached professional confidentiality and infringed their defence rights. They also complained, regardless of the nature of the Court of Cassation ’ s supervision in France, that an appeal on points of law was not an effective remedy by which to complain of interferences with the right to respect for one ’ s home. They relied on Article 6 §§ 1 and 3 ( c) and Articles 8 and 13 of the Convention, the relevant provisions of which read as follows : Article 6 §§ 1 and 3 ( c) “ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [ a ] tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... ( c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ” Article 8 “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties ’ submissions 1. The Government 22. The Government submitted that the complaints under Article 6 of the Convention should be dismissed as being incompatible ratione materiae with the provisions of the Convention, since tax disputes did not fall within the scope of Article 6 under its civil head ( they cited Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001-VII) and since the criminal head was unconnected to the facts of the case. 23. As to the merits, the Government pointed out that the procedure at issue had been authorised by a judge who, together with the Court of Cassation, had also supervised it. They further noted that the record of the search showed that the liberties and detention judge had been contacted at the time of the search of the premises. They also stated that the Court of Cassation ’ s judgment did not constitute a “shift” in the case-law, but on the contrary confirmed a position that was already established and had subsequently been maintained. The Government submitted that there had been no infringement of the rights of the defence or any breach of professional secrecy; on the contrary, the Court of Cassation ’ s judgment of 11 December 2002 had struck a fair balance between the principle of individual liberty and the requirements of combating tax fraud. They lastly stated that the judge had observed that the applicants had been retained to assist and represent Clinique Les Roches Claires and had acted in that capacity on various occasions during the tax proceedings involving their client. 24. With regard to Article 8 of the Convention, the Government submitted that the applicants had not exhausted domestic remedies since, in addition to an appeal on points of law, which they had lodged, two other remedies had been available to them: the first under Article 9 of the Civil Code, which guaranteed the right to respect for one ’ s private life, and the second by means of an action for damages against the State, through which they could have established, for example, that public officials had exceeded their authority and committed an error. 25. As to the merits, the Government did not dispute that there had been interference with the applicants ’ right to respect for their home, but contended that the interference had been in accordance with the law, namely Article L. 16 B of the Code of Tax Procedure, and had pursued legitimate aims by seeking to protect the economic well-being of the country and the prevention of crime. Lastly, they submitted that the interference had been necessary in a democratic society ( citing Keslassy v. France ( dec. ), no. 51578/99, ECHR 2002-I). The warrant authorising the search had fully satisfied the requirements laid down by domestic legislation and European case - law, with special procedural guarantees. 26. Finally, as regards the complaint under Article 13 of the Convention, the Government referred to their arguments in relation to the complaint under Article 8 and their references to domestic law and concluded that this complaint was manifestly ill-founded, all the more so because the Convention did not require a right of appeal, the existence of an appeal on points of law in itself being in conformity with the provisions of Article 13. They also pointed out that the Court had held that an appeal on points of law was a remedy that had to be attempted ( citing Civet v. France [GC], no. 29340/95, ECHR 1999-VI); the applicants had therefore used the remedy available to them which had enabled them to argue that there had been errors of law that could have affected the authorisation for the search of their premises and irregularities capable of rendering it void. 2. The applicants 27. The applicants submitted that the objections raised by the Government warranted no comment on their part, and reiterated the contents of their initial application. 28. As to the merits, they argued that the Court of Cassation had shifted from its earlier case - law, since it had referred to “ sufficient evidence of a suspicion of tax fraud” without indicating who was suspected, whereas the earlier case - law of its Criminal Division had required the lawyer to have taken part in the fraud. They contended that such a position undermined the protection of the rights of the defence, and consequently the professional secrecy of lawyers, which should be applicable as regards any matter coming under the Convention. 29. The applicants complained that it was possible to carry out searches of a lawyer ’ s premises where there was no suspicion that the lawyer had been involved in fraud. The first applicant stated in addition that he was merely his client ’ s lawyer – and, moreover, purely for matters of litigation and not legal advice – which meant that a number of documents covered by professional secrecy and required for the company ’ s defence were to be found at his practice. 30. The applicants also complained of the lack of an effective remedy, contending that an appeal on points of law – the only remedy available against orders made on the basis of Article L. 16 B of the Code of Tax Procedure – did not constitute an effective remedy on account of the content and scope of the review conducted by the Court of Cassation. B. The Court ’ s assessment 1. Admissibility 31. As regards both the plea of inadmissibility ratione materiae raised by the Government and their argument that domestic remedies had not been exhausted, the Court observes that it has already found that Article 6 § 1 was applicable and dismissed pleas of inadmissibility in a similar case ( see Ravon v. France, no. 18497/03, §§ 24 - 26 and 35, 21 February 2008). The pleas raised in this case must therefore also be dismissed. 32. Considering, further, that the application is not manifestly unfounded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds, the Court declares the application admissible. 2. Merits ( a) Complaint under Articles 6 and 13 of the Convention on account of the lack of effective judicial review 33. Where, as is the case here, Article 6 § 1 applies, it constitutes a lex specialis in relation to Article 13: the safeguards of Article 6 § 1 implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII, and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI). It is therefore appropriate to examine this complaint under Article 6 § 1 alone, and hence to ascertain whether the applicants had access to a “ tribunal” in order to receive a decision on their “dispute”, following proceedings meeting the requirements of this provision. 34. On this point, the Court observes that it has already ruled that the procedure provided for and outlined in Article L. 1 6 B of the Code of Tax Procedure does not meet the requirements of Article 6 § 1 of the Convention ( see Ravon, cited above, §§ 28 - 35). It sees no reason to depart from that finding in the instant case. 35. Accordingly, there has been a violation of Article 6 § 1 of the Convention. ( b) Complaint alleging a breach of professional secrecy 36. The Court reiterates, firstly, that the term “ home ” appearing in Article 8 may extend to the offices of a member of a profession, for instance a lawyer ( see Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251-B, and Roemen and Schmit v. Luxembourg, no. 51772/99, § 64, ECHR 2003-IV). 37. Consequently, it considers that the search of the applicants ’ practice and the seizures carried out amount to interference with the exercise of their rights under paragraph 1 of Article 8 of the Convention. 38. It considers that such interference was “ in accordance with the law ”. Article L. 16 B of the Code of Tax Procedure sets out the conditions that must be met in the event of a search, and the provisions of Articles 56 and 56-1 of the Code of Criminal Procedure, taken together, make express provision for observance of professional secrecy and the professional premises or private home of a lawyer. Furthermore, the applicants did not complain that the measures taken had lacked a legal basis, but that they were disproportionate and unnecessary in the circumstances of the case. 39. The Court finds furthermore that the interference pursued a “legitimate aim”, that is, the prevention of public disorder and crime. 40. As to whether the interference was “necessary”, the Court reiterates that “ the exceptions provided for in paragraph 2 of Article 8 are to be interpreted narrowly and the need for them in a given case must be convincingly established” ( see Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B, and Roemen and Schmit, cited above, § 68 ). 41. The Court considers that searches and seizures at the premises of a lawyer undoubtedly breach professional secrecy, which is the basis of the relationship of trust existing between a lawyer and his client. Furthermore, the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer ’ s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” ( see J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; see also, among other authorities, Funke v. France, 25 February 1993, § 44, Series A no. 256-A ). 42. Accordingly, although domestic law may make provision for searches of the practices of lawyers, it is essential that such searches are accompanied by particular safeguards. Likewise, the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case in particular where credible evidence is found of the participation of a lawyer in an offence (paragraph 15 above), or in connection with efforts to combat certain practices (paragraphs 17 - 18 above). On that account, however, it is vital to provide a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law. 43. In the instant case, the Court notes that the search was accompanied by special procedural safeguards, since it was carried out in the presence of the chairman of the Bar Association of which the applicants were members. Furthermore, the presence of the chairman of the Bar Association and the observations concerning the safeguarding of professional secrecy, which the latter felt obliged to make with regard to the documents to be seized, were mentioned in the report on the operations. 44. On the other hand, besides the fact that the judge who had authorised the search was not present, the presence of the chairman of the Bar Association and his specific objections were insufficient to prevent the actual inspection of all the documents at the practice, or their seizure. As regards in particular the seizure of the first applicant ’ s handwritten notes, the Court notes that it is not disputed that these were the lawyer ’ s personal documents and subject to professional secrecy, as maintained by the chairman of the Bar Association. 45. Furthermore, the Court notes that the search warrant was drawn up in broad terms, the decision being limited to ordering the searches and seizures required to disclose evidence of misconduct at certain places at which documents and data carriers relating to the suspected fraud might be found, in particular at the applicants ’ place of business. Accordingly, the inspectors and police officers were given extensive powers. 46. Lastly, and most importantly, the Court notes that the purpose of the search at issue was to discover at the premises of the applicants, purely in their capacity as the lawyers of the company suspected of fraud, documents which could establish the existence of such fraud on the company ’ s part and to use such documents in evidence against it. At no time were the applicants accused or suspected of having committed an offence or being involved in any fraud committed by their client. 47. The Court therefore notes that in the present case, in the context of a tax inspection into the affairs of a company that was the applicants ’ client, the authorities targeted the applicants solely because of the difficulties encountered both in carrying out the necessary tax inspections and in finding “accounting, legal and corporate documents” confirming the suspicion that the client company was involved in fraud. 48. In the light of the foregoing, the Court finds that, in the circumstances of the case, the search and seizures carried out at the applicants ’ premises were disproportionate to the aim pursued. 49. There has therefore been a violation of Article 8 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 50. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” A. Damage 51. The applicants sought payment of 30, 000 euros (EUR) in respect of non-pecuniary damage. 52. The Government submitted that a finding by the Court of a violation would in itself constitute sufficient redress for any non-pecuniary damage sustained by the applicants, any financial compensation being merely symbolic. 53. The Court shares the Government ’ s view as regards the applicant company. However, it considers that the finding of a violation is not sufficient to afford redress for the non-pecuniary damage sustained by Mr André. Ruling on an equitable basis as required by Article 41, it awards him EUR 5, 000 under this head. B. Costs and expenses 54. The applicants sought reimbursement of the costs they had incurred in presenting their case. They produced a bill for EUR 14, 352 ( comprising EUR 12, 000 in fees and EUR 2, 352 in VAT) issued by their representative in respect of the proceedings before the Court of Cassation and the Court. 55. The Government submitted that any amount awarded should not exceed EUR 2 000. 56. According to the Court ’ s case - law, an applicant can only seek reimbursement of costs and expenses in so far as they have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, where the Court finds that there has been a violation of the Convention, it awards the applicant only those costs and expenses that have been incurred before the national courts for the prevention or redress of the violation. Having regard to the information available to it and the aforementioned criteria, the Court, ruling on an equitable basis as required by Article 41, awards them jointly EUR 10, 000 under this head. C. Default interest 57. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
In this case the Court recalled that it was essential for searches at a lawyer’s office to be attended by special safeguards. It was also vital to provide a strict regulatory framework for such measures. The Court noted that in the applicant’s case the search had been attended by a special safeguard since the chairman of the Marseilles Bar Association had been present. On the other hand, apart from the fact that the judge who had authorised the search was not present, the presence of the chairman of the bar and his protests were not adequate to prevent the effective disclosure of all the documents at the practice or their seizure. In addition, the tax inspectors and the senior police officer had been given extensive powers by virtue of the broad terms of the search warrant. Lastly, the Court noted that in the context of a tax inspection into the affairs of the applicants’ client company the tax inspectorate had targeted the applicants for the sole reason that it was finding it difficult to carry out the necessary checks and to find documents capable of confirming the suspicion that the company was guilty of tax evasion, although at no time had the applicants been accused or suspected of committing an offence or participating in a fraud committed by their client. Accordingly, considering that the search and seizures had been disproportionate to the aim pursued, the Court held that there had been a violation of Article 8 (right to respect for home) of the Convention. It also found a violation of Article 6 § 1 (right of access to a court) of the Convention on account of the lack of effective judicial review.