CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 1997

.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. 26722/95                       by B.R.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs   J. LIDDY, President            MM    M.P. PELLONPÄÄ                 E. BUSUTTIL                 A. WEITZEL                 C.L. ROZAKIS                 L. LOUCAIDES                 B. CONFORTI                 N. BRATZA                 I. BÉKÉS                 G. RESS                 A. PERENIC                 C. BÎRSAN                 K. HERNDL                 M. VILA AMIGÓ            Mrs   M. HION            Mr    R. NICOLINI              Mrs   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 18 January 1995 by B.R. against Germany and registered on 16 March 1995 under file No. 26722/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      8 July and 23 August 1996 and the observations in reply submitted      by the applicant on 18 July and 5 September 1996;        Having deliberated;        Decides as follows:   THE FACTS         The applicant, born in 1948, is a German national and resident in Bensheim.   He is a lawyer by profession.   Before the Commission he is represented by Mr. A. Gutsche, a lawyer practising in Bensheim.   A.     The particular circumstances of the case        The facts of the case, as submitted by the parties, may be summarised as follows.        In 1992 criminal proceedings were instituted against the managers of various construction firms and employees of the Bensheim Municipality on charges of corruption.        In 1993 preliminary investigations were opened against Mr. S. and Ms. A.S., managers of the limited company S. which was in the building trade with seats in Weinheim and Bensheim.   Mr. S. had previously consulted the applicant, as his counsel, on the criminal proceedings against other construction firms and had handed over various documents with a view to ensure his defence in case that he should also be prosecuted.        On 26 January 1993 a search warrant for the premises of the S. company was issued by the Darmstadt District Court (Amtsgericht). According to the search warrant Mr. S. and Ms. A.S. were suspected of corruption committed in summer 1992 in that they had granted advantages to Mr. B., who was prosecuted in separate proceedings.   According to the search warrant, there were, on the basis of the investigations so far, reasons to believe that a particular bill of 23 July 1992 could be found.   It was also stated that material on the calculation of the construction works, bills on the construction material and accounts of salaries were of particular interest.        The search was carried out on 28 January 1993.   Mr. S., who was not present at the relevant time, called the applicant by phone and asked him to be present at the search.   Mr. S. also contacted the Public Prosecutor (Staatsanwalt) conducting the search and stated, inter alia, that he had given some possibly relevant documents to the applicant.   The applicant, when contacting the company by phone at its premises in Weinheim, was not allowed to talk to Ms. A.S.   When he arrived at the company's premises in Weinheim, he was handed over a copy of the search warrant of 26 January 1993.   The Public Prosecutor (Staatsanwalt) conducting the search ordered him to leave the premises. He left the premises after a telephone conversation with Mr. S.   When arriving at the company's premises in Bensheim, the applicant discussed the matter with one of the police officers who indicated that they would inter alia search for receipts on donations and documents relating to a tennis tournament.   The applicant thereupon informed the police officer that he possessed documents for the purpose of Mr. S.'s defence.   When informed about the applicant's presence in the Bensheim premises of the S. company, the competent Public Prosecutor instructed the police officers in Bensheim to request the applicant to leave.   The applicant left the premises without further specifying or handing over the documents mentioned by him.        Still on 28 January 1993 the Bensheim District Court, in the context of the preliminary investigations against the above construction firm, represented by its managers Mr. S. and Ms. A.S., on the suspicion of corruption, issued a search warrant concerning the applicant's and his colleague's law office.        According to the search warrant, the search of the law office was ordered pursuant to S. 103 of the Code of Criminal Procedure (Strafprozeßordnung), as, on the basis of the investigations so far, it had to be assumed that evidence, namely account documents of the S. company, could be found.   The Court also ordered that any documents found were to be seized in accordance with S. 91 of the Code of Criminal Procedure.        In the afternoon of 28 January 1993 the Darmstadt Public Prosecutor's Office arrived at the office of the applicant and his partner with a view to executing the search warrant.        According to the applicant, he had a telephone conversation with a Senior Public Prosecutor at the Darmstadt Prosecutor's Office regarding the documents needed for the purposes of the investigations when the competent Public Prosecutor, accompanied by a police officer, arrived at the office.   A controversy developed between the applicant and the Public Prosecutor on the question whether or not the documents in the applicant's possession were part of the documents concerning his confidential relation with his client, which could not be seized.   The Public Prosecutor insisted on obtaining the relevant file and inspected it.   He seized various documents (contracts concluded by the S. company in connection with the construction of a public car park, documents on construction works at the private building site of the employee suspected of corruption, a bill regarding further works concerning the above public car park, the lists of donations of the S. company between 1988 and 1992, the Bensheim Municipality's conditions of works, various documents concerning works at a further public building site) and returned the remainder of the file.        According to an official statement of the competent Public Prosecutor dated 24 February 1993, the applicant had informed him that he had eventually not accepted the mandate as Mr. S.'s defence counsel and was accordingly only representing Mr. S. in civil matters.   The applicant first refused the Prosecutor's request to hand the relevant documents over, upon the Prosecutor's further query, he pointed at a file lying in front of him on his desk.   Following further discussion on the extent to which material could not lawfully be seized, the applicant handed the file over, which was inspected by the Prosecutor, who proceeded to the seizure of various documents concerning construction works carried out by the suspect Mr. S. and returned the remainder of the file.        On 29 January 1993 the Bensheim District Court, referring to S. 94 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed the seizure of the above documents.   In its decision, the Court listed the documents and stated that these documents could be relevant in the context of the investigations against Mr. S. and Ms. A.S. on the suspicion of corruption.   The Court noted that on the basis of the investigations so far, there was a suspicion of corruption.   This decision was served upon the applicant on 7 April 1993.        On 15 February 1993 the applicant lodged an appeal (Beschwerde) against the search warrant of 28 January 1993.        On 8 March 1993 the Darmstadt Regional Court (Landgericht) dismissed the applicant's appeal regarding the search warrant of 28 January 1993 as well as the decision of 29 January 1993.      In its decision, the Regional Court noted that Mr. S. and Ms. A.S. were suspected of corruption in that they had performed construction works at a reduced price for an employee at the Bensheim Municipality in order to be favoured on the occasion of public construction works, and that they had been favoured in a competitive procedure regarding the construction of a Bensheim public car park. On the occasion of the search at the premises of the S. company, the applicant had presented himself as the company's counsel.   When asked to leave the premises, he had stated that he was in possession of the relevant documents, and that he intended to take them away with him. Thereupon the competent Public Prosecutor had requested and obtained a search warrant for the applicant's law office and searched it.   The seizure of relevant documents of the S. company had been confirmed by the District Court on 29 January 1993.        The Regional Court considered that the applicant's appeal against the search warrant was inadmissible on the ground that the search had already been carried out.   The seizure decision of 29 January 1993, which had replaced the inadmissible seizure order in the search warrant, had terminated both the search and the inspection of the applicant's documents.        The Regional Court further confirmed the seizure order of 29 January 1993.   The documents seized had not been privileged under S. 97 para. 1 of the Code of Criminal Procedure.   First, it was doubtful whether the applicant had a power of attorney for the legal representation or defence of Mr. S. in all matters, or only limited to the search at the premises of the S. company, and to what extent he could have therefore refused to give testimony.   In any event, the documents seized were not documents excluded from seizure under S. 97 which only concerned documents containing submissions of the accused to counsel, or counsel's notes on information given by the accused, which were written or exchanged, or any other object produced, in the very context of the brief and the confidential relationship between counsel and accused.    In particular, this provision was not supposed to facilitate the commission of crimes or collusion by permitting an accused to hand evidence over to counsel.   Business papers which did not concern the confidential relation between accused and counsel, but transactions with third persons, could therefore be seized even if they were in counsel's possession.        On 7 July 1994 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).   The decision was served on 18 July 1994.   B.    Relevant domestic law        The search complained of was ordered in the context of criminal proceedings for corruption, an offence punishable by imprisonment of a maximum of five years (S. 334 of the Penal Code, Strafgesetzbuch).        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.        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.        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.        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, notes made by the lawyer in respect of information given by the accused or in respect of other matters covered by the right to refuse testimony and other material including medical reports covered by the right to refuse testimony, may not be seized.        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.        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.        S. 23 para. 1 of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides that the ordinary courts, upon request, shall 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 has been previously withdrawn or otherwise settled, the court, upon request, shall declare that the measure was unlawful, if the applicant has a legal interest in such a declaration.        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 an 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.        An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (S. 203 para. 1(3) of the Penal Code).   COMPLAINTS        The applicant complains under Article 8 of the Convention about the search of his law office.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 January 1995 and registered on 16 March 1995.        On 12 April 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 8 July 1996.   The applicant replied on 18 July 1996.   The Government filed supplementary observations on 23 August 1996, to which the applicant replied on 5 September 1996.     THE LAW        The applicant complains that the search of his law office amounted to a breach of his rights under Article 8 (Art. 8) of the Convention.        This provision provides as follows:        "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 Government consider that the applicant complied with the condition as to the exhaustion of domestic remedies as far as his complaint about the search warrant is concerned.   However, according to them, any complaints about the actual circumstances of the search in question were inadmissible under Article 26 (Art. 26) of the Convention on the ground that he failed to lodge an appeal under S. 23 of the Introductory Act to the Courts Organisation Act.   He had only appealed against his search warrant under S. 304 of the Code of Criminal Procedure.        The applicant submits that his complaints relate to the search warrant of 28 January 1993 and the search as such, not to the actual circumstances of the search.   Accordingly, he had deliberately refrained from instituting proceedings under S. 23 of the Introductory Act to the Courts Organisation Act.        It is true that under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        The Commission notes that the applicant's appeal against the search warrant as such was declared inadmissible by the Darmstadt Regional Court for lack of a legal interest in having the search reviewed. The Regional Court however, examined the merits of his appeal against the District Court decision of 29 January 1993, confirming the seizure of specific documents.    The Federal Constitutional Court refused to admit the applicant's constitutional complaint.        The Commission finds that, in the circumstances of the present case and given the nature of the applicant's complaint, an appeal under S. 23 of the Introductory Act to the Courts Act as regards the execution of the search warrant was not an effective remedy which the applicant ought to have exhausted (cf. No. 13710/88, Dec. 5.4.90, unpublished).        The applicant has, therefore, complied with the condition as to the exhaustion of domestic remedies under Article 26 (Art. 26) of the Convention.   2.    The Government further maintain that the application is manifestly ill-founded.   Referring to the Niemietz v. Germany judgment (Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B), they concede that there has been an interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention.   However, this interference was justified under paragraph 2 of Article 8 (Art. 8-2).        The Commission considers that in the present case the action taken against the applicant in his law office on the basis of the search warrant of 28 January 1993 interfered with his rights to respect for his private life and home within the meaning of Article 8 para. 1 (Art. 8-1) (cf. Eur. Court HR, Niemietz judgment, op. cit., p. 34, paras. 30-31; Miailhe v. France judgment of 25 February 1993, Series A no. 256-C, p. 87, para. 28; Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, No. 39, para. 44).        It must accordingly be determined whether the interference in question satisfied the conditions in paragraph 2.        As regards the question whether the interference was "in accordance with the law", the Commission notes that the search warrant issued by the Bensheim District Court was based on S. 103 of the Code of Criminal Procedure, respectively.   Moreover, in its decision of 29 January 1993, the District Court, relying on S. 94 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed the seizure of specific documents in the applicant's office.   The Regional Court likewise considered that the seizure of the documents on 28 January 1993 had been lawful.   The Commission discerns no reason, on the basis of the material before it, for not concluding that the search and seizure were "in accordance with the law", within the meaning of Article 8 para. 2 (Art. 8-2).        Moreover, the interference pursued a legitimate aim under paragraph 2 of Article 8 (Art. 8-2), namely the prevention of crime.        The parties' arguments are concentrated on the question whether the interference complained of could be regarded as "necessary in a democratic society".      The Government contend that the search and seizure of some specific documents had been necessary in the context of the criminal proceedings against Mr. S. and were not disproportionate.   There had been sufficient indications that incriminating   material could be found in the applicant's law office.   The search warrant had been drawn up in precise terms, in that it ordered the search for account documents of the S. company.   Furthermore, it had not been necessary to hear the applicant before issuing the search warrant, as any search could be avoided by surrendering the objects in question.   Finally, the search warrant was proportionate in the circumstances, given the strength of the suspicion and the seriousness of the criminal offences at issue. The search had moreover been limited to the inspection of the file concerning the suspected Mr. S., after the applicant had refused to hand over the relevant documents himself.        According to the applicant, the search warrant and seizure order had not been necessary on the ground that he had offered cooperation in the course of the searches of the premises of the S. company. However, although having indicated that he might possess relevant material, he was asked to leave the premises.   He also submits that his file should have been inspected by a judge.        The Commission recalls that the Contracting States have a certain margin of appreciation in assessing the need for an interference, but it goes hand in hand with European supervision.   The exceptions provided for in paragraph 2 of Article 8 (Art. 8-2) are to be interpreted narrowly (cf. Eur. Court HR, Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and the need for them in a given case must be convincingly established (Eur. Court HR, Miailhe judgment, op. cit., p. 89, para. 36).   In connection with the search of a lawyer's office, it has to be recalled that an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (Art. 6) of the Convention (Eur. Court HR, Niemietz judgment, op. cit., p. 36, para. 37).        In the present case, the search of the applicant's office was ordered in the context of criminal proceedings against Mr. S. and Ms. A.S., managers of the S. company, on the suspicion of corruption. These proceedings formed part of further investigations in other corruption cases involving employees of the Bensheim Municipality.        The search warrant was issued against the applicant as a third person who was not suspected of being himself involved in the offences which were investigated.   It was ordered by the Bensheim District Court upon the request of the Public Prosecutor conducting the searches at the premises of the S. company, after the suspect Mr. S., himself had informed the Public Prosecutor that he had given relevant material to the applicant, his counsel.   Accordingly, there were concrete indications that documents relevant to the investigations could be found in the applicant's office.   Furthermore, the search warrant stated with sufficient precision that the search was limited to account documents relating to the S. company.        The Commission had regard to the applicant's argument that he had offered cooperation on the occasion of his visit to the Bensheim premises of the S. company and that the Public Prosecutor had failed duly to react to this proposition.   However, given the exigencies of simultaneous searches carried out at the premises of a company in two different towns, the Commission considers that the prosecution authorities were not prevented from opting for a formal course of action in order to obtain the material in question.        As regards the circumstances of the measures taken against the applicant on the basis of the search warrant in question, the Commission notes that the applicant, who was present in his office when the competent Public Prosecutor and a police officer arrived, was given an opportunity to hand over the relevant documents and thereby avoid any search.   The lawyer's office was eventually not searched, as the applicant drew the officials' attention to a file containing material concerning the business activities of the S. company.   This file alone was inspected by the Public Prosecutor, and some account papers were seized.   The seizure of these documents was confirmed by the Bensheim District Court.   In this context, the Commission also notes that at the relevant time the applicant was not acting as defence counsel in the criminal proceedings against the suspected Mr. S. and that it had been Mr. S. himself who had pointed out these documents.   Moreover, unlike in the Niemietz case, there is nothing to show that the course of events could have been capable of affecting adversely the applicant's professional reputation (Eur. Court HR, Niemietz judgment, loc. cit.).        In sum, the Commission finds that the search warrant duly limited the envisaged search of the applicant's office, bearing in mind that in Germany the search of a lawyer's office is not accompanied by any special procedural safeguards, such as the presence of an independent observer (cf. Eur. Court HR, Niemietz judgment, loc. cit).   Within the framework so traced, the action taken by the competent Public Prosecutor did not impinge upon professional secrecy to an extent that would appear disproportionate in the circumstances.        In the light of these findings, the interference with the applicant's rights could reasonably be regarded as necessary "in a democratic society for the prevention of crime and it was, therefore, justified under paragraph 2 of Article 8 (Art. 8-2).   Consequently, there is no appearance of a breach of Article 8 (Art. 8) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.             M. F. BUQUICCHIO                            J. LIDDY          Secretary                                President      to the First Chamber                    of the First Chamber