AS TO THE ADMISSIBILITY OF
Application No. 12474/86
by Roland KANTHAK
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 11 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
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 July 1985
by Roland KANTHAK against the Federal Republic of Germany and registered
on 15 October 1986 under file No. 12474/86;
Having regard to
- the first report of May 1987 provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 13 July 1987 to bring the
application to the notice of the respondent Government
and to invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government on
10 November 1987 and the observations in reply submitted
by the applicant on 30 December 1987.
- the second report of February 1988 provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 9 March 1988 to invite the
parties to a hearing on the admissibility and merits of the
application;
- the submissions made by the parties at the hearing on
11 October 1988;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, which do not appear to be in dispute
between the parties, may be summarised as follows.
The applicant, born in 1951, is a German citizen and resident
in Berlin. Before the Commission he is represented by Mr. G. Schantl,
a lawyer practising at Ettlingen.
In the early morning of 22 March 1982 the applicant arrived
with a companion in his camping car in Karlsruhe. He parked the
camping car on a public road near a synagogue and spent the night
there. At about 02.00 hours a patrol of the Karlsruhe Police, which
had been informed about a camping car with Berlin registration plates
parking near the synagogue, found the camping car with a radio set in
operation in the driver's cabin and the rear windows covered with
curtains. Upon the policemen's request for an identity check the
applicant opened a small window and handed his own and his companion's
passports over. About 09.30 hours the police effected a further
identity check as it considered that the first one had not
sufficiently clarified the occupants' identities. About 10.00 hours
the Karlsruhe Police ordered the search of the camping car in view of
a possible risk for the synagogue near by. The camping car was then
searched.
On 2 April 1982 the Karlsruhe Police, upon the applicant's
appeal (Widerspruch) against the search of his camping car, informed
him that he had to appeal to the administrative courts. On
13 September 1982 the applicant withdrew his appeal.
On 7 October 1982 the applicant instituted proceedings before
the Karlsruhe Administrative Court (Verwaltungsgericht) to have the
search of his camping car reviewed. He submitted in particular that
he had a legal interest in such a review on the grounds that the
search had depreciated him and that there was a danger of repetition.
Moreover he alleged that the relevant provisions of the Baden
Wuerttemberg Police Act (Polizeigesetz) had not been complied with in
his case as there were no persons in his camping car who could have
been arrested. Furthermore, there was no danger ahead, consequently,
a search warrant issued by a court would have been necessary.
S. 25 paras. 2 and 5 of the Police Act provide inter alia that
the police may search a place of residence if there are facts
justifying the assumption that someone in the place of residence may
be taken into custody or something in the place of residence may be
confiscated or seized. If there is danger ahead, the search may be
carried out without a court order.
On 24 February 1983 the Karlsruhe Administrative Court
(Verwaltungsgericht) declared the applicant's complaint of the alleged
unlawfulness of the search inadmissible. The Court found that the
applicant requested the judicial review of an administrative
measure which had already been executed (Fortsetzungsfeststellungs-
klage). The applicant's withdrawal of his administrative appeal did
not affect this request as it could not be interpreted as a general
waiver of his right to appeal. However, the Court considered that the
applicant lacked a legal interest (schutzwürdiges Interesse) to have
the search reviewed. It found that the applicant had not sufficiently
substantiated a danger of repetition. The Court, in this respect, had
in particular regard to the fact that it was generally forbidden to
spend the night on public roads in Karlsruhe. Furthermore it
considered that there was no necessity to rehabilitate the applicant,
as the search did not depreciate him. The search was only meant to
enable the police to identify all occupants of the applicant's camping
car.
On 27 June 1984 the Baden Wuerttemberg Administrative Court of
Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal
(Berufung). The Court confirmed the reasoning of the Administrative
Court that the applicant lacked a legal interest to have the
lawfulness of the search reviewed. The Court referred in particular
to a judgment of the Federal Administrative Court (Bundesverwaltungs-
gericht) of 21 November 1980 according to which a legal interest of a
non-pecuniary nature might, in cases of an alleged interference with
basic rights, follow from the right to an effective remedy under S. 19
para. 4 of the Basic Law (Grundgesetz). However, the Court of Appeal
found that also in such circumstances the legal interest could not be
assumed solely on the basis of a possible interference with the
applicant's rights under the Basic Law if there were no consequent
effects in future. S. 19 para. 4 of the Basic Law did not provide for
a right to have abstract questions of law clarified. The Court
considered that the alleged interference with the applicant's right to
respect for his home under S. 13 of the Basic Law did not have any
factual consequences in future. The purely theoretical possibility
that the applicant might stay again with his camping car in Karlsruhe
and be subjected to another search did not amount to a concrete danger
of repetition. Finally, the Court held that the regulation of the
right of access to court such as to exclude a decision on the merits
in cases where the claimant lacks a special legal interest in such a
decision did not impair the right to an effective remedy, as
guaranteed by S. 19 para. 4 of the Basic Law as well as by Article 13
of the Convention. The Court did not grant leave to appeal on points
of law (Revision).
On 14 August 1984 the applicant lodged a request for leave to
appeal on points of law (Nichtzulassungsbeschwerde) to the Federal
Administrative Court. He submitted in particular that his case was of
fundamental importance as regards the question whether or not he had
an unconditional right to have the alleged violation of his basic
rights established after the measure complained of was completed. He
also referred, in this respect, to Articles 8 and 13 of the
Convention. Furthermore he submitted that the decision of the Court
of Appeal deviated from the decision of the Federal Administrative
Court of 21 November 1980.
On 26 November 1984 the Federal Administrative Court dismissed
the applicant's request. The Court found that the conditions under S.
132 para. 2 of the German Code of Administrative Court Procedure
(Verwaltungsgerichtsordnung) were not met. S. 132 para. 2 provides
that leave to appeal is to be granted (1) if the matter in dispute is
of fundamental importance; or (2) if the judgment deviates from a
decision of the Federal Administrative Court and is based upon that
deviation; or (3) if, in the cases of an alleged procedural defect,
the judgment might be based upon that defect. The Court considered in
particular that the applicant's case was not fundamentally important
on the ground that there were no decisive legal issues requiring
clarification in the interests of uniformity or development of law.
It recalled, in this respect, its constant jurisprudence according to
which the special requirement of a legal interest to have the alleged
unlawfulness of administrative measures established was not
objectionable from a constitutional point of view. Furthermore, the
Court held that the applicant had not shown in what respect the
challenged judgment allegedly deviated from the earlier decision
referred to. It observed that the Court of Appeal based its
considerations upon the principles stated in that decision. The proper
application of those principles in the present case could not be
examined upon a request for leave to appeal.
On 22 April 1985 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Court found in particular that the
administrative courts' application of the procedural law could not be
objected from a constitutional point of view.
COMPLAINTS
1. The applicant complains under Article 8 para. 1 of the
Convention that the search of his camping car violated his right for
respect of his home. He considers that the notion of "home" covers a
camping car. He submits that the search was unlawful under German law
on the ground that it had been effected by the police without a search
warrant issued by a court. He alleges that the conditions for a
search without search warrant, i.e. in particular imminent danger,
were not met.
2. The applicant also complains under Article 13 in conjunction
with Article 8 para. 1 of the Convention that he had no effective
remedy before a German authority to have the allegedly unlawful search
of his camping car reviewed. He submits that the German
administrative courts declared his appeal inadmissible for lack of
legal interest without a decision on the merits as regards the search
complained of.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 July 1985 and registered
on 15 October 1986.
On 13 July 1987 the Commission decided to invite the
respondent Government to present observations on the admissibility and
merits of the application. The Government's observations were
submitted on 10 November 1987 and the observations in reply submitted
by the applicant on 30 December 1987.
On March 1988 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the application.
At the hearing which was held on 11 October 1988 the parties
were represented as follows:
The Government:
Mr. Meyer-Ladewig Ministerialdirigent,
Federal Ministry of Justice, Agent
Mr. Wanner Staatsanwalt,
Federal Ministry of Justice, Adviser
Mr. Fuchs Kriminalrat,
Karlsruhe Police Office, Adviser
The applicant
Mr. Schantl Counsel.
SUBMISSIONS OF THE PARTIES
A. The Respondent Government
II. As to the complaint under Article 8 of the Convention
The Government consider that the applicant's camping car was
no "home" within the meaning of Article 8 of the Convention on the
ground that it did not serve any permanent residential purpose and was
not parked on a place where the applicant could lawfully spend the
night.
Furthermore the Government submit that the search would, in
any case, be justified under Article 8 para. 2 of the Convention. It
was lawful under S. 25 para. 2 subpara. 1(a) and 2 and para. 5 of the
Baden Wuerttemberg Police Act. The Government state that the applicant
and his companion caused suspicion having parked their camping car at
night on a public road near to a synagogue. Moreover, the search
served the aim of protecting public safety and, given the degree and
kind of suspicion, it was necessary and appropriate in a democratic
society.
III. As to the complaint under Article 13 in conjunction with
Article 8 of the Convention
The Government maintain that Article 13 of the Convention does
not prevent the Contracting States from having, in their legal
systems, procedural requirements such as a legal interest in having a
search which was already carried out reviewed. The Government consider
that no legal protection has to be granted in cases where the person
concerned only has a theoretical interest to have the lawfulness of a
measure which was already carried out reviewed.
Furthermore, the Government, referring to the judgments of
the European Court of Human Rights in the cases of Boyle and Rice
(judgment of 27 April 1988, Series A no. 131), and Plattform "Ärzte
für das Leben"(judgment of 21 June 1988, Series A no. 139), consider
that the applicant has no arguable claim to be a victim of a violation
of his right under Article 8 of the Convention on the ground that the
search did not unlawfully interfere with that right.
IV. Conclusion
The Government request the Commission to declare the
application inadmissible as being manifestly ill-founded
(Article 27 para. 2 of the Convention).
B. The Applicant
In the applicant's opinion Article 13 of the Convention
excludes that the right to an effective remedy depends upon a special
legal interest. Furthermore he maintains that the search of his
camping car without a search warrant issued by a court appeared to be
at least a prima facie violation of his right to respect for his home
under Article 8 para. 1 of the Convention and his complaint in this
respect had, therefore, to be considered as an arguable one within the
meaning of Article 13 of the Convention.
THE LAW
1. The applicant complains under Article 8 para. 1 (Art. 8-1) of
the Convention that the search of his camping car violated his right
to respect for his home. He considers in particular that the search
effected by the German police without court order was unlawful under
German law and could not, therefore, be justified under Article 8
para. 2 (Art. 8-2) of the Convention.
Article 8 (Art. 8) of the Convention provides, inter alia, that
everyone has the right to respect for his private life and his home,
and that 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 public
safety, for the prevention of disorder or crime, or for the protection
of the rights and freedoms.
The respondent Government contend that the applicant's camping
car was no home within the meaning of Article 8 para. 1 (Art. 8-1) of
the Convention. Furthermore, given the suspicion caused by the
applicant's camping car parked near a synagogue the search was, in any
event, justified under Article 8 para. 2 (Art. 8-2) of the Convention
as being lawful and necessary in a democratic society in the interests
of public safety.
The Commission need not decide whether the applicant's camping
car is to be regarded as the applicant's home within the meaning of
Article 8 para. 1 (Art. 8-1) of the Convention on the ground that any
interference, in this respect, with the applicant's right to respect
for his private life or home was justified under Article 8 para. 2
(Art. 8-2) of the Convention.
The Commission finds that the search of the applicant's
camping car was in accordance with the law for the purposes of Article
8 para. 2 (Art. 8-2) of the Convention.
The Commission, in this respect, notes in particular that the
search in question was based upon S. 25 paras. 2 and 5 of the Baden
Wuerttemberg Police Act according to which the police may search a
place of residence if there are facts justifying the assumption that
someone in the place of residence may be taken into custody, or
something be confiscated or seized. The search may be carried out
without court order in case of imminent danger, this being interpreted
as danger for the success of the search.
The Commission considers that it is not its task to interpret
German law as to the correct meaning of "imminent danger". In the
present case, the competent German authority have based their decision
to search the applicant's camping car without a court order on an
interpretation of the relevant legal provisions which does not appear
to be arbitrary.
Furthermore the search of the applicant's camping car can be
considered necessary in the interest of public safety and for the
protection of the rights and freedoms of others. The applicant had
his camping car parked on a public road near a synagogue and spent the
night there. The particular circumstances of his stay caused
considerable suspicion, and in the morning the German police
authorities reasonably assumed that immediate steps had to be taken in
order to investigate the matter and to avert any possible danger to
the synagogue nearby. The Commission considers that this interference
with the applicant's rights under Article 8 para. 1 (Art. 8-1) does
not appear disproportionate to the legitimate aim pursued.
It follows that the applicant's complaint under Article 8
(Art. 8) of the Convention is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 13 (Art. 13) in
conjunction with Article 8 (Art. 8) of the Convention that he had no
effective remedy before a German authority to have the allegedly
unlawful search of his camping car reviewed.
Article 13 (Art. 13) of the Convention provides that everyone
whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority.
The Commission observes that three German administrative
courts dealt with the present case without, however, examining the
merits. They considered that the applicant lacked a legal interest to
have his case determined. The Commission finds that an issue under
Article 13 (Art. 13) of the Convention could arise if the case-law of the
German courts according to which the legal interest in having a search
reviewed which was already carried out is applied in such a way as to
exclude any examination of the lawfulness and substantive justification
of the search in question (cf. No. 10949/84, Dec. 10.12.86, to be
published in D.R.). However, the Commission can leave this question
open on the ground that this complaint is anyway manifestly
ill-founded for the following reasons.
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. This
provision requires a remedy in domestic law where an individual has an
arguable claim to be the victim of a violation of his rights under the
Convention. 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 H.R., Plattform "Ärzte für das Leben" judgment of 21
June 1988, Series A no. 139, paras. 25, 27).
The Commission recalls that the applicant's complaint under
Article 8 (Art.8) of the Convention must be 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 camping car was in
accordance with German law and necessary in a democratic society in
the interests of public safety and for the protection of the rights
and freedoms of others.
Moreover the Commission, taking into account the specific
circumstances of the case, finds that the complaint does not give rise
to a prima facie issue under Article 8 (Art.8) of the Convention and thus
cannot be considered to be an arguable claim. Consequently, Article
13 (Art. 13) of the Convention 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)