11. On ___ the customs authorities summoned him before the ______ police court seeking to have him sentenced to a fine (amende) and a further penalty (astreinte) of 50 French francs (FRF) a day until such time as he produced the bank statements; they also made an application to have him committed to prison.

12. On ___ the court imposed a fine of FRF 1,200 on the applicant and ordered him to produce to the customs authorities the bank statements of his accounts at ______, ____ and _____ and of his savings account at the _____ and all documents concerning the financing of the ___ he had bought at ____, on penalty of FRF 20 per day's delay.

The reasons given for its judgment were the following:

On ____ Mr ____ told the Customs Service that he was unable to make available the documents that he had undertaken to produce.
He has provided no reason for this and has submitted no correspondence that would show he took the necessary steps to obtain the required documents or would prove that the foreign banks refused to supply him with any such document.

Mr ____ acknowledged that, together with his brother, he bought a bedsitter at _____ and produced photocopies of the contract of sale and of the entry in the land register; but he refused to produce documents concerning the financing of the purchase.

Article 65 of the Customs Code provides: 'Customs officers with the rank of at least inspector ... may require production of papers and documents of any kind relating to operations of interest to their department'.

It appears from the present proceedings taken by the customs authorities that the prosecuting officer has the rank of inspector.

The documents sought, namely the bank statements and the documents relating to the financing of the purchase of the flat, can be brought within the category of documents covered by Article 65 of the Customs Code.

The same Article 65 provides in paragraph l(i) that such requests for production may be made 'on the premises of (chez) any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service'.

In this context the term 'chez' must not be restricted to 'at the home of (au domicile de) but must be construed as meaning "wherever ... may be' (aupres de).

Any other construction would enable the person concerned to evade the Customs Service's investigations by keeping any compromising papers elsewhere than at his home.

The house search and Mr _____'s own statements provided sufficient evidence that there were bank accounts and financing operations concerning the defendant to enable the Customs Service to exercise their right of inspection in relation to the relevant documents notwithstanding that these were not at Mr ____'s home.

As the holder of an account used abroad, Mr _____, like any account-holder, must receive statements following any transaction on the account. A statement is an extension, a reflection of the situation, of an account at a given time. The holder of the account is the owner of his statements and may at any time ask for them from his bank, which cannot refuse them."

(ii) In the ____ Court of Appeal

13. Appeals were brought by Mr ____, the public prosecutor and the customs authorities. On _____ the ____ Court of Appeal upheld the judgment of the court below other than as regards the inspection of documents relating to the ____ at _____, and increased the pecuniary penalty to FRF 50 per day's delay.

It dealt with Mr ____'s argument based on the Convention as follows:

"Article 413 bis of the Customs Code, which applies to financial dealings with foreign countries by virtue of Article 451 of the same code, makes any refusal to produce documents and any concealment of documents in the cases provided for, inter alia, in Article 65 of the aforementioned code punishable by imprisonment for a period ranging from ten days to one month and a fine of FRF 400 to 2,000.

Under Article 65, customs officers may require production of documents of any kind relating to operations of interest to their department, in general, on the premises of any natural or legal person directly or indirectly concerned in lawful or unlawful operations falling within the jurisdiction of the Customs Service.

In the instant case _____ is liable only to a fiscal penalty: to a fine, therefore.

It does not appear that the power conferred by the aforementioned provisions on a revenue authority conflicts with the protection of human rights and fundamental freedoms which it is the purpose of the instrument of international law relied on to guarantee.

The defendant had a fair hearing.

Obviously, no offences which performance of the duty to produce documents may disclose are yet before the courts; that being so, ____'s objections of principle are premature.

Moreover, while everyone charged with a criminal offence is to be presumed innocent until proved guilty according to law, Article 6 para. 2 (art. 6-2) of the Convention does not otherwise restrict the type of evidence which the lex fori places at the disposal of the prosecuting party in order to satisfy the court.

Lastly, the obligation on a defendant to produce in proceedings evidence likely to be used against him by the opposing side is not a special feature of customs or tax proceedings since it is enacted in Article 11 of the New Code of Civil Procedure likewise.

On the other hand, while Article 8 (art. 8) of the Convention provides that everyone has the right to respect for his private life and his correspondence, there may be interference by a public authority with the exercise of this right so long as it is in accordance with the law and amounts to a measure which is necessary in a democratic society, inter alia in the interests of the economic well-being of the country or for the prevention of disorder or crime.

In most of the countries signatories to the Convention, moreover, the customs and revenue authorities have a right of direct investigation in banks."

(iii) In the Court of Cassation

14. On _____ the Court of Cassation (Criminal Division) dismissed an appeal on points of law by Mr _____. The third and final ground, in which Articles 6 and 8 (art. 6, art. 8) of the Convention were prayed in aid, was rejected in the following terms:

К сожалению, формулировок апелляций в документе нет, поэтому могу только предположить, что апелляционная жалоба имела какое-то отношение к местонахождению документов и противоречии действий таможни положениям Конвенции, а из кассационной было убрано "местонахождение" и оставлено только противоречие.

По сути же дела - не вижу причин, почему бы предлагавшийся мною в своё время catchall вариант здесь бы не подошёл.
Смысл ведь тот же - что по нашему кодексу, что по упомянутому здесь французскому Noveau Code de la Procedure Civile в кассационной инстанции можно ссылаться лишь не неверно квалифицированные судами первой и апелляционной инстанций, неправильно истолкованные ( и примененные )нормы права.
ИМХО...

Re: имена - Мэтр, не зовите меня больше Собратом... Я Вам разве только может в apprentices сгожусь (ну, может, в senior apprentices :-) )... Не конкретно на них, но, судя по всему, заказчик у нас с ними один в данном случае... :-)))

Я лично, если хотите знать, у Вас весьма много для себя почерпнул. И профессионально, терминологически, и что ныне, увы, редко, по части манер...
Тихой Вашей благожелательности и выдержке, с лукавой иногда доброй ухмылкой в усы... - этому бы поучиться у Вас.

Учитесь, Киса.......

OK guys, welcome to the Mutual Admiration Society :-)))))))