CEDH · CASELAW;REPORTS;ENG — 29 mai 1991

.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. 13710/88   Gottfried NIEMIETZ   against   the FEDERAL REPUBLIC OF GERMANY     REPORT OF THE COMMISSION   (adopted on 29 May 1991)   TABLE OF CONTENTS                                                                  PAGE   I.       INTRODUCTION         (paras. 1 - 18) ....................................... 1 - 2           A.       The application                 (paras. 2 - 4) ...............................     1           B.       The proceedings                 (paras. 5 - 13) ..............................   1 - 2           C.       The present Report                 (paras. 14 - 18) .............................     2     II.      ESTABLISHMENT OF THE FACTS         (paras. 19 - 43) .....................................   3 - 10           A.       The particular circumstances of the case                 (paras. 19 - 33) .............................   3 - 8           B.       Relevant domestic law                 (para. 34 - 43) ..............................   9 - 10     III.     OPINION OF THE COMMISSION         (paras.   44 - 85) .................................... 11 - 17           A.       Complaints declared admissible (para. 44) .....   11           B.       Points at issue (para. 45) ...................    11           C.       Article 8 of the Convention                 (paras. 46 - 80) ............................. 11 - 16           D.       Article 1 of Protocol No. 1                 (paras. 81 - 83) ............................. 16 - 17           F.       Recapitulation                 (paras. 84 - 85) .............................    17     APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................    18     APPENDIX II      :   DECISION ON THE ADMISSIBILITY ............. 19 - 28   I.     INTRODUCTION   1.       The following is an outline of the case, as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.       The application   2.       The applicant, born in 1951, is a German national and resident in Freiburg.   He is a lawyer by profession.   3.       The application is directed against the Federal Republic of Germany.   The Government are represented by their Agent, Mr.   J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   4.        The case relates to the search of the applicant's law office. The applicant invokes Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention.     B.       The proceedings   5.       The application was introduced on 15 February 1988 and registered on 25 March 1988.   6.       On 14 December 1988 the Commission decided to give notice of the application to the respondent Govenment and to invite them to present their observations in writing on the admissibility and merits of the application.   7.       Following an extension of their time limit, the Government's observations were submitted on 18 April 1989.   The applicant submitted his observations in reply, also after an extension of the time limit, on 9 June 1989.   8.       On 14 December 1989 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application.   9.       The hearing took place on 5 April 1990.   The applicant attended in person and was assisted by Mr.   Neffert as adviser.   The respondent Government were represented by Mr.   H.A. Stöcker, Ministerialrat, as Agent, and by Mrs.   V. Lewenton, Oberstaatsanwältin, Public Prosecutor's Office at the Munich II Regional Court, as Adviser.   10.       Following the hearing the Commission declared admissible the applicant's complaint under Article 8 of the Convention and Article 1 of Protocol No. 1 about the search of his law office.   11.       The parties were then invited to submit any additional observations on the merits which they wished to make.   The parties did not submit any further observations.   13.      After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   Consultations with the parties took place between 16 May and 2 July 1990.   The Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   14.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   L. LOUCAIDES   15.      The text of this Report was adopted on 29 May 1991 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   17.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   19.      On 9 December 1985 a telefax-letter addressed to Judge M. of the Freiburg District Court was posted at the Freiburg Post Office.   It was sent by the "AK-BL FREIBURG" and signed by one K.W.   This letter had been drafted in the context of criminal proceedings pending before the Freising District Court (Amtsgericht) which concerned a charge of defamation against Mr.   J., an employer refusing to deduct and transfer to the tax office his employees' church tax, and read as follows:   <German>   "Sehr geehrter Herr Richter [M.]           am 10.12.1985 findet unter Ihrem Vorsitz die Verhandlung gegen Herrn [J.] statt.   Wir, der [AK-BL FREIBURG], protestieren aufs schärfste gegen dieses Verfahren.           In der BRD genießt die Kirche auf der Grundlage des Hitlerkonkordates und unter Verletzung der staat- lichen Neutralitätspflicht weitestgehende Privilegien. Jeder nicht-christliche Bürger dieses Staates hat dadurch Benachteiligungen und tägliche Belästigungen zu ertragen. Unter anderem ist die BRD der einzige Staat, der sich zum kirchlichen Steuereintreiber macht.   Er verlangt von Arbeitgebern, seien sie Christen oder nicht, die Kirchen- steuer für ihre christlichen Arbeitnehmer abzuführen und damit der Kirche Finanzverwaltungsarbeit abzunehmen. [J.] hat sich seit Jahren mutig und konsequent geweigert, auf diese Weise die Finanzierung der Kirche zu unterstützen und einen entsprechenden Modus der Kirchensteuerzahlung seiner christlichen Arbeitnehmer ohne seine Beteiligung arrangiert.           Dieser Versuch, in einem Staat, der die Trennung von Staat und Kirche zu seinen Grundprinzipien zählt, auf eben dieser Trennung zu bestehen, hat Herrn [J.] nicht nur fort- gesetzten Schikanen und Übergriffen durch staatliche Behörden ausgesetzt, die darin gipfelten, daß das Finanzamt Kirchen- steuern durch Zwangsmaßnahmen, z.   B. Pfändung, von ihm ein- trieb, die seine Angestellten schon längst abgeführt hatten, sondern ihm, als er diese Machenschaften beim Namen nannte, darüber hinaus dieses Verfahren wegen angeblicher Beleidigung eingebracht.           Wäre es nun Ihre Aufgabe als zuständiger Richter gewesen, diesen 'Beleidigungsfall' unvoreingenommen zu prüfen, so kamen Sie dieser Aufgabe nicht nur nicht nach, sondern mißbrauchten ihr Amt zu dem Versuch, mit Mitteln, die an   die dunkelsten Kapitel der deutschen Rechtsgeschichte mahnen, einem unbequemen Kirchengegner das Rückgrat zu brechen.   Mit äußerster Empörung haben wir von der auf Ihre Anordnung hin erfolgten psychiatrischen Zwangsuntersuchung Kenntnis erhalten, der sich [J.] inzwischen unterziehen mußte.   Wir werden all unsere Möglichkeiten und insbesondere unsere internationalen Kontakte nutzen, Ihr Vorgehen, das mit den Prinzipien eines demokratischen Rechtsstaates unvereinbar ist, an die Öffentlichkeit zu bringen.           Wir werden den Fortgang des Verfahrens gegen [J.] beobachten und erwarten von Ihnen, daß Sie den eingeschlagenen Weg der Terrorisierung verlassen und zu dem in diesem Fall einzig angemessenen Freispruch finden werden."   <English translation>   "Dear Judge [M.]           On 10.12.1985 the trial against [J.] will take place before your bench.   We, the [AK-BL FREIBURG], protest most strongly about these proceedings.           In the FRG, the church, on the basis of the Hitler concordat and in violation of the State's duty to maintain neutrality, enjoys most extensive privileges.   As a result, every non-Christian citizen of this State has to suffer disadvantages and daily inconveniences.   Among other things, the FRG is the only State which plays the part of church tax collector.   It demands from employers, whether they be Christians or not, that they transfer church tax for their Christian employees and thus free the church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the church in this way and arranged for an appropriate modality of paying church tax in respect of his Christian employees without his own involvement.           This attempt - in a State which counts the separation of State and church among its basic principles - to insist upon just such a separation, has not only exposed [J.] to persistent interference and deliberate efforts to be difficult on the part of State authorities, culminating in the tax office employing coercive measures, e.g. attachment, to collect from him church tax which his employees had already paid a long time previously.   It also involved him - when he explicitly drew attention to these underhand methods - in the present proceedings for alleged insult.           Were it your task as the competent judge to conduct an unbiased examination of this "case of insult", then it must be said that you not only failed to carry out this   task, but also abused your office in order to try - employing means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the church.   It was with   great indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime.   We shall use all our possibilities, in particular our international contacts, to bring to public notice this action of yours which is incompatible with the principles of a democratic State subscribing to the rule of law.           We shall observe the further course of the proceedings against [J.] and trust that you will leave the path of terrorisation which you have embarked upon, and that you will reach the only decision appropriate in this case - an acquittal."   20.      On 13 January 1986 the Director of the Munich I Regional Court (Landgericht) requested the Munich Public Prosecutor's Office (Staatsanwaltschaft) to institute criminal proceedings against K.W. for insult.   In the course of the subsequent investigations the suspect K.W. could not be summoned at his address, then known by the police.   The applicant's colleague, who represented the "BL Freiburg" and had been asked to disclose K.W.'s whereabouts, refused to give any information about K.W.   Other attempts to identify K.W. failed.   21.      On 8 August 1986 the Investigating Judge (Ermittlungsrichter) at the Munich District Court, in the context of the investigations against K.W. on the suspicion of insult within the meaning of S. 185 of the Criminal Code (Strafgesetzbuch), issued a search warrant concerning the applicant's and his colleague's law office, and the respective living accommodations of Ms.   D. and Ms.   G.   22.      The search warrant reads as follows:   <German>   "Ermittlungsverfahren gegen [K.W.] wegen § 185 StGB   Beschluß:   Die Durchsuchung der nachstehend bezeichneten Wohn- und Geschäftsräume nach Unterlagen, aus denen sich die Identität des [K.W.] ergibt, sowie die Beschlagnahme der dabei aufgefundenen Unterlagen wird angeordnet.   1.       Kanzleiräume der Bürogemeinschaft Rechtsanwälte Gottfried Niemitz und ...,   2.       Wohnräume (einschliesslich Nebenräume und Kraftfahrzeuge) der Frau [D.] ...,   3.       Wohnräume (einschliesslich Nebenräume und Kraftfahrzeuge) der Frau [G.] ...   Gründe:           Am 9.12.85 wurde beim Postamt Freiburg ein Telefax-Brief beleidigenden Inhalts an den Richter am Amtsgericht Freising, [M.], aufgegeben.   Absender war die [AK-BL Freiburg].   Unterzeichnet war der Brief von einem [K.W.].           Die Person des Unterzeichners konnte bisher nicht ermittelt werden.   Die [BL Freiburg] ist postalisch nur über ein Postfach zu erreichen.   Bis Ende 1985 wurde die eingehende Post an die Bürogemeinschaft Rechtsanwälte Niemitz und ... weitergeleitet und seit Anfang 1986 an Frau [D].   Es ist deshalb zu vermuten, daß sich bei den genannten Personen Unterlagen befinden, die Aufschlüsse über die Identität des [K.W.] geben.           Darüber hinaus sind solche Unterlagen auch in den Wohnräumen von Frau [G.], der Vorsitzenden der [BL Freiburg], zu vermuten.           Es ist deshalb beim Durchsuchen der im Beschluß bezeichneten Räume mit dem Auffinden von Beweismaterial zu rechnen."   <English translation>   "Preliminary investigations against [K.W.]   concerning S. 185 of the Penal Code   Order:   The search of the following premises for documents which might reveal the identity of [K.W.] and the seizure of such documents is ordered.   1.   Law office of the law firm of the lawyers Gottfried Niemitz and ... ,   2.   Home (including adjoining rooms and cars) of Ms. [D.] ...,   3.   Home (including adjoining rooms and cars) of Ms. [G.] ...   Reasons:           On 9 December 1985 a telefax wich insulted Judge [M.] at the Freising District Court was posted at the Freiburg Post Office.   It was sent by the [AK-BL Freiburg].   The letter was signed by [K.W.].           The identity of [K.W.] could not be established.           The [BL Freiburg] could only be contacted by mail addressed to a mail box.   Until the end of 1985 such mail had been forwarded to the law office of Niemitz and ..., and since the start of 1986 to Ms. [D.].   It had therefore to be assumed that at the premises of the above-mentioned persons documents disclosing identity could be found.           Furthermore, such documents had to be assumed in the premises of Ms. [G.], Chairwoman of the [BL-Freiburg]."           For these reasons, it had to be expected that in the course of the search of the premises concerned evidence could be found."   23.      On 13 November 1986 the Freiburg Public Prosecutor's Office, on the basis of the warrant of 8 August 1986, searched the office of the applicant and his partner.   24.      According to the record of this search one file marked "BL", four filing cabinets with data concerning clients, one file for the defence marked "K.W. - Karlsruhe District Court...", one file for the defence marked "Niemitz et al - Freiburg District Court ..."; one file marked "C.W. - Freiburg District Court ...", one file marked "G. - Hamburg Regional Court" and another file for the defence "D. - Freiburg District Court" were examined.   25.      It follows further from a police officer's report of 14 November 1986 that the law office was entered at about 9 a.m. when, in presence of two office assistants, the premises were inspected.   The actual search was commenced at about 9.15 a.m. when the applicant's colleague arrived.   The applicant arrived at 9.30.   No documents were found.   The applicant did not give any information as to the identity of K.W.; he contended inter alia that he might himself be involved in the criminal proceedings in question.   The search lasted until about 10.30 a.m.   26.      In the proceedings before the Commission the applicant asserted that he had been able in time to put relevant documents disclosing the identity of the suspect aside.   These documents had been destroyed in the meantime.   27.      Relevant documents were found and seized at the living accommodations of Ms.   D. and Ms.   G.   These documents gave raise to the suspicion that the insulting letter had been sent by Ms.   D. under an assumed name.   The criminal proceedings were later discontinued for lack of evidence.   28.      On 27 March 1987 the Munich I Regional Court declared the applicant's appeal (Beschwerde) against the search warrant inadmissible. The Court found in particular that the complaints concerned a search which had already been carried out.   A legal interest in having the lawfulness of this search reviewed could not reasonably be established. The Court considered in this respect that the search warrant had not   been arbitrary as there had been concrete facts to assume that objects would be found and seized.   S. 97 of the German Code of Criminal Procedure (Strafprozeßordnung) had not been circumvented, because the search warrant had been based on the fact that the mail of the "BL Freiburg" had for some time been forwarded to the applicant's office and it did not, therefore, concern a lawyer-client relationship. Finally, the Court found that honour was not such a minor right as to render the search in question disproportionate.   29.      On 13 January 1987 the Munich Court of Appeal (Oberlandes- gericht) declared the appeal of the applicant's colleague concerning the search under S. 23 of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) inadmissible.   The Court of Appeal found in particular that it was not competent to decide upon judicial decisions such as a search warrant in respect of which an appeal lay under the Code of Criminal Procedure.   The complaints about the execution of the search concerned primarily the allegedly unlawful search warrant and infringements persisting in its execution.   30.      On 18 August 1987 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) of 28 April 1987 on the ground that it offered no prospect of success.   31.      The Constitutional Court found in particular that the search warrant of 8 August 1986 could not be objected to under the principles of the rule of law.   The charge against the third person, the kind of evidence to be searched for and the reasons to assume that such evidence would be found at the applicant's premises were sufficiently stated.   Furthermore the search warrant was proportionate.   Honour, as protected by the penal provisions concerning defamation, did not constitute such an unimportant interest that it could not justify a search warrant.   Other attempts to identify K.W. had failed.   In particular the applicant's colleague had refused to disclose K.W.'s identity.   Moreover the Constitutional Court considered that the search warrant was lawful.   In the circumstances of the case, the District Court when it ordered the search could assume that the search would only concern correspondence of the "BL Freiburg" which had no connection with the applicant's activities as a lawyer, the more so as he had previously been president of the "BL Freiburg".   The correspondence of the "BL Freiburg" might have disclosed K.W.'s identity.   32.      The Constitutional Court moreover found that the decision of the Regional Court to declare the applicant's appeal inadmissible could not be objected to under constitutional law.   There were no exceptional circumstances justifying an examination on the merits.   33.      Finally, the Constitutional Court considered that the applicant had not exhausted the remedies under the Introductory Act to the Courts Organisation Act as regards his complaints about the actual circumstances of the search warrant.   The Constitutional Court considered such an appeal to be reasonable even if a legal interest in having the execution of a search warrant reviewed is only accepted under exceptional circumstances.   B.       Relevant domestic law   34.      The search of the applicant's law office was ordered in the context of criminal proceedings concerning insult within the meaning of S. 185 of the Criminal Code (Strafgesetzbuch) according to which this offence is punishable by imprisonment for a term not to exceed one year or by a fine.   35.      S. 203 para. 1 (3) of the Criminal Code makes the unauthorised breach of secrecy by a lawyer punishable by imprisonment for a term not to exceed one year or by a fine.   36.      According to S. 53 para. 1 (2) and (3) of the Code of Criminal Procedure (Strafprozeßordnung) a defence counsel or lawyer may refuse testimony in respect of matters which were confided to them in their professional capacity.   37.      SS. 94 to 111n of the Code of Criminal Procedure govern the seizure of evidence, the surveillance of telecommunications and the search of a person's home or other premises.   38.      S. 94 provides that objects which can, as evidence, be relevant to the investigations have to be taken into official custody, or, if they are in another person's custody and not handed over voluntarily, have to be seized.   39.      S. 97, in conjunction with S. 53 para. 1 (2) and (3), of the Code of Criminal Procedure provides that, inter alia, correspondence between the accused and his defence counsel, or the lawyer and his client, may not be seized.   40.      S. 103 of the Code of Criminal Procedure provides in particular that the home and other premises of a person who is not suspected of having committed a criminal offence may only be searched in order to arrest a person charged with a criminal offence or in order to investigate traces of a criminal offence or in order to seize specific objects, and only under the condition that there are facts to suggest that a person, trace or object is to be found in the premises searched.   41.      According to S. 304 of the Code of Criminal Procedure there is an appeal against any decision taken by courts at first instance or in the course of appeal proceedings, and against any order of a presiding judge, a judge in the course of preliminary proceedings and a delegated or commissioned judge, if the law does not expressly provide otherwise.   Witnesses, experts and other persons may appeal against decisions and orders insofar as they are affected.   42.      S. 23 para. 1 of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides that the ordinary courts, upon request, decide upon the lawfulness of orders, instructions and other measures taken by judicial authorities in order to settle individual matters in the context of, inter alia, the administration of criminal justice. S. 28 para. 1 stipulates that, insofar as the measure is unlawful and   the applicant's rights are thereby infringed, the measure will be set aside.   If the measure has already been carried out, the court, upon request, may also order that and how the authority concerned has to undo its execution.   Furthermore, if the measure was previously withdrawn or otherwise settled, the court, upon request, declares that the measure was unlawful, if the applicant has a legal interest in such a declaration.   43.      SS. 1 to 3 of the Federal Regulations for Lawyers (Bundes- rechtsanwaltsordnung) define in general the position and the profession of a lawyer.   He is an independent organ in the administration of justice.   He exercises a liberal profession, not a business.   He is independent counsel and representative in all legal matters.   S. 43 of these Regulations stipulates as a lawyer's general professional duty that he has to practise conscientiously.   Whether in pursuit of his profession or otherwise, he has to prove himself worthy of the trust which the position of a lawyer requires.   III.    OPINION OF THE COMMISSION     A.       Complaints declared admissible   44.      The Commisson has declared admissible the applicant's complaints under Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) about the search of his law office.     B.       Points at issue   45.      Accordingly, the issues to be determined are   -        whether there has been a violation of Article 8 (Art. 8) of the         Convention, and   -        whether there has been a violation of Article 1 of Protocol         No. 1 (P1-1).     C.       Article 8 (Art. 8) of the Convention   46.      The applicant complains that the search of his law office violated his right to respect for his home and correspondence as laid down in Article 8 (Art. 8) of the Convention.   47.      Article 8 (Art. 8) of the Convention provides:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."     1.       The interference with the applicant's right         under Article 8 para. 1 (Art. 8-1)   48.      The first matter to be decided is whether or not the search of the applicant's law office constitutes an interference with the right guaranteed to him under Article 8 para. 1 (Art. 8-1).   49.      The applicant relies mainly on the notion "home".   He considers that, in this respect, Article 8 para. 1 (Art. 8-1) does not only safeguard the place of residence of an individual against any interference by public authorities, but also business premises such as a lawyer's office, where, in a private sphere, he pursues his profession.   50.      The Government contend that Article 8 para. 1 (Art. 8-1) of the Convention does not extend to the applicant's law office and his professional activities.   51.      The Commission notes that the search in question took place at the law office of the applicant and his partner.   Several filing cabinets with data concerning clients and files for the defence of clients were inspected.   52.      In a previous case concerning the search of business premises, the Commission has put emphasis on the finding that the measures in question also included a bedroom occupied as home to the effect that the interference, although directed against business activities, impinged upon the individual's private life and the private sphere of items and associations which have the attributes of a home (Chappell v. the United Kingdom, Comm.   Report 14.10.87, para. 96).   53.      The Court of Justice of the European Communities, in a case concerning the search of business premises (Nos. 46/87 and 227/88, Hoechst AG v. the Commission of the Eur.   Communities, judgment of 21 September 1989), found that the right to respect for one's home could be regarded as a common principle in the Member States of the European Communities only insofar as the private residence of individuals was concerned, the protection of business premises showing considerable differences.   However, as the Court established, in all domestic systems protection is afforded against arbitrary or disproportionate interference with the sphere of private activities of natural or legal persons.   54.      The European Court and Commission of Human Rights have in several cases decided that activities of a professional character may fall within the notions of "private life" and "correspondence" (cf., concerning secret surveillance of telephone conversations: Eur.   Court H.R., Klass and Others judgment of 6 September 1978, Series A No. 28, p. 21, para. 41; Malone judgment of 2 August 1984, Series A No. 82, p. 30, para. 64; and as regards telephone conversations between journalists and a suspect: Eur.   Comm.   H.R., No. 8290/78, Dec. 13.12.79, D.R. 18 p. 176).   55.      The Commission recalls that the object of Article 8 (Art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities (Eur.   Court H.R., "Belgian Linguistic" judgment of 23 July 1968, Series A No. 8, p. 33, para. 7). The scope of the right to respect for private life is such that it secures to the individual a sphere within which he can freely pursue the development and fulfilment of his personality (Eur.   Comm.   H.R., No. 6959/75, Dec. 12.7.77, D.R. 10 p. 100; No. 8307/78, Dec. 11.7.1980, D.R. 21 p. 116).   The Commission notes that professional and private activities cannot always be distinguished without close scrutiny.   56.      The sphere of professional activities and premises does not, therefore, in principle fall outside the protection afforded by Article 8 (Art. 8) of the Convention.   Whether or not such matters have to be considered as relating to a person's private sphere, as opposed to public life, depends upon the relevant features of the activities and premises concerned.   57.      The Federal Regulations for Lawyers define the position of a lawyer as independent organ in the administration of justice, and provide that a lawyer is independent counsel in all legal matters and has to exercise his profession conscientiously in view of, in particular, the trust put in him.   Any breach of secrecy on the part of the lawyer is made punishable under the Criminal Code, and the Code on Criminal Procedure protects the link of confidentiality between counsel and client in various provisions concerning the refusal of testimony or the seizure of objects.   58.      These features of privacy are particularly strong as regards the lawyer's activities in his own law office.   There he exercises domestic authority and general access by the public is excluded.   Such privacy is a necessary basis for the lawyer-client relationship.   59.      The Commission, having regard to these particular features of a lawyer's professional activities in his law office, finds that the search of his office amount to an interference with his right to respect for his private life and home under Article 8 para. 1 (Art. 8-1) of the Convention.     2.       The justification of the interference         under Article 8 para. 2 (Art. 8-2)   60.      The Commission has to examine next whether the measure complained of was justified under Article 8 para. 2 (Art. 8-2) of the Convention, namely whether it was prescribed by law, had a legitimate aim, and was necessary in a democratic society for the aforesaid aim.   61.      The applicant maintains that legal conditions under S. 103 of the Code of Criminal Procedure were not fulfilled.   The search of his law office in order to identify a criminal offender was intended to circumvent the provisions safeguarding professional secrecy.   62.      The Government submit that the search of the applicant's law office was in accordance with German law.   They rely in this respect on the findings of the German courts under S. 103 of the Code of Criminal Procedure.   63.      The Commission considers that the legal basis for the search in question was S. 103 of the Code of Criminal Procedure.   Both the Munich I Regional Court, in its decision of 27 March 1987, and the Federal Constitutional Court, in its decision of 18 August 1987, found the search warrant, which referred precisely to the legal conditions under S. 103, to be lawful.   64.      The Commission observes that the scope of its power to review compliance with the relevant domestic legislation is limited under the Convention.   It is in the first place for the national authorities, notably the courts, to interpret and to apply the domestic law (cf. Eur.   Court H.R., Barthold judgment of 25 March 1985, Series A No. 90, p. 22, para. 48 with further references).   The Commission finds that the arguments adduced by the applicant do not disclose any clear non-observance of the Code of Criminal Procedure.   The search of the applicant's law office was thus prescribed by law.   65.      The search also pursued legitimate aims under Article 8 para. 2 (Art. 8-2), namely the prevention of crime, and the protection of the honour of the insulted judge.   In this respect, the Commission notes that the search took place in the context of criminal proceedings against a third person concerning insulting remarks in a letter to a judge.   The applicant does not contest the reasons given by the Government, namely the prevention of disorder and crime, and the protection of the rights and freedoms of others.   Furthermore, the Munich I Regional Court and the Federal Constitutional Court held that the protection of honour justified the search concerned.   66.      It remains to be examined whether the interference complained of was necessary in a democratic society in order to accomplish those aims.   67.      The applicant submits that the search of his law office was disproportionate to solve a case of insult.   68.      The Government contend that the measure was necessary in a democratic society for the prevention of disorder and crime, and the protection of the rights and freedoms of others.   The criminal proceedings against K.W. did not only concern an attack on the personal honour of a judge, but also impaired the independence of the judicial system.   They refer to the findings of the Court in the Barfod case (Eur.   Court H.R., Barfod judgment of 22 February 1989, Series A No. 149).   Furthermore, the search did not seriously affect the applicant.   69.      The Commission recalls that, in Article 8 para. 2 (Art. 8-2) as in several other provisions of the Convention, the phrase "necessary in a democratic society" implies the existence of a "pressing social need". The Contracting States enjoy a certain margin of appreciation in assessing whether such a need exists, but this goes hand in hand with a European supervision which covers the basic legislation and the decisions applying it, even those given by an independent court (Eur. Court H.R., Barfod judgment, op. cit., p. 12, para. 28; Silver and Others judgment of 25 March 1983, Series A No. 61, pp. 37 - 38, para. 97).   70.      The Commission must thus determine whether the search of the applicant's law office, in the particular circumstances of the case, was proportionate to the legitimate aims pursued.   71.      The search was ordered in the context of criminal proceedings against K.W. in order to identify the person suspected of having committed the offence of insult under S. 185 of the German Criminal Code, which is a minor offence in view of the sanction prescribed.   In a letter to a judge, the suspect, as member of a political group in Freiburg, had criticised the judge's way of dealing with a pending criminal case against an employer refusing to deduct and to transfer to the tax office his employees' church tax.   The insult consisted in accusations of abuse of office associated with a certain degree of pressure as to the outcome of the case.   However, the incriminated statements were not made in public, particularly not published in a newspaper article, but in a letter addressed solely to the judge concerned.   72.      The Commission is not directly concerned with any issue under Article 10 (Art. 10) of the Convention as regards the expression of opinion in the incriminated letter and the restrictions permitted under paragraph 2 of this Article for maintaining the authority and impartiality of the judiciary.   The search complained of was not directed against K.W. as presumed author of the letter, but against the applicant as a third person, who was not formally suspected of having himself committed the offence in question.   73.      It was carried out on the assumption stated by the Investigating Judge in the search warrant of 8 August 1986, and confirmed in the decisions of the Munich I Regional Court dated 27 March 1987 and of the Federal Constitutional Court dated 18 August 1987, that objects disclosing the identity of K.W. could be found at the applicant's law office.   This assumption was based on a remote link between the applicant and the suspect, namely the fact that until the end of 1985, the applicant's address had been the delivery address for the post box of the "BL Freiburg", the political group referred to as sender of the incriminated letter.   74.      The interference complained of affected the applicant in his position as a lawyer, i.e., as an independent organ in the administration of justice and as independent counsel of his clients, with whom he must entertain a relationship of confidentiality, ensuring the secrecy of information received from his clients and documents relating thereto.   Such are also the demands of the right to a fair trial and the effective use of the defence rights as envisaged by Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention in cases of representation by counsel.   75.      It appears that when the search warrant was issued against the applicant, these aspects were not taken into due consideration. Although, as stated by the Federal Constitutional Court in its decision of 18 August 1987, the search should only concern correspondence of the "BL Freiburg" the search warrant was couched in very general terms, which included any document in the law office possibly revealing the identity of the suspect.   As there are, under German law, no particular procedural safeguards in respect of searches carried out at the office of a lawyer, it would have been all the more necessary to limit the search order so as to exclude any unnecessary repercussions on areas protected by the privileged relationship between the applicant and his clients.   76.      As regards the actual circumstances of the search, the Commission notes that the police officers commenced the inspection of the premises in the absence of the applicant and his colleague.   In the course of the search in presence of the applicant's colleague, several filing cabinets with data of the applicant's and his colleague's clients and defence files of his clients were inspected.   This measure, although relatively short in time, thus touched to a high degree on confidential issues and the privileged relationship between the applicant and his clients.   The questions of the applicant's reactions to the search and of its failure, irrespective of the applicant's assertion that the evidence concerned was in his office, are, in this connection of no importance.   77.      Furthermore, there is no indication that the circumstances of the investigations necessitated that the search at the applicant's law office was carried out more than three months after the date of the search warrant.   The Commission also notes that the searches ordered at the premises of two other persons, who appear to have had a closer connection to the "BL Freiburg" and where eventually some relevant documents were found, were not carried out before the search of the applicant's law office.   78.      In these circumstances, the Commission, taking into account the minor offence at issue in the criminal proceedings, the remote link between the applicant and these proceedings and the repercussions of the search on the sensitive area of the confidential relationship between a lawyer and his clients, finds that the search of the applicant's law office was not proportionate to the legitimate aims pursued.   79.      Accordingly, this interference was not justified under paragraph 2 of Article 8 (Art. 8-2) as being necessary in a democratic society for the prevention of crime and the protection of the rights of others.     3.       Conclusion   80.      The Commission unanimously concludes that there has been a violation of Article 8 (Art. 8) of the Convention.     D.       Article 1 of Protocol No. 1 (P1-1)   81.      The applicant also complains that the search of his law office impaired his reputation as a lawyer.   He invokes Article 1 of Protocol No. 1 (P1-1) to the Convention which reads:   "Every natural or legal person is entitled to the peaceful enjoyment of his possessions.   No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."   82.      Having regard to its conclusion under Article 8 (Art. 8) of the Convention, the Commission does not consider it necessary to examine this complaint.             Conclusion   83.      The Commission concludes unanimously that no separate issue arises under Article 1 of Protocol No. 1 (P1-1).     E.       Recapitulation   84.      The Commission concludes unanimously that there has been a violation of Article 8 (Art. 8) of the Convention (para. 80).   85.       The Commission concludes unanimously that no separate issue arises under Article 1 of Protocol No. 1 (P1-1) (para. 83).       Secretary to the Commission          &#