CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 décembre 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 }                           Application No. 10949/84                        by H.N.                        against the Federal Republic of Germany     The European Commission of Human Rights sitting in private on 10 December 1986, the following members being present:                         MM. C. A. NØRGAARD, President                           G. SPERDUTI                           J. A. FROWEIN                           F. ERMACORA                           G. JÖRUNDSSON                           S. TRECHSEL                           B. KIERNAN                           A. S. GÖZÜBÜYÜK                           A. WEITZEL                           J. C. SOYER                           H. G. SCHERMERS                           H. DANELIUS                           G. BATLINER                           J. CAMPINOS                           H. VANDENBERGHE                       Mrs G. H. THUNE                       Mr. F. MARTINEZ                         Mr. H. C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 12 April 1984 by H.N. against the Federal Republic of Germany and registered on 3 May 1984 under file No. 10949/84;   Having regard to   -        the Commission's decision of 4 March 1985 to give notice of the application to the respondent Government and invite them, in accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits;   -        the President's rulings of 29 May and 9 July 1985 granting requests of the respondent Government to extend the time-limit fixed for this purpose;   -        the observations submitted by the respondent Government on 2 August 1985 and the observations in reply submitted by the applicant on 20 September 1985;   Having deliberated;   Decides as follows:   THE FACTS   The facts as submitted by the parties may be summarised as follows:   The applicant is a German citizen born in 1948 who resides in Frankfurt.   She has filed a previous application (N° 9190/80) which the Commission declared inadmissible on 11 March 1982.   The present case relates to new and different facts.   I.       The applicant owns a dwelling house in Frankfurt which she acquired in 1981 in an auction ordered by the court against the previous owner who was a friend of hers.   She claims that the house is unfit for permanent occupation due to noise originating from a nearby underground line.   It appears, however, that several persons nevertheless live there at least from time to time.   It was in fact observed from a police station which is situated just across the street that the house is inhabited, and as nobody was registered at this address, the police invited the inhabitants by a note to regularise their situation in accordance with the applicable registration regulations (Meldebestimmungen).   Notwithstanding this fact the city's housing authority suspected that the house was not inhabited and was thus used for other than residential purposes contrary to the provisions of the Rent Law Improvement Act (Mietrechtsverbesserungsgesetz, BGBl. 1971 I 1745).   Article 6 para. 1 of this Act empowers the Land Government to issue ordinances whereby the use of housing for other than residential purposes may be subjected to the requirement of an administrative authorisation in certain localities with an acute housing shortage. Article 6 para. 2 provides for regulatory fines (Ordnungsbussen) of up to DM 20.000.- in cases of contravention.   These provisions are applicable in Frankfurt by virtue of an ordinance issued by the Hessian Government in 1972 (GVBl 1972 I 19).   The Frankfurt housing authority conducted correspondence with the applicant on the application of this legislation to her house since November 1982.   Eventually it instituted regulatory proceedings (Ordnungswidrigkeitsverfahren) against her on the suspicion of her having breached Article 6 of the Act.   In this connection it applied to the District Court (Amtsgericht) of Frankfurt for the issue of a search warrant with a view to securing evidence on the occupation of the house, namely by verifying the state of the apartments (Feststellung des Zustandes der Wohnungen).   According to information provided by the Government a search for the same purpose had already been ordered by the Court in relation to the previous owner in 1979.   It had revealed that at that time the premises had not been used for residential purposes.   Before granting the search warrant in relation to the applicant on the housing authority's above request, the Court first invited that authority to comment on the applicant's statement that the house was unfit for residential occupation.   The authority denied this stating that the construction work of the underground railway had been completed.   On 17 January 1984, the Court issued the warrant which was based on Section 102 of the Code of Criminal Procedure (Strafprozessordnung) and Section 46 (1) of the Regulatory Offences Act (Gesetz über Ordnungswidrigkeiten).   The search pursuant to this warrant was carried out on 14 February 1984.   The applicant had shortly beforehand got knowledge of the intended measure and tried to file a remedy in the morning of 14 February i.e. before the measure was executed.   However, according to her statements this turned out to be impossible because the search warrant had not yet been notified to her and she could not therefore indicate the file number.   The applicant states that she was told by officials of the Frankfurt District Court that they did not know of any search warrant against her.   The applicant was present at the execution of the search later the same day and, basing herself on the information obtained from the District Court, raised objections against the validity of the search warrant which was presented to her on this occasion.   She also objected to the taking of photographs in the house and to the preparation of lists of the objects found there.   However, the search was carried out despite these objections.   The applicant subsequently filed a complaint against the search warrant, claiming that it was unlawful in several respects.   The applicant submitted that the house was in fact inhabited and the authority knew that it was inhabited, the registration provisions - which allowed for exemptions - being irrelevant in this context. However, the house was unfit for permanent occupation and therefore outside the scope of the above legislation.   The applicant further alleged a violation of her right to be heard, in particular by reason of the impossibility to file a remedy against the search prior to its execution.   She also invoked her legal interest to have the lawfulness of the search reviewed having regard to its consequences and the danger of repetition of similar measures.   The complaint was first examined by the District Court pursuant to Section 306 (2) of the Code of Criminal Procedure which provides for a decision on redress (Abhilfeentscheidung) by the judge whose decision is being challenged.   However, on 24 February 1984 the District Court refused to amend its decision and referred the complaint to the Regional Court (Landgericht) of Frankfurt.   The Regional Court rejected the complaint by a decision of 13 March 1984.   In conformity with a decision of the Federal Constitutional Court (Bundesverfassungsgericht) (BVerfGE 49, 329 = NJW 79, 154) it held that the applicant lacked a legal interest in the review of the search order after it had been executed.   Such a legal interest existed only in exceptional circumstances, if there were serious consequences of the measure, a danger of repetition of a similar measure, or a grave interference with rights of the interested person. None of these conditions were met in the applicant's case where the search served only the purpose of inspecting a house with a view to establishing the kind of its use.   This was not as such a serious measure and in view of the clear results there was no danger of repetition.   The measure was also justified because of the serious suspicion against the applicant and her refusal to allow the housing authority access to the building.   The court further considered that there had been no violation of the applicant's procedural rights: a hearing before the issue of the search warrant was excluded by its purpose, and the applicant's claim that she had been prevented from filing a remedy before its execution was not substantiated, in any event such a remedy would not have had suspensive effect and therefore could not have prevented the search in question.   In her original submissions to the Commission the applicant claimed that even without taking the matter to the Federal Constitutional Court she must be deemed to have exhausted the domestic remedies.   In this respect she referred to the Federal Constitutional Court's case-law according to which there is no legal interest to have a search warrant reviewed after it has actually been carried out (BVerfGE 49, 329 and 59,96).   She submitted that in those circumstances a constitutional appeal was bound to fail and therefore ineffective. She did not inform the Commission that she had in fact nevertheless lodged a constitutional appeal (Verfassungsbeschwerde).   On 7 September 1984, this constitutional appeal was rejected by a three-judge committee of the Federal Constitutional Court.   It did not accept the appeal on the ground that it lacked prospects of success. In the reasons it noted that the Regional Court's decision had not been limited to an examination of the applicant's legal interest, but that in the context of this examination the Court had also dealt with the substantive justification of the search warrant and had found it to be lawful.   Accordingly, there was no appearance of the applicant having been denied the right to be heard on the danger of a possible repetition of the measure.   As the authority had submitted numerous reports, including information from the police station, on the suspicion that the house was unoccupied, it could not be said that the arguments to the opposite effect submitted by the applicant had not been considered by the Court.   The applicant was not entitled to be heard prior to the execution of the District Court's decision because in view of the danger of her changing the condition of the rooms in question it could appear necessary to execute this decision immediately.   After the execution of the decision, the applicant was in fact granted the right to be heard because both the District Court and the Regional Court decided on the lawfulness of the search warrant.   In view of the contents of the file, it further could not be said that the legal and constitutional conditions for issuing a search warrant were not fulfilled.   The search warrant described the suspicion and the evidence to be secured by the search with sufficient precision,and therefore the requirements of the rule of law had been respected.   It was not objectionable that, for the purpose of clarifying the suspicion, evidence had been taken by making photos and drawing up lists of objects.   Finally it was stated that the applicable provisions of the Rent Law Improvement Act were not unconstitutional, nor had the applicant shown that the conditions for the application of these provisions were not met.   The applicant took a further remedy on 14 March 1984 by requesting a judicial decision under Section 23 of the Court Organisation (Introductory Provisions) Act (EGGVG = Einführungsgesetz zum Gerichtsverfassungsgesetz) concerning the way in which the search had been ordered and carried out.   The Frankfurt Court of Appeal (Oberlandesgericht) rejected this application on 1 June 1984, finding that it was inadmissible insofar as it challenged acts of the judiciary, namely the earlier court proceedings ordering the search and the executive measures taken by the police and housing authority under the authority of the relevant court order.   Insofar as the applicant had challenged the taking of photos and the drawing up of lists of objects the application was considered as unfounded because these measures were reasonable and lawful in the circumstances. Following objections by the applicant this decision was confirmed by the Court of Appeal on 23 July 1984.   The applicant's constitutional appeal concerning this matter was rejected by a decision of the Federal Constitutional Court of 6 November 1984.   The applicant has not informed the Commission of the result of the regulatory proceedings in the context of which the above search warrant was issued.   II.      A further search of the same house took place in the applicant's absence on 27 July 1984.   This time it was based on a search warrant issued by the District Court of Frankfurt on 12 September 1983 against the previous owner of the house in connection with criminal proceedings based on a suspicion of forgery of documents (Urkundenfälschung).   The search was ordered for the purpose of securing evidence, i.e. typewriters which might have been used for the forgery.   The warrant referred to two different addresses, including the one at the applicant's house.   However, despite repeated attempts by the police the accused could not be found at either of these addresses.   Finally, the police were requested on 3 July 1984 to open the apartments by force.   The other apartment was searched on 26 July 1984, and the rooms used by him at the applicant's house on 27 July. According to the Government the condition of the property on this occasion basically corresponded with the findings made at the previous search on 14 February 1984.   Three typewriters belonging to the applicant were seized at this search.   The seizure was confirmed by a decision of the District Court of 6 August 1984.   The applicant tried to appeal against the above search warrant, but on 20 August 1984 the District Court refused to amend its decision.   It accordingly submitted the appeal to the Regional Court of Frankfurt which, on 22 August, rejected this remedy as inadmissible.   It considered that after the actual execution of the search the applicant lacked standing to have the lawfulness of the search warrant reviewed, there being no indication on the basis of her submissions that there was a continuing legal interest.   In this respect the Court again referred to the Federal Constitutional Court's case-law (see above).   Insofar as the applicant had also tried to challenge the seizure of her typewriters, she was referred to the possibility of appealing separately against the District Court's decision of 6 August 1984. The typewriters were eventually released to the applicant by a further decision of the District Court of 24 September 1984.   In her original submissions to the Commission, the applicant claimed also in respect of the above proceedings that a constitutional appeal would be ineffective.   Again, she did not inform the Commission that she nevertheless had lodged a constitutional appeal.   The Federal Constitutional Court decided on the constitutional appeal on 30 October 1984 finding that it had no prospects of success. It noted that the search had been directed against a person different from the applicant whom the investigating authorities had suspected to live in the applicant's property.   Accordingly this measure was covered by the judicial decision.   The Federal Constitutional Court was not competent to control whether the competent court had based its decision on wrong factual assumptions.   In any event there were no unreasonable or arbitrary considerations, nor was there any appearance of other violations of constitutional law.   The Regional Court's decision further did not infringe constitutional law insofar as it had assumed that the applicant's challenge of the search warrant had become without object (prozessual überholt).   A violation of the Convention could not be challenged by a constitutional appeal.   COMPLAINTS   1.       The applicant now complains that her Convention rights have been violated in several respects.   She claims that she has exhausted all domestic remedies available to her before lodging a constitutional complaint because such a complaint would not have been effective having regard to the Federal Constitutional Court's case-law.   2.       The applicant considers that both searches were unjustified and that they interfered with her rights under Article 8 (Art. 8) of the Convention (private life and home) and Article 1 of Protocol N° 1 (P1-1) (peaceful enjoyment of possessions), read in conjunction with Articles 14, 17 and 18 of the Convention (Art. 14, art. 17, art. 18).   As regards the first search, the applicant challenges not only the search as such, but also the underlying legislation.   She considers that the application of the provisions of the Rent Law Improvement Act concerning restrictions on the use of property in the City of Frankfurt was not justified at the relevant time because there was in fact no serious housing shortage.   For this reason she claims that the measures taken against her were disproportionate and discriminatory.   The search itself was in her view unjustified for the further reason that there was no sufficient initial suspicion of the house in question being unoccupied.   It was unlawful for the housing authority to intrude into an inhabited house and to interfere with the applicant's private sphere by taking photographs and making lists of her personal possessions.   The applicant further considers that, lacking a reasonable justification, the measure was also discriminatory.   As regards the second search, the applicant puts forward similar reasons.   Also in this case there was in her submission no sufficient initial suspicion of a criminal offence, in particular there was no such suspicion against herself, and therefore it was also unjustified that the search was carried out in her home and property and that her typewriters were seized.   The principle of proportionality was allegedly violated in several respects, in particular because the search warrant was not directed against the applicant herself, because it dated back almost a year and its aim could have been achieved also by less severe measures, e.g. by the taking of samples of typescript.   3.       The applicant's principal complaints in both cases are related to the procedure followed which the applicant considers to have been in breach of Articles 6 and 13 of the Convention. The applicant claims that it is contrary to Article 6 that in each case she was not heard prior to the issue or execution of the search warrants, and that after their execution the courts refused to deal in substance with her arguments by which she sought to challenge the lawfulness of these search warrants.   The applicant complains of the same facts also under Article 13 of the Convention.   She claims in particular that the combined effect of being refused a judicial review of the lawfulness of the search warrants prior to their being issued or executed, and of the subsequent finding that she lacked a legal interest for obtaining such review, deprived her of any effective remedy before the domestic authorities by which she could assert her rights under Article 8 of the Convention.   In this respect she challenges the Federal Constitutional Court's case-law according to which a legal interest for a judicial review ex post generally does not exist as regards control both by the ordinary courts and by the Federal Constitutional Court itself.   PROCEEDINGS   The application insofar as it concerns the first search was introduced on 12 April 1984 and registered on 3 May 1984.   Insofar as the second search is concerned, the applicant first wrote to the Commission on 23 September 1984.   The Commission decided on 4 March 1985 to give notice of the application to the respondent Government and to invite them, in accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to submit observations in writing on the admissibility and merits of the application.   The Government were asked to deal in particular with the questions arising under Articles 26 and 13 of the Convention read in conjunction with Article 8.   The original time limit for the submission of the Government's observations (17 May 1985) was at their request extended, first until 1 July, and then until 16 August 1985.   In the meantime, the applicant had informed the Commission by letter of 17 March 1985 that she had actually lodged a constitutional complaint against the first search warrant.   This information was transmitted to the Government on 25 March 1985 and at the same time the applicant was asked whether she had lodged a constitutional complaint also regarding the second search warrant.   The applicant confirmed this by a letter of 4 May 1985 which was likewise transmitted to the Government.   The Government submitted their observations on 2 August 1985, and the applicant submitted her observations in reply on 10 September 1985.   In connection with the present case, the Commission was also approached by the Hessian Administrative Tribunal and the City of Frankfurt on the question of a suspension of certain proceedings pending before the Administrative Tribunal.   By a letter of 20 May 1986 the applicant eventually requested the Commission to order the suspension of these proceedings.   The Commission's President ruled on 4 June 1986 that the conditions for indicating an interim measure to the respondent Government (Rule 36 of the Commission's Rules of Procedure) were not met.   SUBMISSIONS OF THE PARTIES   A.       The Government   Scope of the application   The Government consider that the only point at issue is whether the judicial decisions ordering the two searches in the applicant's house and finding these searches to be lawful were compatible with the Convention.   The way in which the searches were carried out by the competent administrative authorities is not in issue.   Exhaustion of remedies   The question as to the exhaustion of domestic remedies has in the meantime been settled by the information provided by the applicant, according to which she in fact filed constitutional complaints against both search warrants.   The domestic remedies are therefore exhausted in compliance with Article 26 of the Convention.   On Article 13 of the Convention   The Government contest the allegation that there was no prior judicial review of the search orders in question.   The search warrants were issued after application to the District Court by the competent authorities.   On each occasion the Court examined in the context of court proceedings laid down by statute whether the conditions for ordering the searches were fulfilled.   The orders were granted by decisions of 17 January 1984 and 12 September 1983, respectively.   The Government, referring to the Federal Constitutional Court's case-law (decision 2BvR 1055/76 of 11 October 1978, BVerfGE 49, 329, 341), submit that judicial search warrants are judicial acts in formal and substantive respects.   Where an application is made for the issuing of a search warrant the judge must examine whether the statutory prerequisites for issuing such a warrant have been fulfilled.   He acts on his own judicial responsibility and is not bound by the application.   Accordingly, the Government consider that the judicial search warrants in the present case were "prior judicial reviews of the searches in question".   The Government submit that there is a further judicial review by the same judge through the "decisions on redress" (Section 306 (2) of the Code of Criminal Procedure) which in the present case were given on 24 February 1984 and 20 August 1984, respectively.   Again, the District Court had to decide with reference to the complaint made and in judicial independence whether the search warrants should be set aside, but on each occasion it declined to do so.   As no redress was granted by the judge of first instance, the matter had to be referred to the Regional Court, which, however, confirmed the decisions of the District Court.   The Federal Constitutional Court has held that there is generally no continued legal interest in the judicial review of a search warrant after its actual execution.   This ruling only applies to judicial search warrants.   The Government consider this aspect as particularly important.   The underlying consideration is that there is no continued legal interest to have the merits of a search warrant reviewed where the examination has previously been made by a judge.   Moreover, even in respect of judicial search warrants, the principle is not applied without exception.   A further judicial examination will nevertheless take place where "substantial consequences of an interference or the risk of repetition - and possibly also the gravity of the legal violation - substantiate a continued interest in judicial examination" (BVerfGE 49, 329, 338).   In any event there is also an examination on the merits by the Federal Constitutional Court following the lodging of a complaint of unconstitutionality.   The Government refer to a decision of the Federal Constitutional Court of 16 June 1981 (BVerfGE 57, 346, 354) according to which "it would not accord with the importance of the basic right under Article 13 of the Basic Law if the right to lodge a complaint of unconstitutionality against searches of residential premises ceased to apply - without more - as soon as the search is concluded".   Thus, the case-law of the Federal Constitutional Court not only does not exclude examination of a judicial search warrant on the merits, but, on the contrary, allows such examination.   In the Government's view, it cannot be objected that, after a court-ordered search has been carried out, relevant higher courts assume on principle that the cause of complaint has been overtaken by the facts.   Setting aside the warrant after the search has been carried out indeed would make no sense.   The measure which has already been carried out cannot be undone.   It only seems possible to declare subsequently the measure unlawful.   For such a declaration, a legitimate interest in obtaining judicial relief is required in accordance with general procedural principles.   This in turn can only be assumed when negative after-effects emanate from the warrant, such as substantial consequences of the interference, risk of repetition, and special gravity of the legal violation.   In such cases there is an examination on the merits of the preceding judicial search warrant without prejudice to the possibility to demand compensation for violation of an official duty.   The restriction of examination of search warrants on the merits to those cases where legal interest in the decision still exists is a requirement of procedural economy. This way of proceeding also helps to conduct the proceedings expeditiously. Searches carried out without prior judicial warrant are, however, reviewable.   The manner in which a search is carried out by the administrative authority concerned is also subject to control by the court under Section 23 of the Court Organisation (Introductory Provisions) Act. In the present case the applicant made use of these proceedings.   The Government submit that the mechanism stipulated in Article 13 of the Convention applies above all vis-à-vis administrative acts and interference by public authority with basic rights which fall outside the scope of Articles 5 and 6 of the Convention.   The latter provisions have introduced a requirement of special judicial remedies in fields traditionally covered in the Convention States by judicial guarantees, that is, the fields of criminal and civil law and deprivation of liberty.   In relation to substantive legal provisions not covered by these judicial remedies, a comparable stipulation and specific elaboration of legal remedies was not undertaken.   The situation in the individual Contracting States was too diverse in this respect.   Article 13 was created for this area.   It also makes provision for a domestic examination, but leaves it to the Contracting States how to make provision for the stipulated examination. Protection by an independent court is not required.   The protection given by Article 13 of the Convention has therefore deliberately been made less differentiated and has been less intensively elaborated. Attention must be paid to the indicated differences in the degree of control in relation to the different substantive human rights guaranteed in the Convention if it is desired to interpret the Convention's guarantees of proceedings in a manner that does justice to the system as a whole while respecting the will of the Contracting States.   In addition to certain principles expressly stated in the case-law of the Convention organs on the interpretation of Article 13, the Government consider that the following additional principles are implied in the decisions of the Convention organs:   a) Article 13 provides for a legal remedy only in respect of executive measures and not in respect of acts of the judiciary.   b) The requirements of Article 13 are also fulfilled if there is an examination by an independent national court before implementation of an administrative measure affecting the citizen, without the party affected making an application for such examination.   Ad a). Article 13 of the Convention goes back to Article 8 of the Universal Declaration of Human Rights of the United Nations according to which everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.   Protection by the national courts against acts perpetrated by national authorities other than the courts is intended here.   The position can be no different in relation to Article 13 of the Convention.   If Article 13 no longer requires independent courts as organs of review but only speaks of an "effective remedy before a national authority" this does nothing to change the fact that reference is made to protection by a particular national authority and not against the decision of such an authority. If it is further stated that there is protection against violations committed by "persons acting in an official capacity", then it is the executive that is meant here.   An interpretation of Article 13 of the Convention to the effect that protection against decisions of a national controlling authority within the meaning of Article 13 might also be intended would lead to the nonsensical result that - following a decision by such an authority - protection could be claimed over and over again. Moreover, in this way a duty incumbent on Contracting States to establish proceedings for a remedy vis-à-vis court decisions would be read into this Article - which does not exist.   Hence, the Commission has rightly deemed the special guarantee of Article 5 para. 4 of the Convention to be a lex specialis to Article 13 of the Convention and, where violation of this guarantee is established, the Commission has not additionally examined the remedy from the point of view of Article 13.   This only seems consistent if Article 13 is seen as a guarantee of proceedings in relation to acts of the executive and not also as a guarantee of proceedings in relation to acts of the judiciary.   If, as in the case under consideration, a national court as a "national authority" within the meaning of Article 13 of the Convention has given a decision, then this Article does not make provision for a further domestic examination.   Rather, domestic recourse to the courts will, in these circumstances, have been exhausted.   The guarantee of a legal remedy is moulded in a comparable fashion in the Basic Law (Grundgesetz) of the Federal Republic of Germany.   In Article 19 para. 4 of the Basic Law it is stated as follows:   "Should any person's right be violated by public authority, recourse to the court shall be open to him".   The Federal Constitutional Court has held in its decisions (BVerfGE 49, 329, 340 with further references) that acts of the judiciary are not acts of a public authority in the above sense, for Article 19 para. 4 of the Basic Law makes provision for protection by the judge and not against the judge.   In relation to cases of the kind under consideration here the Federal Constitutional Court has concluded that the basic right to proceedings under Article 19 para. 4 of the Basic Law is normally complied with if there is an examination by an independent court before the search of residential premises takes place.   Accordingly, with regard to the present case, it must be assumed that the impugned judicial search warrants must already be regarded as examinations by a national authority within the meaning of Article 13 of the Convention, which does not establish a further remedy against such judicial search warrants.   Ad b). It is true that Article 13 of the Convention assumes that action will be taken by a national authority on a "remedy" being sought.   However, it cannot be inferred from this that - in order for the requirements of Article 13 to be met - Contracting States must make provision for action to be taken by a national authority for the purpose of examining executive acts only at the stage when a remedy is sought.   On the contrary, it is compatible with the meaning of Article 13 of the Convention if examination by an independent authority also takes place - for instance on application by an authority - without the affected party giving the impetus and seeking a remedy.   This applies all the more when the "advance deployment" of a legal remedy is intended to make such a remedy as effective as possible in the interests of the citizen.   This was the case here.   Article 13 para. 2 of the Basic Law requires - in the interests of the citizen affected - the involvement of an independent judge before a search of residential premises is carried out.   The judge has to examine in advance the action the administrative authority intends to take as to whether the statutory preconditions have been fulfilled. The judge only becomes active when the authority has made an application and then has to give a decision on his own judicial responsibility and within the context of statutory procedural guarantees.   The granting of a hearing in accordance with the law is, as a matter of principle, also one of the procedural guarantees that have to be observed.   The judge can only dispense with a previous hearing of the affected party where this hearing would endanger the objective of the search for which application was made.   The judge has to take a decision on this in each case and in the exercise of his judicial discretion (BVerfGE 57, 346, 359).   If the hearing does not take place, statutory provision is also expressly made in Sections 33a and 311a of the Code of Criminal Procedure for a subsequent hearing where the party affected is still suffering a disadvantage.   The involvement of a judge prior to a search - in accordance with Article 13 para. 2 of the Basic Law - is intended to prevent the situation where a search of residential premises is only subjected to judicial control after it has been carried out, the reason being that at this latter stage interference with the right to protection of the home will already have occurred.   This would, however, be compatible with the requirements of Article 13 of Convention.   The Basic Law, going further than what is required in Article 13, provides for a prior fundamental judicial examination in order to prevent the occurrence of legal violations - as far as possible - through early involvement of an independent judge.   It would be a nonsensical result for this particularly effective legal remedy - deployed in advance - not to be accepted as a remedy within the meaning of Article 13 of the Convention simply because - by its very nature - it is often not possible for it to be sought.   Article 13 of the Convention does not require any special configuration for domestic remedies.   Thus, it must be left to Contracting States to decide whether to exercise particularly effective control through an independent national authority preceding a search of residential premises and without a relevant application being made by the party affected.   In the Federal Republic of Germany it is even a case of independent national courts becoming active as national examining authorities.   Protection against interference with residential premises in the Federal Republic of Germany is arranged in a manner similarly effective to that in which court protection in cases of deprivation of liberty is arranged.   In addition to examination of a search measure by a court, the party affected also has the right in cases of violation of official duty to demand compensation pursuant to Section 839 of the Civil Code (Bürgerliches Gesetzbuch).   The legal remedy for searches of residential premises basically corresponds to the requirements laid down in Article 5 paras. 4 and 5 of the Convention for cases of deprivation of liberty.   It follows from this that the present applicant's claim to effective domestic control was satisfied by the court proceedings preceding the searches.   Notwithstanding the above arguments, the Government observe that there were further remedies available to the applicant after the searches had been carried out.   In fact, three further examinations by the courts took place in relation to each search.   They included the District Court's decisions on redress followed by the Regional Court's decisions on the complaints lodged and finally by the examination of the Federal Constitutional Court.   All these examinations by independent judges must individually, but at the very least in their totality, be seen as an effective remedy before a national authority.   Neither the Regional Court nor the Federal Constitutional Court limited themselves to finding that the course of complaint had been overtaken by the facts.   They also carried out an examination on the merits, i.e. whether there had been a violation of the applicant's basic rights.   In the case of the second search, the applicant was not affected in her rights because the search order was not made against her but against another person.   Consequently, she could not be a victim of this judicial order within the meaning of Article 25 of the Convention.   The applicant's complaints in this respect are inadmissible already for this reason.   Insofar as the applicant was actually affected, i.e. by the seizure of typewriters, other judicial remedies were available to her which she did in fact use, but this matter is outside the scope of the present application.   On Article 8 of the Convention   The Government submit that, in the present case, there was no home worthy of protection pursuant to Article 8 para. 1.   In this respect, Article 13 of the Basic Law is wider than Article 8 para. 1 of the Convention, which is limited to the actual private living sphere and does not cover business and storage premises as well.   The applicant did not have any personal focal point of her existence, attributable to her private sphere in terms of Article 8 para. 1 of the Convention, in the house when the premises were searched.   A different address was registered as her place of residence, and before the search on 14 February 1984 all communications of the authorities with her were made at this other address.   Neither the applicant nor anybody else is registered with the police at the house in question and, by observations from the police station situated across the street, the property there is known to have been standing empty for years.   Only the letter box is occasionally emptied.   The applicant herself has claimed that the house was unfit for lasting residential occupation because of unhealthy living conditions.   There are no water nor electricity supplies in the house, and the searches revealed that it was only used for storage purposes.   In any event, the requirements of Article 8 para. 2 were met. The searches were carried out within the framework of statutory provisions, on the first occasion for establishing whether there had been a regulatory offence, and on the second occasion, for clarifying a criminal offence.   On Article 1 of Protocol No. 1   The Government observe that the first search was necessary for the implementation of the Rent Law Improvement Act which regulates the use of property in accordance with the general interest.   It does not provide for any inadmissible interference with property rights.   This was established in a decision of the Federal Constitutional Court of 4 February 1975 (BVerfGE 38, 348).   The second search was necessary in the context of criminal proceedings.   Conclusion   The Government, therefore, request the Commission to declare the application inadmissible.   As regards the first search, it is manifestly ill-founded; and as regards the second search, the applicant cannot claim to be a victim or, alternatively, the application is manifestly ill-founded also in this respect.   B.     The applicant   On the facts   The applicant observes that the Government have submitted certain new facts which had not been brought to her notice at an earlier date.   In particular, the fact that the District Court asked the Housing Office for comments on the applicant's allegations that the house was not inhabitable before it issued the search order shows an additional violation of the applicant's rights under Article 6 of the Convention. Her right to be heard was violated by this one-sided measure, in particular because the information given by the Housing Office was not correct.   It was limited to a statement that the construction of the underground railway had been completed, but the applicant had in fact claimed that nuisance was emanating from the operation of the underground railway and not the construction work. She had also offered evidence to this effect and therefore it is likely that another decision would have been taken if she had been heard.   As regards the criminal proceedings underlying the second search, the applicant submits that there was no sufficient suspicion of a criminal act.   Apart from that the search was also unjustified because of the long period of time which elapsed between the search warrant and its execution during which no judicial supervision of the measures taken by the authorities took place.   The fact that the accused had earlier lived in the applicant's house did not justify execution of the search warrant after an essential change of circumstances.   In this context it is particularly important that the ownership right in the house was ascribed to the applicant in the land register in May 1984.   The accused had in the meantime moved out and the search warrant against him in fact also referred to his correct address at a different place.   On Article 13 of the Convention   The applicant contests the Government's interpretation of Article 13 according to which an effective domestic remedy under this provision must only be granted in the area of acts of the administration.   The text of Article 13 makes no distinction between administrative and judicial acts and the only relevant criterion is that there must be an effective remedy.   If acts of the judiciary were excluded from the scope of Article 13, it would be deprived of any meaning in a case like the present one. The Convention organs have already stated that an effective domestic remedy must be given against search warrants if the person concerned has not been previously heard.   For this reason, the search warrants themselves cannot be seen as effective domestic remedies in the present case because on no previous occasion had the applicant been heard.   If there is no hearing, the person concerned has no possibility of influencing the decision which thus is based on the unilateral submissions of the other party.   In the present case these submissions were incorrect or incomplete.   In particular regarding the first search the authorities had failed to submit to the court the statement of the police station that the house was indeed occupied and the applicant had not been heard on the nuisance emanating from the underground railway.   In any event, it follows from a global consideration of the Convention that the aim should be the prevention of violations of fundamental rights rather than their redress after they have actually occurred. Seen in this light, a hearing of the person concerned before the search is carried out would be a more effective remedy.   In the applicant's view only a remedy which leads to a thorough examination of complaints raised on the basis of fundamental principles of democracy can be considered as effective.   The remedies taken by the applicant after the searches did not fulfil these criteria.   Neither the Regional Court, nor the Federal Constitutional Court examined the applicant's complaints thoroughly and on the basis of fundamental democratic principles.   In particular, they failed to consider the danger of repetition alleged by the applicant in her submissions, referring to a statement of the Housing Office which had in fact announced further controls.   The danger of repetition was indeed recognised by the Frankfurt Court of Appeal in its decision of 1 June 1984, but the Regional Court and the Federal Constit