AS TO THE ADMISSIBILITY OF
Application No. 26722/95
by B.R.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 January 1995
by B.R. against Germany and registered on 16 March 1995 under file
No. 26722/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
8 July and 23 August 1996 and the observations in reply submitted
by the applicant on 18 July and 5 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1948, is a German national and resident
in Bensheim. He is a lawyer by profession. Before the Commission he
is represented by Mr. A. Gutsche, a lawyer practising in Bensheim.
A. The particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1992 criminal proceedings were instituted against the managers
of various construction firms and employees of the Bensheim
Municipality on charges of corruption.
In 1993 preliminary investigations were opened against Mr. S. and
Ms. A.S., managers of the limited company S. which was in the building
trade with seats in Weinheim and Bensheim. Mr. S. had previously
consulted the applicant, as his counsel, on the criminal proceedings
against other construction firms and had handed over various documents
with a view to ensure his defence in case that he should also be
prosecuted.
On 26 January 1993 a search warrant for the premises of the
S. company was issued by the Darmstadt District Court (Amtsgericht).
According to the search warrant Mr. S. and Ms. A.S. were suspected of
corruption committed in summer 1992 in that they had granted advantages
to Mr. B., who was prosecuted in separate proceedings. According to
the search warrant, there were, on the basis of the investigations so
far, reasons to believe that a particular bill of 23 July 1992 could
be found. It was also stated that material on the calculation of the
construction works, bills on the construction material and accounts of
salaries were of particular interest.
The search was carried out on 28 January 1993. Mr. S., who was
not present at the relevant time, called the applicant by phone and
asked him to be present at the search. Mr. S. also contacted the
Public Prosecutor (Staatsanwalt) conducting the search and stated,
inter alia, that he had given some possibly relevant documents to the
applicant. The applicant, when contacting the company by phone at its
premises in Weinheim, was not allowed to talk to Ms. A.S. When he
arrived at the company's premises in Weinheim, he was handed over a
copy of the search warrant of 26 January 1993. The Public Prosecutor
(Staatsanwalt) conducting the search ordered him to leave the premises.
He left the premises after a telephone conversation with Mr. S. When
arriving at the company's premises in Bensheim, the applicant discussed
the matter with one of the police officers who indicated that they
would inter alia search for receipts on donations and documents
relating to a tennis tournament. The applicant thereupon informed the
police officer that he possessed documents for the purpose of Mr. S.'s
defence. When informed about the applicant's presence in the Bensheim
premises of the S. company, the competent Public Prosecutor instructed
the police officers in Bensheim to request the applicant to leave. The
applicant left the premises without further specifying or handing over
the documents mentioned by him.
Still on 28 January 1993 the Bensheim District Court, in the
context of the preliminary investigations against the above
construction firm, represented by its managers Mr. S. and Ms. A.S., on
the suspicion of corruption, issued a search warrant concerning the
applicant's and his colleague's law office.
According to the search warrant, the search of the law office was
ordered pursuant to S. 103 of the Code of Criminal Procedure
(Strafprozeßordnung), as, on the basis of the investigations so far,
it had to be assumed that evidence, namely account documents of the
S. company, could be found. The Court also ordered that any documents
found were to be seized in accordance with S. 91 of the Code of
Criminal Procedure.
In the afternoon of 28 January 1993 the Darmstadt Public
Prosecutor's Office arrived at the office of the applicant and his
partner with a view to executing the search warrant.
According to the applicant, he had a telephone conversation with
a Senior Public Prosecutor at the Darmstadt Prosecutor's Office
regarding the documents needed for the purposes of the investigations
when the competent Public Prosecutor, accompanied by a police officer,
arrived at the office. A controversy developed between the applicant
and the Public Prosecutor on the question whether or not the documents
in the applicant's possession were part of the documents concerning his
confidential relation with his client, which could not be seized. The
Public Prosecutor insisted on obtaining the relevant file and inspected
it. He seized various documents (contracts concluded by the S. company
in connection with the construction of a public car park, documents on
construction works at the private building site of the employee
suspected of corruption, a bill regarding further works concerning the
above public car park, the lists of donations of the S. company between
1988 and 1992, the Bensheim Municipality's conditions of works, various
documents concerning works at a further public building site) and
returned the remainder of the file.
According to an official statement of the competent Public
Prosecutor dated 24 February 1993, the applicant had informed him that
he had eventually not accepted the mandate as Mr. S.'s defence counsel
and was accordingly only representing Mr. S. in civil matters. The
applicant first refused the Prosecutor's request to hand the relevant
documents over, upon the Prosecutor's further query, he pointed at a
file lying in front of him on his desk. Following further discussion
on the extent to which material could not lawfully be seized, the
applicant handed the file over, which was inspected by the Prosecutor,
who proceeded to the seizure of various documents concerning
construction works carried out by the suspect Mr. S. and returned the
remainder of the file.
On 29 January 1993 the Bensheim District Court, referring to
S. 94 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed
the seizure of the above documents. In its decision, the Court listed
the documents and stated that these documents could be relevant in the
context of the investigations against Mr. S. and Ms. A.S. on the
suspicion of corruption. The Court noted that on the basis of the
investigations so far, there was a suspicion of corruption. This
decision was served upon the applicant on 7 April 1993.
On 15 February 1993 the applicant lodged an appeal (Beschwerde)
against the search warrant of 28 January 1993.
On 8 March 1993 the Darmstadt Regional Court (Landgericht)
dismissed the applicant's appeal regarding the search warrant of
28 January 1993 as well as the decision of 29 January 1993.
In its decision, the Regional Court noted that Mr. S. and
Ms. A.S. were suspected of corruption in that they had performed
construction works at a reduced price for an employee at the Bensheim
Municipality in order to be favoured on the occasion of public
construction works, and that they had been favoured in a competitive
procedure regarding the construction of a Bensheim public car park.
On the occasion of the search at the premises of the S. company, the
applicant had presented himself as the company's counsel. When asked
to leave the premises, he had stated that he was in possession of the
relevant documents, and that he intended to take them away with him.
Thereupon the competent Public Prosecutor had requested and obtained
a search warrant for the applicant's law office and searched it. The
seizure of relevant documents of the S. company had been confirmed by
the District Court on 29 January 1993.
The Regional Court considered that the applicant's appeal against
the search warrant was inadmissible on the ground that the search had
already been carried out. The seizure decision of 29 January 1993,
which had replaced the inadmissible seizure order in the search
warrant, had terminated both the search and the inspection of the
applicant's documents.
The Regional Court further confirmed the seizure order of
29 January 1993. The documents seized had not been privileged under
S. 97 para. 1 of the Code of Criminal Procedure. First, it was
doubtful whether the applicant had a power of attorney for the legal
representation or defence of Mr. S. in all matters, or only limited to
the search at the premises of the S. company, and to what extent he
could have therefore refused to give testimony. In any event, the
documents seized were not documents excluded from seizure under S. 97
which only concerned documents containing submissions of the accused
to counsel, or counsel's notes on information given by the accused,
which were written or exchanged, or any other object produced, in the
very context of the brief and the confidential relationship between
counsel and accused. In particular, this provision was not supposed
to facilitate the commission of crimes or collusion by permitting an
accused to hand evidence over to counsel. Business papers which did
not concern the confidential relation between accused and counsel, but
transactions with third persons, could therefore be seized even if they
were in counsel's possession.
On 7 July 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The decision was served on
18 July 1994.
B. Relevant domestic law
The search complained of was ordered in the context of criminal
proceedings for corruption, an offence punishable by imprisonment of
a maximum of five years (S. 334 of the Penal Code, Strafgesetzbuch).
According to S. 53 para. 1 (2) and (3) of the Code of Criminal
Procedure (Strafprozeßordnung) a defence counsel or lawyer may refuse
testimony in respect of matters which were confided to them in their
professional capacity.
SS. 94 to 111n of the Code of Criminal Procedure govern the
seizure of evidence, the surveillance of telecommunications and the
search of a person's home or other premises.
S. 94 provides that objects which can, as evidence, be relevant
to the investigations have to be taken into official custody, or, if
they are in another person's custody and not handed over voluntarily,
have to be seized.
S. 97, in conjunction with S. 53 para. 1 (2) and (3), of the Code
of Criminal Procedure provides that, inter alia, correspondence between
the accused and his defence counsel, notes made by the lawyer in
respect of information given by the accused or in respect of other
matters covered by the right to refuse testimony and other material
including medical reports covered by the right to refuse testimony, may
not be seized.
S. 103 of the Code of Criminal Procedure provides in particular
that the home and other premises of a person who is not suspected of
having committed a criminal offence may only be searched in order to
arrest a person charged with a criminal offence or in order to
investigate traces of a criminal offence or in order to seize specific
objects, and only under the condition that there are facts to suggest
that a person, trace or object is to be found in the premises searched.
According to S. 304 of the Code of Criminal Procedure there is
an appeal against any decision taken by courts at first instance or in
the course of appeal proceedings, and against any order of a presiding
judge, a judge in the course of preliminary proceedings and a delegated
or commissioned judge, if the law does not expressly provide otherwise.
Witnesses, experts and other persons may appeal against decisions and
orders insofar as they are affected.
S. 23 para. 1 of the Introductory Act to the Courts Organisation
Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides that the
ordinary courts, upon request, shall decide upon the lawfulness of
orders, instructions and other measures taken by judicial authorities
in order to settle individual matters in the context of, inter alia,
the administration of criminal justice. S. 28 para. 1 stipulates that,
insofar as the measure is unlawful and the applicant's rights are
thereby infringed, the measure will be set aside. If the measure has
already been carried out, the court, upon request, may also order that
and how the authority concerned has to undo its execution. Furthermore,
if the measure has been previously withdrawn or otherwise settled, the
court, upon request, shall declare that the measure was unlawful, if
the applicant has a legal interest in such a declaration.
SS. 1 to 3 of the Federal Regulations for Lawyers (Bundes-
rechtsanwaltsordnung) define in general the position and the profession
of a lawyer. He is an independent organ in the administration of
justice. He exercises a liberal profession, not a business. He is an
independent counsel and representative in all legal matters. S. 43 of
these Regulations stipulates as a lawyer's general professional duty
that he has to practise conscientiously. Whether in pursuit of his
profession or otherwise, he has to prove himself worthy of the trust
which the position of a lawyer requires.
An unauthorised breach of secrecy by a lawyer is punishable by
imprisonment for a maximum of one year or a fine (S. 203 para. 1(3) of
the Penal Code).
COMPLAINTS
The applicant complains under Article 8 of the Convention about
the search of his law office.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 January 1995 and registered
on 16 March 1995.
On 12 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
8 July 1996. The applicant replied on 18 July 1996. The Government
filed supplementary observations on 23 August 1996, to which the
applicant replied on 5 September 1996.
THE LAW
The applicant complains that the search of his law office
amounted to a breach of his rights under Article 8 (Art. 8) of the
Convention.
This provision provides as follows:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
1. The Government consider that the applicant complied with the
condition as to the exhaustion of domestic remedies as far as his
complaint about the search warrant is concerned. However, according
to them, any complaints about the actual circumstances of the search
in question were inadmissible under Article 26 (Art. 26) of the
Convention on the ground that he failed to lodge an appeal under S. 23
of the Introductory Act to the Courts Organisation Act. He had only
appealed against his search warrant under S. 304 of the Code of
Criminal Procedure.
The applicant submits that his complaints relate to the search
warrant of 28 January 1993 and the search as such, not to the actual
circumstances of the search. Accordingly, he had deliberately
refrained from instituting proceedings under S. 23 of the Introductory
Act to the Courts Organisation Act.
It is true that under Article 26 (Art. 26) of the Convention the
Commission may only deal with a matter after all domestic remedies have
been exhausted according to the generally recognised rules of
international law.
The Commission notes that the applicant's appeal against the
search warrant as such was declared inadmissible by the Darmstadt
Regional Court for lack of a legal interest in having the search
reviewed. The Regional Court however, examined the merits of his appeal
against the District Court decision of 29 January 1993, confirming the
seizure of specific documents. The Federal Constitutional Court
refused to admit the applicant's constitutional complaint.
The Commission finds that, in the circumstances of the present
case and given the nature of the applicant's complaint, an appeal under
S. 23 of the Introductory Act to the Courts Act as regards the
execution of the search warrant was not an effective remedy which the
applicant ought to have exhausted (cf. No. 13710/88, Dec. 5.4.90,
unpublished).
The applicant has, therefore, complied with the condition as to
the exhaustion of domestic remedies under Article 26 (Art. 26) of the
Convention.
2. The Government further maintain that the application is
manifestly ill-founded. Referring to the Niemietz v. Germany judgment
(Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992,
Series A no. 251-B), they concede that there has been an interference
with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the
Convention. However, this interference was justified under paragraph
2 of Article 8 (Art. 8-2).
The Commission considers that in the present case the action
taken against the applicant in his law office on the basis of the
search warrant of 28 January 1993 interfered with his rights to respect
for his private life and home within the meaning of Article 8 para. 1
(Art. 8-1) (cf. Eur. Court HR, Niemietz judgment, op. cit., p. 34,
paras. 30-31; Miailhe v. France judgment of 25 February 1993, Series
A no. 256-C, p. 87, para. 28; Halford v. the United Kingdom judgment
of 25 June 1997, Reports 1997-III, No. 39, para. 44).
It must accordingly be determined whether the interference in
question satisfied the conditions in paragraph 2.
As regards the question whether the interference was "in
accordance with the law", the Commission notes that the search warrant
issued by the Bensheim District Court was based on S. 103 of the Code
of Criminal Procedure, respectively. Moreover, in its decision of
29 January 1993, the District Court, relying on S. 94 and S. 98 para. 2
of the Code of Criminal Procedure, confirmed the seizure of specific
documents in the applicant's office. The Regional Court likewise
considered that the seizure of the documents on 28 January 1993 had
been lawful. The Commission discerns no reason, on the basis of the
material before it, for not concluding that the search and seizure were
"in accordance with the law", within the meaning of Article 8 para. 2
(Art. 8-2).
Moreover, the interference pursued a legitimate aim under
paragraph 2 of Article 8 (Art. 8-2), namely the prevention of crime.
The parties' arguments are concentrated on the question whether
the interference complained of could be regarded as "necessary in a
democratic society".
The Government contend that the search and seizure of some
specific documents had been necessary in the context of the criminal
proceedings against Mr. S. and were not disproportionate. There had
been sufficient indications that incriminating material could be found
in the applicant's law office. The search warrant had been drawn up
in precise terms, in that it ordered the search for account documents
of the S. company. Furthermore, it had not been necessary to hear the
applicant before issuing the search warrant, as any search could be
avoided by surrendering the objects in question. Finally, the search
warrant was proportionate in the circumstances, given the strength of
the suspicion and the seriousness of the criminal offences at issue.
The search had moreover been limited to the inspection of the file
concerning the suspected Mr. S., after the applicant had refused to
hand over the relevant documents himself.
According to the applicant, the search warrant and seizure order
had not been necessary on the ground that he had offered cooperation
in the course of the searches of the premises of the S. company.
However, although having indicated that he might possess relevant
material, he was asked to leave the premises. He also submits that his
file should have been inspected by a judge.
The Commission recalls that the Contracting States have a certain
margin of appreciation in assessing the need for an interference, but
it goes hand in hand with European supervision. The exceptions
provided for in paragraph 2 of Article 8 (Art. 8-2) are to be
interpreted narrowly (cf. Eur. Court HR, Klass and Others v. Germany
judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and
the need for them in a given case must be convincingly established
(Eur. Court HR, Miailhe judgment, op. cit., p. 89, para. 36). In
connection with the search of a lawyer's office, it has to be recalled
that an encroachment on professional secrecy may have repercussions on
the proper administration of justice and hence on the rights guaranteed
by Article 6 (Art. 6) of the Convention (Eur. Court HR, Niemietz
judgment, op. cit., p. 36, para. 37).
In the present case, the search of the applicant's office was
ordered in the context of criminal proceedings against Mr. S. and
Ms. A.S., managers of the S. company, on the suspicion of corruption.
These proceedings formed part of further investigations in other
corruption cases involving employees of the Bensheim Municipality.
The search warrant was issued against the applicant as a third
person who was not suspected of being himself involved in the offences
which were investigated. It was ordered by the Bensheim District Court
upon the request of the Public Prosecutor conducting the searches at
the premises of the S. company, after the suspect Mr. S., himself had
informed the Public Prosecutor that he had given relevant material to
the applicant, his counsel. Accordingly, there were concrete
indications that documents relevant to the investigations could be
found in the applicant's office. Furthermore, the search warrant
stated with sufficient precision that the search was limited to account
documents relating to the S. company.
The Commission had regard to the applicant's argument that he had
offered cooperation on the occasion of his visit to the Bensheim
premises of the S. company and that the Public Prosecutor had failed
duly to react to this proposition. However, given the exigencies of
simultaneous searches carried out at the premises of a company in two
different towns, the Commission considers that the prosecution
authorities were not prevented from opting for a formal course of
action in order to obtain the material in question.
As regards the circumstances of the measures taken against the
applicant on the basis of the search warrant in question, the
Commission notes that the applicant, who was present in his office when
the competent Public Prosecutor and a police officer arrived, was given
an opportunity to hand over the relevant documents and thereby avoid
any search. The lawyer's office was eventually not searched, as the
applicant drew the officials' attention to a file containing material
concerning the business activities of the S. company. This file alone
was inspected by the Public Prosecutor, and some account papers were
seized. The seizure of these documents was confirmed by the Bensheim
District Court. In this context, the Commission also notes that at the
relevant time the applicant was not acting as defence counsel in the
criminal proceedings against the suspected Mr. S. and that it had been
Mr. S. himself who had pointed out these documents. Moreover, unlike
in the Niemietz case, there is nothing to show that the course of
events could have been capable of affecting adversely the applicant's
professional reputation (Eur. Court HR, Niemietz judgment, loc. cit.).
In sum, the Commission finds that the search warrant duly limited
the envisaged search of the applicant's office, bearing in mind that
in Germany the search of a lawyer's office is not accompanied by any
special procedural safeguards, such as the presence of an independent
observer (cf. Eur. Court HR, Niemietz judgment, loc. cit). Within the
framework so traced, the action taken by the competent Public
Prosecutor did not impinge upon professional secrecy to an extent that
would appear disproportionate in the circumstances.
In the light of these findings, the interference with the
applicant's rights could reasonably be regarded as necessary "in a
democratic society for the prevention of crime and it was, therefore,
justified under paragraph 2 of Article 8 (Art. 8-2). Consequently,
there is no appearance of a breach of Article 8 (Art. 8) of the
Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M. F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy