FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications no. 9676/05, 10744/05 and 41349/06
by Caterina STEEG and Ekkehard WENGER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 3 June 2008 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications no. 9676/05 and no. 10744/05 lodged on 16 March 2005 and application no. 41349/06 lodged on 13 September 2006,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Ms Caterina Steeg, is a German national who was born in 1970 and lives in Würzburg. The second applicant, Mr Ekkehard Wenger, is a German national who was born in 1952 and lives in Stuttgart.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
The second applicant is Professor of Economics at the University of Würzburg. He is a founding member of the Association for the Promotion of Shareholder Democracy (Verein zur Förderung der Aktionärs-demokratie) which is committed to protecting the rights of minority shareholders in joint stock companies. The first applicant worked as a student assistant for his department.
2. The searches in connection with the purchase of shares in the M. joint stock company
On 30 July 1999 the first applicant, represented by A., a scientific assistant to the second applicant, bought six shares in the M. company. Between 14 July 1999 and 3 August 1999 the second applicant bought more than 200 shares in that same company. They paid some 930 German marks (DEM) per share.
On 4 August 1999 the management of the B. company, which was to take over the M. company, offered to pay ordinary shareholders of the M. company an indemnity of DEM 1,300 per share in order to avoid actions instituted by them. The first applicant accepted that offer and made a profit amounting to more than DEM 2,000. The second applicant accepted the offer for part of his shares.
a. The proceedings before the Würzburg District Court
On 4 July 2001 the Würzburg District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure (see Relevant domestic law below) to search the first applicant’s home in Höchberg (her principal residence), her parent’s home in Duisburg (her secondary residence) and herself. It further issued another warrant to search the second applicant’s home in Stuttgart, his office at the University of Würzburg and himself. Both applicants were suspected of prohibited insider trading.
The District Court ordered the search and seizure of all documents and electronic storage media concerning the purchase of shares in the M. company between July 1999 and August 1999. In the second applicant’s case, it further ordered the search and seizure of documents concerning telephone conversations with members of the B. company, and in the first applicant’s case documents concerning information given to her either by the second applicant or by his scientific assistant A. in respect of the purchase of the shares.
The District Court observed that in a shareholders’ meeting on
16 July 1999 the M. company decided to merge with a company affiliated to the B. company. The Association for the Promotion of Shareholder Democracy, which was founded by the second applicant and was represented during the meeting by his scientific assistant A., objected to the decision and threatened to institute proceedings in court to set it aside, as no offer for a takeover of ordinary shares (as opposed to preference shares) was to be made to the shareholders of the M. company. Following negotiations with the holding company B., the latter publicly announced on
4 August 1999 a takeover offer of DEM 1,300 per share also to those holding ordinary shares in the M. company.
The District Court found that both the fact that negotiations were being conducted concerning a takeover offer and the content of those negotiations were insider information which was likely to lead to a higher stock rate when made public. The first applicant, who had not previously held any stocks in the M. company, had bought six shares in that company on
30 July 1999. As she had been a scientific assistant to the second applicant, there was a suspicion that this insider information had been disclosed to her either by the second applicant or by A., with whom she had been working in another company, and that she had used that information when buying the shares in the M. company. The second applicant, who had not previously held any shares in the M. company, had bought a total of 243 shares between 16 July and 2 August 1999. As he had spoken to the managing directors of the B. company on the telephone during that period, there was a suspicion that he had obtained knowledge of the planned offer to shareholders and had used that information when buying shares in the M. company.
The search warrants were subsequently executed. The first applicant’s home in Höchberg was searched in her presence, and her parents’ home was broken into and searched in their absence and a number of objects and documents seized. The police also searched the second applicant’s office and his home, the latter in the presence of his then 84-year-old father with whom he was living, and seized several documents and his laptop.
b. The proceedings before the Würzburg Regional Court
On 10 and 11 July 2001 the second and the first applicant respectively lodged an appeal against the search warrant and the seizures with the Würzburg Regional Court. They claimed that these measures had been unlawful. They had not had knowledge of the takeover offer made to ordinary shareholders in the M. company before that offer had been made public. This had already been confirmed by the B. company on the request of the Federal Office for the Surveillance of Trading in Securities (Bundesaufsichtsamt für den Wertpapierhandel) prior to the issuing of the search warrants.
On 26 July 2001 the Würzburg Regional Court dismissed the first and second applicants’ appeal against the search and seizure orders as
ill-founded. It found that the District Court had rightly considered that there had been a suspicion of prohibited insider trading and had sufficiently specified the persons and rooms to be searched and the evidence to be searched for. The orders had not been disproportionate. Search and seizure had been appropriate and necessary measures. Awaiting the collection of further evidence, such as witness testimonies, would have entailed the risk that the evidence searched for could no longer be secured; nor had issuing a search warrant against the first applicant been disproportionate, as the criminal investigations concerned a wider serious offence and had been instituted against several suspects who could have colluded, which made it necessary to coordinate the investigation measures taken. The Regional Court further found that the seizure of the objects and documents in question had been lawful as they were possibly relevant for the criminal proceedings.
c. The proceedings before the Federal Constitutional Court
On 3 September 2001 the first and the second applicant each lodged a complaint with the Federal Constitutional Court against the decisions taken by the Würzburg District and Regional Courts. Relying notably on Article 13 of the Basic Law (see Relevant domestic law below), they complained about the searches and seizures, which they considered to breach their right to respect for their home and to be arbitrary.
In two decisions adopted on 9 September 2004 the Federal Constitutional Court declined to consider the first applicant’s (file no. 2 BvR 1542/01) and the second applicant’s (file no. 2 BvR 1541/01) constitutional complaints as they were ill-founded.
The Federal Constitutional Court found that the criminal courts had not breached the applicants’ right to respect for their home as protected by Article 13 § 1 of the Basic Law. The criminal courts’ finding that there had been a suspicion of prohibited insider trading had not been arbitrary. After the shareholders’ meeting on 16 July 1999 it had not been certain whether or not a takeover offer would be made to ordinary shareholders. Nonetheless, the applicants had bought shares in the M. company after this meeting and shortly before the public announcement of the takeover offer. The first applicant had bought the shares in cooperation with an assistant of the second applicant. In his capacity as a member of the Association for the Promotion of Shareholder Democracy, the second applicant had voiced his support for a takeover offer to be made to the ordinary shareholders as well and had been in contact by telephone with the management of the companies concerned.
The Federal Constitutional Court further found that it had not been arbitrary for the criminal courts to consider the searches as proportionate. The evidence to be searched for in accordance with the warrants was suitable to establish the circumstances in which the shares had been bought. The possibility that evidence proving knowledge of insider information would be found could not be excluded. Having regard to comparable cases, it had also not been arbitrary to consider the search ordered against the first applicant as proportionate despite the fact that she had only bought six shares. The possible damage caused amounted to more than DEM 2,000 and there had been a suspicion against several persons who could have colluded.
The decisions were served on the applicants on 20 September 2004.
They are at issue in application no. 9676/05 lodged with this Court by the first applicant and application no. 10744/05 brought by the second applicant.
d. The criminal proceedings against the applicants
On 11 January 2002 the Würzburg Public Prosecutor’s Office discontinued the investigation proceedings against the applicants. It found that the evidence collected was insufficient to secure their conviction of insider trading.
3. The searches in connection with the purchase of shares in the A. joint stock company
a. The proceedings before the Stuttgart District Court
On 8 June 2004 the Stuttgart District Court issued a warrant under Article 102 and Article 105 § 1 of the Code of Criminal Procedure for the search of the second applicant’s home and cars in Stuttgart, of his office at the University of Würzburg and of himself on suspicion of prohibited insider trading. It ordered the search and seizure of all documents and electronic storage media concerning the purchase and sale of shares in the A. company by the second applicant and further co-defendants in July 2002.
The District Court found that the A. company had informed its shareholders on 10 July 2002 that the A.B. limited liability company wanted to take over the shares of the minority shareholders of the A. company and was offering them an indemnity of some EUR 35 per share.
On 21 August 2002 an increased offer of an indemnity of EUR 56 per share was made public. The second applicant had purchased 547 shares of the A. company for some EUR 35 on 20 August 2002. He was suspected of having obtained knowledge of the A.B. company’s intention to offer an indemnity in the higher amount from a third person (S.), who had negotiated with him with a view to obtaining his agreement to sell the shares he already had, and to have used that knowledge when purchasing the shares on
20 August 2002. His profit amounted to some EUR 10,600.
The search warrant was executed on 6 October 2004, at the same time as warrants that had been issued against several other persons. No suspicious objects or documents were found or seized.
b. The proceedings before the Stuttgart Regional Court
On 5 November 2005 the second applicant appealed against the search warrant. He claimed that there had not been a reasonable suspicion of insider trading against him at the time the warrant had been issued, as S. had already told the investigation authorities that he had not informed him of the planned increased offer of an indemnity. He had bought the shares as he had previously received the public report of the A. company concerning the planned takeover of the shares of the minority shareholders and thus considered the purchase of shares to yield profits.
On 18 November 2005 the Stuttgart Regional Court dismissed the second applicant’s appeal against the search warrant as ill-founded. Referring to the exhaustive report and the documents submitted by the Federal Office for the Surveillance of Financial Services (Bundesanstalt für Finanzdienst-leistungsaufsicht) to the Public Prosecutor’s Office, it found that there had been a sufficient factual basis for a suspicion of insider trading when the District Court issued the search warrant. In particular, the fact that S. had proposed to others to persuade the second applicant to accept an offer of indemnity and that the latter had bought further shares only one day before the higher offer of indemnity was made public was sufficient to ground the suspicion of insider trading. Moreover, the documents to be seized had been described in sufficient detail in the search warrant. In view of the gravity of the offence the second applicant was suspected of, the search order had also not been disproportionate. The decision was served on the second applicant on 26 November 2005.
c. The proceedings before the Federal Constitutional Court
On 25 December 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained about the renewed search and argued that this measure had violated his right to respect for his home and had been arbitrary.
On 9 March 2006 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint (file no. 2 BvR 104/06).
It found that the second applicant had failed sufficiently to substantiate his complaint, which was therefore inadmissible. It argued that the second applicant had not informed the court of the contents of the report drawn up by the Federal Office for the Surveillance of Financial Services to which the criminal courts had referred in their decisions ordering the search.
He should have done so as he had contested that there had been a sufficient suspicion of insider trading. Apart from this, the second applicant had also informed the court only selectively about the evidence on which the criminal courts had founded their suspicion against him. The Federal Constitutional Court was thus not in a position to review the criminal courts’ assessment. Moreover, the second applicant had failed to explain why it should have been obvious to the criminal courts that he could have had knowledge of the facts relevant for the trend in the share price from other sources. He does not appear to have informed the criminal courts that he had received the report of the A. company. In view of this, it could be left open whether the decisions of the criminal courts had violated the second applicant’s fundamental rights.
The decision was served on the second applicant on 20 March 2006. It is at issue in application no. 41349/06 lodged by him with this Court.
d. The criminal proceedings against the second applicant
On 4 November 2005 the Stuttgart Public Prosecutor’s Office discontinued the investigation proceedings against the second applicant.
It found that, even though it was likely that the second applicant had been informed of the increased takeover offer which was to be made either by S. or by one of his co-defendants and had bought the shares by using that knowledge, the investigations, including the search of the second applicant’s home, had not yielded any evidence to prove that he was guilty of insider trading.
e. Further related measures taken against third persons
On 29 October 2004 the Stuttgart District Court issued a further warrant to search the home, cars and person of the first applicant and of K., both qualified as witnesses, on suspicion of prohibited insider trading by the second applicant and others in respect of shares in the A. company.
The search order was executed on 30 November 2004 without any evidence being found.
On 18 November 2005 the Stuttgart Regional Court granted an appeal by K. against the search warrant issued against him. It found that the warrant had been unlawful as the searches conducted on 6 October 2004 of, inter alia, the second applicant’s and S.’s homes had not produced any results confirming the suspicion against them. Moreover, S., heard as a witness on that day, had denied having informed the second applicant of the intention to offer minority shareholders a higher indemnity. It was therefore unclear which relevant evidence should have been found when searching K.’s home after that date. On the contrary, on 27 December 2005 the Stuttgart Regional Court dismissed as ill-founded the appeal lodged by the first applicant against the search warrant issued against her.
On 3 July 2006 the Federal Constitutional Court, allowing the first applicant’s constitutional complaint, quashed the decisions of the Stuttgart District and Regional Courts. It found that these decisions violated the first applicant’s right to respect for her home. The search warrant issued by the Stuttgart District Court was not sufficiently reasoned in that it did not explain why evidence against the suspects could be found in her home. Moreover, the search warrant against the first applicant, who was not suspected of an offence, was disproportionate as, at the time the warrant was issued, there was no longer a strong suspicion against the suspects and it was not likely that evidence would be found in the first applicant’s home.
B. Relevant domestic law
1. Provisions on searches
Article 13 § 1 of the Basic Law stipulates that the home is inviolable.
In accordance with paragraph 2 of that Article, searches may be authorized only by a judge or, when time is of the essence, by other authorities designated by law, and may be carried out only in the manner prescribed therein.
Article 102 of the Code of Criminal Procedure, on searches in respect of the suspect, provides that a search of the home and other premises and of the person and the belongings of the suspect of a criminal offence may be made for the purpose of his apprehension or if it may be presumed that the search will lead to the discovery of evidence.
Pursuant to Article 105 § 1 of the Code of Criminal Procedure, searches may only be ordered by a judge or, in case of urgency (Gefahr im Verzug), also by the public prosecutor’s office and the officials assisting it.
2. Provisions on insider trading
Pursuant to section 14(1)(1) of the Securities Trading Act (Wertpapierhandelsgesetz) insiders shall be prohibited from taking advantage of their knowledge of insider information to acquire or dispose of insider securities for their own account or for the account or on behalf of a third party. Likewise, a third party who has knowledge of inside information shall be prohibited from taking advantage of that knowledge to acquire or dispose of insider securities for his own account or for the account or on behalf of others (section 14(2) of the Securities Trading Act). Pursuant to section 38(1)(1) of the Securities Trading Act, any person who acquires or disposes of an insider security in contravention of a prohibition under section 14(1)(1) or 14(1)(2) shall be liable to up to five years’ imprisonment or to a fine.
COMPLAINTS
The first and second applicants complained that the searches of and seizures in their respective homes violated their right to respect for their private and family life and their home under Article 8 § 1 of the Convention.
The second applicant also complained, under Article 6 of the Convention, that his right to a fair trial had been breached in view of the reasons for which the Federal Constitutional Court had declined to consider his constitutional complaint.
THE LAW
A. Joinder of the applications
The Court finds that, due to the close factual and legal relationship between the three applications and to the fact that the applicants alleged a consistent practice of searches of individuals’ homes in breach of Article 8, the applications should be joined.
B. Complaints under Article 8 of the Convention
The applicants complained that the searches of their homes and, in the second applicant’s case, also of his office and his cars, and the seizures made had given rise to a breach of Article 8 of the Convention, which reads 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.”
1. Whether there was an interference
The Court, assuming the exhaustion of domestic remedies in all respects, would point out that, as it has repeatedly held, searches carried out in private individual’s homes, but also in business premises and the offices of persons exercising liberal professions amount to interferences at least with the right to respect for both the homes and the private lives of the persons concerned (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 22, § 48 and Crémieux v. France, judgment of
25 February 1993, Series A no. 256-B, p. 60, § 31 in respect of the search of residential premises; Chappell v. the United Kingdom, judgment of
30 March 1989, Series A no. 152-A, pp. 21-22, § 51 and Buck v. Germany, no. 41604/98, §§ 31-33, ECHR 2005-IV in respect of business premises; and Niemietz v. Germany, judgment of 16 December 1992, Series A
no. 251-B, pp. 33-34, §§ 29-31 and Roemen and Schmit v. Luxembourg,
no. 51772/99, §§ 64-65, ECHR 2003-IV in respect of offices of persons exercising a liberal profession). As to the search of a person’s office located on the premises of a public authority, the Court has considered such a measure to interfere with the individual’s private life if the person concerned had had a “reasonable expectation of privacy” in respect of his office, whereas it left open whether such a search also amounted to an interference with the individual’s right to respect for his home (see Peev v. Bulgaria, no. 64209/01, §§ 37-40, ECHR 2007-...). Moreover, the search of a person’s car interferes with the rights guaranteed by Article 8 § 1
(see Ernst and Others v. Belgium, no. 33400/96, § 110, 15 July 2003).
The Court therefore finds that the searches of the applicants’ residential premises and the seizures made interfered with their rights to respect for both their homes and their private lives. As to the searches of the second applicant’s office at the University of Würzburg, a public authority, the second applicant could reasonably expect that his office would not be liable to an inspection by the authorities extending to the contents of documents or electronic storage media kept therein. Therefore, the searches interfered at least with his right to respect for his private life. Likewise, the search of his cars must be considered to have interfered at least with his right to respect for his private life. Having reached these conclusions, the Court finds it unnecessary to determine whether the searches and seizures additionally interfered with the applicants’ right to respect for their correspondence or their family lives.
2. Whether the interference was justified
a. “In accordance with the law”
Such interference gives rise to a breach of Article 8 unless it can be shown that it was “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.
In the applicants’ submission, the interferences had not been in accordance with domestic law as the searches had been ordered despite the fact that there had not been a reasonable and sufficient suspicion of insider trading. The Court observes that Article 102 and Article 105 § 1 of the Code of Criminal Procedure authorized the District Court to order the search of the homes, office and cars of the applicants in order to secure evidence of a criminal offence they were suspected of. The Würzburg and Stuttgart Regional Courts both considered the search warrants at issue in the present applications to be lawful in terms of the above-mentioned provisions and found, in particular, that there had been a sufficient factual basis for a suspicion of insider trading. As it is in the first place for the national authorities to interpret and apply domestic law (see Chappell, cited above, p. 23, § 54) and as the Court cannot consider their interpretation in the present case as having been arbitrary, the interference must be considered to be “in accordance with the law” for the purposes of Article 8 § 2.
b. Legitimate aim(s)
The Court further notes that, in accordance with the search warrants issued, the purpose of the searches was to discover evidence that the applicants had unlawfully used insider information when trading in shares. Accordingly, they pursued the legitimate aims of preventing disorder or crime and of protecting the rights and freedoms of others.
c. “Necessary in a democratic society”
As regards the question whether the searches and seizures were “necessary in a democratic society”, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. The Court will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle was adhered to
(see Funke, cited above, pp. 24-25, §§ 55-57, and Crémieux, cited above, pp. 62-63, §§ 38-40). As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse. Secondly, the Court must consider the specific circumstances of each case in order to determine whether, in the particular case, the interference in question was proportionate to the aim pursued (see, in particular, Camenzind v. Switzerland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp. 2893-94, § 45, and Société Colas Est and Others v. France, no. 37971/97, § 48, ECHR 2002-III). The criteria the Court has taken into consideration in determining this latter issue have been, inter alia, the severity of the offence in connection with which the search and seizure were effected, the manner and circumstances in which the order was issued, in particular further evidence available at that time, the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards taken in order to confine the impact of the measure to reasonable bounds, and the extent of possible repercussions on the reputation of the person affected by the search (see Buck, cited above, § 45, and Smirnov v. Russia, no. 71362/01, § 44, ECHR 2007-...).
As to the reasons adduced by the criminal courts to justify the searches and seizures in question, the Court observes that the applicants contested the reasons given, arguing that there had not been any reasonable suspicion of insider trading against them. In particular, the investigation authorities had failed, prior to issuing the search warrants, to have sufficient regard to whether they could have traded in the shares in question on the basis of publicly available documents.
The Court considers that the reasons adduced for the search warrants, namely, the discovery and seizure of evidence proving prohibited insider trading, were relevant. In determining whether these reasons were also sufficient, the Court observes that in respect of all the search warrants issued, the domestic courts had evidence in their possession showing that the applicants had bought shares in the companies in question at a time when negotiations were in progress concerning an offer to take over those shares. They purchased the shares shortly before the indemnities offered per share in the course of the takeover, which were considerably higher than the shares’ stock-exchange price at that time, were made public. As regards the purchase of shares in the M. company, the domestic courts further argued that the second applicant had been in contact by telephone with the managing directors of the company which later made the takeover offer and that he could have passed on this information to the first applicant, whom he knew, either directly or via A. As to the second applicant’s purchase of shares in the A. company, it had not been arbitrary for the domestic courts to presume that he could have obtained insider information from a third person (S.) involved in the takeover negotiations. The Court accepts that in the field under consideration – the detection of prohibited insider trading – States encounter serious difficulties in securing evidence proving knowledge of insider information. It further agrees with the finding of the Würzburg Regional Court that the collection of further evidence prior to issuing the search warrants would have enhanced the risk that the evidence searched for could no longer be secured. It is therefore satisfied that the reasons adduced by the domestic courts for the search warrants were also sufficient.
In determining whether the searches were proportionate to the legitimate aims pursued, the Court will first examine whether the relevant legislation and practice afforded individuals adequate and effective safeguards against abuse. It notes that, in the applicants’ view, the investigation authorities systematically resorted to searching private individuals’ homes in an abuse of their rights of search and seizure in the field of insider trading. The Court finds that, under Articles 105 § 1 and 102 of the Code of Criminal Procedure, searches of the homes of individuals suspected of a criminal offence may, except in exigent circumstances, only be ordered by a judge under the limited conditions set out in the Code of Criminal Procedure which, in general, provides adequate safeguards against abuse in the sphere of searches and seizures (see Buck, cited above, § 46).
The Court agrees that an indiscriminate practice of systematically resorting to searches of individuals’ homes in order to investigate suspicions of insider trading would raise an issue under Article 8. However, even though the searches executed against the applicants did not yield evidence to prove them guilty of insider trading, the criminal courts had given reasons for each individual warrant issued. The Court notes in this connection that, for instance, in the proceedings concerning the searches in connection with the purchase of shares of the A. company, the warrants to search the homes of K. and of the first applicant, both qualified as witnesses who were not suspected of an offence, in order to discover evidence to prove the second applicant guilty of insider trading, were found unlawful by the courts of higher instance in the circumstances of the case. Therefore, the Court considers that there is insufficient evidence to disclose an abusive practice by the domestic authorities of searching individuals’ homes.
As to the proportionality of the search and seizure orders in the particular circumstances of the case, the Court notes that the applicants considered the searches unsuitable to detect evidence of insider trading which could not have been obtained more easily from other sources, in particular from the banks involved or the companies in question which, unlike individuals, had a duty to keep files. Moreover, they argued that the searches had been disproportionate in view of the profits made by the share transactions in question. Having regard to the relevant criteria established in its case-law, it observes that insider trading, of which the applicants themselves were suspected, was a criminal offence punishable by up to five years’ imprisonment and was, therefore, of some gravity. In particular, contrary to the applicants’ view, the Court considers that the profits made by them (between EUR 1,000 and more than EUR 10,000) cannot be considered as so insignificant as to alter that conclusion.
As to the circumstances in which the search orders were made, the Court observes that none of the warrants were issued and executed until some two years after the share transactions in question. Moreover, according to witness testimonies collected prior to the search orders, the applicants had not been given any insider information. Despite this, the Court can accept that in view of the evidence before them, notably the timing of the share transactions and the relationship between the persons concerned, the domestic courts could reasonably consider that the searches might nevertheless yield evidence proving insider knowledge. In particular, it is not convinced that there were other less intrusive measures for the domestic courts to secure evidence proving the applicants’ insider knowledge.
As regards the content and scope of the search orders, the Court finds that the warrants were drafted in sufficiently restrictive terms, setting out in detail which information contained in documents or electronic storage media was to be looked for. The Court further notes that the applicants, in particular the second applicant, who is a university professor, have not adduced evidence of any particular adverse effects on their personal reputation and their work due to the execution of the search warrants.
In view of the foregoing, the Court concludes that the interferences with the applicants’ rights under Article 8 were “necessary in a democratic society”. It follows that this part of the applications must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 6 of the Convention
Relying on Article 6 of the Convention, the second applicant claimed that his right to a fair trial had been breached in that the Federal Constitutional Court had declined to consider his constitutional complaint on the ground that he had failed to submit a report drafted by the Federal Office for the Surveillance of Financial Services. He argued that the Federal Constitutional Court could have obtained the report, which had not been relevant to the proceedings, either by requesting the transmittal of the files to it or by asking him to supplement his constitutional complaint, as it had indeed done in other proceedings before it.
The Court has examined the second applicant’s complaint as submitted by him. However, having regard to all the material in its possession and to its findings under Article 8, the Court considers that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must also be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy