The European Commission of Human Rights sitting in private on
13 March 1986 the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 April 1984 by R.
D. against the Federal Republic of Germany and registered on 2 May
1984 under file N° 10928/84;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure of the
Commission;
- the decision of 7 March 1985 to communicate the application for
observations on admissibility and merits;
- the respondent Government's observations dated 18 June 1985 and
the applicant's observations in reply dated 13 September 1985;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen and practises as a lawyer in Berlin.
A. The measure taken against the applicant
On 28 October 1983 he was chosen as defence counsel by one D H who had
been arrested shortly before on the suspicion of dealing with
counterfeit money. On 29 October 1983 the applicant informed the
District Court (Amtsgericht) Tiergarten in Berlin accordingly. This
information was received by the court on 1 November 1983.
On 31 October 1983 a woman called the applicant telling him she was a
friend of D H's and had some of his belongings in her possession which
she did not want to hand out to D H's wife. The applicant agreed to
accept the objects in question, inter alia, a locked portfolio, the
contents of which were unknown to the applicant. He signed a receipt.
On 2 November 1983 the District Court (Amtsgericht) in Tiergarten in
Berlin issued a search and seizure order against the applicant at the
Public Prosecutor's request. It is stated in the order that D H was
suspected of having produced counterfeit money of about 3 million DM
and that there were reasons to believe the search and seizure would
procure evidence against the suspect D H, namely a portfolio which was
deposited by D H's girlfriend and presumably contained printing plates
used to produce counterfeit money. It is further stated in the order
that a search and seizure could be avoided if the object was handed
out voluntarily.
On the same day the applicant was visited by the Public Prosecutor who
was accompanied by a police officer. According to a report prepared
by the police officer the applicant first argued that a seizure was
excluded by Section 97 of the Code on Criminal Procedure (StPO) (see
below, "The Legal Situation"). In reply he was informed that Section
97 StPO did not apply as there was reason to believe that the
portfolio contained objects produced in connection with a criminal
offence. He eventually agreed to hand out the portfolio. As he did
not know the combination of the portfolio's combination lock the
portfolio had to be opened by force. It turned out that the portfolio
contained documents and other objects which, at first sight, were not
connected with the offence of counterfeiting money. The police
officer concluded his report that in view of the applicant's
opposition the seizure needed to be confirmed by the judge, only then
could the contents of the portfolio be examined in detail.
The applicant's appeal (Beschwerde) against the search and seizure
order of November 1983 was rejected on 17 November 1983 as being
inadmissible, on the ground that the order complained of had been
executed and therefore the applicant's appeal was without object.
The applicant also raised objections (Widerspruch) against the seizure
of the portfolio and of a plastic bag with documents belonging to D H.
The Public Prosecution however did not release the objects but sent
them to the District Court requesting that the applicant's motion be
rejected. The Prosecution considered that the documents seized should
be examined in order to find out whether they contained indications
that D H had recently travelled to the Isle of Jersey where
counterfeit money had been issued. Eventually the seized objects were
released on 24 November 1983.
The applicant also lodged a hierarchical complaint (Dienst-
aufsichtsbeschwerde) against the Public Prosecutor who had requested
the search and seizure order against him. On 30 March 1984 the Public
Prosecutor's Office at the Court of Appeal (Kammergericht) informed
him that his complaint was considered to be unfounded. It is pointed
out in this decision that at his arrest D H was found to be in
possession of a film negative which turned out to have been used for
the production of the printing plates with which 1,600,000 DM fake
money had been printed. In these circumstances the Prosecutor dealing
with the case had reasons to believe that D H, who admitted to be
hand-compositor by profession, was also in possession of the printing
plates.
B. The criminal proceedings against D H
On 27 October 1983 the police effected a search and discovered
counterfeit money in the shop and apartment of one U. The evidence
found led to another search in the apartment of another suspect, A.
Near this apartment two persons being in the possession of counterfeit
money were arrested. Further counterfeit money as well as forged
Yougoslave petrol tickets and material for the production of forged
papers was found in the apartment where the police likewise found and
arrested D H.
On 2 November 1983 the police received an anonymous phone call
informing them that objects belonging to D H had been deposited by his
girlfriend with the applicant.
The Public Prosecutor dealing with the case was informed accordingly.
Suspecting that the portfolio contained printing plates for
counterfeit money the Public Prosecutor immediately made a request for
a search and seizure in the applicant's office.
In the course of the investigation proceedings it was found that the
applicant had travelled in September 1983 to the Isle of Jersey
together with a further suspect, who carried counterfeit money, which
was stolen from him on the island and issued there. However no
sufficient evidence was collected against D H of having known of or
participated in the counterfeiting offence.
The arrest warrant against D H was set aside on 7 December 1983 and
the proceedings against him were eventually discontinued.
C. The legal situation
According to Section 94 (1) of the Code on Criminal Procedure (StPO)
objects, which may be of importance as evidence, can be seized or
otherwise secured.
("(1) Gegenstände, die als Beweismittel für die Untersuchung von
Bedeutung sein können, sind in Verwahrung zu nehmen oder in anderer
Weise sicherzustellen.")
Under Section 95 (1) StPO a person who has such an object in his
possession is obliged to show it or to hand it over if so requested.
("(1) Wer einen Gegenstand der vorbezeichneten Art in seinem
Gewahrsam hat, ist verpflichter, ihn auf Erfordern vorzulegen und
auszuliefern.")
According to Section 97 (1) N°s 1 - 3, correspondence exchanged
between the suspect and his defence counsel, as well as notes taken by
defence counsel on information received from the suspect he is
defending and other objects, to which the right to refuse evidence
under Section 53 (1) N° 2 extends, may not be seized.
(§ 97 (1) Der Beschlagnahme unterliegen nicht
1. schriftliche Mitteilungen zwischen dem Beschuldigten und den
Personen, die nach § 52 oder 53 (1) N° 1 - 3 das Zeugnis verweigern
dürfen;
2. Aufzeichnungen, welche die in § 53 Abs 1 Nr 1 bis 3 a Genannten
über die ihnen vom Beschuldigten anvertrauten Mitteilungen oder über
andere Umstände gemacht haben, auf die sich das
Zeugnisverweigerungsrecht erstreckt;
3. andere Gegenstände einschliesslich der ärztlichen
Untersuchungsbefunde, auf die sich das Zeugnisver- weigerungsrecht der
in § 53 Abs 1 Nr 1 bis 3 a Genannten erstreckt.")
According to Section 53 (1) N° 2 StPO a defence counsel can refuse to
give evidence on information received in connection with the exercise
of the suspect's defence from the suspect himself or otherwise.
(§ 53 Abs 1: "Zur Verweigerung des Zeugnisses sind ferner berechtigt:
1. ....
2. Verteidiger des Beschuldigten über das, was ihnen in dieser
Eigenschaft anvertraut worden oder bekanntgeworden ist.")
Search and seizure orders against other persons than the suspect are,
according to Section 103 (1) StPO admitted only for the purpose of
arresting the suspect or of obtaining evidence concerning a criminal
offence and if there are indications that the person or the object
wanted can be found in the locality where the search is supposed to
take place.
("1. Bei anderen Personen sind Durchsuchungen nur zur Ergreifung des
Beschuldigten oder zur Verfolgung von Spuren einer Sraftat oder zur
Beschlagnahme bestimmter Gegenstände und nur dann zulässig, wenn
Tatsachen vorliegen, aus denen zu schliessen ist, dass die gesuchte
Person, Spur oder Sache sich in den zu durchsuchenden Räumen
befindet.")
COMPLAINTS
The applicant complains of the search and seizure order against him.
He considers that the measure was meant to impair the rights of the
defence in the proceedings against D H. He furthermore considers that
the measure violated Art 8 of the Convention because it was
disproportionate to the aim pursued. The court, so he argues, should
first have requested him, in accordance with Section 95 StPO, to hand
over the portfolio voluntarily.
PROCEEDINGS BEFORE THE COMMISSION
The Commission decided on 7 March 1985 to communicate the application
to the respondent Government for observations on admissibility and
merits. The observations dated 18 June 1985 were received on 27 June
1985 and the applicant's reply on 17 September 1985.
SUMMARY OF THE PARTIES' OBSERVATIONS
A. The respondent Government
Pointing out that the applicant only complains of the search and
seizure order of 2 November 1983 and not of the seizure
(Sicherstellung) of D H's belongings, ie a portfolio and a plastic
bag, the respondent Government admit that the applicant has exhausted
domestic remedies with regard to his complaint. They consider however
that the complaint is clearly ill-founded. First it was doubtful
whether the right guaranteed by Art 8 (1) (Art. 8-1) extended to the
office of a lawyer.
If however the scope of Art 8 (Art. 8) was larger there was
nevertheless no interference with the right guaranteed because the
search and seizure order expressly mentioned that a search could be
avoided if the objects wanted were handed over voluntarily. The
applicant chose this possibility and consequently no search had to be
carried out.
In any event the search and seizure order was justified under
Art 8 (2) (Art. 8-2) of the Convention for the prevention of crime in
view of the following circumstances:
- D H was found on his arrest to be in possession of a film negative
having served to produce counterfeit money;
- shortly before his arrest he had been in Jersey where counterfeit
money was issued;
- he was an experienced printer.
The ojects searched for were not, under German law, exempt from search
and seizure because on the one hand they had not been entrusted to the
applicant for the purposes of D H's defence and on the other hand
there was justified suspicion that they contained instrumenta et
producta sceleris.
The measure was not disproportionate as it served the interests of the
proper administration of justice. The search order expressly
mentioned the portfolio and thereby it was made sure that the search
did not extend and could not be extended to documents being in the
applicant's files and serving the defence of D H.
B. The applicant
The applicant argues that the protection of Art 8 (1) (Art. 8-1) of
the Convention extends to offices. In any event he points out that
the apartment in which he runs his office is at the same time serving
as his home.
He submits that although the objects in question had not been given to
him for the purposes of the defence they had nevertheless been
entrusted to him in his capacity as defence counsel and were therefore
exempted from search and seizure.
In any event as he did not have time until 2 November 1983 to examine
the contents of the portfolio and the plastic bag it could not have
been excluded at the moment of the search that the documents contained
therein were needed for the purposes of the defence. Furthermore he
alleges that the police knew that the portfolio had for several weeks
before D H's arrest been in the possession of a third person and could
not therefore contain printing plates used for the production of
counterfeit money.
He denies that D H held a negative film in his hand when he was
arrested. On the other hand, it was true that for a short while D H
carried a bag with counterfeit money without, however, being aware of
this fact. Therefore the anonymous phone call informing the police of
the deposit of certain of D H's belongings at the applicant's office
in no way justified believing the objects in question contained
printing plates used for producing counterfeit money.
In any event the measure complained of was disproportionate as it
mainly served to intimidate and discredit the defence. The police
could have avoided the search and seizure order simply by asking D H,
who was in prison, whether he agreed to have the objects in question
inspected.
THE LAW
The applicant has complained of a search and seizure order issued
against him on 2 November 1983 in connection with investigation
proceedings against one D H, who had been arrested on the suspicion of
having participated in counterfeiting money and who had chosen the
applicant as his defence counsel.
The Commission has mainly considered this complaint under Art 8 of the
Convention (Art. 8) which guarantees, in its first paragraph, inter
alia, the right to respect for everyone's home.
The respondent Government submitted that the search and seizure order
concerned the applicant's office and not his home and that in any
event it was not executed as it left the applicant the possibility to
hand out D H's belongings voluntarily which he chose to do.
The Commission does not have to determine whether the protection of
the home as afforded by Art 8 (1) (Art. 8-1) extends generally to
offices. It considers that a search and seizure order given against a
person who uncontestedly carries on his professional activities at
his home would interfere with that person's right to respect for his
home. It is true that the search and seizure order against the
applicant did not have to be executed as it left the applicant the
possibility to hand over the objects wanted by the prosecution
authorities voluntarily. However, the Commission considers that the
search and seizure order nevertheless amounted to an interference with
the applicant's right under Art 8 (1) (Art. 8-1) as it left him
practically no other choice than to hand over the objects he kept at
his apartment.
The interference complained of is, however, justified under para 2 of
Art 8 (Art. 8). The search and seizure order was based on Sections 94
et seq of the German Code on Criminal Procedure (StPO) which, inter
alia, forbids search and seizure with regard to documents handed over
by a suspect to his defence counsel for the purposes of the defence.
In the present case it has not been alleged that the objects deposited
with the applicant by a friend of his client D H were meant to serve
for the purposes of the defence. In fact the applicant accepted them
in a rather careless manner, he did not even inspect the portfolio and
plastic bag to find out what they contained. In these circumstances
his argument cannot be accepted that the objects might have contained
documents which could have served for the purposes of the defence. In
any event it has not been alleged that any such documents turned out
to have been among the material handed over by the applicant to the
Public Prosecutor. On the other hand, it cannot, in the circumstances
of the case, be found that the prosecuting authorities arbitrarily
assumed the portfolio could contain the printing plates which had been
used for the production of counterfeit money. Counterfeit money was
in fact found at various places, inter alia, in the apartment where D
H, a printer by profession, was arrested and in Jersey where D H had
spent holidays. It follows that the search and seizure order was
issued in accordance with the law for the purpose of preventing crime.
It was also necessary in a democratic society and proportionate to the
legitimate aim pursued. In this context the Commission has on the one
hand particular regard to the fact that the applicant was D H's chosen
defence counsel. On the other hand, however, it has to be taken into
consideration that the prosecuting authorities had justified reasons
to believe the portfolio deposited with the applicant contained
objects serving to produce counterfeit money. It further has to be
noted in this context that the applicant was given the possibility to
avoid a search in his office by handing over D H's belongings
voluntarily. Thus the danger was excluded that in connection with a
search the prosecution took cognisance of material in the applicant's
office relating to his activity as a defence counsel in D H's matter
or other cases.
The Commission finds in these circumstances that the applicant's
complaint does not disclose any appearance of a violation of the
rights and freedoms set out in the Convention and in particular in
Art 8 (Art. 8).
It follows that the application is manifestly ill-founded within the
meaning of Art 27 (2) of the Convention (Art. 27-2).
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)