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