Lexploria

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:

"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."

"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:

"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."

"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 President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

15 February 1986 Introduction of the application

25 March 1988 Registration of the application

Examination of Admissibility

14 December 1988 Commission invites the respondent

Government to submit observations

on the admissibility and merits

18 April 1989 Submission of Government's observations

9 June 1989 Submission of applicant's observations

in reply

14 December 1989 Commission's decision to invite

the parties to an oral hearing

5 April 1990 Oral hearing; Commission's

deliberations on the merits;

application declared admissible

Examination of the merits

7 July 1990 ) Commission's consideration of the

8 December 1990 ) state of proceedings

2 March 1991 )

29 May 1991 Final vote and adoption of the Report

Menu

NIEMIETZ v. GERMANY

NIEMIETZ v. GERMANY

LEXI