CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }            The European Commission of Human Rights sitting in private on 13 March 1986 the following members being present:                     MM   C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       E. BUSUTTIL                       G. JÖRUNDSSON                       G. TENEKIDES                       S. TRECHSEL                       B. KIERNAN                       A.S. GÖZÜBÜYÜK                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       G. BATLINER                       J. CAMPINOS                       H. VANDENBERGHE                   Mrs G.H. THUNE                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 25 April 1984 by R. D. against the Federal Republic of Germany and registered on 2 May 1984 under file N° 10928/84;   Having regard to:   - the report provided for in Rule 40 of the Rules of Procedure of the   Commission;   - the decision of 7 March 1985 to communicate the application for   observations on admissibility and merits;   - the respondent Government's observations dated 18 June 1985 and   the applicant's observations in reply dated 13 September 1985;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a German citizen and practises as a lawyer in Berlin.   A.   The measure taken against the applicant   On 28 October 1983 he was chosen as defence counsel by one D H who had been arrested shortly before on the suspicion of dealing with counterfeit money.   On 29 October 1983 the applicant informed the District Court (Amtsgericht) Tiergarten in Berlin accordingly.   This information was received by the court on 1 November 1983.   On 31 October 1983 a woman called the applicant telling him she was a friend of D H's and had some of his belongings in her possession which she did not want to hand out to D H's wife.   The applicant agreed to accept the objects in question, inter alia, a locked portfolio, the contents of which were unknown to the applicant. He signed a receipt. On 2 November 1983 the District Court (Amtsgericht) in Tiergarten in Berlin issued a search and seizure order against the applicant at the Public Prosecutor's request.   It is stated in the order that D H was suspected of having produced counterfeit money of about 3 million DM and that there were reasons to believe the search and seizure would procure evidence against the suspect D H, namely a portfolio which was deposited by D H's girlfriend and presumably contained printing plates used to produce counterfeit money.   It is further stated in the order that a search and seizure could be avoided if the object was handed out voluntarily.   On the same day the applicant was visited by the Public Prosecutor who was accompanied by a police officer.   According to a report prepared by the police officer the applicant first argued that a seizure was excluded by Section 97 of the Code on Criminal Procedure (StPO) (see below, "The Legal Situation").   In reply he was informed that Section 97 StPO did not apply as there was reason to believe that the portfolio contained objects produced in connection with a criminal offence.   He eventually agreed to hand out the portfolio.   As he did not know the combination of the portfolio's combination lock the portfolio had to be opened by force.   It turned out that the portfolio contained documents and other objects which, at first sight, were not connected with the offence of counterfeiting money.   The police officer concluded his report that in view of the applicant's opposition the seizure needed to be confirmed by the judge, only then could the contents of the portfolio be examined in detail.   The applicant's appeal (Beschwerde) against the search and seizure order of November 1983 was rejected on 17 November 1983 as being inadmissible, on the ground that the order complained of had been executed and therefore the applicant's appeal was without object.   The applicant also raised objections (Widerspruch) against the seizure of the portfolio and of a plastic bag with documents belonging to D H. The Public Prosecution however did not release the objects but sent them to the District Court requesting that the applicant's motion be rejected.   The Prosecution considered that the documents seized should be examined in order to find out whether they contained indications that D H had recently travelled to the Isle of Jersey where counterfeit money had been issued.   Eventually the seized objects were released on 24 November 1983.   The applicant also lodged a hierarchical complaint (Dienst- aufsichtsbeschwerde) against the Public Prosecutor who had requested the search and seizure order against him.   On 30 March 1984 the Public Prosecutor's Office at the Court of Appeal (Kammergericht) informed him that his complaint was considered to be unfounded.   It is pointed out in this decision that at his arrest D H was found to be in possession of a film negative which turned out to have been used for the production of the printing plates with which 1,600,000 DM fake money had been printed.   In these circumstances the Prosecutor dealing with the case had reasons to believe that D H, who admitted to be hand-compositor by profession, was also in possession of the printing plates.   B.   The criminal proceedings against D H   On 27 October 1983 the police effected a search and discovered counterfeit money in the shop and apartment of one U.   The evidence found led to another search in the apartment of another suspect, A. Near this apartment two persons being in the possession of counterfeit money were arrested.   Further counterfeit money as well as forged Yougoslave petrol tickets and material for the production of forged papers was found in the apartment where the police likewise found and arrested D H.   On 2 November 1983 the police received an anonymous phone call informing them that objects belonging to D H had been deposited by his girlfriend with the applicant.   The Public Prosecutor dealing with the case was informed accordingly. Suspecting that the portfolio contained printing plates for counterfeit money the Public Prosecutor immediately made a request for a search and seizure in the applicant's office.   In the course of the investigation proceedings it was found that the applicant had travelled in September 1983 to the Isle of Jersey together with a further suspect, who carried counterfeit money, which was stolen from him on the island and issued there.   However no sufficient evidence was collected against D H of having known of or participated in the counterfeiting offence.   The arrest warrant against D H was set aside on 7 December 1983 and the proceedings against him were eventually discontinued.   C.   The legal situation   According to Section 94 (1) of the Code on Criminal Procedure (StPO) objects, which may be of importance as evidence, can be seized or otherwise secured.   ("(1) Gegenstände, die als Beweismittel für die Untersuchung von Bedeutung sein können, sind in Verwahrung zu nehmen oder in anderer Weise sicherzustellen.")   Under Section 95 (1) StPO a person who has such an object in his possession is obliged to show it or to hand it over if so requested.   ("(1)   Wer einen Gegenstand der vorbezeichneten Art in seinem Gewahrsam hat, ist verpflichter, ihn auf Erfordern vorzulegen und auszuliefern.")   According to Section 97 (1) N°s 1 - 3, correspondence exchanged between the suspect and his defence counsel, as well as notes taken by defence counsel on information received from the suspect he is defending and other objects, to which the right to refuse evidence under Section 53 (1) N° 2 extends, may not be seized.   (§ 97 (1) Der Beschlagnahme unterliegen nicht   1.   schriftliche Mitteilungen zwischen dem Beschuldigten und den Personen, die nach § 52 oder 53 (1) N° 1 - 3 das Zeugnis verweigern dürfen;   2.   Aufzeichnungen, welche die in § 53 Abs 1 Nr 1 bis 3 a Genannten über die ihnen vom Beschuldigten anvertrauten Mitteilungen oder über andere Umstände gemacht haben, auf die sich das Zeugnisverweigerungsrecht erstreckt;   3.   andere Gegenstände einschliesslich der ärztlichen Untersuchungsbefunde, auf die sich das Zeugnisver- weigerungsrecht der in § 53 Abs 1 Nr 1 bis 3 a Genannten erstreckt.")   According to Section 53 (1) N° 2 StPO a defence counsel can refuse to give evidence on information received in connection with the exercise of the suspect's defence from the suspect himself or otherwise.   (§ 53 Abs 1:   "Zur Verweigerung des Zeugnisses sind ferner berechtigt:   1.   ....   2.   Verteidiger des Beschuldigten über das, was ihnen in dieser Eigenschaft anvertraut worden oder bekanntgeworden ist.")   Search and seizure orders against other persons than the suspect are, according to Section 103 (1) StPO admitted only for the purpose of arresting the suspect or of obtaining evidence concerning a criminal offence and if there are indications that the person or the object wanted can be found in the locality where the search is supposed to take place.   ("1.   Bei anderen Personen sind Durchsuchungen nur zur Ergreifung des Beschuldigten oder zur Verfolgung von Spuren einer Sraftat oder zur Beschlagnahme bestimmter Gegenstände und nur dann zulässig, wenn Tatsachen vorliegen, aus denen zu schliessen ist, dass die gesuchte Person, Spur oder Sache sich in den zu durchsuchenden Räumen befindet.")   COMPLAINTS   The applicant complains of the search and seizure order against him. He considers that the measure was meant to impair the rights of the defence in the proceedings against D H.   He furthermore considers that the measure violated Art 8 of the Convention because it was disproportionate to the aim pursued.   The court, so he argues, should first have requested him, in accordance with Section 95 StPO, to hand over the portfolio voluntarily.   PROCEEDINGS BEFORE THE COMMISSION   The Commission decided on 7 March 1985 to communicate the application to the respondent Government for observations on admissibility and merits.   The observations dated 18 June 1985 were received on 27 June 1985 and the applicant's reply on 17 September 1985.   SUMMARY OF THE PARTIES' OBSERVATIONS   A.   The respondent Government   Pointing out that the applicant only complains of the search and seizure order of 2 November 1983 and not of the seizure (Sicherstellung) of D H's belongings, ie a portfolio and a plastic bag, the respondent Government admit that the applicant has exhausted domestic remedies with regard to his complaint.   They consider however that the complaint is clearly ill-founded.   First it was doubtful whether the right guaranteed by Art 8 (1) (Art. 8-1) extended to the office of a lawyer.   If however the scope of Art 8 (Art. 8) was larger there was nevertheless no interference with the right guaranteed because the search and seizure order expressly mentioned that a search could be avoided if the objects wanted were handed over voluntarily.   The applicant chose this possibility and consequently no search had to be carried out.   In any event the search and seizure order was justified under Art 8 (2) (Art. 8-2) of the Convention for the prevention of crime in view of the following circumstances:   - D H was found on his arrest to be in possession of a film negative having served to produce counterfeit money;   - shortly before his arrest he had been in Jersey where counterfeit   money was issued;   - he was an experienced printer.   The ojects searched for were not, under German law, exempt from search and seizure because on the one hand they had not been entrusted to the applicant for the purposes of D H's defence and on the other hand there was justified suspicion that they contained instrumenta et producta sceleris.   The measure was not disproportionate as it served the interests of the proper administration of justice.   The search order expressly mentioned the portfolio and thereby it was made sure that the search did not extend and could not be extended to documents being in the applicant's files and serving the defence of D H.   B.   The applicant   The applicant argues that the protection of Art 8 (1) (Art. 8-1) of the Convention extends to offices.   In any event he points out that the apartment in which he runs his office is at the same time serving as his home.   He submits that although the objects in question had not been given to him for the purposes of the defence they had nevertheless been entrusted to him in his capacity as defence counsel and were therefore exempted from search and seizure.   In any event as he did not have time until 2 November 1983 to examine the contents of the portfolio and the plastic bag it could not have been excluded at the moment of the search that the documents contained therein were needed for the purposes of the defence. Furthermore he alleges that the police knew that the portfolio had for several weeks before D H's arrest been in the possession of a third person and could not therefore contain printing plates used for the production of counterfeit money.   He denies that D H held a negative film in his hand when he was arrested.   On the other hand, it was true that for a short while D H carried a bag with counterfeit money without, however, being aware of this fact.   Therefore the anonymous phone call informing the police of the deposit of certain of D H's belongings at the applicant's office in no way justified believing the objects in question contained printing plates used for producing counterfeit money.   In any event the measure complained of was disproportionate as it mainly served to intimidate and discredit the defence.   The police could have avoided the search and seizure order simply by asking D H, who was in prison, whether he agreed to have the objects in question inspected.   THE LAW   The applicant has complained of a search and seizure order issued against him on 2 November 1983 in connection with investigation proceedings against one D H, who had been arrested on the suspicion of having participated in counterfeiting money and who had chosen the applicant as his defence counsel.   The Commission has mainly considered this complaint under Art 8 of the Convention (Art. 8) which guarantees, in its first paragraph, inter alia, the right to respect for everyone's home.   The respondent Government submitted that the search and seizure order concerned the applicant's office and not his home and that in any event it was not executed as it left the applicant the possibility to hand out D H's belongings voluntarily which he chose to do.   The Commission does not have to determine whether the protection of the home as afforded by Art 8 (1) (Art. 8-1) extends generally to offices.   It considers that a search and seizure order given against a person who uncontestedly carries on   his professional activities at his home would interfere with that person's right to respect for his home.   It is true that the search and seizure order against the applicant did not have to be executed as it left the applicant the possibility to hand over the objects wanted by the prosecution authorities voluntarily.   However, the Commission considers that the search and seizure order nevertheless amounted to an interference with the applicant's right under Art 8 (1) (Art. 8-1) as it left him practically no other choice than to hand over the objects he kept at his apartment.   The interference complained of is, however, justified under para 2 of Art 8 (Art. 8).   The search and seizure order was based on Sections 94 et seq of the German Code on Criminal Procedure (StPO) which, inter alia, forbids search and seizure with regard to documents handed over by a suspect to his defence counsel for the purposes of the defence.   In the present case it has not been alleged that the objects deposited with the applicant by a friend of his client D H were meant to serve for the purposes of the defence.   In fact the applicant accepted them in a rather careless manner, he did not even inspect the portfolio and plastic bag to find out what they contained.   In these circumstances his argument cannot be accepted that the objects might have contained documents which could have served for the purposes of the defence.   In any event it has not been alleged that any such documents turned out to have been among the material handed over by the applicant to the Public Prosecutor.   On the other hand, it cannot, in the circumstances of the case, be found that the prosecuting authorities arbitrarily assumed the portfolio could contain the printing plates which had been used for the production of counterfeit money.   Counterfeit money was in fact found at various places, inter alia, in the apartment where D H, a printer by profession, was arrested and in Jersey where D H had spent holidays.   It follows that the search and seizure order was issued in accordance with the law for the purpose of preventing crime.   It was also necessary in a democratic society and proportionate to the legitimate aim pursued.   In this context the Commission has on the one hand particular regard to the fact that the applicant was D H's chosen defence counsel.   On the other hand, however, it has to be taken into consideration that the prosecuting authorities had justified reasons to believe the portfolio deposited with the applicant contained objects serving to produce counterfeit money.   It further has to be noted in this context that the applicant was given the possibility to avoid a search in his office by handing over D H's belongings voluntarily.   Thus the danger was excluded that in connection with a search the prosecution took cognisance of material in the applicant's office relating to his activity as a defence counsel in D H's matter or other cases.   The Commission finds in these circumstances that the applicant's complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in Art 8 (Art. 8).   It follows that the application is manifestly ill-founded within the meaning of Art 27 (2) of the Convention (Art. 27-2).   For this reason, the Commission           DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission         (H.C. KRÜGER)                             (C.A. NØRGAARD)