AS TO THE ADMISSIBILITY OF

                      Application No. 26722/95

                      by B.R.

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

           Mrs  J. LIDDY, President

           MM   M.P. PELLONPÄÄ

                E. BUSUTTIL

                A. WEITZEL

                C.L. ROZAKIS

                L. LOUCAIDES

                B. CONFORTI

                N. BRATZA

                I. BÉKÉS

                G. RESS

                A. PERENIC

                C. BÎRSAN

                K. HERNDL

                M. VILA AMIGÓ

           Mrs  M. HION

           Mr   R. NICOLINI

           Mrs  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 18 January 1995

by B.R. against Germany and registered on 16 March 1995 under file

No. 26722/95;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     8 July and 23 August 1996 and the observations in reply submitted

     by the applicant on 18 July and 5 September 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

      The applicant, born in 1948, is a German national and resident

in Bensheim.  He is a lawyer by profession.  Before the Commission he

is represented by Mr. A. Gutsche, a lawyer practising in Bensheim.

A.    The particular circumstances of the case

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     In 1992 criminal proceedings were instituted against the managers

of various construction firms and employees of the Bensheim

Municipality on charges of corruption.

     In 1993 preliminary investigations were opened against Mr. S. and

Ms. A.S., managers of the limited company S. which was in the building

trade with seats in Weinheim and Bensheim.  Mr. S. had previously

consulted the applicant, as his counsel, on the criminal proceedings

against other construction firms and had handed over various documents

with a view to ensure his defence in case that he should also be

prosecuted.

     On 26 January 1993 a search warrant for the premises of the

S. company was issued by the Darmstadt District Court (Amtsgericht).

According to the search warrant Mr. S. and Ms. A.S. were suspected of

corruption committed in summer 1992 in that they had granted advantages

to Mr. B., who was prosecuted in separate proceedings.  According to

the search warrant, there were, on the basis of the investigations so

far, reasons to believe that a particular bill of 23 July 1992 could

be found.  It was also stated that material on the calculation of the

construction works, bills on the construction material and accounts of

salaries were of particular interest.

     The search was carried out on 28 January 1993.  Mr. S., who was

not present at the relevant time, called the applicant by phone and

asked him to be present at the search.  Mr. S. also contacted the

Public Prosecutor (Staatsanwalt) conducting the search and stated,

inter alia, that he had given some possibly relevant documents to the

applicant.  The applicant, when contacting the company by phone at its

premises in Weinheim, was not allowed to talk to Ms. A.S.  When he

arrived at the company's premises in Weinheim, he was handed over a

copy of the search warrant of 26 January 1993.  The Public Prosecutor

(Staatsanwalt) conducting the search ordered him to leave the premises.

He left the premises after a telephone conversation with Mr. S.  When

arriving at the company's premises in Bensheim, the applicant discussed

the matter with one of the police officers who indicated that they

would inter alia search for receipts on donations and documents

relating to a tennis tournament.  The applicant thereupon informed the

police officer that he possessed documents for the purpose of Mr. S.'s

defence.  When informed about the applicant's presence in the Bensheim

premises of the S. company, the competent Public Prosecutor instructed

the police officers in Bensheim to request the applicant to leave.  The

applicant left the premises without further specifying or handing over

the documents mentioned by him.

     Still on 28 January 1993 the Bensheim District Court, in the

context of the preliminary investigations against the above

construction firm, represented by its managers Mr. S. and Ms. A.S., on

the suspicion of corruption, issued a search warrant concerning the

applicant's and his colleague's law office.

     According to the search warrant, the search of the law office was

ordered pursuant to S. 103 of the Code of Criminal Procedure

(Strafprozeßordnung), as, on the basis of the investigations so far,

it had to be assumed that evidence, namely account documents of the

S. company, could be found.  The Court also ordered that any documents

found were to be seized in accordance with S. 91 of the Code of

Criminal Procedure.

     In the afternoon of 28 January 1993 the Darmstadt Public

Prosecutor's Office arrived at the office of the applicant and his

partner with a view to executing the search warrant.

     According to the applicant, he had a telephone conversation with

a Senior Public Prosecutor at the Darmstadt Prosecutor's Office

regarding the documents needed for the purposes of the investigations

when the competent Public Prosecutor, accompanied by a police officer,

arrived at the office.  A controversy developed between the applicant

and the Public Prosecutor on the question whether or not the documents

in the applicant's possession were part of the documents concerning his

confidential relation with his client, which could not be seized.  The

Public Prosecutor insisted on obtaining the relevant file and inspected

it.  He seized various documents (contracts concluded by the S. company

in connection with the construction of a public car park, documents on

construction works at the private building site of the employee

suspected of corruption, a bill regarding further works concerning the

above public car park, the lists of donations of the S. company between

1988 and 1992, the Bensheim Municipality's conditions of works, various

documents concerning works at a further public building site) and

returned the remainder of the file.

     According to an official statement of the competent Public

Prosecutor dated 24 February 1993, the applicant had informed him that

he had eventually not accepted the mandate as Mr. S.'s defence counsel

and was accordingly only representing Mr. S. in civil matters.  The

applicant first refused the Prosecutor's request to hand the relevant

documents over, upon the Prosecutor's further query, he pointed at a

file lying in front of him on his desk.  Following further discussion

on the extent to which material could not lawfully be seized, the

applicant handed the file over, which was inspected by the Prosecutor,

who proceeded to the seizure of various documents concerning

construction works carried out by the suspect Mr. S. and returned the

remainder of the file.

     On 29 January 1993 the Bensheim District Court, referring to

S. 94 and S. 98 para. 2 of the Code of Criminal Procedure, confirmed

the seizure of the above documents.  In its decision, the Court listed

the documents and stated that these documents could be relevant in the

context of the investigations against Mr. S. and Ms. A.S. on the

suspicion of corruption.  The Court noted that on the basis of the

investigations so far, there was a suspicion of corruption.  This

decision was served upon the applicant on 7 April 1993.

     On 15 February 1993 the applicant lodged an appeal (Beschwerde)

against the search warrant of 28 January 1993.

     On 8 March 1993 the Darmstadt Regional Court (Landgericht)

dismissed the applicant's appeal regarding the search warrant of

28 January 1993 as well as the decision of 29 January 1993.

     In its decision, the Regional Court noted that Mr. S. and

Ms. A.S. were suspected of corruption in that they had performed

construction works at a reduced price for an employee at the Bensheim

Municipality in order to be favoured on the occasion of public

construction works, and that they had been favoured in a competitive

procedure regarding the construction of a Bensheim public car park.

On the occasion of the search at the premises of the S. company, the

applicant had presented himself as the company's counsel.  When asked

to leave the premises, he had stated that he was in possession of the

relevant documents, and that he intended to take them away with him.

Thereupon the competent Public Prosecutor had requested and obtained

a search warrant for the applicant's law office and searched it.  The

seizure of relevant documents of the S. company had been confirmed by

the District Court on 29 January 1993.

     The Regional Court considered that the applicant's appeal against

the search warrant was inadmissible on the ground that the search had

already been carried out.  The seizure decision of 29 January 1993,

which had replaced the inadmissible seizure order in the search

warrant, had terminated both the search and the inspection of the

applicant's documents.

     The Regional Court further confirmed the seizure order of

29 January 1993.  The documents seized had not been privileged under

S. 97 para. 1 of the Code of Criminal Procedure.  First, it was

doubtful whether the applicant had a power of attorney for the legal

representation or defence of Mr. S. in all matters, or only limited to

the search at the premises of the S. company, and to what extent he

could have therefore refused to give testimony.  In any event, the

documents seized were not documents excluded from seizure under S. 97

which only concerned documents containing submissions of the accused

to counsel, or counsel's notes on information given by the accused,

which were written or exchanged, or any other object produced, in the

very context of the brief and the confidential relationship between

counsel and accused.   In particular, this provision was not supposed

to facilitate the commission of crimes or collusion by permitting an

accused to hand evidence over to counsel.  Business papers which did

not concern the confidential relation between accused and counsel, but

transactions with third persons, could therefore be seized even if they

were in counsel's possession.

     On 7 July 1994 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde).  The decision was served on

18 July 1994.

B.   Relevant domestic law

     The search complained of was ordered in the context of criminal

proceedings for corruption, an offence punishable by imprisonment of

a maximum of five years (S. 334 of the Penal Code, Strafgesetzbuch).

     According to S. 53 para. 1 (2) and (3) of the Code of Criminal

Procedure (Strafprozeßordnung) a defence counsel or lawyer may refuse

testimony in respect of matters which were confided to them in their

professional capacity.

     SS. 94 to 111n of the Code of Criminal Procedure govern the

seizure of evidence, the surveillance of telecommunications and the

search of a person's home or other premises.

     S. 94 provides that objects which can, as evidence, be relevant

to the investigations have to be taken into official custody, or, if

they are in another person's custody and not handed over voluntarily,

have to be seized.

     S. 97, in conjunction with S. 53 para. 1 (2) and (3), of the Code

of Criminal Procedure provides that, inter alia, correspondence between

the accused and his defence counsel, notes made by the lawyer in

respect of information given by the accused or in respect of other

matters covered by the right to refuse testimony and other material

including medical reports covered by the right to refuse testimony, may

not be seized.

     S. 103 of the Code of Criminal Procedure provides in particular

that the home and other premises of a person who is not suspected of

having committed a criminal offence may only be searched in order to

arrest a person charged with a criminal offence or in order to

investigate traces of a criminal offence or in order to seize specific

objects, and only under the condition that there are facts to suggest

that a person, trace or object is to be found in the premises searched.

     According to S. 304 of the Code of Criminal Procedure there is

an appeal against any decision taken by courts at first instance or in

the course of appeal proceedings, and against any order of a presiding

judge, a judge in the course of preliminary proceedings and a delegated

or commissioned judge, if the law does not expressly provide otherwise.

Witnesses, experts and other persons may appeal against decisions and

orders insofar as they are affected.

     S. 23 para. 1 of the Introductory Act to the Courts Organisation

Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides that the

ordinary courts, upon request, shall decide upon the lawfulness of

orders, instructions and other measures taken by judicial authorities

in order to settle individual matters in the context of, inter alia,

the administration of criminal justice. S. 28 para. 1 stipulates that,

insofar as the measure is unlawful and the applicant's rights are

thereby infringed, the measure will be set aside.  If the measure has

already been carried out, the court, upon request, may also order that

and how the authority concerned has to undo its execution. Furthermore,

if the measure has been previously withdrawn or otherwise settled, the

court, upon request, shall declare that the measure was unlawful, if

the applicant has a legal interest in such a declaration.

     SS. 1 to 3 of the Federal Regulations for Lawyers (Bundes-

rechtsanwaltsordnung) define in general the position and the profession

of a lawyer. He is an independent organ in the administration of

justice. He exercises a liberal profession, not a business. He is an

independent counsel and representative in all legal matters. S. 43 of

these Regulations stipulates as a lawyer's general professional duty

that he has to practise conscientiously. Whether in pursuit of his

profession or otherwise, he has to prove himself worthy of the trust

which the position of a lawyer requires.

     An unauthorised breach of secrecy by a lawyer is punishable by

imprisonment for a maximum of one year or a fine (S. 203 para. 1(3) of

the Penal Code).

COMPLAINTS

     The applicant complains under Article 8 of the Convention about

the search of his law office.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 18 January 1995 and registered

on 16 March 1995.

     On 12 April 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

8 July 1996.  The applicant replied on 18 July 1996.  The Government

filed supplementary observations on 23 August 1996, to which the

applicant replied on 5 September 1996.

THE LAW

     The applicant complains that the search of his law office

amounted to a breach of his rights under Article 8 (Art. 8) of the

Convention.

     This provision provides as follows:

     "1. Everyone has the right to respect for his private and family

     life, his home and his correspondence.

     2. There shall be no interference by a public authority with the

     exercise of this right except such as is in accordance with the

     law and is necessary in a democratic society in the interests of

     national security, public safety or the economic well-being of

     the country, for the prevention of disorder or crime, for the

     protection of health or morals, or for the protection of the

     rights and freedoms of others."

1.   The Government consider that the applicant complied with the

condition as to the exhaustion of domestic remedies as far as his

complaint about the search warrant is concerned.  However, according

to them, any complaints about the actual circumstances of the search

in question were inadmissible under Article 26 (Art. 26) of the

Convention on the ground that he failed to lodge an appeal under S. 23

of the Introductory Act to the Courts Organisation Act.  He had only

appealed against his search warrant under S. 304 of the Code of

Criminal Procedure.

     The applicant submits that his complaints relate to the search

warrant of 28 January 1993 and the search as such, not to the actual

circumstances of the search.  Accordingly, he had deliberately

refrained from instituting proceedings under S. 23 of the Introductory

Act to the Courts Organisation Act.

     It is true that under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law.

     The Commission notes that the applicant's appeal against the

search warrant as such was declared inadmissible by the Darmstadt

Regional Court for lack of a legal interest in having the search

reviewed. The Regional Court however, examined the merits of his appeal

against the District Court decision of 29 January 1993, confirming the

seizure of specific documents.   The Federal Constitutional Court

refused to admit the applicant's constitutional complaint.

     The Commission finds that, in the circumstances of the present

case and given the nature of the applicant's complaint, an appeal under

S. 23 of the Introductory Act to the Courts Act as regards the

execution of the search warrant was not an effective remedy which the

applicant ought to have exhausted (cf. No. 13710/88, Dec. 5.4.90,

unpublished).

     The applicant has, therefore, complied with the condition as to

the exhaustion of domestic remedies under Article 26 (Art. 26) of the

Convention.

2.   The Government further maintain that the application is

manifestly ill-founded.  Referring to the Niemietz v. Germany judgment

(Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992,

Series A no. 251-B), they concede that there has been an interference

with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the

Convention.  However, this interference was justified under paragraph

2 of Article 8 (Art. 8-2).

     The Commission considers that in the present case the action

taken against the applicant in his law office on the basis of the

search warrant of 28 January 1993 interfered with his rights to respect

for his private life and home within the meaning of Article 8 para. 1

(Art. 8-1) (cf. Eur. Court HR, Niemietz judgment, op. cit., p. 34,

paras. 30-31; Miailhe v. France judgment of 25 February 1993, Series

A no. 256-C, p. 87, para. 28; Halford v. the United Kingdom judgment

of 25 June 1997, Reports 1997-III, No. 39, para. 44).

     It must accordingly be determined whether the interference in

question satisfied the conditions in paragraph 2.

     As regards the question whether the interference was "in

accordance with the law", the Commission notes that the search warrant

issued by the Bensheim District Court was based on S. 103 of the Code

of Criminal Procedure, respectively.  Moreover, in its decision of

29 January 1993, the District Court, relying on S. 94 and S. 98 para. 2

of the Code of Criminal Procedure, confirmed the seizure of specific

documents in the applicant's office.  The Regional Court likewise

considered that the seizure of the documents on 28 January 1993 had

been lawful.  The Commission discerns no reason, on the basis of the

material before it, for not concluding that the search and seizure were

"in accordance with the law", within the meaning of Article 8 para. 2

(Art. 8-2).

     Moreover, the interference pursued a legitimate aim under

paragraph 2 of Article 8 (Art. 8-2), namely the prevention of crime.

     The parties' arguments are concentrated on the question whether

the interference complained of could be regarded as "necessary in a

democratic society".

     The Government contend that the search and seizure of some

specific documents had been necessary in the context of the criminal

proceedings against Mr. S. and were not disproportionate.  There had

been sufficient indications that incriminating  material could be found

in the applicant's law office.  The search warrant had been drawn up

in precise terms, in that it ordered the search for account documents

of the S. company.  Furthermore, it had not been necessary to hear the

applicant before issuing the search warrant, as any search could be

avoided by surrendering the objects in question.  Finally, the search

warrant was proportionate in the circumstances, given the strength of

the suspicion and the seriousness of the criminal offences at issue.

The search had moreover been limited to the inspection of the file

concerning the suspected Mr. S., after the applicant had refused to

hand over the relevant documents himself.

     According to the applicant, the search warrant and seizure order

had not been necessary on the ground that he had offered cooperation

in the course of the searches of the premises of the S. company.

However, although having indicated that he might possess relevant

material, he was asked to leave the premises.  He also submits that his

file should have been inspected by a judge.

     The Commission recalls that the Contracting States have a certain

margin of appreciation in assessing the need for an interference, but

it goes hand in hand with European supervision.  The exceptions

provided for in paragraph 2 of Article 8 (Art. 8-2) are to be

interpreted narrowly (cf. Eur. Court HR, Klass and Others v. Germany

judgment of 6 September 1978, Series A no. 28, p. 21, para. 42), and

the need for them in a given case must be convincingly established

(Eur. Court HR, Miailhe judgment, op. cit., p. 89, para. 36).  In

connection with the search of a lawyer's office, it has to be recalled

that an encroachment on professional secrecy may have repercussions on

the proper administration of justice and hence on the rights guaranteed

by Article 6 (Art. 6) of the Convention (Eur. Court HR, Niemietz

judgment, op. cit., p. 36, para. 37).

     In the present case, the search of the applicant's office was

ordered in the context of criminal proceedings against Mr. S. and

Ms. A.S., managers of the S. company, on the suspicion of corruption.

These proceedings formed part of further investigations in other

corruption cases involving employees of the Bensheim Municipality.

     The search warrant was issued against the applicant as a third

person who was not suspected of being himself involved in the offences

which were investigated.  It was ordered by the Bensheim District Court

upon the request of the Public Prosecutor conducting the searches at

the premises of the S. company, after the suspect Mr. S., himself had

informed the Public Prosecutor that he had given relevant material to

the applicant, his counsel.  Accordingly, there were concrete

indications that documents relevant to the investigations could be

found in the applicant's office.  Furthermore, the search warrant

stated with sufficient precision that the search was limited to account

documents relating to the S. company.

     The Commission had regard to the applicant's argument that he had

offered cooperation on the occasion of his visit to the Bensheim

premises of the S. company and that the Public Prosecutor had failed

duly to react to this proposition.  However, given the exigencies of

simultaneous searches carried out at the premises of a company in two

different towns, the Commission considers that the prosecution

authorities were not prevented from opting for a formal course of

action in order to obtain the material in question.

     As regards the circumstances of the measures taken against the

applicant on the basis of the search warrant in question, the

Commission notes that the applicant, who was present in his office when

the competent Public Prosecutor and a police officer arrived, was given

an opportunity to hand over the relevant documents and thereby avoid

any search.  The lawyer's office was eventually not searched, as the

applicant drew the officials' attention to a file containing material

concerning the business activities of the S. company.  This file alone

was inspected by the Public Prosecutor, and some account papers were

seized.  The seizure of these documents was confirmed by the Bensheim

District Court.  In this context, the Commission also notes that at the

relevant time the applicant was not acting as defence counsel in the

criminal proceedings against the suspected Mr. S. and that it had been

Mr. S. himself who had pointed out these documents.  Moreover, unlike

in the Niemietz case, there is nothing to show that the course of

events could have been capable of affecting adversely the applicant's

professional reputation (Eur. Court HR, Niemietz judgment, loc. cit.).

     In sum, the Commission finds that the search warrant duly limited

the envisaged search of the applicant's office, bearing in mind that

in Germany the search of a lawyer's office is not accompanied by any

special procedural safeguards, such as the presence of an independent

observer (cf. Eur. Court HR, Niemietz judgment, loc. cit).  Within the

framework so traced, the action taken by the competent Public

Prosecutor did not impinge upon professional secrecy to an extent that

would appear disproportionate in the circumstances.

     In the light of these findings, the interference with the

applicant's rights could reasonably be regarded as necessary "in a

democratic society for the prevention of crime and it was, therefore,

justified under paragraph 2 of Article 8 (Art. 8-2).  Consequently,

there is no appearance of a breach of Article 8 (Art. 8) of the

Convention.

     It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

      M. F. BUQUICCHIO                           J. LIDDY

         Secretary                               President

     to the First Chamber                   of the First Chamber