AS TO THE ADMISSIBILITY OF
Application No. 26335/95
by 1. VERENIGING RADIO 100
2. Herman A. DE RAAIJ
3. Patrick J.A.M. FOLLON
4. Robert N. STRAUS
5. Christiaan SWART
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 June 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
Ms. M.-T. SCHOEPFER, 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 28 August 1994 by
VERENIGING RADIO 100, Herman A. DE RAAIJ, Patrick J.A.M. FOLLON,
Robert N. STRAUS, and Christiaan SWART against the Netherlands and
registered on 17 March 1995 under file No. 26335/95;
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 first applicant is an association (vereniging), founded in
1986, and based in Amsterdam. The second, third, fourth and fifth
applicants are all Dutch citizens, born in respectively 1950, 1966,
1957 and 1956. They are journalists and reside in Amsterdam. Before the
Commission the applicants are represented by Mrs. T. Prakken, a lawyer
practising in Amsterdam.
A. The particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicant association Radio 100 has been transmitting radio
broadcasts in Amsterdam since 1986. Amateur radio operators may use the
station to transmit programmes of an experimental nature. Radio 100 has
never applied for the required licence under the Telecommunications Act
(Wet op de Telecommunicatievoorzieningen), inter alia because the cost
which this entails would require Radio 100 to sell broadcasting time
to commercial sponsors to which it is opposed for reasons of principle.
Although it is submitted that Radio 100 takes care not to cause
interference with other transmissions it appears that some interference
with the reception of television programmes was experienced on old
television sets or television sets of inferior quality which were
positioned in close proximity to the transmitter.
At the end of 1988, the mayor of Amsterdam, the chief public
prosecutor (hoofdofficier van justitie) and the chief superintendent
(hoofdcommissaris) of the Amsterdam police decided that judicial
proceedings should be initiated against Radio 100 in order to prevent
it from broadcasting on the ground, inter alia, that the broadcasts
transmitted by Radio 100 caused interference with the broadcasts of
legal radio and television stations. It was further taken into
consideration that many other illegal radio stations had been taken off
the air and that a failure to undertake any steps against Radio 100
could be construed as unequal treatment. The fact that Radio 100 had
in the past informed its listeners of the movements of the police
during large-scale police operations was also noted.
On 3 May 1989, transmitting equipment belonging to Radio 100 was
seized (in beslagname). However, two days later Radio 100 resumed its
broadcasts.
In 1990, the prosecuting authorities concluded that the
Telecommunications Act did not provide the authorities with sufficient
powers to bring the broadcasts of Radio 100 to an end, since this Act
only allowed for the seizure of transmitting equipment. A preliminary
investigation revealed that Radio 100 could be considered as an
organisation which intended to commit the offence of broadcasting
without a licence. Section 140 of the Criminal Code (Wetboek van
Strafrecht) makes it a criminal offence to participate in an
organisation which intends to commit offences.
Within the framework of a preliminary judicial investigation
(gerechtelijk vooronderzoek) searches were carried out at seven
addresses in Amsterdam on 15 May 1991. The application concerns the
searches carried out at five of these addresses (hereinafter called A,
B, C, D and E) which include the premises from which the applicant
association transmitted its broadcasts and the homes of the other
applicants. During the searches many objects were seized, among which
transmitting equipment but also other material indispensable for the
broadcasting of radio programmes, such as compact discs and records.
A number of suspects were arrested but released on the following day.
Also on the following day, Radio 100 resumed its broadcasts,
although the transmissions were of a poorer quality.
In May and June 1991, the applicants filed objections in which
they complained of the seizures with the Regional Court
(Arrondissementsrechtbank) of Amsterdam. Apart from complaining of
irregularities which had occurred during the searches and which, in
their view, invalidated the lawfulness of these searches, the
applicants alleged that the seizure of transmitting equipment and other
property prevented them from broadcasting and therefore violated their
rights under Article 10 of the Convention. The second to fifth
applicants further complained that the searches of their homes in order
to seize goods constituted a violation of Article 8 of the Convention.
Following hearings on 21 June and 2 July 1991, the Regional Court
rejected in an interlocutory decision (beschikking) of 15 July 1991 the
applicants' argument that there had been a violation of Articles 8 and
10 of the Convention. In this respect it held that para. 2 of Article
10 allowed Contracting States to institute a licensing system for radio
communications and that in the Netherlands this system had been laid
down in the Telecommunications Act. Finding it established that none
of the applicants was in possession of the required licence, the
Regional Court concluded that the methods for investigation and
prosecution provided for in the Telecommunications Act could be applied
without infringing the applicants' rights under the Convention.
The Regional Court further considered that no Convention or other
legal provision prevented the prosecution pursuant to Section 140 of
the Criminal Code of persons who were suspected of participating in an
organisation which transmitted broadcasts without a licence. The
question whether the investigating and prosecuting authorities had thus
been equipped with more wide-ranging powers than they would have been
had the prosecution been conducted pursuant to the provisions of the
Telecommunications Act was found by the Regional Court to be of no
relevance in the proceedings at issue which only concerned complaints
about the seizure of goods.
For the same reasons the Regional Court rejected the applicants'
argument of a violation of Article 8 of the Convention.
The Regional Court then adjourned its examination of the case to
enable the prosecuting authorities to complete the file. A further
hearing was held on 15 November 1991.
In its decision of 6 December 1991, the Regional Court ruled that
the searches relating to the addresses A and B had been wholly or
partly unlawful as the premises where the searches had taken place did
not correspond to the addresses indicated in the search warrants. The
search which had taken place at the address C was also found to have
been conducted unlawfully since the applicants' representative had not
been allowed to be present on the premises during the search. The
Dsitrict Court ordered the return of the goods which had been seized
at these addresses. It declared the searches at the addresses D and E
lawful.
The public prosecutor filed an appeal in cassation against the
Regional Court's decision insofar as it had declared searches unlawful.
On 19 December 1991, the applicants also filed an appeal in cassation.
By letter of 9 January 1992, the applicants' representative
requested the Supreme Court (Hoge Raad) to transmit copies of the case-
file and of the submissions of the Procurator General (Procureur-
Generaal) at the Supreme Court as soon as these became available. She
further requested the Supreme Court to enable her to comment on the
submissions of the Procurator General and to fix a time-limit for the
submission of the grounds of cassation. The grounds of cassation were
submitted by the applicants' representative on 19 June 1992. On 12
November 1992, she made inquiries by telephone about the state of the
proceedings and by letter of 6 October 1993, she requested the Supreme
Court to expedite matters. In reply, the Registrar of the Supreme Court
informed the applicants' representative on 7 October 1993 that the case
was still with the Office of the Procurator General but that he would
urge the Procurator General to deal with the case expeditiously.
On 23 November 1993, the Advocate General made his submissions.
These were, however, not transmitted to the applicants' representative.
In its decision on the appeals in cassation of 1 March 1994, the
Supreme Court first dealt with the applicants' complaints under
Articles 8 and 10 of the Convention that the authorities had made use
of the more-wide ranging powers conferred on them by the Code of
Criminal Procedure rather than those provided for in the
Telecommunications Act. The Supreme Court held that para. 2 of Article
10 did not prevent the seizure of goods resulting in the temporary
discontinuation of radio broadcasts. According to the Supreme Court,
the finding of the Regional Court that legal provisions had allowed for
the seizure of goods in the circumstances of the case, should be
understood to mean that the seizure had been "in accordance with the
law" pursuant to Article 8 para. 2 of the Convention and "prescribed
by law" pursuant to para. 2 of Article 10 of the Convention. This
finding also included that the seizure had been "necessary in a
democratic society ... for the prevention of disorder or crime" and
"for the protection of the ... rights of others" pursuant to these
provisions. In view of the fact that none of the applicants had been
in possession of the required licence and that it did not appear that
this licence had been withheld from them in an arbitrary manner, the
Supreme Court found that the Regional Court had been right in
concluding that Articles 8 and 10 had not been violated.
The Supreme Court further did not agree with the applicants that
where a person is suspected of participating in an organisation which
intends to transmit broadcasts without a licence, only such property
may be seized as is liable to seizure pursuant to the provisions of the
Telecommunications Act.
The Supreme Court upheld the decision of the Regional Court as
regards the finding that the searches at the addresses A and B had been
unlawful for technical reasons. It also upheld the Regional Court's
finding that the searches at the addresses D and E had been lawful.
The Supreme Court quashed the decision of the Regional Court only
in respect of the search at the address C which the Regional Court had
found to have been unlawful. This part of the case was referred to the
Court of Appeal (Gerechtshof) of Amsterdam.
At the hearing before this Court of Appeal on 29 July 1994, the
Procurator General at the Court stated that in view of the time which
had passed since the seizure, the criminal proceedings would not be
continued. She argued, however, that the complaints concerning the
seizure which had taken place at the address C should still be rejected
since the prosecuting authorities intended to demand the withdrawal
from circulation of the seized goods given that their uncontrolled
possession was illegal.
On 11 August 1994, the Court of Appeal declared the search at the
address C unlawful and ordered the return of the property which had
been seized at that address. The prosecuting authorities filed an
appeal in cassation against this decision.
On 14 February 1995, the Supreme Court quashed the decision of
the Court of Appeal. It held that even if the search had been unlawful
the Court of Appeal should have examined the question whether the
possibility of withdrawal from circulation justified the continued
seizure of the goods. The Supreme Court referred the case to the Court
of Appeal of The Hague.
Following a hearing before the Court of Appeal of The Hague on
23 May 1995, this court pronounced its decision on 6 June 1995 in the
absence of the applicants' representative. The registry informed the
representative by telephone that a number of the seized objects would
be returned. Despite several requests in writing, including one to the
chairman of the criminal chamber of the Court of Appeal, the
representative has still not been provided with a written copy of the
decision and is unaware of its precise contents.
It appears from the file that the property seized at the address
A belonged to the second applicant. The property seized at the address
B belonged to the applicant association and the third applicant. The
property seized at the address C belonged to the applicant association
and the fourth applicant. The property seized at the address D belonged
to the applicant association. Finally, the property seized at the
address E belonged to the fifth applicant.
B. Domestic law and practice
Pursuant to Section 17 of the Telecommunications Act, a
Ministerial authorisation is required for the instalment and use of
broadcasting installations. When the instalment and use of a
broadcasting installation is considered to be contrary to an efficient
use of the air waves, an authorisation is withheld (Section 17 para.
7 (b) Telecommunication Facilities Act).
The Telecommunications Act provides for the seizure of only those
objects which may be used in evidence in respect of the offence of
broadcasting without the required licence. It does not provide for
searches of premises from which no broadcasts are transmitted.
According to Section 94 of the Code of Criminal Procedure
(hereinafter referred to as "CCP"), items which may serve to establish
the truth or whose confiscation (verbeurdverklaring) or withdrawal from
circulation (onttrekking aan het verkeer) may be ordered are liable to
seizure (inbeslagneming).
Section 33a of the Criminal Code (hereinafter referred to as
"CC") defines the property which is liable to confiscation. This
property includes, inter alia, items and/or claims partially or wholly
obtained by criminal offences or through the proceeds thereof and items
with which such offences have been committed.
According to Section 33 CC, confiscation may be pronounced
following a conviction for a criminal offence.
Withdrawal from circulation is provided for in Sections 36b, 36c
and 36d CC. Withdrawal from circulation entails that the ownership of
(already seized) items passes to the State, which may then dispose of
them. Under Section 36b CC withdrawal from circulation may be
pronounced either by a judgment, or, in the absence of criminal
proceedings, by a separate judicial order upon the request of the
public prosecutor when it is found that the items concerned are of such
a nature that their uncontrolled possession is contrary to the law or
the public interest. Consequently, a conviction is no prerequisite for
an order for withdrawal from circulation.
Pursuant to Section 552a para. 1 CCP interested parties including
the suspect may file an objection against, inter alia, a seizure, the
use of seized objects and the failure to order their return. If the
competent court finds the objection well-founded, it will issue a
corresponding order.
It is for the prosecuting authorities to decide whether or not
a person who is suspected of a criminal offence shall be prosecuted
(Sections 167 and 242 CCP).
If the interests of criminal proceedings no longer require
seizure, seized goods are, in principle, returned to the person from
whom they have been seized (Section 118 CCP). Such a situation may
arise when no criminal proceedings have been brought or when they have
been discontinued and no final order for withdrawal from circulation
has been issued.
COMPLAINTS
The applicants complain of a violation of Article 6 para. 1 of
the Convention, in that in the cassation proceedings leading to the
Supreme Court's decision of 1 March 1994 they were not informed of the
submissions of the Advocate General at the Supreme Court and were
therefore not able to reply to these submissions. They also complain
of the length of the proceedings before the Supreme Court.
They further complain that their right to freedom of expression
and their right to impart information within the meaning of Article 10
para. 1 of the Convention has been interfered with and that this
interference was not justified under para. 2 of the provision. In this
respect the applicants submit that by using the powers which have been
provided for the investigation and prosecution of the offence of
Section 140 CC instead of those provided for in the Telecommunications
Act, the interference was not prescribed by law. The applicants argue
that the interference was also not necessary in a democratic society
for the protection of any of the legitimate aims enumerated in para. 2.
Finally, the applicants argue that the search of premises in
order to seize goods belonging to them violated their right to respect
for their home and they invoke Article 8 of the Convention.
THE LAW
1. The applicants complain that the proceedings before the Supreme
Court which led to the decision of 1 March 1994 were not in conformity
with Article 6 para. 1 (Art. 6-1) of the Convention. This provision
reads, insofar as relevant:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law ..."
The Commission must in the first place determine whether the
proceedings at issue fall within the scope of Article 6 para. 1
(Art. 6-1) of the Convention. In this respect the Commission is of the
opinion that these proceedings cannot in any event be regarded as
determining a "criminal charge" within the meaning of Article 6 para.
1 (Art. 6-1), as they did not concern the question whether or not the
applicants were guilty of a criminal offence.
As regards the question whether the proceedings involved the
determination of "civil rights and obligations" the Commission recalls
that for Article 6 para. 1 (Art. 6-1) of the Convention to be
applicable under its "civil" head, there must be a dispute over civil
rights and obligations and the outcome of the proceedings in question
must be directly decisive for such a right or obligation, mere tenuous
connections or remote consequences not being sufficient to bring
Article 6 para. 1 (Art. 6-1) into operation (cf. Eur. Court H.R., Fayed
judgment of 21 September 1994, Series A no. 294-B, p. 46, para. 56).
The Commission observes that the proceedings at issue did not
deprive the applicants of the ownership of the seized property. The
seizure merely prevented the applicants from freely using this property
pending the possible subsequent criminal proceedings before the trial
courts or, in the absence of such criminal proceedings, pending an
order for the property to be returned or an order for the withdrawal
of the objects from circulation.
The Commission, noting that at the time of the impugned decision,
i.e. 1 March 1994, it was not yet known that the criminal proceedings
would be discontinued, concludes that these proceedings were merely of
a conservatory and provisional character and concerned an interim
measure taken in the interest of the criminal proceedings concerning
an offence against the Criminal Code.
Consequently, the Commission finds that the proceedings of which
the applicants complain did not involve a determination of civil rights
and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf. No. 23908, Dec. 7.3.96, unpublished).
It follows that this part of the application must be rejected as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicants also invoke Article 10 (Art. 10) of the
Convention. They allege that the seizure of their property prevented
them from transmitting radio broadcasts. Article 10 (Art. 10)
provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
The first question which the Commission must examine is whether
there has been an interference with the applicants' rights under
Article 10 para. 1 (Art. 10-1) of the Convention.
The present case concerns the seizure of goods indispensable for
the transmission of radio broadcasts. It thus relates principally to
the freedom enshrined in Article 10 para. 1 (Art. 10-1) "to ... impart
information and ideas without interference by a public authority". The
Commission
finds that the seizure of the property at issue constituted an
interference with the applicants' right to impart information and
ideas.
However, according to the third sentence of Article 10 para. 1
(Art. 10-1) of the Convention, Article 10 (Art. 10) does "not prevent
States from requiring the licensing of broadcasting ... enterprises".
By applying a licensing system, the Contracting States are allowed
under this provision of the Convention to regulate broadcasting
activities in their territories for the purpose of controlling, inter
alia, the technical aspects of broadcasting (Eur. Court H.R.,
Informationsverein Lentia and Others judgment of 24 November 1993,
Series A no. 276, p. 14, para. 32). Given that in the present case the
aim of the licensing system, as expressed in Section 17 para. 7 (c) of
the Telecommunications Facilities Act, was to obtain an efficient use
of the air waves, the Commission cannot find this system to be at
variance with the third sentence of Article 10 para. 1 (Art. 10-1) of
the Convention.
However, although the aim of the interference at issue was
legitimate under the third sentence of paragraph 1 of Article 10
(Art. 10-1) of the Convention, the interference must also be assessed
in the light of the requirements of Article 10 para. 2 (Art. 10-2) of
the Convention (Informationsverein Lentia and Others judgment, loc.
cit., p. 14, para. 32).
As regards the question whether the interference was prescribed
by law, the Commission recalls that the phrase "prescribed by law" in
Article 10 para. 2 (Art. 10-2) must be given the same interpretation
as the phrase "in accordance with the law" in Article 8 para. 2
(Art. 8-2) of the Convention (Eur. Court H.R., Silver judgment of
25 march 1983, Series A no. 61, p. 33, para. 85). Where the Convention
refers to domestic law, it is primarily the task of the national
authorities to apply and interpret domestic law. The Convention organs
have a limited jurisdiction in controlling the manner in which this is
done (cf. No. 10689/83, Dec. 14.5.84, D.R. 37 p. 225 and Eur. Court
H.R., Otto-Preminger-Institut judgment of 20 September 1994, Series A
no. 295-A, p. 17, para. 45).
The phrase "prescribed by law", or the equivalent phrase "in
accordance with the law" does not, however, merely refer back to
domestic law, but also relates to the quality of the law. A norm must
be formulated with sufficient precision, but a law conferring a
discretion is not in itself inconsistent with the requirement of
foreseeability provided that the scope of the discretion and the manner
of its exercise are indicated with sufficient clarity (Eur. Court H.R.,
Olsson judgment of 24 March 1988, Series A no. 130, p. 30, para. 61;
Kruslin and Huvig judgments of 24 April 1990, Series A no. 176 A and
B respectively, pp. 22-25, para. 30-36, and pp. 54-57, paras. 29-35).
The Commission notes that in the present case the applicants had
never applied for the licence required pursuant to Section 17 of the
Telecommunications Act. The Commission finds it established that the
applicants were sufficiently aware of the relevant statutory rules.
The Commission further notes that in the present case the seizure
of the property took place within the framework of a preliminary
judicial investigation into an offence against the Criminal Code,
rather than an offence against the Telecommunications Act. The powers
of seizure under the former Code are more extensive than under the
latter Act. However, the Commission does not consider that measures
taken in order to terminate a situation which contravenes a licensing
system must themselves be contained in the legislation by which the
licensing system is enacted.
The Commission observes that the offence at issue was the
participation in an organisation which intended to transmit broadcasts
without a licence. In the circumstances of the present case, where the
applicants must have been aware of the fact that they were committing
an offence in an organised manner, the Commission cannot find that the
way in which the interference took place was not foreseeable.
Accordingly, the Commission finds that the interference was
"prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention. The Commission also finds that it was
intended to prevent disorder and crime and to protect the rights of
others, these being legitimate purposes under that provision.
As regards the notion of necessity, the Commission recalls that
the phrase "necessary in a democratic society" within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention implies that the
interference must correspond to a "pressing social need" and be
proportionate to the legitimate aim pursued. In determining whether an
interference is "necessary in a democratic society" the Convention
organs must also take into account that the Contracting States enjoy
a margin of appreciation, but this goes hand in hand with European
supervision. In cases where there has been an interference with the
rights and freedoms guaranteed by Article 10 para. 1 (Art. 10-1) of the
Convention, this supervision must be strict because of the importance
of these rights and freedoms. The necessity for any restriction must
be convincingly established (cf. Eur. Court H.R., Autronic AG judgment
of 22 may 1990, Series A no. 178, p. 26, para. 61; and Otto-Preminger-
Institut judgment, loc. cit., p. 19, para. 50).
The Commission further recalls that the freedom of expression,
subject to paragraph 2 of Article 10 (Art. 10-2), is also applicable
to "information" or "ideas" which shock, offend or disturb the State
(cf. Otto-Preminger-Institut judgment, loc. cit., p. 19, para. 49). In
this respect the Commission notes that when the authorities decided
that judicial proceedings should be instigated against Radio 100, they
took into account the fact that Radio 100 had in the past through its
broadcasts informed its listeners of the movements of the police during
large-scale police operations. While accepting that this was an element
which is likely to have disturbed the authorities, the Commission
cannot find it established that this was the only or the overriding
reason for the decision to instigate judicial proceedings against Radio
100. In fact, it appears that other reasons were that the broadcasts
transmitted by Radio 100 had disturbed the broadcasts of legal radio
and television stations and that other illegal radio stations had
previously been taken off the air.
Furthermore, the Commission notes that on an earlier occasion,
namely on 3 May 1989, the authorities had also attempted to bring the
broadcasts of Radio 100 to an end by seizing their transmission
equipment. However, two days later Radio 100 resumed its broadcasts.
In these circumstances, the Commission considers that the seizure
of the property at issue was not disproportionate to the legitimate
aims pursued and that the Dutch authorities cannot be regarded as
having overstepped their margin of appreciation in this respect.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. Finally, the applicants argue that the search of premises in
order to seize property belonging to them was contrary to Article 8
(Art. 8) of the Convention, which, insofar as relevant, reads as
follows:
"1. Everyone has the right to respect for ... his home ...
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."
a. As regards the searches which took place at the addresses
A and B, the Commission notes that although the national courts did not
accept that the applicants' rights under Article 8 (Art. 8) of the
Convention had been violated, they did find that these searches had
been conducted unlawfully and consequently ordered the goods seized
there to be returned. Given that the applicants' objection to the
seizure of the property at these addresses pursuant to Section 552a CCP
was successful in that it resulted in a finding of unlawfulness, the
Commission considers that the applicant association and the second and
third applicants, whose property was seized at these addresses, cannot
be considered victims in regard to these searches within the meaning
of Article 25 (Art. 25) of the Convention.
The Commission notes that it is not clear what the outcome has
been of the proceedings in respect of the search at the address C.
However, if this search was found by the Court of Appeal of The Hague
to have been conducted unlawfully, the above finding would apply also
to the applicant association and the fifth applicant insofar as the
seizure at that address was concerned.
b. Insofar as the applicants complain that the searches
conducted at the addresses D and E was an interference with their right
to respect for their homes which was not in conformity with the
provisions of the Telecommunications Act on which they should have been
based, the Commission refers to its findings in this respect on the
applicants' complaint under Article 10 (Art. 10) of the Convention.
The Commission notes furthermore that the searches at these
addresses were found by the national courts to have been conducted
lawfully. The Commission cannot find any circumstances in the present
case which suggest any illegality and therefore accepts that the
requirement of lawfulness was satisfied.
The Commission further considers that the interference pursued
the legitimate aims of the prevention of disorder and crime and the
protection of the rights of others.
As regards the question whether the interference was necessary
in a democratic society, the Commission similarly refers to its
findings on the complaint under Article 10 (Art. 10) of the Convention.
This finding would also apply to the search conducted at the
address C if it should appear that the Court of Appeal of The Hague had
found this search to have been conducted lawfully.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy