FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41604/98
by Jürgen BUCK
against Germany
The European Court of Human Rights, sitting on 7 May 2002 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. Ress,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 23 March 1998 and registered on 10 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Jürgen Buck, is a German national, who was born in 1938 and lives in Dettingen. He was represented before the Court by Mr M. Buck, a lawyer practising in Leizig. The respondent Government are represented by Mr Stoltenberg, Ministerialdirigent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.The initial phase of prosecution for the speeding offence
In August 1996, the Dettingen municipal authorities imposed a fine of 120 German marks (DEM), plus fees amounting to DEM 36, on V.B., the applicant’s son, for having exceeded the speed limit of 50 kph by 28 kph in the evening of 21 May 1996, when travelling in a car belonging to the private limited company ‘drink o mat’ (regulations 3(3)(1) and 49(1)(3) of the Road Traffic Regulations - and section 24 of the Road Traffic Act - see ‘Relevant domestic law’ below). The applicant is the owner and manager of that company.
On 4 September 1996, V.B. lodged an objection aginst the administrative decision imposing the fine.
On 12 March 1997, the trial on this matter opened before the Bad Urach District Court. V.B. pleaded not guilty, stating that about fifteen other persons could have driven the company car in question that very day. The applicant, summoned as a witness, refused to give evidence, as he was entitled to do as a family member. The hearing was adjourned until 19 March 1997.
2.The proceedings regarding the warrant of 13 March 1997
On 13 March 1997, the Bad Urach District Court, in the context of the above proceedings against V.B., issued a warrant to search the business and the residential premises of the applicant. The warrant read as follows:
“In the context of the preliminary investigations against
... [V. B.)] ...
concerning
an offence against a traffic regulation and,
pursuant to section 33(4) of the Code of Criminal Procedure without a prior hearing, in accordance with sections 94, 95, 98, 99, 100, 102, 103, 105, 106(1), 111 et seq., 162 of the Code of Criminal Procedure and section 46 of the Act on Offences against Regulations,
1. the search of the business and residential premises of the father Jürgen Buck, ..., Dettingen/Ems, company Trinkomat ;
2. the seizure of documents which reveal the identity of employees of the company Trinkomat in ... Dettingen between 20 May and 22 May 1996
are ordered.
Reasons:
The son of the manager of company Trinkomat, who is charged with having committed, on 21 May 1996, an offence under regulation 3 of the Road Traffic Regulations with a company car, has stated at the trial hearing on 12 March 1997 that a driver employed by the company could have committed the offence.
...”
The search of the residential and business premises was effected the same day by four police officers of the local police station. Several documents, such as personnel files and statements on working hours, were seized; they were copied and the originals were later given back to the applicant. The applicant objected to the search and, assisted by counsel, appealed the search and seizure decision on 13 March 1997, the very day on which the warrant had been made out.
On 21 March 1997, the Tübingen Regional Court, in a decision addressed to V.B., dismissed the appeal of 13 March 1997. It considered that that appeal against the search warrant was inadmissible as it was without object (prozessual überholt), the search having been effected in the meantime. The relevance of the few documents seized could be established without further procedure. They were relevant for the assessment of the evidence because they could show whether, as asserted by the appellant, one of the company’s employees had committed the traffic offence in question. Moreover, the seizure had not been disproportionate because copies of the originals had been filed and the originals been handed back.
On 21 May 1997, the Tübingen Regional Court, upon a complaint raised by the applicant’s representative, dealt with the applicant’s appeal, declaring it inadmissible as far as the search warrant was concerned and unfounded as to the seizure order. In this respect, the court repeated its earlier reasoning. The Regional Court added that its earlier decision of 21 March 1997 was without object and, for the sake of clarification, it was quashed.
On 30 June 1997, the applicant lodged a constitutional complaint with the Federal Constitutional Court.
On 13 September 1997, a panel of three judges of the Federal Constitutional Court declined to entertain the complaint. According to that Court, the Regional Court’s legal opinion that the appeal against the search warrant was inadmissible, for the mere reason that the search had been effected, disregarded the principles of an effective legal protection as guaranteed under Article 19 § 4 of the Basic Law. Nevertheless, it was not appropriate to entertain the complaint because the Regional Court, when examining the lawfulness of the seizure order, had incidentally covered the question of the lawfulness of the search. In any event, the impugned search warrant was obviously lawful. This decision was served on 24 September 1997.
3.The further conduct of the criminal proceedings against the applicant’s son
On 19 March 1997, in the resumed trial proceedings, the Bad Urach District Court rendered its judgment against V.B. It imposed a fine of DEM 120 upon him for having exceeded a speed limit and ordered him to bear the costs of the proceedings.
As regards V.B.’s personal background, the District Court noted that V.B. had his driving licence since 1991, that he was driving between 40000 and 50000 km per year and that there was no record of previous traffic offences.
The District Court, having regard to technical expertise, found that the radar check had been properly carried out and that the measurements were correct. Moreover, having compared the photographs taken on the occasion of the radar check and in particular the enlargement prepared by the expert and V.B’s passport photograph taken in 1994, which had been retained in the administrative files of the Dettingen municipal authorities, the court reached the conclusion that it had been V.B. who had driven the car. In this respect, the court noted the face, the nose, the position of the eyes and the eyebrows. Furthermore, while V.B. meanwhile had a beard, the lower part of the face on the radar photos and of V.B.’s face on the passport photo, showing him without beard, were clearly matching. There were no indications of any other possible driver with the same characteristics.
On 19 August 1997 the Stuttgart Court of Appeal dismissed the son’s request for leave to appeal.
B. Relevant domestic law
The search complained of was ordered in the context of proceedings concerning an offence against the Road Traffic Act (Strassenverkehrsgesetz). Regulation 3 of the Road Traffic Regulations (Strassenverkehrsordnung) concerns speed limits, and its subsection 3 (1) sets a speed limit of 50 kph in towns. Under regulation 49(1)(3) it is a petty offence (Ordnungswidrigkeit) to contravene regulation 3; under section 24 of the Road Traffic Act, such an offence is punishable by a fine.
The subject of petty offences is governed by the Act on Offences against Regulations (Ordnungswidrigkeitengesetz). According its section 46(1), the provisions of the ordinary law governing criminal procedure - in particular the Code of Criminal Procedure - are applicable by analogy to the procedure in respect of offences against regulations, subject to the exceptions laid down in the said Act.
Section 103 of the Code of Criminal Procedure (Strafprozessordnung) provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate clues to an offence or to seize specific objects, provided always that there are facts to suggest that such a person, clues or objects is or are to be found on the premises to be searched.
COMPLAINTS
The applicant complains that the search of his business and residential premises and the seizure of documents, which had been ordered by the Bad Urach District Court, constitutes a violation of Article 8 § 1 of the Convention. He considers in particular that, in the context of investigations into an offence against a regulation committed by a third person, the search of his business and residential premises was disproportionate. He further claims that the absence of adequate reasoning in the decision amounts to a breach of Article 6 § 1 of the Convention.
THE LAW
1.The applicant complains that the search of his business and residential premises was in breach of his right to respect for his private life and home. He invokes Article 8 § 1 of the Convention which reads, as far as relevant, as follows:
“1. Everyone has the right to respect for his private ... life, his home ...
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.”
The Government maintain that the search constituted an interference with the right to respect for the applicant’s home which was justified under paragraph 2 of Article 8. The search and seizure had been ordered by a judge on the basis of section 103(1)1 of the Code of Criminal Procedure, read in conjunction with section 46(1) of the Act on Offences against Regulations. Moreover, the search served the legitimate aims of the “prevention of disorder or crime” and, as far as the provisions on speeding were concerned, of the “protection of the rights and freedoms of others”, i.e. the other road users.
As regards the necessity of the search and seizure, the Government submit that this measure was the only possibility for the District Court to establish who had driven the car at the relevant time. Only by means of comparing the photographs and on the basis of the seized documents, the District Court was in a position to exclude that a person other than the applicant’s son had driven the car. It would not appear appropriate to discontinue a case in such circumstances, considering general prevention purposes and the risks inherent in speeding for life and limb for other road users. Finally, the seizure order, which explicitly aimed at documents concerning the company’s staff at the relevant time, limited the search order to the least serious interference with the applicant’s rights.
The applicant argues that that the search of his residential and business premises had not been necessary to obtain the names of potential drivers. He should first have been asked to name the employees to be taken into consideration. In his view, the search was disproportionate in view of the loss of his good reputation and the losses in sales. According to him, this was particularly true considering the petty nature of the offence in question and the fact that the District Court, in its decision, made no use of the results of the search and seizure. The applicant further contends that the Regional Court had failed to examine the lawfulness of the search and in particular to consider his position as person other than the suspect. In this respect, he disagrees with the argument advanced by the Federal Constitutional Court that the Regional Court, while dismissing the complaint about the search warrant for procedural reasons, had in substance reviewed its lawfulness.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2.The applicant further complains that the District Court’s warrant ordering the search and seizure was not properly reasoned. He invokes Article 6 § 1 of the Convention, guaranteeing that
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
The Government submit that the complaint is unsubstantiated as the District Court had reasoned that no other means of evidence were available, the applicant and his son having availed themselves of their respective rights to refuse to give evidence.
The applicant submits that the District Court had failed to explain the reasons for the search of the residential and business premises of a third party. Moreover, no justification was given for the search of residential premises in order to seize company records. He also considers that the search ordered under item 1 of the warrant lacked an indication as to the type and contents of legal evidence; in his view, the reasons stated in the decision only apply to the seizure ordered under item 2 of the decision.
The Court considers that the above issue is closely linked to the issues under Article 8 and that its determination should also depend on an examination of the merits. This aspect of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy