Information Note on the Court’s case-law 38

January 2002

Keslassy v. France (dec.) - 51578/99

Decision 8.1.2002 [Section II]

Article 8

Article 8-1

Respect for home

House visit ordered and carried out under Article L. 16 B of the Book on Tax Procedure: inadmissible

Respect for private life

House visit ordered and carried out under Article L. 16 B of the Book on Tax Procedure: inadmissible

Article 34

Victim

Victim status accorded to applicant complaining about visit to and seizure of documents in his company offices located in his home

The applicant owned companies whose premises were searched under a judicial warrant. The searches, which involved the seizure of documents, were carried out by senior law-enforcement officers on the companies’ business premises, some of which were located in the applicant’s home. The warrant had been issued pursuant to Article L.16 of the Code of Tax Procedure for the purpose of seeking evidence that the companies were in breach of their tax obligations. In order to establish the existence of a presumption of fraud by the companies the judge who issued the search warrant referred, inter alia , to a typewritten letter, an anonymous statement and to previous proceedings that had been brought on a complaint lodged by the Tax Evasion Department following an audit of the accounts of one of the companies concerned. The Court of Cassation dismissed the applicant’s application to have the warrant set aside, holding that there had been sufficient evidence before the judge to give rise to a presumption of tax fraud by t he companies and to justify issuing a search warrant.

Inadmissible under Article 8: the applicant’s submission that he had been the “victim” of an interference with his right to respect for his home within the meaning of Article 8 of the Convention was wel l-founded in so far as it concerned his personal residence, which was used both by the companies and by him privately. It was unnecessary for the Court to answer the question whether the applicant could assert that he was a “victim” personally as regards t he searches effected in the premises used by the companies which he controlled either directly or indirectly at the material time, as the application was in any event ill-founded. The searches and seizures amounted to an “interference” in the exercise of t he right to respect for his private life and home. That interference was in accordance with the law and pursued the legitimate aims of protecting the economic well-being of the country and the prevention of crime. The judicial authority was entitled to con sider, within its margin of appreciation, that the search was necessary for obtaining evidence of the presumed tax offences and the reasons on which it had relied to justify that presumption were relevant and sufficient. The search had been carried out in accordance with the strict guarantees required by the applicable domestic procedure, which essentially entailed duly justified prior judicial authorisation and judicial supervision of the search and seizure procedures, which were effected by senior law-enf orcement officers. The judge had issued a reasoned order identifying the factors which gave rise to the presumption of fraudulent conduct. He had given special instructions regarding the implementation of the search and had supervised the entire search ope ration. Accordingly, regard being had to the strict rules of domestic law governing searches and to the fact that those rules had been complied with during the searches, the interference had been proportionate to the legitimate aims pursued and necessary i n a democratic society: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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