B.C. v. SWITZERLAND
Doc ref: 21353/93 • ECHR ID: 001-45839
Document date: September 3, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 21353/93
B. C.
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 3 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-27) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-26). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(para. 27). . . . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 28-71) . . . . . . . . . . . . . . . . . . . . .8
A. Complaints declared admissible
(para. 28). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 29). . . . . . . . . . . . . . . . . . . . .8
C. As regards Article 8 of the Convention
(paras. 30-56). . . . . . . . . . . . . . . . . . .8
a. Whether there was an interference with the
applicant's rights under Article 8 para. 1
(paras. 31-34) . . . . . . . . . . . . . . . .8
b. Whether the interference was in accordance
with the law
(paras. 35-37) . . . . . . . . . . . . . . . .9
c. Whether the interference pursued a legitimate aim
(paras. 38-40) . . . . . . . . . . . . . . . .9
d. Whether the interference was necessary
(paras. 41-55) . . . . . . . . . . . . . . . .9
CONCLUSION
(para. 56). . . . . . . . . . . . . . . . . . . . 11
D. As regards Article 13 of the Convention
(paras. 57-69). . . . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 69). . . . . . . . . . . . . . . . . . . . 13
E. Recapitulation
(paras. 70-71). . . . . . . . . . . . . . . . . . 13
APPENDIX I : PARTIAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 14
APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 21
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 is a Swiss citizen, born in 1930 and resident in
3.Fribourg. He was represented before the Commission by Mr. M.
Portmann, a lawyer practising in Fribourg.
4. The application is directed against Switzerland. The respondent
Government were represented by their Deputy Agent, Mr. Ph. Boillat,
Head of the European Law and International Affairs Section of the
Federal Office of Justice.
5. The case concerns the search of the applicant's house and absence
of an effective remedy in this respect. The applicant invokes Articles
8 and 13 of the Convention.
B. The proceedings
6. The application was introduced on 2 October 1992 and registered
on 9 February 1993.
7. On 27 February 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaints under Articles 8 and 13 of the Convention. It
declared the remainder of the application inadmissible.
8. The Government's observations were submitted on 28 April 1995.
The applicant replied on 26 June 1995.
9. On 27 November 1995 the Commission declared admissible the
applicant's complaints under Articles 8 and 13 of the Convention.
10. The text of the Commission's final decision on admissibility was
sent to the parties on 6 December 1995 and they were invited to submit
such further information or observations on the merits as they wished.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. 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:
Mrs. G.H. THUNE, Acting President
Mr. S. TRECHSEL
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
H.G. SCHERMERS
13. The text of this Report was adopted on 3 September 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. 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.
15. The Commission's decisions on the admissibility of the
application are annexed as Appendices I and II.
16. 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
17. On 5 December 1991 the radio communications surveillance unit of
the Swiss Post, Telephone and Telegraph Company (Sektion
Funküberwachung der Generaldirektion PTT) located a private telephone
conversation being held by means of a cordless telephone which did not
conform to the PTT standards. The conversation was located on a wave-
band reserved for civil and military aviation. The surveillance unit
recorded the conversation and established that it was carried out on
the line to which the applicant had subscribed. The surveillance unit
informed the appropriate PTT authority about this fact.
18. The applicant was suspected of having committed a contravention
(Widerhandlung) within the meaning of Section 42 of the 1922 Telegraph
and Telephone Communications Act (Bundesgesetz betreffend den
Telegrafen- und Telefonverkehr). On 11 December 1991 the PTT district
telecommunications administration (Fernmeldekreisdirektion) in Berne
instituted criminal proceedings against the applicant pursuant to the
1974 Administrative Criminal Law Act (Bundesgesetz über das
Verwaltungsstrafrecht).
19. On 13 December 1991 the head of the PTT telecommunications
administration in Berne issued a warrant to search the applicant's
house pursuant to Sections 48 et seq. of the Administrative Criminal
Law Act. According to the warrant the aim of the search was to find
and seize the unauthorised cordless telephone.
20. On 21 January 1992 at 9.50 a.m. two PTT officials came to the
applicant's door. The applicant informed them that he had tested a
cordless telephone once in the past and that he no longer had it. When
he was told that by virtue of the warrant the officials were entitled
to enter his house, he consented to the search.
21. The PTT officials then summoned an officer of the cantonal
police, and the applicant let the three persons enter the entrance
hall. The applicant in fact used only one room of his house, the
remaining five rooms being rented to a third person.
22. In the entrance hall the applicant was briefed on the legal
aspects of the search. He also consulted the file concerning his case
and made phone calls with a lawyer and with an official of the PTT
telecommunications administration in Berne.
23. As requested by the applicant, the search was carried out by a
single PTT official in his presence. The official searched every
single room of the two-storey building, including the cellar areas.
He restricted himself to checking whether the telephones and TV sets
in the applicant's house complied with the PTT standards. He did not
touch any objects, open any drawers or consult any documents. At
11.55 a.m. a record was drawn up and signed by both the applicant and
the investigating official. A copy thereof was immediately handed over
to the applicant. The protocol stated, inter alia, that a complaint
could be lodged against the search pursuant to Sections 26 and 28 of
the Administrative Criminal Law Act.
24. On 24 January 1992 the applicant introduced a complaint with the
Federal Court (Bundesgericht) pursuant to Section 26 para. 1 of the
Administrative Criminal Law Act. He claimed that the search of his
house was unlawful, and that it should therefore be declared null and
void.
25. On 27 March 1992 the Federal Court rejected the complaint. It
held that since the search no longer infringed the applicant's rights,
there was no further legal interest in his protection in this respect.
The judgment was served on 3 April 1992.
26. By its decisions of 14 August 1995 and 26 September 1995 the
Federal Communications Office (Bundesamt für Kommunikationen) fined the
applicant 150 SFr for a contravention within the meaning of Section 42
of the Telegraph and Telephone Communications Act. The applicant was
charged the costs of the proceedings.
27. The applicant applied for a judicial review of the decisions by
which he was fined. On 18 December 1995 the Saane District Court
(Bezirksgericht) discontinued the proceedings as the contravention at
issue had become statute-barred.
B. Relevant domestic law
28. House searches in the context of administrative criminal
proceedings are governed by the 1974 Administrative Criminal Law Act.
The relevant provisions stipulate as follows:
Section 20
(Translation)
"1. The administrative authority concerned is empowered to carry
out investigations. Interviews, inspections of premises and
coercive measures shall be entrusted to specially trained
officials."
(Original)
"1. Für die Untersuchung ist die beteiligte Verwaltung zuständig.
Mit der Durchführung von Einvernahmen, Augenscheinen und
Zwangsmassnahmen sind besonders ausgebildete Beamte zu betrauen."
Section 21
(Translation)
"2. Any person who has been affected by a penal order issued
by an administrative authority can apply for its judicial
review."
(Original)
"2. Der von der Strafverfügung der Verwaltung Betroffene kann die
Beurteilung durch das Gericht verlangen."
Section 26
(Translation)
"1. Coercive measures (Sections 45 et seq.) and official acts
related thereto ... can be challenged by means of a complaint
before the Accusations Chamber of the Federal Court."
(Original)
"1. Gegen Zwangsmassnahmen (Art. 45ff.) und damit
zusammenhängende Amtshandlungen ... kann bei der Anklagekammer
des Bundesgerichts Beschwerde geführt werden."
Section 28
(Translation)
"1. The complaint can be lodged by any person affected by the
contested official act ... who has a legitimate interest in it
being quashed or amended; ...
2. The complaint can allege violation of federal law, erroneous
or incomplete establishment of the legally relevant facts or
disproportionality; ..."
(Original)
"1. Zur Beschwerde ist berechtigt, wer durch die angefochtene
Amtshandlung ... berührt ist und ein schutzwürdiges Interesse an
der Aufhebung oder Änderung hat; ...
2. Mit der Beschwerde kann die Verletzung von Bundesrecht, die
unrichtige oder unvollständige Feststellung des rechtserheblichen
Sachverhalts oder die Unangemessenheit gerügt werden; ..."
Section 48
(Translation)
"1. Dwellings and other premises including adjoining enclosed
pieces of land can only be searched when it is probable that the
accused is hiding therein or that objects or valuables liable to
seizure or traces of an offence can be found therein.
...
3. The search is carried out pursuant to a written order issued
by the director or head of the administrative authority concerned
or, if the investigation is within his or her competence, by the
director of the customs district or the PTT district director."
(Original)
"1. Wohnungen und andere Räume sowie unmittelbar zu einem Haus
gehörende umfriedete Liegenschaften dürfen nur durchsucht werden,
wenn es wahrscheinlich ist, dass sich der Beschuldigte darin
verborgen hält oder dass sich Gegenstände oder Vermögenswerte,
die der Beschlagnahme unterliegen, oder Spuren der Widerhandlung
darin befinden.
...
3. Die Durchsuchung erfolgt auf Grund eines schriftlichen Befehls
des Direktors oder Chefs der beteiligten Verwaltung oder, soweit
die Untersuchung zu einem Dienstbereich gehört, des
Zollkreisdirektors oder des Kreisdirektors der PTT-Betriebe."
Section 49
(Translation)
"1. At the beginning of the search the investigating official
shall prove his or her identity.
2. The purpose of the search shall be communicated to the
occupier. The latter shall be invited to attend the search if
he or she is present. In case of his or her absence a relative
or a person from the household shall be asked to attend the
search. A public official designated by the competent cantonal
authority or, if the investigating official acts on his own
initiative, a member of the municipal authority or an official
of the canton, district or municipality shall also be summoned
to attend the search in order to ensure that it is in conformity
with its aim. The search can be carried out in the absence of
public officials, members of the household or relatives in cases
where there is danger in delay or with the occupier's consent.
3. As a general rule, with the exception of important cases and
cases of imminent danger, searches must not be carried out on
Sundays, public holidays and at night.
4. A record of the search shall be drawn up immediately in the
presence of those who attended it. Upon their request a copy of
the search warrant and of the record shall be handed over to
these persons."
(Original)
"1. Vor Beginn der Untersuchung hat sich der untersuchende Beamte
auszuweisen."
2. Der anwesende Inhaber der Räume ist über den Grund ihrer
Durchsuchung zu unterrichten und zu dieser beizuziehen; anstelle
des abwesenden Inhabers ist ein Verwandter oder Hausgenosse
beizuziehen. Im weitern ist die von der zuständigen kantonalen
Behörde bezeichnete Amtsperson oder, falls der untersuchende
Beamte von sich aus durchsucht, ein Mitglied der Gemeindebehörde
oder ein Kantons-, Bezirks- oder Gemeindebeamter beizuziehen, der
darüber wacht, dass sich die Massnahme nicht von ihrem Zweck
entfernt. Ist Gefahr im Verzuge oder stimmt der Inhaber der Räume
zu, so kann der Beizug von Amtspersonen, Hausgenossen oder
Verwandten unterbleiben.
3. An Sonn- und allgemeinen Feiertagen und zur Nachtzeit darf im
allgemeinen nur in wichtigen Fällen und bei dringender Gefahr
eine Durchsuchung stattfinden.
4. Das Protokoll über die Durchsuchung wird im Beisein der
Beteiligten sofort aufgenommen; auf Verlangen ist den Beteiligten
ein Doppel des Durchsuchungsbefehls und des Protokolls
auszuhändigen."
Section 99
(Translation)
"1. An accused person, the proceedings against whom have been
discontinued, ... shall be awarded, upon his or her request,
damages for the detention on remand and for other prejudice he
or she has suffered. However, the compensation or a part thereof
can be refused if, by culpable behaviour, he or she has brought
about the investigation, or if he or she wilfully impeded or
prolonged the proceedings."
(Original)
"1. Dem Beschuldigten, gegen den das Verfahren eingestellt ...
wird, ist auf Begehren eine Entschädigung für die
Untersuchungshaft und für andere Nachteile, die er erlitten hat,
auszurichten; sie kann jedoch ganz oder teilweise verweigert
werden, wenn er die Untersuchung schuldhaft verursacht oder das
Verfahren mutwillig erschwert oder verlängert hat."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
29. The Commission has declared admissible the applicant's complaints
under Article 8 (Art. 8) of the Convention concerning the search of his
house and under Article 13 (Art. 13) of the Convention concerning the
absence of an effective remedy in this respect.
B. Points at issue
30. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. As regards Article 8 (Art. 8) of the Convention
31. Article 8 (Art. 8) of the Convention reads 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."
a. Whether there was an interference with the applicant's
rights under Article 8 para. 1 (Art. 8-1)
32. The applicant submits that the search of his house interfered
with his right to respect for his home. He contends that he has
brought the application also at the request and on behalf of the tenant
residing in his house. He considers that he is entitled to complain
of the search of the whole house in his capacity as house-owner and
landlord.
33. The Government submit that the applicant can be regarded as a
"victim" of an interference with his rights under Article 8 (Art. 8)
of the Convention only as regards the search of the single room which
he actually uses.
34. The Commission finds that the search of the applicant's house
amounted to an interference with his right to respect for his home
guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention. The
Commission recalls that the European Court of Human Rights has applied
a broad interpretation to the word "home" ("domicile" in French)
appearing in Article 8 (Art. 8) of the Convention (cf., mutatis
mutandis, Eur. Court H.R., Niemitz judgment of 16 December 1992, Series
A no. 251-B, p. 34, paras. 30, 31). In the Commission's view, the
applicant may well be entitled to claim to be a victim also in respect
of those parts of his house which he does not actually occupy. The
Commission is not required, however, to decide the matter, as it
considers, for the reasons set out below, that the requirements of
Article 8 para. 2 (Art. 8-2) were met in any event.
35. The Commission will accordingly examine whether this interference
was justified under the terms of Article 8 para. 2 (Art. 8-2) of the
Convention, i.e. whether it was "in accordance with the law", whether
it pursued a legitimate aim within the meaning of para. 2, and whether
it was "necessary in a democratic society" for that aim.
b. Whether the interference was in accordance with the law
36. The applicant claims that the search was unlawful as there was
no adequate legal basis for it.
37. The Government submit that the search had a legal basis under
Swiss law, namely Section 48 of the Administrative Criminal Law Act.
38. The Commission notes that the search was ordered and carried out
in accordance with the relevant provisions of Sections 48 et seq. of
the Administrative Criminal Law Act. It therefore had a legal basis
and the Commission sees no reason why this basis should not be
considered as being accessible, foreseeable and in accordance with the
rule of law (cf. Eur. Court H.R., Kruslin judgment of 24 April 1990,
Series A no. 176-A, p. 20, paras. 27 et seq.).
c. Whether the interference pursued a legitimate aim
39. The applicant contends that the search of his house did not
pursue any legitimate aim.
40. The Government submit that the search of the applicant's house
was carried out in order to prevent crime which is a legitimate aim
under Article 8 para. 2 (Art. 8-2) of the Convention.
41. The Commission recalls that the search was ordered and carried
out in the context of administrative criminal proceedings concerning
a contravention within the meaning of Section 42 of the Telegraph and
Telephone Communications Act. The aim of the search was to find and
seize an unauthorised cordless telephone by means of which the
applicant was suspected to have committed this contravention. The
telephone operated on a wave-band reserved for civil and military
aviation. The Commission therefore finds that the search pursued the
legitimate aims of preventing disorder and crime and protecting the
rights of others.
d. Whether the interference was necessary
42. According to the applicant the fact that he once tested an
unauthorised cordless telephone could not justify the interference with
his right to respect for his home. In his view the search was
disproportionate as it lasted almost two hours and comprised every
single area of his house. He maintains that administrative authorities
in Switzerland are neither entitled nor qualified to carry out criminal
investigations, even in cases of minor offences.
43. The Government contend that the Administrative Criminal Law Act
provides satisfactory safeguards against abuse as regards house
searches. In particular, they recall that searches can only be ordered
when it is probable that, inter alia, objects liable to seizure or
traces of an offence can be found there, and that the search order must
be issued in writing by a high-ranking official. Moreover, searches
can only be carried out by officials who have been specially trained
for that purpose, the occupier has to be invited to attend the search
if he or she is present and a public official is also to be summoned
to ensure that the search is in conformity with its aim.
44. The Government submit that given the aforesaid guarantees as well
as the particular circumstances in which the search of the applicant's
house was carried out, the interference complained of was not
disproportionate to the legitimate aim pursued.
45. 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. The
Commission has to take into account that a margin of appreciation is
left to the Contracting States. That does not mean, however, that the
Commission's review is limited to ascertaining whether the respondent
State has exercised its discretion reasonably, carefully and in good
faith. The Commission must determine whether the reasons adduced to
justify the interference are relevant and sufficient (cf., mutatis
mutandis, Eur. Court H.R., Olsson judgment of 24 March 1988, Series A
no. 130, pp. 31-32, paras. 67-68).
46. As regards house searches in particular, the relevant legislation
and practice must afford adequate and effective safeguards against
abuse (cf., e.g., Eur. Court H.R., Funke judgment of 25 February 1993,
Series A no. 256-A, pp. 24-25, para. 56).
47. The Commission notes that in the aforesaid case, which concerned
a house search and seizure of several items, the Court found that, in
the absence of any requirement of a judicial warrant, the restrictions
and conditions provided for by law (which included decision-making by
the head of the customs district concerned, the rank of the officers
authorised to establish offences, the presence of a senior police
officer, the timing of searches and the possibility of invoking the
liability of the public authorities) were too lax and full of loopholes
for the interferences with the applicant's rights to have been strictly
proportionate to the legitimate aim pursued notwithstanding that they
were strengthened by judicial supervision (cf. the Funke judgment
previously cited, Series A no. 256-A, p. 25, para. 57).
48. In the case of Funke the Court did not make an express finding
that every search carried out by administrative authorities must be
accompanied by a judicial warrant, and the Convention organs must
determine, in the particular circumstances of each case, whether the
interference complained of was proportionate to the legitimate aim
pursued.
49. The Commission must thus determine whether there were relevant
and sufficient reasons for the interference with the applicant's right
to respect for his home and whether this interference was, in the
particular circumstances of the case, proportionate to the legitimate
aim pursued.
50. The administrative authorities considered it essential to search
the applicant's house in order to obtain evidence of a contravention
of which the applicant was suspected. The Commission finds that,
having regard to their margin of appreciation, the Swiss authorities
were entitled to think that the search was necessary for the prevention
of crime. In the Commission's view, the reasons adduced to justify the
search, namely the finding and seizure of the unauthorised cordless
telephone which operated on a wave-band reserved for civil and military
aviation, are relevant and sufficient.
51. The Commission recalls that the search was ordered by the head
of the PTT telecommunications administration in Berne. Originally, it
was to be carried out by two PTT officials and an officer of the
cantonal police was also summoned to attend it. However, at the
applicant's request the search was carried out by a single PTT official
in the applicant's presence.
52. The search lasted nearly two hours and although it comprised the
whole house, it was restricted to checking whether the telephones and
TV sets in the house complied with the PTT standards. The
investigating official did not touch any objects, open any drawers or
consult any documents. Unlike in the case of Funke, no documents or
objects were seized. At the end of the search a record was drawn up.
53. The Commission notes that the relevant provisions of the
Administrative Criminal Law Act provide for a certain number of
guarantees against arbitrary treatment in cases of house searches.
Thus, searches are to be ordered in writing by a senior official and
they may only be carried out by officials who have been specially
trained for that purpose. A search may only be ordered when it is
probable that an accused person is hiding in the place to be searched
or that objects or valuables liable to seizure or traces of an offence
can be found therein.
54. Further, the investigating official has to justify that he or she
is authorised to carry out the search and communicate its purpose to
the occupier of the premises to be searched. The occupier or a person
from his or her household shall be invited to attend the search, and
a local public official shall also be summoned to ensure that the
search is in conformity with its aim. A record is to be drawn up
immediately after the search in the presence of those who attended it,
and a copy thereof shall be handed over, upon their request, to these
persons. Finally, Swiss law provides for restrictions as regards the
timing of searches.
55. The Commission finds, having regard to the limited extent of the
search and to the safeguards provided for by Swiss law, that even in
the absence of a requirement of a judicial warrant the interference
with the applicant's rights was strictly proportionate to the
legitimate aim pursued.
56. Taking these different aspects of the present case into account,
the Commission finds that the interference with the applicant's right
to respect for his home can reasonably be regarded as "necessary in a
democratic society" within the meaning of Article 8 para. 2 (Art. 8-2).
CONCLUSION
57. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 8 (Art. 8) of the Convention.
D. As regards Article 13 (Art. 13) of the Convention
58. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
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."
59. The applicant considers that his claim is arguable since the
search infringed his rights and had negative consequences for him.
This fact is denied by the Government.
60. The Commission recalls that the right to an effective remedy
before a national authority guaranteed by Article 13 (Art. 13) may only
be exercised in respect of an arguable claim (cf. Eur. Court H.R.,
Powell and Rayner judgment of 21 February 1990, Series A no. 172,
pp. 14 and 15, paras. 31 and 33), that is one concerning a right or
freedom guaranteed by the Convention, not wholly unsubstantiated on the
facts, and giving rise to a prima facie issue under the Convention
(cf., mutatis mutandis, No. 10746/84, Dec. 16.10.86, D.R. 49 pp. 126,
142 and 143, with further references).
61. On 27 November 1995 the Commission found, inter alia, that the
applicant's complaint under Article 8 (Art. 8) of the Convention raises
serious questions of fact and law which are of such complexity that
their determination should depend on an examination of the merits. The
Commission considers that the applicant's claim in this respect is
arguable within the meaning of the Convention organs' case-law. It is
therefore necessary to establish whether the applicant had at his
disposal a remedy satisfying the requirements of Article 13 (Art. 13).
62. The applicant submits that his right to an effective remedy was
violated since the Federal Court ignored the facts of his case and
decided arbitrarily.
63. The Government contend that when administrative criminal
proceedings have been discontinued, Section 99 para. 1 of the
Administrative Criminal Law Act provides for the possibility of
applying for damages for detention on remand or other prejudice caused
by the proceedings. In such a case the court would inevitably have to
make a finding - albeit subsidiarily - as to the merits of the coercive
measure. They add that a person found guilty of an offence by an
administrative authority can subsequently have his or her case reviewed
by a court pursuant to Section 21 para. 2 of the Administrative
Criminal Law Act. The Government therefore consider that the applicant
was not deprived of an effective remedy before a national authority.
64. The Commission recalls that the remedy provided for in Article 13
(Art. 13) requires an examination by the domestic authorities of the
lawfulness and the substantive justification of the matter complained
of (cf. No. 19066/91, Dec. 5.4.93, D.R. 74 pp. 179, 189, with further
references).
65. In the present case, the Federal Court found that after the
search was over, it no longer infringed the applicant's rights. For
this reason it did not consider it necessary to examine the substance
of the applicant's complaint about unlawfulness of the search. The
Commission finds that in these circumstances the complaint which the
applicant was entitled to and did lodge pursuant to Section 26 para. 1
of the Administrative Criminal Law Act cannot be regarded as effective
within the meaning of Article 13 (Art. 13).
66. It is true that after the administrative criminal proceedings had
been discontinued, it was open to the applicant to claim damages
pursuant to Section 99 para. 1 of the Administrative Criminal Law Act.
67. However, the purpose of such a procedure would be to establish
whether the applicant meets the prerequisite conditions for award of
damages, i.e. whether he suffered a prejudice as a result of the acts
relating to the administrative criminal proceedings, and whether or not
their introduction or any obstructions and delays in these proceedings
were imputable to his culpable behaviour.
68. The Government do not suggest that a court dealing with a claim
for damages pursuant to Section 99 para. 1 of the Administrative
Criminal Law Act would have been able to look behind the Federal
Court's judgment of 27 March 1992. The Commission has not been
supplied with any information which could lead to the conclusion that
such a claim would in fact give rise to a substantive examination of
the applicant's complaint about the alleged unlawfulness of the search
of his house.
69. In the light of the foregoing, the Commission finds that a claim
for damages pursuant to Section 99 para. 1 of the Administrative
Criminal Law Act cannot be considered as an effective remedy within the
meaning of Article 13, (Art. 13) and that as a result of the Federal
Court's refusal to examine his complaint about the search, the
applicant did not have at his disposal any effective remedy as regards
the interference with his right to respect for his home.
CONCLUSION
70. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 13 (Art. 13) of the Convention.
E. Recapitulation
71. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 8 (Art. 8) of the Convention
(see above, para. 56).
72. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 13 (Art. 13) of the Convention
(see above, para. 69).
H.C. KRÜGER G.H. THUNE
Secretary Acting President
to the Commission of the Commission