The right of access under Article 60 of the Customs Code strictly supervised by the Court of Cassation
Article 60 of the Customs Code does not confer on customs officers the power to detain a person beyond the time necessary for the fulfillment of the right of access, nor the power to hear him or her.
In order to investigate customs fraud, article 60 of the Customs Code gives customs officers a general power of control, also called "right of access", over goods, means of transport and persons.
The provisions of article 60 do not specify the conditions under which the prerogatives of customs officers may be exercised and only stipulate that "for the application of the provisions of the present code and with a view to detecting fraud, customs officers may inspect goods, means of transport and persons".
Since customs practice tends to take a very broad view of the right of inspection, the Court of Cassation has had to set certain limits.
In a decision of June 13, 2019 (No. 18-83.297), the Criminal Division of the Court of Cassation ruled that "the exercise of the right of access to goods, means of transport and persons may not result in the persons concerned being kept at the disposal of customs officers beyond what is strictly necessary to carry out this measure and to draw up the report recording it.
The Court specifies that "if, in this context [editor's note: Article 60], customs officers may collect declarations with a view to the recognition of the objects discovered, they do not have a general power to hear the person controlled".
In this case, the controlled persons had been detained for several hours and formally interviewed. Their detention thus fell within the scope of article 323-1 of the Customs Code concerning customs detention, whose regime was aligned with that of police custody. They should thus have been notified of the rights relating to this measure of deprivation of liberty (Customs Code, arts. 323-3, para. 2, and 323-6).
Criminal Code, July 13, 2019 - No. 18-83.297.
In another judgment of 18 March 2010 (no. 19-84.372), the High Court confirmed the absence of a general power to hear customs officers and specified that "the free hearing of article 67 F of the Customs Code may not take place during the exercise of the right of access under article 60 when it is accompanied by a measure of constraint".
Article 67 F of the Customs Code provides that "a person with respect to whom there are plausible grounds for suspecting that he has committed or attempted to commit an offence and who is not placed under customs detention may be heard on these facts only after notification of the information provided for in Article 61-1 of the Code of Criminal Procedure [Editor's note: right to know the classification of the offence, right to leave the premises where he is heard, right to remain silent, etc.]. "and that "If, during the hearing of a person, plausible grounds for suspecting that he has committed or attempted to commit an offence appear to exist, this information shall be communicated to him without delay".
In this case, although the report drawn up by the customs officers indicated that the person controlled under Article 60 had remained free and unrestrained throughout the customs procedure, that person was invited to follow the officers to their premises. The High Court inferred from this that he had necessarily been compelled to remain there.
However, the free hearing of article 67 F of the Customs Code cannot take place during the exercise of the right of access under article 60 when it is accompanied by a measure of constraint.
Cass. crim. 18 March 2020, n°19-84.372.
Thus, in the framework of article 60, the powers of customs officers are therefore limited to the strict operations of inspection, which include the control of the goods, means of transport or person, the recording, in a report, of the findings made and information gathered, as well as, where appropriate, seizures and the drafting of the related report.