CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 31513/96                       by Winfried HILDEBRAND                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 9 May 1996 by Winfried HILDEBRAND against Germany and registered on 16 May 1996 under file No. 31513/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1944, is a German national and resident in Lübeck.   He is a businessman and partner of several limited companies dealing in newspaper subscriptions.   In the proceedings before the Commission, he is represented by Mr. J. Hinzpeter, a lawyer practising in Hamburg.   a.    Particular circumstances of the case        In 1995, in the context of a tax audit concerning these companies, the suspicion of tax evasion arose.    According to a file note of 3 August 1995, drafted by the auditor of the Kiel Finance Directorate (Oberfinanzdirektion), the companies' course of business as regards an advertisement and subscription campaign in Germany, allegedly on behalf of a Swiss firm, and the contractual relations with one Mr. B., whose personal data could not be established in the course of the audit, suggested that the partners had moved an important part of their profits to a fictitious firm in Switzerland.        On 17 August 1995 the Lübeck District Court (Amtsgericht) issued a warrant to search the applicant, his cars as well as his business and private premises (including garages and yards) at three addresses in Lübeck as well as of any bank safes.   It also ordered that material found on that occasion, which could be relevant as evidence (in particular statements of accounts, business papers, documents, and contracts, trust deeds) be seized, if they were not voluntarily rendered.        The District Court found that the applicant was suspected of having evaded, between 1990 and 1992, corporation profits tax and property tax and, between 1990 and 1993, income tax.   It considered that the above measures were justified under the relevant provisions of the German Tax Act (Abgabenordnung), of the Income Tax Act (Einkommenssteuergesetz), the Trade Tax Act (Gewerbesteuergesetz), the Corporation Profits Tax Act (Körperschaftssteuergesetz) as well as SS. 94, 98, 102 and 105 of the Code of Criminal Procedure (Strafprozeß- ordnung).        In its decision, the District Court stated that the applicant was suspected of having, in his position as manager of the   F. limited company, transferred profits and property to Switzerland and of having thereby reduced the income of the said company and evaded tax.   The Court noted the results of the tax audit on the business transactions with the fictitious firm in Switzerland.   The Court considered that the gratuitous transfer of subscriptions representing a market value amounting to DEM 52 million and rendering profits amounting to DEM 20.45 million between 1990 and 1992 to the said Swiss firm could only be explained by the applicant's financial interest in the matter and possibly his partnership in this firm.   Moreover, there was a suspicion that the applicant, as a partner of the PVZ company, had sold subscriptions, for a price amounting to about 7.9 million, to one Mr. B. in Vienna, whose business activities were unknown.   No information about the personal data of this person had been given.   In these circumstances there was a suspicion that, by means of a fictitious contract, profits of the PVZ company had been transferred abroad in order to evade income and trade taxes.   The Court finally observed that the search was not disproportionate.   In further warrants of the same date, the District Court, for similar reasons, also ordered the search of the office of the applicant's tax consultant, the search of several bank institutes as far as certain accounts of the applicant were concerned.        The search of the applicant's premises was effected on 22 August 1995.   Numerous files concerning banking transactions and other documents concerning business matters were seized.        In the ensuing proceedings the applicant was assisted by Mr. Hinzpeter.        On 5 September 1995 the Lübeck District Court, referring to S. 94 para. 2 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed the seizure of the above material, as listed in an annex to the decision, noting that it was needed as evidence.        On 2 January 1996 the Lübeck Regional Court (Landgericht) dismissed the applicant's appeal (Beschwerde) against the arrest and seizure warrant of 17 August 1995.   The Regional Court regarded his appeal against the arrest warrant as inadmissible, since the applicant had no interest in invoking the protection of the courts (Rechtsschutzbedürfnis).   The inspection of the documents seized had terminated on 22 August 1995, i.e. before the introduction of the applicant's appeal.   However, measures which, for factual reasons, could not be set aside (rückgängig gemacht werden) were, as a rule, not subject to appeal.   The special conditions requiring exceptionally the review of a measure which had been completed (prozessuale Überholung durch Vollzug der Maßnahme) were not satisfied.   In particular, any such review was not binding in ensuing official liability proceedings, mentioned by the applicant.   Moreover, the impugned infringement of the law was not likely to recur at any time. Finally, the arrest warrant did not appear arbitrary.   To the extent that the appeal concerned the seizure of documents, the District Court had meanwhile rendered its decision of 5 September 1995, pursuant to S. 98 para. 2 of the Code of Criminal Procedure.        In a further decision dated 2 January 1996, the Lübeck Regional Court dismissed the applicant's appeal against the District Court's decision of 5 September 1995.   The Regional Court, having regard to the results of the tax audit and of the further investigations and considering the applicant's appeal submissions, found that the seizure of the documents in question had been duly confirmed.        Sitting as a panel of three members, on 29 March 1996 the Second Section of the First Division (zweite Kammer des Ersten Senats) of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicant's constitutional complaint (Verfassungsbeschwerde) for adjudication.   In its summary decision, the Federal Constitutional Court referred to S. 93b, taken in conjunction with S. 93a, of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungs- gericht), in the version of 11 August 1993.   The decision was notified to the applicant's counsel on 11 April 1996.   b.    Relevant domestic law        Tax evasion is a criminal offence, regulated in the legal instruments concerning the various taxes, such as the Income Tax Act (Einkommenssteuergesetz) or the Corporation Profits Tax Act (Körperschaftssteuergesetz).        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 shall be taken into official custody, or, if they are in another person's custody and not handed over voluntarily, have to be seized.   According to S. 98, the seizure shall, as a rule, be ordered by a judge (paragraph 1); a seizure without such court order generally requires subsequent confirmation by a judge (paragraph 2).        S. 102 of the Code of Criminal Procedure provides that, in case of a person suspected of a criminal offence, his home and other premises (Wohnung und andere Räume) and he himself may be searched in order to arrest him or if there is reason to believe (zu vermuten ist) that items of evidence could be found.   The search shall, as a rule, be ordered by a judge (S. 105).        Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under S. 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under S. 23 para. 1 of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz).     COMPLAINTS   1.    The applicant complains under Article 8 para. 1 of the Convention about the search of his professional and private premises.   He submits in particular that the court decision ordering the search and seizure did not sufficiently specify the relevant items of evidence.   Moreover, there was no reasonable suspicion that he had committed a criminal offence.   In any event, he had cooperated with the tax authorities and the search had not been necessary.   The District Court had failed duly to examine the conditions before issuing the search warrant against him.   2.    The applicant further complains under Article 13 of the Convention that the proceedings before the Lübeck Regional Court and the Federal Constitutional Court did not afford him an effective remedy to complain about the alleged violation of his right to respect for his home, as guaranteed under Article 8 para. 1.   He submits in particular that the Regional Court did not examine the merits of his complaint as the search had already been carried out.   In this respect, he also invokes Article 6 paras. 1, 2 and 3 (a), (b) and (c), arguing that the Regional Court failed to consider his submissions.   Moreover, the Federal Constitutional Court refused to entertain his constitutional complaint without giving detailed reasons for its decision.   3.    As regards the proceedings before the Federal Constitutional Court, the applicant also complains about discrimination contrary to Article 14 of the Convention.   He claims that there is a general policy according to which the Federal Constitutional Court is supposed to give reasons in its decisions on complaints raised by complainants living in the new "Bundesländer".   4.    The applicant finally complains that the seizure of material in the context of the proceedings against him violated his right to respect for his property, as guaranteed by Article 1 of Protocol No. 1.   THE LAW   1.    The applicant complains under Article 8 para. 1 (Art. 8-1) of the Convention that the search of his premises and seizure of documents violated his right to respect for his private life and home.        Article 8 (Art. 8) of the Convention 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."        The Commission finds that the search of the applicant's private and business premises amounted to an interference, within the meaning of Article 8 (Art. 8), with his right to respect for his private life and home.      It accordingly has to be determined whether the interference was justified under paragraph 2 of Article 8 (Art. 8-2), i.e. whether it was "in accordance with the law", pursued one or more of the legitimate aims set out in that paragraph and was "necessary in a democratic society" to achieve the aim or aims in question.        As regards the lawfulness of the interference, the Commission recalls that the expression "in accordance with the law", within the meaning of Article 8 para. 2 (Art. 8-2), requires that the impugned measure should have some basis in domestic law and that the law in question should be accessible to the person concerned - who must moreover be able to foresee its consequences for him - and compatible with the rule of law (cf. Eur. Court HR, Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, para. 27).        In the present case, the Commission notes that the search of the applicant's premises was based on the relevant provisions of the German Code of Criminal Procedure.   The search was ordered by the competent District Court, which also confirmed the seizure of various documents. The Commission finds that the applicant's submissions do not disclose any clear non-observance of German law.   The Commission therefore considers that the measures complained of were "in accordance with the law".        The Commission further finds that the search and seizure pursued a legitimate aim, namely the "prevention of disorder or crime".        With regard to the third criterion, the Commission recalls that the notion of "necessity" implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.   In determining whether an interference is "necessary in a democratic society", a margin of appreciation is left to the Contracting States.   In particular, the Contracting States may consider it necessary to resort to measures such as searches of residential premises and seizures in order to obtain physical evidence of certain offences.   The Convention organs must assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the aforementioned proportionality principle has been adhered to (cf. Eur. Court HR, Funke v. France, Crémieux v. France and Miailhe v. France (no. 1) judgments of 25 February 1993, Series A no. 256-A, pp. 24-25, paras. 55-57, Series A no. 256-B, pp. 62-63, paras. 38-40, and Series A no. 256-C, pp. 89-90, paras. 36-38, respectively; Camenzind v. Switzerland judgment of 16 December 1997, Reports of Judgments and Decisions 1997, paras. 44-45).        In the present case the German authorities searched the premises of the applicant, who was suspected of various tax offences in connection with his business activities.   The purpose of the search was to seize items of evidence, in particular documentary evidence in these respects.   The search warrant set out the suspicion against the applicant and indicated the items of evidence to be seized.   With regard to the safeguards provided by German law, the Commission notes that the search warrant was issued by a court and that the seizure of objects during the search was confirmed by a court.   As regards the applicant's submissions on the lack of a reasonable suspicion against him, the Commission observes that the object of a search is to further the criminal investigation.   Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (cf., mutatis mutandis, Eur. Court HR, Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, para. 55).        In these circumstances, the interference with the applicant's right to respect for his private life and home can be considered to have been proportionate to the aim pursued and thus "necessary in a democratic society". Consequently, there is no appearance of a violation of his rights under Article 8 (Art. 8).        It follows that the applicant's complaint under Article 8 (Art. 8) is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains that he had no effective remedy before a German authority to have the allegedly unlawful search of his premises reviewed.   He refers to the refusal of judicial review in respect of measures which had been completed and to the summary nature and absence of reasons in the decision of the Federal Constitutional Court.        He invokes Article 13 (Art. 13) of the Convention which provides as follows:        "Everyone whose rights and freedoms as set forth in [the]      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        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.   It requires "an effective remedy before a national authority" in respect of grievances which can be regarded as "arguable" in terms of the Convention (cf. Eur. Court HR, Camenzind judgment, op. cit., para. 53; with reference to the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 14-15, paras. 31-33). 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 HR, Plattform "Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139, p. 11, paras. 25, 27).        The Commission recalls that the applicant's complaint under Article 8 (Art. 8) of the Convention has been 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 premises was in accordance with German law and necessary in a democratic society for the prevention of disorder and crime.   Taking into account the specific circumstances of the case, the Commission finds that the complaint does not give rise to a prima facie issue under Article 8 (Art. 8) and thus cannot be considered to be an arguable claim within the meaning of Article 13 (Art. 13).        Consequently, Article 13 (Art. 13) 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.   3.    The applicant has also invoked Article 6 (Art. 6) with regard to the court proceedings concerning the search warrant.        The Commission observes at the outset that Article 6 (Art. 6) of the Convention does not apply to the proceedings concerning the search of the applicant's premises as such.        To the extent that the search of the applicant's premises and seizure of evidence are seen as measures at the pre-trial stage of the criminal proceedings against him, the Commission notes that these criminal proceedings have not yet been concluded.        The Commission recalls that the question of whether a trial conforms to the standards laid down in Article 6 (Art. 6) must be decided on the basis of an evaluation of the trial in its entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230).   The Commission considers that the applicant's complaints under Article 6 (Art. 6) are premature.        It follows that this aspect of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   3.    As regards the proceedings before the Federal Constitutional Court, the applicant also complains about discrimination contrary to Article 14 (Art. 14) of the Convention.        According to Article 14 (Art. 14), the "enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".        The Commission recalls that Article 14 (Art. 14) safeguards individuals, placed in similar situations, from discrimination in the enjoyment of the rights and freedoms set forth in the Convention and its Protocols.   A distinction is discriminatory if it "has no objective and reasonable justification". In assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law, the Contracting States enjoy a certain margin of appreciation (Eur. Court HR, Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, pp. 63-64, para. 48).        The applicant's allegation of discrimination relates to a procedural aspect of the Constitutional Court proceedings concerning his constitutional complaint about the search of his premises and seizure of documents.   The Commission, even assuming that the applicant's submissions fall within the ambit of Article 14 (Art. 14), finds that he failed to show any discriminatory treatment in law in his case.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).   4.    The applicant finally complains that the seizure of material in the context of the proceedings against him violated his right to respect for his property, as guaranteed by Article 1 of Protocol No. 1 (P1-1).        The Commission finds that the applicant's submissions concern a regulation of the use of his property (cf. Eur. Court HR, Handyside v. United Kingdom judgment of 7 December 1976, Series A no. 24, p. 30, para. 63), which is covered by the above   considerations regarding his right for respect of his private life and home, as guaranteed by Article 8 (Art. 8).   For the same reasons, there is, therefore, no indication of a breach of Article 1 of Protocol No. 1 (P1-1).        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.          M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber