The government has recently presented a bill aimed at reforming customs search powers following a decision by the Constitutional Council in September 2022. This decision declared Article 60 of the Customs Code unconstitutional, which allowed customs officers to conduct searches of goods, means of transport, and individuals in the context of fraud investigations.

Article 60 of the Customs Code, enacted in 1948, governed searches of vehicles and individuals. However, members of the Constitutional Council considered that this article did not provide sufficient clarity regarding the framework applicable to these operations, particularly concerning the locations where they can be carried out or the existence of plausible reasons to suspect an offense.

Since the declaration of unconstitutionality of this article, procedures related to customs seizures have been plunged into unprecedented legal uncertainty. Advocates for alleged traffickers have exploited this legal loophole to obtain acquittals or the outright cancellation of certain seizures.

The bill presented by the government aims to secure the search powers of customs officers and strengthen their actions. According to this proposal, the right to search goods and individuals will depend on the geographical location where it is exercised. It will remain fully applicable in border areas and in the “customs zone,” as well as in ports, airports, international railway stations, and bus terminals. Outside of these areas, the right to search will need to be justified and legally secured.

This means that officers will have to inform the public prosecutor in advance, without requiring formal authorization, or have plausible reasons to suspect a customs offense. Additionally, the bill specifies the rights of individuals subjected to a customs search. The search may involve patting down or searching clothing and luggage, but body searches will only be allowed during a customs hold.

This reform aims to clarify the legal framework for customs searches while preserving the operational capabilities of officers in the fight against fraud. It will also address the concerns raised by the Constitutional Council’s decision while maintaining a balance between individual rights and the general interest of customs security.