CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1988

.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 }                         AS TO THE ADMISSIBILITY OF                         Application No. 12474/86                       by Roland KANTHAK                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 11 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 9 July 1985 by Roland KANTHAK against the Federal Republic of Germany and registered on 15 October 1986 under file No. 12474/86;           Having regard to   -        the first report of May 1987 provided for in Rule 40 of the         Rules of Procedure of the Commission;   -        the Commission's decision of 13 July 1987 to bring the         application to the notice of the respondent Government         and to invite them to submit written observations on its         admissibility and merits;   -        the observations submitted by the respondent Government on         10 November 1987 and the observations in reply submitted         by the applicant on 30 December 1987.   -        the second report of February 1988 provided for in Rule 40 of the         Rules of Procedure of the Commission;   -        the Commission's decision of 9 March 1988 to invite the         parties to a hearing on the admissibility and merits of the         application;   -        the submissions made by the parties at the hearing on         11 October 1988;           Having deliberated;           Decides as follows:     THE FACTS           The facts of the case, which do not appear to be in dispute between the parties, may be summarised as follows.           The applicant, born in 1951, is a German citizen and resident in Berlin.   Before the Commission he is represented by Mr.   G. Schantl, a lawyer practising at Ettlingen.           In the early morning of 22 March 1982 the applicant arrived with a companion in his camping car in Karlsruhe.   He parked the camping car on a public road near a synagogue and spent the night there.   At about 02.00 hours a patrol of the Karlsruhe Police, which had been informed about a camping car with Berlin registration plates parking near the synagogue, found the camping car with a radio set in operation in the driver's cabin and the rear windows covered with curtains.   Upon the policemen's request for an identity check the applicant opened a small window and handed his own and his companion's passports over.   About 09.30 hours the police effected a further identity check as it considered that the first one had not sufficiently clarified the occupants' identities.   About 10.00 hours the Karlsruhe Police ordered the search of the camping car in view of a possible risk for the synagogue near by.   The camping car was then searched.           On 2 April 1982 the Karlsruhe Police, upon the applicant's appeal (Widerspruch) against the search of his camping car, informed him that he had to appeal to the administrative courts.   On 13 September 1982 the applicant withdrew his appeal.           On 7 October 1982 the applicant instituted proceedings before the Karlsruhe Administrative Court (Verwaltungsgericht) to have the search of his camping car reviewed.   He submitted in particular that he had a legal interest in such a review on the grounds that the search had depreciated him and that there was a danger of repetition. Moreover he alleged that the relevant provisions of the Baden Wuerttemberg Police Act (Polizeigesetz) had not been complied with in his case as there were no persons in his camping car who could have been arrested.   Furthermore, there was no danger ahead, consequently, a search warrant issued by a court would have been necessary.           S. 25 paras. 2 and 5 of the Police Act provide inter alia that the police may search a place of residence if there are facts justifying the assumption that someone in the place of residence may be taken into custody or something in the place of residence may be confiscated or seized.   If there is danger ahead, the search may be carried out without a court order.           On 24 February 1983 the Karlsruhe Administrative Court (Verwaltungsgericht) declared the applicant's complaint of the alleged unlawfulness of the search inadmissible.   The Court found that the applicant requested the judicial review of an administrative measure which had already been executed (Fortsetzungsfeststellungs- klage).   The applicant's withdrawal of his administrative appeal did not affect this request as it could not be interpreted as a general waiver of his right to appeal.   However, the Court considered that the applicant lacked a legal interest (schutzwürdiges Interesse) to have the search reviewed.   It found that the applicant had not sufficiently substantiated a danger of repetition.   The Court, in this respect, had in particular regard to the fact that it was generally forbidden to spend the night on public roads in Karlsruhe.   Furthermore it considered that there was no necessity to rehabilitate the applicant, as the search did not depreciate him.   The search was only meant to enable the police to identify all occupants of the applicant's camping car.           On 27 June 1984 the Baden Wuerttemberg Administrative Court of Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal (Berufung).   The Court confirmed the reasoning of the Administrative Court that the applicant lacked a legal interest to have the lawfulness of the search reviewed.   The Court referred in particular to a judgment of the Federal Administrative Court (Bundesverwaltungs- gericht) of 21 November 1980 according to which a legal interest of a non-pecuniary nature might, in cases of an alleged interference with basic rights, follow from the right to an effective remedy under S. 19 para. 4 of the Basic Law (Grundgesetz).   However, the Court of Appeal found that also in such circumstances the legal interest could not be assumed solely on the basis of a possible interference with the applicant's rights under the Basic Law if there were no consequent effects in future.   S. 19 para. 4 of the Basic Law did not provide for a right to have abstract questions of law clarified.   The Court considered that the alleged interference with the applicant's right to respect for his home under S. 13 of the Basic Law did not have any factual consequences in future.   The purely theoretical possibility that the applicant might stay again with his camping car in Karlsruhe and be subjected to another search did not amount to a concrete danger of repetition.   Finally, the Court held that the regulation of the right of access to court such as to exclude a decision on the merits in cases where the claimant lacks a special legal interest in such a decision did not impair the right to an effective remedy, as guaranteed by S. 19 para. 4 of the Basic Law as well as by Article 13 of the Convention.   The Court did not grant leave to appeal on points of law (Revision).           On 14 August 1984 the applicant lodged a request for leave to appeal on points of law (Nichtzulassungsbeschwerde) to the Federal Administrative Court.   He submitted in particular that his case was of fundamental importance as regards the question whether or not he had an unconditional right to have the alleged violation of his basic rights established after the measure complained of was completed.   He also referred, in this respect, to Articles 8 and 13 of the Convention.   Furthermore he submitted that the decision of the Court of Appeal deviated from the decision of the Federal Administrative Court of 21 November 1980.           On 26 November 1984 the Federal Administrative Court dismissed the applicant's request.   The Court found that the conditions under S. 132 para. 2 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) were not met.   S. 132 para. 2 provides that leave to appeal is to be granted (1) if the matter in dispute is of fundamental importance; or (2) if the judgment deviates from a decision of the Federal Administrative Court and is based upon that deviation; or (3) if, in the cases of an alleged procedural defect, the judgment might be based upon that defect.   The Court considered in particular that the applicant's case was not fundamentally important on the ground that there were no decisive legal issues requiring clarification in the interests of uniformity or development of law.   It recalled, in this respect, its constant jurisprudence according to which the special requirement of a legal interest to have the alleged unlawfulness of administrative measures established was not objectionable from a constitutional point of view.   Furthermore, the Court held that the applicant had not shown in what respect the challenged judgment allegedly deviated from the earlier decision referred to.   It observed that the Court of Appeal based its considerations upon the principles stated in that decision.   The proper application of those principles in the present case could not be examined upon a request for leave to appeal.           On 22 April 1985 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Court found in particular that the administrative courts' application of the procedural law could not be objected from a constitutional point of view.     COMPLAINTS   1.       The applicant complains under Article 8 para. 1 of the Convention that the search of his camping car violated his right for respect of his home.   He considers that the notion of "home" covers a camping car.   He submits that the search was unlawful under German law on the ground that it had been effected by the police without a search warrant issued by a court.   He alleges that the conditions for a search without search warrant, i.e. in particular imminent danger, were not met.   2.        The applicant also complains under Article 13 in conjunction with Article 8 para. 1 of the Convention that he had no effective remedy before a German authority to have the allegedly unlawful search of his camping car reviewed.   He submits that the German administrative courts declared his appeal inadmissible for lack of legal interest without a decision on the merits as regards the search complained of.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 9 July 1985 and registered on 15 October 1986.           On 13 July 1987 the Commission decided to invite the respondent Government to present observations on the admissibility and merits of the application.   The Government's observations were submitted on 10 November 1987 and the observations in reply submitted by the applicant on 30 December 1987.           On March 1988 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.           At the hearing which was held on 11 October 1988 the parties were represented as follows:   The Government:   Mr.   Meyer-Ladewig        Ministerialdirigent,                         Federal Ministry of Justice, Agent   Mr.   Wanner               Staatsanwalt,                         Federal Ministry of Justice, Adviser   Mr.   Fuchs                Kriminalrat,                         Karlsruhe Police Office, Adviser   The applicant   Mr.   Schantl              Counsel.       SUBMISSIONS OF THE PARTIES   A.       The Respondent Government     II.      As to the complaint under Article 8 of the Convention           The Government consider that the applicant's camping car was no "home" within the meaning of Article 8 of the Convention on the ground that it did not serve any permanent residential purpose and was not parked on a place where the applicant could lawfully spend the night.           Furthermore the Government submit that the search would, in any case, be justified under Article 8 para. 2 of the Convention.   It was lawful under S. 25 para. 2 subpara. 1(a) and 2 and para. 5 of the Baden Wuerttemberg Police Act.   The Government state that the applicant and his companion caused suspicion having parked their camping car at night on a public road near to a synagogue.   Moreover, the search served the aim of protecting public safety and, given the degree and kind of suspicion, it was necessary and appropriate in a democratic society.   III.     As to the complaint under Article 13 in conjunction with         Article 8 of the Convention           The Government maintain that Article 13 of the Convention does not prevent the Contracting States from having, in their legal systems, procedural requirements such as a legal interest in having a search which was already carried out reviewed.   The Government consider that no legal protection has to be granted in cases where the person concerned only has a theoretical interest to have the lawfulness of a measure which was already carried out reviewed.           Furthermore, the Government, referring to the judgments of the European Court of Human Rights in the cases of Boyle and Rice (judgment of 27 April 1988, Series A no. 131), and Plattform "Ärzte für das Leben"(judgment of 21 June 1988, Series A no. 139), consider   that the applicant has no arguable claim to be a victim of a violation of his right under Article 8 of the Convention on the ground that the search did not unlawfully interfere with that right.   IV.      Conclusion           The Government request the Commission to declare the application inadmissible as being manifestly ill-founded (Article 27 para. 2 of the Convention).     B.       The Applicant           In the applicant's opinion Article 13 of the Convention excludes that the right to an effective remedy depends upon a special legal interest.   Furthermore he maintains that the search of his camping car without a search warrant issued by a court appeared to be at least a prima facie violation of his right to respect for his home under Article 8 para. 1 of the Convention and his complaint in this respect had, therefore, to be considered as an arguable one within the meaning of Article 13 of the Convention.     THE LAW   1.       The applicant complains under Article 8 para. 1 (Art. 8-1) of the Convention that the search of his camping car violated his right to respect for his home.   He considers in particular that the search effected by the German police without court order was unlawful under German law and could not, therefore, be justified under Article 8 para. 2 (Art. 8-2) of the Convention.           Article 8 (Art. 8) of the Convention provides, inter alia, that everyone has the right to respect for his private life and his home, and that 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 public safety, for the prevention of disorder or crime, or for the protection of the rights and freedoms.           The respondent Government contend that the applicant's camping car was no home within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention.   Furthermore, given the suspicion caused by the applicant's camping car parked near a synagogue the search was, in any event, justified under Article 8 para. 2 (Art. 8-2) of the Convention as being lawful and necessary in a democratic society in the interests of public safety.           The Commission need not decide whether the applicant's camping car is to be regarded as the applicant's home within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention on the ground that any interference, in this respect, with the applicant's right to respect for his private life or home was justified under Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission finds that the search of the applicant's camping car was in accordance with the law for the purposes of Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission, in this respect, notes in particular that the search in question was based upon S. 25 paras. 2 and 5 of the Baden Wuerttemberg Police Act according to which the police may search a place of residence if there are facts justifying the assumption that someone in the place of residence may be taken into custody, or something be confiscated or seized.   The search may be carried out without court order in case of imminent danger, this being interpreted as danger for the success of the search.           The Commission considers that it is not its task to interpret German law as to the correct meaning of "imminent danger".   In the present case, the competent German authority have based their decision to search the applicant's camping car without a court order on an interpretation of the relevant legal provisions which does not appear to be arbitrary.           Furthermore the search of the applicant's camping car can be considered necessary in the interest of public safety and for the protection of the rights and freedoms of others.   The applicant had his camping car parked on a public road near a synagogue and spent the night there.   The particular circumstances of his stay caused considerable suspicion, and in the morning the German police authorities reasonably assumed that immediate steps had to be taken in order to investigate the matter and to avert any possible danger to the synagogue nearby.   The Commission considers that this interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) does not appear disproportionate to the legitimate aim pursued.           It follows that the applicant's complaint under Article 8 (Art. 8) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains under Article 13 (Art. 13) in conjunction with Article 8 (Art. 8) of the Convention that he had no effective remedy before a German authority to have the allegedly unlawful search of his camping car reviewed.           Article 13 (Art. 13) of the Convention provides that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority.           The Commission observes that three German administrative courts dealt with the present case without, however, examining the merits.   They considered that the applicant lacked a legal interest to have his case determined.   The Commission finds that an issue under Article 13 (Art. 13) of the Convention could arise if the case-law of the German courts according to which the legal interest in having a search reviewed which was already carried out is applied in such a way as to exclude any examination of the lawfulness and substantive justification of the search in question (cf.   No. 10949/84, Dec. 10.12.86, to be published in D.R.).   However, the Commission can leave this question open on the ground that this complaint is anyway manifestly ill-founded for the following reasons.           Article 13 (Art. 13) of the Convention is a substantive right and its application does not depend on the existence of a breach of another right or freedom as set forth in the Convention.   This provision requires a remedy in domestic law where an individual has an arguable claim to be the victim of a violation of his rights under the Convention.   An arguable claim falls to be determined on the particular facts of each case and the nature of the legal issue raised (cf.   Eur.   Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, paras. 25, 27).           The Commission recalls that the applicant's complaint under Article 8 (Art.8) of the Convention must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention on the ground that the search of his camping car was in accordance with German law and necessary in a democratic society in the interests of public safety and for the protection of the rights and freedoms of others.           Moreover the Commission, taking into account the specific circumstances of the case, finds that the complaint does not give rise to a prima facie issue under Article 8 (Art.8) of the Convention and thus cannot be considered to be an arguable claim.   Consequently, Article 13 (Art. 13) of the Convention does not apply in respect of the applicant's complaint under Article 8 (Art. 8) of the Convention.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE           Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)