AS TO THE ADMISSIBILITY OF
Application No. 31513/96
by Winfried HILDEBRAND
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 9 May 1996 by
Winfried HILDEBRAND against Germany and registered on 16 May 1996 under
file No. 31513/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1944, is a German national and resident
in Lübeck. He is a businessman and partner of several limited
companies dealing in newspaper subscriptions. In the proceedings
before the Commission, he is represented by Mr. J. Hinzpeter, a lawyer
practising in Hamburg.
a. Particular circumstances of the case
In 1995, in the context of a tax audit concerning these
companies, the suspicion of tax evasion arose. According to a file
note of 3 August 1995, drafted by the auditor of the Kiel Finance
Directorate (Oberfinanzdirektion), the companies' course of business
as regards an advertisement and subscription campaign in Germany,
allegedly on behalf of a Swiss firm, and the contractual relations with
one Mr. B., whose personal data could not be established in the course
of the audit, suggested that the partners had moved an important part
of their profits to a fictitious firm in Switzerland.
On 17 August 1995 the Lübeck District Court (Amtsgericht) issued
a warrant to search the applicant, his cars as well as his business and
private premises (including garages and yards) at three addresses in
Lübeck as well as of any bank safes. It also ordered that material
found on that occasion, which could be relevant as evidence (in
particular statements of accounts, business papers, documents, and
contracts, trust deeds) be seized, if they were not voluntarily
rendered.
The District Court found that the applicant was suspected of
having evaded, between 1990 and 1992, corporation profits tax and
property tax and, between 1990 and 1993, income tax. It considered
that the above measures were justified under the relevant provisions
of the German Tax Act (Abgabenordnung), of the Income Tax Act
(Einkommenssteuergesetz), the Trade Tax Act (Gewerbesteuergesetz), the
Corporation Profits Tax Act (Körperschaftssteuergesetz) as well as
SS. 94, 98, 102 and 105 of the Code of Criminal Procedure (Strafprozeß-
ordnung).
In its decision, the District Court stated that the applicant was
suspected of having, in his position as manager of the F. limited
company, transferred profits and property to Switzerland and of having
thereby reduced the income of the said company and evaded tax. The
Court noted the results of the tax audit on the business transactions
with the fictitious firm in Switzerland. The Court considered that the
gratuitous transfer of subscriptions representing a market value
amounting to DEM 52 million and rendering profits amounting to DEM
20.45 million between 1990 and 1992 to the said Swiss firm could only
be explained by the applicant's financial interest in the matter and
possibly his partnership in this firm. Moreover, there was a suspicion
that the applicant, as a partner of the PVZ company, had sold
subscriptions, for a price amounting to about 7.9 million, to one
Mr. B. in Vienna, whose business activities were unknown. No
information about the personal data of this person had been given. In
these circumstances there was a suspicion that, by means of a
fictitious contract, profits of the PVZ company had been transferred
abroad in order to evade income and trade taxes. The Court finally
observed that the search was not disproportionate. In further warrants
of the same date, the District Court, for similar reasons, also ordered
the search of the office of the applicant's tax consultant, the search
of several bank institutes as far as certain accounts of the applicant
were concerned.
The search of the applicant's premises was effected on
22 August 1995. Numerous files concerning banking transactions and
other documents concerning business matters were seized.
In the ensuing proceedings the applicant was assisted by
Mr. Hinzpeter.
On 5 September 1995 the Lübeck District Court, referring to S. 94
para. 2 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed
the seizure of the above material, as listed in an annex to the
decision, noting that it was needed as evidence.
On 2 January 1996 the Lübeck Regional Court (Landgericht)
dismissed the applicant's appeal (Beschwerde) against the arrest and
seizure warrant of 17 August 1995. The Regional Court regarded his
appeal against the arrest warrant as inadmissible, since the applicant
had no interest in invoking the protection of the courts
(Rechtsschutzbedürfnis). The inspection of the documents seized had
terminated on 22 August 1995, i.e. before the introduction of the
applicant's appeal. However, measures which, for factual reasons,
could not be set aside (rückgängig gemacht werden) were, as a rule,
not subject to appeal. The special conditions requiring exceptionally
the review of a measure which had been completed (prozessuale
Überholung durch Vollzug der Maßnahme) were not satisfied. In
particular, any such review was not binding in ensuing official
liability proceedings, mentioned by the applicant. Moreover, the
impugned infringement of the law was not likely to recur at any time.
Finally, the arrest warrant did not appear arbitrary. To the extent
that the appeal concerned the seizure of documents, the District Court
had meanwhile rendered its decision of 5 September 1995, pursuant to
S. 98 para. 2 of the Code of Criminal Procedure.
In a further decision dated 2 January 1996, the Lübeck Regional
Court dismissed the applicant's appeal against the District Court's
decision of 5 September 1995. The Regional Court, having regard to the
results of the tax audit and of the further investigations and
considering the applicant's appeal submissions, found that the seizure
of the documents in question had been duly confirmed.
Sitting as a panel of three members, on 29 March 1996 the Second
Section of the First Division (zweite Kammer des Ersten Senats) of the
Federal Constitutional Court (Bundesverfassungsgericht) declined to
accept the applicant's constitutional complaint (Verfassungsbeschwerde)
for adjudication. In its summary decision, the Federal Constitutional
Court referred to S. 93b, taken in conjunction with S. 93a, of the
Federal Constitutional Court Act (Gesetz über das Bundesverfassungs-
gericht), in the version of 11 August 1993. The decision was notified
to the applicant's counsel on 11 April 1996.
b. Relevant domestic law
Tax evasion is a criminal offence, regulated in the legal
instruments concerning the various taxes, such as the Income Tax Act
(Einkommenssteuergesetz) or the Corporation Profits Tax Act
(Körperschaftssteuergesetz).
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 shall be taken into official custody, or, if they
are in another person's custody and not handed over voluntarily, have
to be seized. According to S. 98, the seizure shall, as a rule, be
ordered by a judge (paragraph 1); a seizure without such court order
generally requires subsequent confirmation by a judge (paragraph 2).
S. 102 of the Code of Criminal Procedure provides that, in case
of a person suspected of a criminal offence, his home and other
premises (Wohnung und andere Räume) and he himself may be searched in
order to arrest him or if there is reason to believe (zu vermuten ist)
that items of evidence could be found. The search shall, as a rule,
be ordered by a judge (S. 105).
Search warrants may be challenged, as regards their lawfulness,
in proceedings instituted under S. 304 of the Code of Criminal
Procedure and, as regards their manner of execution, in proceedings
instituted under S. 23 para. 1 of the Introductory Act to the Courts
Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz).
COMPLAINTS
1. The applicant complains under Article 8 para. 1 of the Convention
about the search of his professional and private premises. He submits
in particular that the court decision ordering the search and seizure
did not sufficiently specify the relevant items of evidence. Moreover,
there was no reasonable suspicion that he had committed a criminal
offence. In any event, he had cooperated with the tax authorities and
the search had not been necessary. The District Court had failed duly
to examine the conditions before issuing the search warrant against
him.
2. The applicant further complains under Article 13 of the
Convention that the proceedings before the Lübeck Regional Court and
the Federal Constitutional Court did not afford him an effective remedy
to complain about the alleged violation of his right to respect for his
home, as guaranteed under Article 8 para. 1. He submits in particular
that the Regional Court did not examine the merits of his complaint as
the search had already been carried out. In this respect, he also
invokes Article 6 paras. 1, 2 and 3 (a), (b) and (c), arguing that the
Regional Court failed to consider his submissions. Moreover, the
Federal Constitutional Court refused to entertain his constitutional
complaint without giving detailed reasons for its decision.
3. As regards the proceedings before the Federal Constitutional
Court, the applicant also complains about discrimination contrary to
Article 14 of the Convention. He claims that there is a general policy
according to which the Federal Constitutional Court is supposed to give
reasons in its decisions on complaints raised by complainants living
in the new "Bundesländer".
4. The applicant finally complains that the seizure of material in
the context of the proceedings against him violated his right to
respect for his property, as guaranteed by Article 1 of Protocol No. 1.
THE LAW
1. The applicant complains under Article 8 para. 1 (Art. 8-1) of the
Convention that the search of his premises and seizure of documents
violated his right to respect for his private life and home.
Article 8 (Art. 8) of the Convention 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."
The Commission finds that the search of the applicant's private
and business premises amounted to an interference, within the meaning
of Article 8 (Art. 8), with his right to respect for his private life
and home.
It accordingly has to be determined whether the interference was
justified under paragraph 2 of Article 8 (Art. 8-2), i.e. whether it
was "in accordance with the law", pursued one or more of the legitimate
aims set out in that paragraph and was "necessary in a democratic
society" to achieve the aim or aims in question.
As regards the lawfulness of the interference, the Commission
recalls that the expression "in accordance with the law", within the
meaning of Article 8 para. 2 (Art. 8-2), requires that the impugned
measure should have some basis in domestic law and that the law in
question should be accessible to the person concerned - who must
moreover be able to foresee its consequences for him - and compatible
with the rule of law (cf. Eur. Court HR, Kruslin v. France judgment of
24 April 1990, Series A no. 176-A, p. 20, para. 27).
In the present case, the Commission notes that the search of the
applicant's premises was based on the relevant provisions of the German
Code of Criminal Procedure. The search was ordered by the competent
District Court, which also confirmed the seizure of various documents.
The Commission finds that the applicant's submissions do not disclose
any clear non-observance of German law. The Commission therefore
considers that the measures complained of were "in accordance with the
law".
The Commission further finds that the search and seizure pursued
a legitimate aim, namely the "prevention of disorder or crime".
With regard to the third criterion, the Commission recalls that
the notion of "necessity" implies that the interference corresponds to
a pressing social need and, in particular, that it is proportionate to
the legitimate aim pursued. In determining whether an interference is
"necessary in a democratic society", a margin of appreciation is left
to the Contracting States. In particular, the Contracting States may
consider it necessary to resort to measures such as searches of
residential premises and seizures in order to obtain physical evidence
of certain offences. The Convention organs must assess whether the
reasons adduced to justify such measures were relevant and sufficient
and whether the aforementioned proportionality principle has been
adhered to (cf. Eur. Court HR, Funke v. France, Crémieux v. France and
Miailhe v. France (no. 1) judgments of 25 February 1993, Series A
no. 256-A, pp. 24-25, paras. 55-57, Series A no. 256-B, pp. 62-63,
paras. 38-40, and Series A no. 256-C, pp. 89-90, paras. 36-38,
respectively; Camenzind v. Switzerland judgment of 16 December 1997,
Reports of Judgments and Decisions 1997, paras. 44-45).
In the present case the German authorities searched the premises
of the applicant, who was suspected of various tax offences in
connection with his business activities. The purpose of the search was
to seize items of evidence, in particular documentary evidence in these
respects. The search warrant set out the suspicion against the
applicant and indicated the items of evidence to be seized. With
regard to the safeguards provided by German law, the Commission notes
that the search warrant was issued by a court and that the seizure of
objects during the search was confirmed by a court. As regards the
applicant's submissions on the lack of a reasonable suspicion against
him, the Commission observes that the object of a search is to further
the criminal investigation. Thus, facts which raise a suspicion need
not be of the same level as those necessary to justify a conviction or
even the bringing of a charge, which comes at the next stage of the
process of criminal investigation (cf., mutatis mutandis, Eur. Court
HR, Murray v. the United Kingdom judgment of 28 October 1994, Series A
no. 300-A, p. 27, para. 55).
In these circumstances, the interference with the applicant's
right to respect for his private life and home can be considered to
have been proportionate to the aim pursued and thus "necessary in a
democratic society". Consequently, there is no appearance of a
violation of his rights under Article 8 (Art. 8).
It follows that the applicant's complaint under Article 8
(Art. 8) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains that he had no effective remedy
before a German authority to have the allegedly unlawful search of his
premises reviewed. He refers to the refusal of judicial review in
respect of measures which had been completed and to the summary nature
and absence of reasons in the decision of the Federal Constitutional
Court.
He invokes Article 13 (Art. 13) of the Convention which provides
as follows:
"Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
Article 13 (Art. 13) of the Convention is a substantive right and
its application does not depend on the existence of a breach of another
right or freedom as set forth in the Convention. It requires "an
effective remedy before a national authority" in respect of grievances
which can be regarded as "arguable" in terms of the Convention (cf.
Eur. Court HR, Camenzind judgment, op. cit., para. 53; with reference
to the Powell and Rayner v. the United Kingdom judgment of 21 February
1990, Series A no. 172, pp. 14-15, paras. 31-33). An arguable claim
falls to be determined on the particular facts of each case and the
nature of the legal issue raised (cf. Eur. Court HR, Plattform "Ärzte
für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139,
p. 11, paras. 25, 27).
The Commission recalls that the applicant's complaint under
Article 8 (Art. 8) of the Convention has been rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention on the ground that the search of his
premises was in accordance with German law and necessary in a
democratic society for the prevention of disorder and crime. Taking
into account the specific circumstances of the case, the Commission
finds that the complaint does not give rise to a prima facie issue
under Article 8 (Art. 8) and thus cannot be considered to be an
arguable claim within the meaning of Article 13 (Art. 13).
Consequently, Article 13 (Art. 13) does not apply in respect of
the applicant's complaint under Article 8 (Art. 8) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant has also invoked Article 6 (Art. 6) with regard to
the court proceedings concerning the search warrant.
The Commission observes at the outset that Article 6 (Art. 6) of
the Convention does not apply to the proceedings concerning the search
of the applicant's premises as such.
To the extent that the search of the applicant's premises and
seizure of evidence are seen as measures at the pre-trial stage of the
criminal proceedings against him, the Commission notes that these
criminal proceedings have not yet been concluded.
The Commission recalls that the question of whether a trial
conforms to the standards laid down in Article 6 (Art. 6) must be
decided on the basis of an evaluation of the trial in its entirety (cf.
No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230). The Commission considers
that the applicant's complaints under Article 6 (Art. 6) are premature.
It follows that this aspect of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
3. As regards the proceedings before the Federal Constitutional
Court, the applicant also complains about discrimination contrary to
Article 14 (Art. 14) of the Convention.
According to Article 14 (Art. 14), the "enjoyment of the rights
and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status".
The Commission recalls that Article 14 (Art. 14) safeguards
individuals, placed in similar situations, from discrimination in the
enjoyment of the rights and freedoms set forth in the Convention and
its Protocols. A distinction is discriminatory if it "has no objective
and reasonable justification". In assessing whether and to what extent
differences in otherwise similar situations justify a different
treatment in law, the Contracting States enjoy a certain margin of
appreciation (Eur. Court HR, Stjerna v. Finland judgment of 25 November
1994, Series A no. 299-B, pp. 63-64, para. 48).
The applicant's allegation of discrimination relates to a
procedural aspect of the Constitutional Court proceedings concerning
his constitutional complaint about the search of his premises and
seizure of documents. The Commission, even assuming that the
applicant's submissions fall within the ambit of Article 14
(Art. 14), finds that he failed to show any discriminatory treatment
in law in his case.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant finally complains that the seizure of material in
the context of the proceedings against him violated his right to
respect for his property, as guaranteed by Article 1 of Protocol No. 1
(P1-1).
The Commission finds that the applicant's submissions concern a
regulation of the use of his property (cf. Eur. Court HR, Handyside v.
United Kingdom judgment of 7 December 1976, Series A no. 24, p. 30,
para. 63), which is covered by the above considerations regarding his
right for respect of his private life and home, as guaranteed by
Article 8 (Art. 8). For the same reasons, there is, therefore, no
indication of a breach of Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy