Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13710/88

by Gottfried NIEMIETZ

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

in camera on 5 April 1990

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

G. BATLINER

J. CAMPINOS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy Secretary to the Commission,

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 February 1988

by Gottfried Niemietz against the Federal Republic of Germany and

registered on 25 March 1988 under file No. 13710/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

The applicant, born in 1951, is a German national and resident

in Freiburg. He is a lawyer by profession.

On 9 December 1985 a telefax-letter was posted at the Freiburg

Post Office which was sent by the "AK-BL Freiburg" and signed by one

KW. 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

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, this 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 brought him - when he explicitly drew

attention to these underhand methods - 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."

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 KW. In

the course of the subsequent investigations the suspect KW 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 KW's whereabouts, refused to give any information about KW.

Other attempts to identify KW failed.

On 8 August 1986 the Investigating Judge at the Munich District

Court issued a search warrant concerning, inter alia, the applicant's

and his colleague's law office. The Investigating Judge ordered that

the premises be searched for documents which might disclose the

identity of KW and that such documents be seized. He found in

particular that on 9 December 1985 a telefax which insulted Judge M at

the Freising District Court was sent by the "AK-BL Freiburg" and signed

by KW. The identity of KW could not be established, and the "BL

Freiburg" could only be contacted by mail addressed to a post box.

According to the findings of the Investigating Judge, such mail had

been forwarded to the applicant's and his colleague's law office until

the end of 1985. He therefore assumed that documents disclosing KW's

identity could be found at the law office.

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. According to the record of this search

one file marked "BL", four filing cabinets with data concerning clients,

one file for the defence marked "KW - Karlsruhe District Court...", one

file for the defence marked "Niemitz et al - Freiburg District Court ...";

one file marked "CW - Freiburg District Court ...", one file marked "G -

Hamburg Regional Court" and another file for the defence "D - Freiburg

District Court" were examined.

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 to have 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 on the ground that 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.

S. 97 of the Code of Criminal Procedure provides that, inter

alia, correspondence between the accused and his counsel may not be

seized.

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 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.

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.

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, does not

constitute such an unimportant interest that it could not justify a

search warrant. Other attempts to identify KW had failed. In

particular the applicant's colleague had refused to disclose KW'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 correspondents 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 diclosed KW's identity.

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.

Finally, the Constitutional Court considered that the applicant

had not exhausted the remedies under the Introductory Act to the Courts

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.

COMPLAINTS

1. The applicant complains under Article 8 para. 1 of the

Convention that the search violated his right to respect for his home

and correspondence.

He submits in particular that the notion "home" also covers

business premises such as a lawyer's office. He considers that, in

this respect, Article 8 para. 1 does not only safeguard the place of

residence of an individual against any interference by public authorities,

but also the private sphere where he pursues his profession.

Furthermore, the applicant is of the opinion that the search

cannot be justified under Article 8 para. 2 of the Convention. The

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 and was disproportionate to solve a

case of defamation.

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 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.

The applicant also invokes Article 1 of Protocol No. 1 to the

Convention in respect of the above complaint. He considers that the

search infringed the good will of his law office.

As regards Article 26 of the Convention, the applicant submits

that he exhausted the remedies available to him under German law.

Referring to the decision of the Munich Court of Appeal of 13 January 1987

declaring the appeal of his colleague inadmissible he considers in

particular that an appeal under the Introductory Act to the Courts Act

would have been ineffective.

2. Furthermore, the applicant complains under Article 13 in

conjunction with Article 8 of the Convention and Article 1 of Protocol

No. 1 that he had no effective remedy before German authorities to

claim the violation of his rights to respect for his home and

corresepondence as well as his right to property. He submits the

German Courts did not examine the merits of his complaints; in

particular the Federal Constitutional Court only reviewed the

lawfulness of the search warrant as such and not the circumstances of

the search.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 February 1988 and

registered on 25 March 1988.

On 14 December 1988 the Commission decided, in accordance with

Rule 42 para. 2 (b) of its Rules of Procedure, 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.

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.

On 14 December 1989 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the application

as regards the complaint about the search of the applicant's law

office.

The hearing took place on 5 April 1990. The applicant attended

the hearing in person and was assisted by Mr. Neffert as adviser. The

respondent Government were represented by Mr. H.A. Stöcker, Ministerialrat,

Agent, and by Mrs. V. Lewenton, Oberstaatsanwältin, Public Prosecutor's

Office at the Munich II Regional Court, as Adviser.

THE LAW

1. 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. He also invokes Article 1

of Protocol No. 1 (P1-1)in respect of this complaint.

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."

The respondent Government consider that the applicant's

complaint about the actual circumstances of the search in question is

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 Act. He had only appealed against his

search warrant under S.304 of the Code of Criminal Procedure.

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 was declared inadmissible by the Munich I Regional

Court for lack of a legal interest in having a search reviewed which

had already been carried out. The Federal Constitutional Court, in

its decision of 18 August 1987 refusing to admit the applicant's

constitutional complaint, stated that the applicant had failed to

exhaust the remedies under the Introductory Act to the Courts Act as

regards the execution of the search warrant.

However, the Commission finds that in the circumstances of the

present case, the appeal under S. 23 of the Introductory Act to the

Courts Act as regards the execution of the search warrant was no

effective remedy which the applicant ought to have exhausted.

The Commission notes that the appeal lodged by the applicant's

colleague under S. 23 of the Introductory Act to the Courts Act was

declared inadmissible by the Munich Court of Appeal on 13 January 1987.

Insofar as it concerned the execution of the search warrant, the Court

of Appeal considered that the complaints primarily concerned the search

warrant in respect of which an appeal lay under the Code of Criminal

Procedure.

The Commission considers that the applicant could not

effectively argue in the context of an appeal under S. 23 of the

Introductory Act to the Courts Act that the actual circumstances of

the search of his law office did not conform to the search warrant

which he contended to be unlawful.

The applicant has, therefore, complied with the condition as

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

Convention.

Furthermore, the Government contend that the search of the

applicant's law office did not interfere with his rights under

Article 8 para. 1 (Art. 8-1) of the Convention, which do not extend to the

applicant's law office and his professional activities. In any event,

the search of his law office was in accordance with German law and

necessary in a democratic society for the prevention of crime.

The Commission finds that the applicant's complaint about the

search of his law office raises questions of fact and law, in

particular as regards the application of Article 8 (Art. 8) of the

Convention, which are of such complexity that their determination

requires an examination of the merits. Furthermore, the Commission

cannot exclude at this stage the applicability of Article 1 of

Protocol No. 1 (P1-1) to the facts complained of. This part of the

application is therefore not manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention and no other

ground for declaring it inadmissible has been established.

2. The applicant also complains that he had no effective remedy

before German authorities within the meaning of Article 13 (Art. 13)

to claim a violation of his rights under Article 8 (Art. 8) of

Convention and Article the 1 of Protocol No. 1 (P1-1).

Article 13 (Art. 13) of the Convention provides that everyone

whose rights and freedoms as set forth in the Convention are

violated shall have an effective remedy before a national authority.

The Commission observes that in the present case the Munich I

Regional Court, in its decision of 27 March 1987, declared the applicant's

appeal against the search warrant inadmissible on the ground that a

legal interest to have the lawfulness of the search concerned reviewed,

could not be reasonably established.

The Commission finds that an issue under Article 13 (Art. 13)

of the Convention could arise if the case-law of German courts,

according to which the legal interest in having an administrative

measure reviewed which has already been carried out, is applied in

such a way as to exclude any examination of the lawfulness and

substantive justification of the measure in question.

However, the Commission finds that it appears from the

Munich I Regional Court's decision of 27 March 1987 that the merits of

the applicant's complaints were also considered. Furthermore, the

Federal Constitutional Court, in its decision of 18 August 1987, dealt

in some detail with the question whether the search had been lawful

and proportionate.

It follows that the applicant did in fact have an effective

domestic remedy to complain about the allegedly unlawful search of his

law office. His complaint under Article 13 (Art. 13) of the Convention is

accordingly manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2).

For these reasons, the Commission

1. DECLARES ADMISSIBLE, without prejuding the merits of the case,

the complaint about the search of the applicant's law office

(Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1

(P1-1) to the Convention);

2. DECLARES INADMISSIBLE the remainder of the application.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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NIEMIETZ v. GERMANY

NIEMIETZ v. GERMANY