Resolution CM/ ResDH (2012)28 [1]

Execution of the judgments of the European Court of Human Rights

Ravon and others, Kandler and others, Société IFB and Maschino against France

(Application No. 18497/03, judgment of 21 February 2008, final on 21 May 2008,

Application No. 18659/05, judgment of 18 September 2008, final on 18 December 2008,

Application No. 2058/04, judgment of 20 November 2008, final on 20 February 2009,

Application No. 10447/03, judgment of 16 October 2008, final on 16 January 2009 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern lack of access to a court in order for the applicants to challenge the lawfulness of the house searches and seizures to which they had been subjected in the framework of fiscal proceedings, on the basis of Article L.16B of the Code of Tax Procedure (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent State has paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2012)28

Information on the measures taken to comply with the judgments in the cases of

Ravon and others, Kandler and others, Société IFB and Maschino against France

Introductory case summary

These cases concern house searches and seizures carried out between 2000 and 2003, at the request of the tax administration, in the professional and/or private premises of the applicants. The Court found that the applicants had not had access to a court to obtain a decision on their objections to these searches and seizures (violations of Article 6, paragraph 1).

The Court noted that the only avenue of appeal available to the applicants under Article L.16B of the Code of Tax Procedure was an appeal on points of law only. It did not permit an examination of the facts in question and did not provide sufficient guarantees of the right to a fair hearing. The fact that search and seizure can only be undertaken following a judge ’ s order (at the material time, an order of the president of the Regional Court , but now an order of the liberties and detention judge) is not sufficient to overcome this gap. Furthermore, the fact that Article L.16B of the Code of Tax Procedure provides that such proceedings must take place under the supervision of that judge does not provide any independent control of the lawfulness of the authorisation itself. Finally, the Court found that it had not been possible for the persons concerned to have access to the judge who authorised the search proceedings once the searches had been completed. Complaints about irregularities affecting the proceedings could be made only to the courts ruling on the prosecutions begun on the basis of the documents seized, so this remedy was not available in the absence of a prosecution (as in the applicants ’ cases).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Ravon and others No. 18497/03

-

5000 EUR

-

5000 EUR

Paid on 25/07/2008

Kandler and others

No. 18659/05

-

-

-

-

Société IFB

No. 2058/04

-

-

-

-

Maschino

No. 10447/03

-

5000 EUR

5000 EUR

10000 EUR

Paid with interest on 27/07/2009

b) Individual measures

None of the applicants was prosecuted by the tax administration following the procedures at issue ( § 11 of the judgment in the case of Ravon and others; § 10 of the judgment in the case of Kandler and others; § 10 of the judgment in the case of Société IFB; § 13 of the judgment in the case of Maschino ). In the case of Maschino , it awarded € 5000 to the applicant in respect of non-pecuniary damage. In the cases of Kandler and others and Société IFB, the Court considered that the non-pecuniary damage had been sufficiently compensated by its finding of violations. No individual measure other than the payment of just satisfaction appeared necessary.

II. General measures

The European Court pointed out that "Article 6§1 implies that, in relation to search and seizure proceedings, those concerned should be able to challenge before an effective court, in fact and in law, the regularity of the decision ordering the proceedings and, if needed, the measures taken because of it. The avenue of appeal available should permit, in case of irregularity, the supervision of the proceedings in the event that if an operation is found to be irregular, those affected can obtain suitable redress" (§ 28).

Article L. 16 B of the Code of Tax Procedure was amended by Article 164 of Law No. 2008-776 of 4 August 2008 ( loi de modernisation de l ’ économie ) to take into account the requirement of access to a court in this kind of proceedings. Article L. 16 B as amended now provides first the possibility to appeal against an order authorising searches before the court of appeal ’ s first president who is competent to examine the facts and the law. The order specifies the time limit and the remedy. The article provides secondly that the first president of the court of appeal is also competent for appeals lodged in respect of the conduct of the search and seizure operations. The minutes and the inventory drafted following the searches and seizures mention the time limit and remedy. The decisions of the first president of the court of appeal can themselves be the subject of an appeal on points of law.

The European Court has delivered several decisions of inadmissibility or strikings -out, in the light of the effective nature of the remedy thus introduced. It has taken the view that "an appeal lodged before the first president of the court of appeal enables the persons concerned to challenge, in law and in fact, the lawfulness and merits of the order of the liberties and detention judge authorising house searches and seizures, and also the conduct of these operations, thus guaranteeing them effective judicial supervision of the lawfulness of the order which meets the requirements of Article 6 §1 of the Convention. The Court does not accept the applicants ’ argument that this new remedy is purely theoretical" (decision in the case of Société Provitel St ‑ Georges and J. Emery, Application No. 29437/08, 9 November 2010; also see, inter alia, the decision in the case of SAS Arcalia , Application No. 33088/08, 31 August 2010; and the decision in the case of Naco Trading AS, Application No. 29377/08, 28 September 2010).

III. Conclusions of the respondent State

The government considers that no individual measure is required, apart from the payment of the just satisfaction awarded to the applicants by the Court, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 March 2012 at the 11 36 th Meeting of the Ministers’ Deputies .