AS TO THE ADMISSIBILITY OF
Application No. 13710/88
by Gottfried NIEMIETZ
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
in camera on 5 April 1990
Present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 15 February 1988
by Gottfried Niemietz against the Federal Republic of Germany and
registered on 25 March 1988 under file No. 13710/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1951, is a German national and resident
in Freiburg. He is a lawyer by profession.
On 9 December 1985 a telefax-letter was posted at the Freiburg
Post Office which was sent by the "AK-BL Freiburg" and signed by one
KW. This letter had been drafted in the context of criminal proceedings
pending before the Freising District Court (Amtsgericht) which concerned
a charge of defamation against Mr. J, an employer refusing to deduct
and transfer to the tax office his employees' church tax, and read as
follows:
"Sehr geehrter Herr Richter [M.] am 10.12.1985 findet unter Ihrem Vorsitz die Verhandlung gegen Herrn [J.] statt. Wir, der [AK-BL FREIBURG], protestieren aufs schärfste gegen dieses Verfahren. In der BRD genießt die Kirche auf der Grundlage des Hitlerkonkordates und unter Verletzung der staat- lichen Neutralitätspflicht weitestgehende Privilegien. Jeder nicht-christliche Bürger dieses Staates hat dadurch Benachteiligungen und tägliche Belästigungen zu ertragen. Unter anderem ist die BRD der einzige Staat, der sich zum kirchlichen Steuereintreiber macht. Er verlangt von Arbeitgebern, seien sie Christen oder nicht, die Kirchen- steuer für ihre christlichen Arbeitnehmer abzuführen und damit der Kirche Finanzverwaltungsarbeit abzunehmen. [J.] hat sich seit Jahren mutig und konsequent geweigert, auf diese Weise die Finanzierung der Kirche zu unterstützen und einen entsprechenden Modus der Kirchensteuerzahlung seiner christlichen Arbeitnehmer ohne seine Beteiligung arrangiert. Dieser Versuch, in einem Staat, der die Trennung von Staat und Kirche zu seinen Grundprinzipien zählt, auf eben dieser Trennung zu bestehen, hat Herrn [J.] nicht nur fort- gesetzten Schikanen und Übergriffen durch staatliche Behörden ausgesetzt, die darin gipfelten, daß das Finanzamt Kirchen- steuern durch Zwangsmaßnahmen, z. B. Pfändung, von ihm ein- trieb, die seine Angestellten schon längst abgeführt hatten, sondern ihm, als er diese Machenschaften beim Namen nannte, darüber hinaus dieses Verfahren wegen angeblicher Beleidigung eingebracht. Wäre es nun Ihre Aufgabe als zuständiger Richter gewesen, diesen "Beleidigungsfall" unvoreingenommen zu prüfen, so kamen Sie dieser Aufgabe nicht nur nicht nach, sondern mißbrauchten ihr Amt zu dem Versuch, mit Mitteln, die an die dunkelsten Kapitel der deutschen Rechtsgeschichte mahnen, einem unbequemen Kirchengegner das Rückgrat zu brechen. Mit äußerster Empörung haben wir von der auf Ihre Anordnung hin erfolgten psychiatrischen Zwangsuntersuchung Kenntnis erhalten, der sich [J.] inzwischen unterziehen mußte, wir werden all unsere Möglichkeiten und insbesondere unsere internationalen Kontakte nutzen, Ihr Vorgehen, das mit den Prinzipien eines demokratischen Rechtsstaates unvereinbar ist, an die Öffentlichkeit zu bringen. Wir werden den Fortgang des Verfahrens gegen [J.] beobachten und erwarten von Ihnen, daß Sie den eingeschlagenen Weg der Terrorisierung verlassen und zu dem in diesem Fall einzig angemessenen Freispruch finden werden." "Dear Judge [M.] On 10 12.1985 the trial against J will take place before your bench. We, the AK BL FREIBURG, protest most strongly about these proceedings. In the FRG, the church, on the basis of the Hitler concordat and in violation of the State's duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily inconveniences. Among other things, the FRG is the only State which plays the part of church tax collector. It demands from employers, whether they be Christians or not, that they transfer church tax for their Christian employees and thus free the church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the church in this way and arranged an appropriate modality of paying church tax in respect of his Christian employees without his own involvement. This attempt - in a State which counts the separation of State and church among its basic principles - to insist upon just such a separation, has not only exposed J to persistent interference and deliberate efforts to be difficult on the part of State authorities, this culminating in the tax office employing coercive measures, e.g. attachment, to collect from him church tax which his employees had already paid a long time previously. It also brought him - when he explicitly drew attention to these underhand methods - the present proceedings for alleged insult. Were it your task as the competent judge to conduct an unbiased examination of this "case of insult", then it must be said that you not only failed to carry out this task, but also abused your office in order to try - employing means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the church. It was with great indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use all our possibilities, in particular our international contacts, to bring to public notice this action of yours which is incompatible with the principles of a democratic State subscribing to the rule of law. We shall observe the further course of the proceedings against [J.] and trust that you will leave the path of terrorisation which you have embarked upon, and that you will reach the only decision appropriate in this case - an acquittal." On 13 January 1986 the Director of the Munich I Regional Court (Landgericht) requested the Munich Public Prosecutor's Office (Staatsanwaltschaft) to institute criminal proceedings against KW. In the course of the subsequent investigations the suspect KW could not be summoned at his address, then known by the police. The applicant's colleague, who represented the BL FREIBURG and had been asked to disclose KW's whereabouts, refused to give any information about KW. Other attempts to identify KW failed. On 8 August 1986 the Investigating Judge at the Munich District Court issued a search warrant concerning, inter alia, the applicant's and his colleague's law office. The Investigating Judge ordered that the premises be searched for documents which might disclose the identity of KW and that such documents be seized. He found in particular that on 9 December 1985 a telefax which insulted Judge M at the Freising District Court was sent by the "AK-BL Freiburg" and signed by KW. The identity of KW could not be established, and the "BL Freiburg" could only be contacted by mail addressed to a post box. According to the findings of the Investigating Judge, such mail had been forwarded to the applicant's and his colleague's law office until the end of 1985. He therefore assumed that documents disclosing KW's identity could be found at the law office. On 13 November 1986 the Freiburg Public Prosecutor's Office, on the basis of the warrant of 8 August 1986, searched the office of the applicant and his partner. According to the record of this search one file marked "BL", four filing cabinets with data concerning clients, one file for the defence marked "KW - Karlsruhe District Court...", one file for the defence marked "Niemitz et al - Freiburg District Court ..."; one file marked "CW - Freiburg District Court ...", one file marked "G - Hamburg Regional Court" and another file for the defence "D - Freiburg District Court" were examined. On 27 March 1987 the Munich I Regional Court declared the applicant's appeal (Beschwerde) against the search warrant inadmissible. The Court found in particular that the complaints concerned a search which had already been carried out. A legal interest to have the lawfulness of this search reviewed could not reasonably be established. The Court considered in this respect that the search warrant had not been arbitrary on the ground that there had been concrete facts to assume that objects would be found and seized. S. 97 of the German Code of Criminal Procedure (Strafprozeßordnung) had not been circumvented, because the search warrant had been based on the fact that the mail of the "BL Freiburg" had for some time been forwarded to the applicant's office and it did not, therefore, concern a lawyer-client relationship. Finally, the Court found that honour was not such a minor right as to render the search in question disproportionate. S. 97 of the Code of Criminal Procedure provides that, inter alia, correspondence between the accused and his counsel may not be seized. On 13 January 1987 the Munich Court of Appeal (Oberlandes- gericht) declared the appeal of the applicant's colleague concerning the search under S. 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) inadmissible. The Court of Appeal found in particular that it was not competent to decide upon judicial decisions such as a search warrant in respect of which an appeal lay under the Code of Criminal Procedure. The complaints about the execution of the search concerned primarily the allegedly unlawful search warrant and infringements persisting in its execution. On 18 August 1987 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) of 28 April 1987 on the ground that it offered no prospect of success. The Constitutional Court found in particular that the search warrant of 8 August 1986 could not be objected to under the principles of the rule of law. The charge against the third person, the kind of evidence to be searched for and the reasons to assume that such evidence would be found at the applicant's premises were sufficiently stated. Furthermore the search warrant was proportionate. Honour, as protected by the penal provisions concerning defamation, does not constitute such an unimportant interest that it could not justify a search warrant. Other attempts to identify KW had failed. In particular the applicant's colleague had refused to disclose KW's identity. Moreover the Constitutional Court considered that the search warrant was lawful. In the circumstances of the case, the District Court when it ordered the search could assume that the search would only concern correspondents of the "BL Freiburg" which had no connection with the applicant's activities as a lawyer, the more so as he had previously been president of the "BL Freiburg". The correspondence of the "BL Freiburg" might have diclosed KW's identity. The Constitutional Court moreover found that the decision of the Regional Court to declare the applicant's appeal inadmissible could not be objected to under constitutional law. There were no exceptional circumstances justifying an examination on the merits. Finally, the Constitutional Court considered that the applicant had not exhausted the remedies under the Introductory Act to the Courts Act as regards his complaints about the actual circumstances of the search warrant. The Constitutional Court considered such an appeal to be reasonable even if a legal interest in having the execution of a search warrant reviewed is only accepted under exceptional circumstances. COMPLAINTS 1. The applicant complains under Article 8 para. 1 of the Convention that the search violated his right to respect for his home and correspondence. He submits in particular that the notion "home" also covers business premises such as a lawyer's office. He considers that, in this respect, Article 8 para. 1 does not only safeguard the place of residence of an individual against any interference by public authorities, but also the private sphere where he pursues his profession. Furthermore, the applicant is of the opinion that the search cannot be justified under Article 8 para. 2 of the Convention. The legal conditions under S. 103 of the Code of Criminal Procedure were not fulfilled. The search of his law office in order to identify a criminal offender was intended to circumvent the provisions safeguarding professional secrecy and was disproportionate to solve a case of defamation. 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 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. The applicant also invokes Article 1 of Protocol No. 1 to the Convention in respect of the above complaint. He considers that the search infringed the good will of his law office. As regards Article 26 of the Convention, the applicant submits that he exhausted the remedies available to him under German law. Referring to the decision of the Munich Court of Appeal of 13 January 1987 declaring the appeal of his colleague inadmissible he considers in particular that an appeal under the Introductory Act to the Courts Act would have been ineffective. 2. Furthermore, the applicant complains under Article 13 in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 that he had no effective remedy before German authorities to claim the violation of his rights to respect for his home and corresepondence as well as his right to property. He submits the German Courts did not examine the merits of his complaints; in particular the Federal Constitutional Court only reviewed the lawfulness of the search warrant as such and not the circumstances of the search. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 15 February 1988 and registered on 25 March 1988. On 14 December 1988 the Commission decided, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Govenment and to invite them to present their observations in writing on the admissibility and merits of the application. Following an extension of their time limit, the Government's observations were submitted on 18 April 1989. The applicant submitted his observations in reply, also after an extension of the time limit, on 9 June 1989. On 14 December 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application as regards the complaint about the search of the applicant's law office. The hearing took place on 5 April 1990. The applicant attended the hearing in person and was assisted by Mr. Neffert as adviser. The respondent Government were represented by Mr. H.A. Stöcker, Ministerialrat, Agent, and by Mrs. V. Lewenton, Oberstaatsanwältin, Public Prosecutor's Office at the Munich II Regional Court, as Adviser. THE LAW 1. The applicant complains that the search of his law office violated his right to respect for his home and correspondence as laid down in Article 8 (Art. 8) of the Convention. He also invokes Article 1 of Protocol No. 1 (P1-1)in respect of this complaint. Article 8 (Art. 8) of the Convention provides: "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 respondent Government consider that the applicant's complaint about the actual circumstances of the search in question is 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 Act. He had only appealed against his search warrant under S.304 of the Code of Criminal Procedure. 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 was declared inadmissible by the Munich I Regional Court for lack of a legal interest in having a search reviewed which had already been carried out. The Federal Constitutional Court, in its decision of 18 August 1987 refusing to admit the applicant's constitutional complaint, stated that the applicant had failed to exhaust the remedies under the Introductory Act to the Courts Act as regards the execution of the search warrant. However, the Commission finds that in the circumstances of the present case, the appeal under S. 23 of the Introductory Act to the Courts Act as regards the execution of the search warrant was no effective remedy which the applicant ought to have exhausted. The Commission notes that the appeal lodged by the applicant's colleague under S. 23 of the Introductory Act to the Courts Act was declared inadmissible by the Munich Court of Appeal on 13 January 1987. Insofar as it concerned the execution of the search warrant, the Court of Appeal considered that the complaints primarily concerned the search warrant in respect of which an appeal lay under the Code of Criminal Procedure. The Commission considers that the applicant could not effectively argue in the context of an appeal under S. 23 of the Introductory Act to the Courts Act that the actual circumstances of the search of his law office did not conform to the search warrant which he contended to be unlawful. The applicant has, therefore, complied with the condition as to the exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention. Furthermore, the Government contend that the search of the applicant's law office did not interfere with his rights under Article 8 para. 1 (Art. 8-1) of the Convention, which do not extend to the applicant's law office and his professional activities. In any event, the search of his law office was in accordance with German law and necessary in a democratic society for the prevention of crime. The Commission finds that the applicant's complaint about the search of his law office raises questions of fact and law, in particular as regards the application of Article 8 (Art. 8) of the Convention, which are of such complexity that their determination requires an examination of the merits. Furthermore, the Commission cannot exclude at this stage the applicability of Article 1 of Protocol No. 1 (P1-1) to the facts complained of. This part of the application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and no other ground for declaring it inadmissible has been established. 2. The applicant also complains that he had no effective remedy before German authorities within the meaning of Article 13 (Art. 13) to claim a violation of his rights under Article 8 (Art. 8) of Convention and Article the 1 of Protocol No. 1 (P1-1). Article 13 (Art. 13) of the Convention provides that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority. The Commission observes that in the present case the Munich I Regional Court, in its decision of 27 March 1987, declared the applicant's appeal against the search warrant inadmissible on the ground that a legal interest to have the lawfulness of the search concerned reviewed, could not be reasonably established. The Commission finds that an issue under Article 13 (Art. 13) of the Convention could arise if the case-law of German courts, according to which the legal interest in having an administrative measure reviewed which has already been carried out, is applied in such a way as to exclude any examination of the lawfulness and substantive justification of the measure in question. However, the Commission finds that it appears from the Munich I Regional Court's decision of 27 March 1987 that the merits of the applicant's complaints were also considered. Furthermore, the Federal Constitutional Court, in its decision of 18 August 1987, dealt in some detail with the question whether the search had been lawful and proportionate. It follows that the applicant did in fact have an effective domestic remedy to complain about the allegedly unlawful search of his law office. His complaint under Article 13 (Art. 13) of the Convention is accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2). For these reasons, the Commission 1. DECLARES ADMISSIBLE, without prejuding the merits of the case, the complaint about the search of the applicant's law office (Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) to the Convention); 2. DECLARES INADMISSIBLE the remainder of the application. Deputy Secretary to the Commission President of the Commission (J. RAYMOND) (C.A. NØRGAARD)
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