Application No. 10949/84

                       by H.N.

                       against the Federal Republic of Germany

The European Commission of Human Rights sitting in private on

10 December 1986, the following members being present:

                      MM. C. A. NØRGAARD, President

                          G. SPERDUTI

                          J. A. FROWEIN

                          F. ERMACORA

                          G. JÖRUNDSSON

                          S. TRECHSEL

                          B. KIERNAN

                          A. S. GÖZÜBÜYÜK

                          A. WEITZEL

                          J. C. SOYER

                          H. G. SCHERMERS

                          H. DANELIUS

                          G. BATLINER

                          J. CAMPINOS

                          H. VANDENBERGHE

                      Mrs G. H. THUNE

                      Mr. F. MARTINEZ

                      Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 April 1984 by

H.N. against the Federal Republic of Germany and registered

on 3 May 1984 under file No. 10949/84;

Having regard to

-       the Commission's decision of 4 March 1985 to give notice of

the application to the respondent Government and invite them, in

accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to

submit observations in writing on the admissibility and merits;

-       the President's rulings of 29 May and 9 July 1985 granting

requests of the respondent Government to extend the time-limit fixed

for this purpose;

-       the observations submitted by the respondent Government on

2 August 1985 and the observations in reply submitted by the applicant

on 20 September 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the parties may be summarised as follows:

The applicant is a German citizen born in 1948 who resides in

Frankfurt.  She has filed a previous application (N° 9190/80) which

the Commission declared inadmissible on 11 March 1982.  The present

case relates to new and different facts.

I.      The applicant owns a dwelling house in Frankfurt which she

acquired in 1981 in an auction ordered by the court against the

previous owner who was a friend of hers.  She claims that the house is

unfit for permanent occupation due to noise originating from a nearby

underground line.  It appears, however, that several persons

nevertheless live there at least from time to time.  It was in fact

observed from a police station which is situated just across the

street that the house is inhabited, and as nobody was registered at

this address, the police invited the inhabitants by a note to

regularise their situation in accordance with the applicable

registration regulations (Meldebestimmungen).  Notwithstanding this

fact the city's housing authority suspected that the house was not

inhabited and was thus used for other than residential purposes

contrary to the provisions of the Rent Law Improvement Act

(Mietrechtsverbesserungsgesetz, BGBl. 1971 I 1745).

Article 6 para. 1 of this Act empowers the Land Government to issue

ordinances whereby the use of housing for other than residential

purposes may be subjected to the requirement of an administrative

authorisation in certain localities with an acute housing shortage.

Article 6 para. 2 provides for regulatory fines (Ordnungsbussen) of up

to DM 20.000.- in cases of contravention.  These provisions are

applicable in Frankfurt by virtue of an ordinance issued by the

Hessian Government in 1972 (GVBl 1972 I 19).

The Frankfurt housing authority conducted correspondence with the

applicant on the application of this legislation to her house since

November 1982.  Eventually it instituted regulatory proceedings

(Ordnungswidrigkeitsverfahren) against her on the suspicion of her

having breached Article 6 of the Act.  In this connection it applied

to the District Court (Amtsgericht) of Frankfurt for the issue of a

search warrant with a view to securing evidence on the occupation of

the house, namely by verifying the state of the apartments

(Feststellung des Zustandes der Wohnungen).

According to information provided by the Government a search for the

same purpose had already been ordered by the Court in relation to the

previous owner in 1979.  It had revealed that at that time the

premises had not been used for residential purposes.

Before granting the search warrant in relation to the applicant on the

housing authority's above request, the Court first invited that

authority to comment on the applicant's statement that the house was

unfit for residential occupation.  The authority denied this stating

that the construction work of the underground railway had been

completed.  On 17 January 1984, the Court issued the warrant which was

based on Section 102 of the Code of Criminal Procedure

(Strafprozessordnung) and Section 46 (1) of the Regulatory Offences

Act (Gesetz über Ordnungswidrigkeiten).  The search pursuant to this

warrant was carried out on 14 February 1984.

The applicant had shortly beforehand got knowledge of the intended

measure and tried to file a remedy in the morning of 14 February i.e.

before the measure was executed.  However, according to her statements

this turned out to be impossible because the search warrant had not

yet been notified to her and she could not therefore indicate the file

number.  The applicant states that she was told by officials of the

Frankfurt District Court that they did not know of any search warrant

against her.

The applicant was present at the execution of the search later the

same day and, basing herself on the information obtained from the

District Court, raised objections against the validity of the search

warrant which was presented to her on this occasion.  She also

objected to the taking of photographs in the house and to the

preparation of lists of the objects found there.  However, the search

was carried out despite these objections.

The applicant subsequently filed a complaint against the search

warrant, claiming that it was unlawful in several respects.  The

applicant submitted that the house was in fact inhabited and the

authority knew that it was inhabited, the registration provisions -

which allowed for exemptions - being irrelevant in this context.

However, the house was unfit for permanent occupation and therefore

outside the scope of the above legislation.  The applicant further

alleged a violation of her right to be heard, in particular by reason

of the impossibility to file a remedy against the search prior to its

execution.  She also invoked her legal interest to have the lawfulness

of the search reviewed having regard to its consequences and the

danger of repetition of similar measures.

The complaint was first examined by the District Court pursuant to

Section 306 (2) of the Code of Criminal Procedure which provides for a

decision on redress (Abhilfeentscheidung) by the judge whose decision

is being challenged.  However, on 24 February 1984 the District Court

refused to amend its decision and referred the complaint to the

Regional Court (Landgericht) of Frankfurt.

The Regional Court rejected the complaint by a decision of

13 March 1984.  In conformity with a decision of the Federal

Constitutional Court (Bundesverfassungsgericht) (BVerfGE 49, 329 = NJW

79, 154) it held that the applicant lacked a legal interest in the

review of the search order after it had been executed.  Such a legal

interest existed only in exceptional circumstances, if there were

serious consequences of the measure, a danger of repetition of a

similar measure, or a grave interference with rights of the interested

person. None of these conditions were met in the applicant's case

where the search served only the purpose of inspecting a house with a

view to establishing the kind of its use.  This was not as such a

serious measure and in view of the clear results there was no danger

of repetition.  The measure was also justified because of the serious

suspicion against the applicant and her refusal to allow the housing

authority access to the building.  The court further considered that

there had been no violation of the applicant's procedural rights: a

hearing before the issue of the search warrant was excluded by its

purpose, and the applicant's claim that she had been prevented from

filing a remedy before its execution was not substantiated, in any

event such a remedy would not have had suspensive effect and therefore

could not have prevented the search in question.

In her original submissions to the Commission the applicant claimed

that even without taking the matter to the Federal Constitutional

Court she must be deemed to have exhausted the domestic remedies.  In

this respect she referred to the Federal Constitutional Court's

case-law according to which there is no legal interest to have a

search warrant reviewed after it has actually been carried out

(BVerfGE 49, 329 and 59,96).  She submitted that in those

circumstances a constitutional appeal was bound to fail and therefore

ineffective. She did not inform the Commission that she had in fact

nevertheless lodged a constitutional appeal (Verfassungsbeschwerde).

On 7 September 1984, this constitutional appeal was rejected by a

three-judge committee of the Federal Constitutional Court.  It did not

accept the appeal on the ground that it lacked prospects of success.

In the reasons it noted that the Regional Court's decision had not

been limited to an examination of the applicant's legal interest, but

that in the context of this examination the Court had also dealt with

the substantive justification of the search warrant and had found it

to be lawful.  Accordingly, there was no appearance of the applicant

having been denied the right to be heard on the danger of a possible

repetition of the measure.  As the authority had submitted numerous

reports, including information from the police station, on the

suspicion that the house was unoccupied, it could not be said that the

arguments to the opposite effect submitted by the applicant had not

been considered by the Court.  The applicant was not entitled to be

heard prior to the execution of the District Court's decision because

in view of the danger of her changing the condition of the rooms in

question it could appear necessary to execute this decision

immediately.  After the execution of the decision, the applicant was

in fact granted the right to be heard because both the District Court

and the Regional Court decided on the lawfulness of the search

warrant.  In view of the contents of the file, it further could not be

said that the legal and constitutional conditions for issuing a search

warrant were not fulfilled.  The search warrant described the

suspicion and the evidence to be secured by the search with sufficient

precision,and therefore the requirements of the rule of law had been

respected.  It was not objectionable that, for the purpose of

clarifying the suspicion, evidence had been taken by making photos and

drawing up lists of objects.  Finally it was stated that the

applicable provisions of the Rent Law Improvement Act were not

unconstitutional, nor had the applicant shown that the conditions for

the application of these provisions were not met.

The applicant took a further remedy on 14 March 1984 by requesting a

judicial decision under Section 23 of the Court Organisation

(Introductory Provisions) Act (EGGVG = Einführungsgesetz zum

Gerichtsverfassungsgesetz) concerning the way in which the search had

been ordered and carried out.  The Frankfurt Court of Appeal

(Oberlandesgericht) rejected this application on 1 June 1984, finding

that it was inadmissible insofar as it challenged acts of the

judiciary, namely the earlier court proceedings ordering the search

and the executive measures taken by the police and housing authority

under the authority of the relevant court order.  Insofar as the

applicant had challenged the taking of photos and the drawing up of

lists of objects the application was considered as unfounded because

these measures were reasonable and lawful in the circumstances.

Following objections by the applicant this decision was confirmed by

the Court of Appeal on 23 July 1984.  The applicant's constitutional

appeal concerning this matter was rejected by a decision of the

Federal Constitutional Court of 6 November 1984.

The applicant has not informed the Commission of the result of the

regulatory proceedings in the context of which the above search

warrant was issued.

II.     A further search of the same house took place in the

applicant's absence on 27 July 1984.  This time it was based on a

search warrant issued by the District Court of Frankfurt on

12 September 1983 against the previous owner of the house in connection

with criminal proceedings based on a suspicion of forgery of documents

(Urkundenfälschung).  The search was ordered for the purpose of

securing evidence, i.e. typewriters which might have been used for the

forgery.  The warrant referred to two different addresses, including

the one at the applicant's house.  However, despite repeated attempts

by the police the accused could not be found at either of these

addresses.  Finally, the police were requested on 3 July 1984 to open

the apartments by force.  The other apartment was searched on

26 July 1984, and the rooms used by him at the applicant's house on

27 July. According to the Government the condition of the property on

this occasion basically corresponded with the findings made at the

previous search on 14 February 1984.  Three typewriters belonging to

the applicant were seized at this search.  The seizure was confirmed

by a decision of the District Court of 6 August 1984.

The applicant tried to appeal against the above search warrant, but on

20 August 1984 the District Court refused to amend its decision.  It

accordingly submitted the appeal to the Regional Court of Frankfurt

which, on 22 August, rejected this remedy as inadmissible.  It

considered that after the actual execution of the search the applicant

lacked standing to have the lawfulness of the search warrant reviewed,

there being no indication on the basis of her submissions that there

was a continuing legal interest.  In this respect the Court again

referred to the Federal Constitutional Court's case-law (see above).

Insofar as the applicant had also tried to challenge the seizure of

her typewriters, she was referred to the possibility of appealing

separately against the District Court's decision of 6 August 1984.

The typewriters were eventually released to the applicant by a further

decision of the District Court of 24 September 1984.

In her original submissions to the Commission, the applicant claimed

also in respect of the above proceedings that a constitutional appeal

would be ineffective.  Again, she did not inform the Commission that

she nevertheless had lodged a constitutional appeal.

The Federal Constitutional Court decided on the constitutional appeal

on 30 October 1984 finding that it had no prospects of success. It

noted that the search had been directed against a person different

from the applicant whom the investigating authorities had suspected to

live in the applicant's property.  Accordingly this measure was

covered by the judicial decision.  The Federal Constitutional Court

was not competent to control whether the competent court had based its

decision on wrong factual assumptions.  In any event there were no

unreasonable or arbitrary considerations, nor was there any appearance

of other violations of constitutional law.  The Regional Court's

decision further did not infringe constitutional law insofar as it had

assumed that the applicant's challenge of the search warrant had

become without object (prozessual überholt).  A violation of the

Convention could not be challenged by a constitutional appeal.

COMPLAINTS

1.      The applicant now complains that her Convention rights have

been violated in several respects.  She claims that she has exhausted

all domestic remedies available to her before lodging a constitutional

complaint because such a complaint would not have been effective

having regard to the Federal Constitutional Court's case-law.

2.      The applicant considers that both searches were unjustified

and that they interfered with her rights under Article 8 (Art. 8)

of the Convention (private life and home) and Article 1 of

Protocol N° 1 (P1-1) (peaceful enjoyment of possessions), read in

conjunction with Articles 14, 17 and 18 of the Convention (Art. 14,

art. 17, art. 18).

As regards the first search, the applicant challenges not only the

search as such, but also the underlying legislation.  She considers

that the application of the provisions of the Rent Law Improvement Act

concerning restrictions on the use of property in the City of

Frankfurt was not justified at the relevant time because there was in

fact no serious housing shortage.  For this reason she claims that the

measures taken against her were disproportionate and discriminatory.

The search itself was in her view unjustified for the further reason

that there was no sufficient initial suspicion of the house in

question being unoccupied.  It was unlawful for the housing authority

to intrude into an inhabited house and to interfere with the

applicant's private sphere by taking photographs and making lists of

her personal possessions.  The applicant further considers that,

lacking a reasonable justification, the measure was also

discriminatory.

As regards the second search, the applicant puts forward similar

reasons.  Also in this case there was in her submission no sufficient

initial suspicion of a criminal offence, in particular there was no

such suspicion against herself, and therefore it was also unjustified

that the search was carried out in her home and property and that her

typewriters were seized.  The principle of proportionality was

allegedly violated in several respects, in particular because the

search warrant was not directed against the applicant herself, because

it dated back almost a year and its aim could have been achieved also

by less severe measures, e.g. by the taking of samples of typescript.

3.      The applicant's principal complaints in both cases are related

to the procedure followed which the applicant considers to have been

in breach of Articles 6 and 13 of the Convention. The applicant claims

that it is contrary to Article 6 that in each case she was not heard

prior to the issue or execution of the search warrants, and that after

their execution the courts refused to deal in substance with her

arguments by which she sought to challenge the lawfulness of these

search warrants.

The applicant complains of the same facts also under Article 13

of the Convention.  She claims in particular that the combined effect

of being refused a judicial review of the lawfulness of the search

warrants prior to their being issued or executed, and of the

subsequent finding that she lacked a legal interest for obtaining

such review, deprived her of any effective remedy before the domestic

authorities by which she could assert her rights under Article 8 of

the Convention.  In this respect she challenges the Federal

Constitutional Court's case-law according to which a legal interest

for a judicial review ex post generally does not exist as regards

control both by the ordinary courts and by the Federal Constitutional

Court itself.

PROCEEDINGS

The application insofar as it concerns the first search was introduced

on 12 April 1984 and registered on 3 May 1984.  Insofar as the second

search is concerned, the applicant first wrote to the Commission on

23 September 1984.

The Commission decided on 4 March 1985 to give notice of the

application to the respondent Government and to invite them, in

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

submit observations in writing on the admissibility and merits of the

application.  The Government were asked to deal in particular with the

questions arising under Articles 26 and 13 of the Convention read in

conjunction with Article 8.

The original time limit for the submission of the Government's

observations (17 May 1985) was at their request extended, first until

1 July, and then until 16 August 1985.

In the meantime, the applicant had informed the Commission by letter

of 17 March 1985 that she had actually lodged a constitutional

complaint against the first search warrant.  This information was

transmitted to the Government on 25 March 1985 and at the same time

the applicant was asked whether she had lodged a constitutional

complaint also regarding the second search warrant.  The applicant

confirmed this by a letter of 4 May 1985 which was likewise

transmitted to the Government.

The Government submitted their observations on 2 August 1985, and the

applicant submitted her observations in reply on 10 September 1985.

In connection with the present case, the Commission was also

approached by the Hessian Administrative Tribunal and the City of

Frankfurt on the question of a suspension of certain proceedings

pending before the Administrative Tribunal.  By a letter of

20 May 1986 the applicant eventually requested the Commission to order

the suspension of these proceedings.  The Commission's President ruled

on 4 June 1986 that the conditions for indicating an interim measure

to the respondent Government (Rule 36 of the Commission's Rules of

Procedure) were not met.

SUBMISSIONS OF THE PARTIES

A.      The Government

Scope of the application

The Government consider that the only point at issue is whether the

judicial decisions ordering the two searches in the applicant's house

and finding these searches to be lawful were compatible with the

Convention.  The way in which the searches were carried out by the

competent administrative authorities is not in issue.

Exhaustion of remedies

The question as to the exhaustion of domestic remedies has in the

meantime been settled by the information provided by the applicant,

according to which she in fact filed constitutional complaints against

both search warrants.  The domestic remedies are therefore exhausted

in compliance with Article 26 of the Convention.

On Article 13 of the Convention

The Government contest the allegation that there was no prior judicial

review of the search orders in question.  The search warrants were

issued after application to the District Court by the competent

authorities.  On each occasion the Court examined in the context of

court proceedings laid down by statute whether the conditions for

ordering the searches were fulfilled.  The orders were granted by

decisions of 17 January 1984 and 12 September 1983, respectively.

The Government, referring to the Federal Constitutional Court's

case-law (decision 2BvR 1055/76 of 11 October 1978, BVerfGE 49, 329,

341), submit that judicial search warrants are judicial acts in formal

and substantive respects.  Where an application is made for the

issuing of a search warrant the judge must examine whether the

statutory prerequisites for issuing such a warrant have been

fulfilled.  He acts on his own judicial responsibility and is not

bound by the application.  Accordingly, the Government consider that

the judicial search warrants in the present case were "prior judicial

reviews of the searches in question".

The Government submit that there is a further judicial review by the

same judge through the "decisions on redress" (Section 306 (2) of the

Code of Criminal Procedure) which in the present case were given on

24 February 1984 and 20 August 1984, respectively.  Again, the

District Court had to decide with reference to the complaint made and

in judicial independence whether the search warrants should be set

aside, but on each occasion it declined to do so.  As no redress was

granted by the judge of first instance, the matter had to be referred

to the Regional Court, which, however, confirmed the decisions of the

District Court.

The Federal Constitutional Court has held that there is generally no

continued legal interest in the judicial review of a search warrant

after its actual execution.  This ruling only applies to judicial

search warrants.  The Government consider this aspect as particularly

important.  The underlying consideration is that there is no continued

legal interest to have the merits of a search warrant reviewed where

the examination has previously been made by a judge.

Moreover, even in respect of judicial search warrants, the principle

is not applied without exception.  A further judicial examination will

nevertheless take place where "substantial consequences of an

interference or the risk of repetition - and possibly also the gravity

of the legal violation - substantiate a continued interest in judicial

examination" (BVerfGE 49, 329, 338).

In any event there is also an examination on the merits by the Federal

Constitutional Court following the lodging of a complaint of

unconstitutionality.  The Government refer to a decision of the

Federal Constitutional Court of 16 June 1981 (BVerfGE 57, 346, 354)

according to which "it would not accord with the importance of the

basic right under Article 13 of the Basic Law if the right to lodge a

complaint of unconstitutionality against searches of residential

premises ceased to apply - without more - as soon as the search is

concluded".  Thus, the case-law of the Federal Constitutional Court

not only does not exclude examination of a judicial search warrant on

the merits, but, on the contrary, allows such examination.

In the Government's view, it cannot be objected that, after a

court-ordered search has been carried out, relevant higher courts

assume on principle that the cause of complaint has been overtaken by

the facts.  Setting aside the warrant after the search has been

carried out indeed would make no sense.  The measure which has already

been carried out cannot be undone.  It only seems possible to declare

subsequently the measure unlawful.  For such a declaration, a

legitimate interest in obtaining judicial relief is required in

accordance with general procedural principles.  This in turn can only

be assumed when negative after-effects emanate from the warrant, such

as substantial consequences of the interference, risk of repetition,

and special gravity of the legal violation.  In such cases there is an

examination on the merits of the preceding judicial search warrant

without prejudice to the possibility to demand compensation for

violation of an official duty.  The restriction of examination of

search warrants on the merits to those cases where legal interest in

the decision still exists is a requirement of procedural economy. This

way of proceeding also helps to conduct the proceedings expeditiously.

Searches carried out without prior judicial warrant are, however,

reviewable.

The manner in which a search is carried out by the administrative

authority concerned is also subject to control by the court under

Section 23 of the Court Organisation (Introductory Provisions) Act.

In the present case the applicant made use of these proceedings.

The Government submit that the mechanism stipulated in Article 13

of the Convention applies above all vis-à-vis administrative

acts and interference by public authority with basic rights which fall

outside the scope of Articles 5 and 6 of the Convention.  The latter

provisions have introduced a requirement of special judicial remedies

in fields traditionally covered in the Convention States by judicial

guarantees, that is, the fields of criminal and civil law and

deprivation of liberty.  In relation to substantive legal provisions

not covered by these judicial remedies, a comparable stipulation and

specific elaboration of legal remedies was not undertaken.  The

situation in the individual Contracting States was too diverse in this

respect.  Article 13 was created for this area.  It also makes

provision for a domestic examination, but leaves it to the Contracting

States how to make provision for the stipulated examination.

Protection by an independent court is not required.  The protection

given by Article 13 of the Convention has therefore deliberately been

made less differentiated and has been less intensively elaborated.

Attention must be paid to the indicated differences in the degree of

control in relation to the different substantive human rights

guaranteed in the Convention if it is desired to interpret the

Convention's guarantees of proceedings in a manner that does justice

to the system as a whole while respecting the will of the Contracting

States.

In addition to certain principles expressly stated in the case-law of

the Convention organs on the interpretation of Article 13, the

Government consider that the following additional principles are

implied in the decisions of the Convention organs:

a) Article 13 provides for a legal remedy only in respect of

executive measures and not in respect of acts of the judiciary.

b) The requirements of Article 13 are also fulfilled if

there is an examination by an independent national court before

implementation of an administrative measure affecting the citizen,

without the party affected making an application for such examination.

Ad a). Article 13 of the Convention goes back to Article 8

of the Universal Declaration of Human Rights of the United Nations

according to which everyone has the right to an effective remedy by

the competent national tribunals for acts violating the fundamental

rights granted him by the constitution or by law.  Protection by the

national courts against acts perpetrated by national authorities other

than the courts is intended here.  The position can be no different in

relation to Article 13 of the Convention.  If Article 13

no longer requires independent courts as organs of review

but only speaks of an "effective remedy before a national authority"

this does nothing to change the fact that reference is made to

protection by a particular national authority and not against the

decision of such an authority. If it is further stated that there is

protection against violations committed by "persons acting in an

official capacity", then it is the executive that is meant here.

An interpretation of Article 13 of the Convention to the

effect that protection against decisions of a national controlling

authority within the meaning of Article 13 might also be

intended would lead to the nonsensical result that - following a

decision by such an authority - protection could be claimed over and

over again. Moreover, in this way a duty incumbent on Contracting

States to establish proceedings for a remedy vis-à-vis court decisions

would be read into this Article - which does not exist.

Hence, the Commission has rightly deemed the special guarantee of

Article 5 para. 4 of the Convention to be a lex specialis

to Article 13 of the Convention and, where violation of this

guarantee is established, the Commission has not additionally examined

the remedy from the point of view of Article 13.  This only

seems consistent if Article 13 is seen as a guarantee of

proceedings in relation to acts of the executive and not also as a

guarantee of proceedings in relation to acts of the judiciary.  If, as

in the case under consideration, a national court as a "national

authority" within the meaning of Article 13 of the

Convention has given a decision, then this Article does not make

provision for a further domestic examination.  Rather, domestic

recourse to the courts will, in these circumstances, have been

exhausted.

The guarantee of a legal remedy is moulded in a comparable fashion in

the Basic Law (Grundgesetz) of the Federal Republic of Germany.  In

Article 19 para. 4 of the Basic Law it is stated as follows:

"Should any person's right be violated by public authority, recourse

to the court shall be open to him".

The Federal Constitutional Court has held in its decisions (BVerfGE

49, 329, 340 with further references) that acts of the judiciary are

not acts of a public authority in the above sense, for Article 19

para. 4 of the Basic Law makes provision for protection by the judge

and not against the judge.  In relation to cases of the kind under

consideration here the Federal Constitutional Court has concluded that

the basic right to proceedings under Article 19 para. 4 of the Basic

Law is normally complied with if there is an examination by an

independent court before the search of residential premises takes

place.

Accordingly, with regard to the present case, it must be assumed that

the impugned judicial search warrants must already be regarded as

examinations by a national authority within the meaning of Article 13

of the Convention, which does not establish a further remedy

against such judicial search warrants.

Ad b). It is true that Article 13 of the Convention assumes

that action will be taken by a national authority on a "remedy" being

sought.  However, it cannot be inferred from this that - in order for

the requirements of Article 13 to be met - Contracting

States must make provision for action to be taken by a national

authority for the purpose of examining executive acts only at the

stage when a remedy is sought.  On the contrary, it is compatible with

the meaning of Article 13 of the Convention if examination

by an independent authority also takes place - for instance on

application by an authority - without the affected party giving the

impetus and seeking a remedy.  This applies all the more when the

"advance deployment" of a legal remedy is intended to make such a

remedy as effective as possible in the interests of the citizen.  This

was the case here.

Article 13 para. 2 of the Basic Law requires - in the interests of the

citizen affected - the involvement of an independent judge before a

search of residential premises is carried out.  The judge has to

examine in advance the action the administrative authority intends to

take as to whether the statutory preconditions have been fulfilled.

The judge only becomes active when the authority has made an

application and then has to give a decision on his own judicial

responsibility and within the context of statutory procedural

guarantees.  The granting of a hearing in accordance with the law is,

as a matter of principle, also one of the procedural guarantees that

have to be observed.  The judge can only dispense with a previous

hearing of the affected party where this hearing would endanger the

objective of the search for which application was made.  The judge has

to take a decision on this in each case and in the exercise of his

judicial discretion (BVerfGE 57, 346, 359).  If the hearing does not

take place, statutory provision is also expressly made in Sections 33a

and 311a of the Code of Criminal Procedure for a subsequent hearing

where the party affected is still suffering a disadvantage.

The involvement of a judge prior to a search - in accordance with

Article 13 para. 2 of the Basic Law - is intended to prevent the

situation where a search of residential premises is only subjected to

judicial control after it has been carried out, the reason being that

at this latter stage interference with the right to protection of the

home will already have occurred.  This would, however, be compatible

with the requirements of Article 13 of Convention.  The Basic Law,

going further than what is required in Article 13, provides for a

prior fundamental judicial examination in order to prevent the

occurrence of legal violations - as far as possible - through early

involvement of an independent judge.  It would be a nonsensical result

for this particularly effective legal remedy - deployed in advance -

not to be accepted as a remedy within the meaning of Article 13 of the

Convention simply because - by its very nature - it is often not

possible for it to be sought.

Article 13 of the Convention does not require any special

configuration for domestic remedies.  Thus, it must be left to

Contracting States to decide whether to exercise particularly

effective control through an independent national authority preceding

a search of residential premises and without a relevant application

being made by the party affected.  In the Federal Republic of Germany

it is even a case of independent national courts becoming active as

national examining authorities.  Protection against interference with

residential premises in the Federal Republic of Germany is arranged in

a manner similarly effective to that in which court protection in

cases of deprivation of liberty is arranged.  In addition to

examination of a search measure by a court, the party affected also

has the right in cases of violation of official duty to demand

compensation pursuant to Section 839 of the Civil Code (Bürgerliches

Gesetzbuch).  The legal remedy for searches of residential premises

basically corresponds to the requirements laid down in Article 5

paras. 4 and 5 of the Convention for cases of deprivation of liberty.

It follows from this that the present applicant's claim to effective

domestic control was satisfied by the court proceedings preceding the

searches.

Notwithstanding the above arguments, the Government observe that there

were further remedies available to the applicant after the searches

had been carried out.  In fact, three further examinations by the

courts took place in relation to each search.  They included the

District Court's decisions on redress followed by the Regional Court's

decisions on the complaints lodged and finally by the examination of

the Federal Constitutional Court.  All these examinations by

independent judges must individually, but at the very least in their

totality, be seen as an effective remedy before a national authority.

Neither the Regional Court nor the Federal Constitutional Court

limited themselves to finding that the course of complaint had been

overtaken by the facts.  They also carried out an examination on the

merits, i.e. whether there had been a violation of the applicant's

basic rights.

In the case of the second search, the applicant was not affected in

her rights because the search order was not made against her but

against another person.  Consequently, she could not be a victim of

this judicial order within the meaning of Article 25 of the

Convention.  The applicant's complaints in this respect are

inadmissible already for this reason.  Insofar as the applicant was

actually affected, i.e. by the seizure of typewriters, other judicial

remedies were available to her which she did in fact use, but this

matter is outside the scope of the present application.

On Article 8 of the Convention

The Government submit that, in the present case, there was no home

worthy of protection pursuant to Article 8 para. 1.  In this

respect, Article 13 of the Basic Law is wider than Article 8 para. 1

of the Convention, which is limited to the actual private

living sphere and does not cover business and storage premises as

well.  The applicant did not have any personal focal point of her

existence, attributable to her private sphere in terms of Article 8

para. 1 of the Convention, in the house when the premises

were searched.  A different address was registered as her place of

residence, and before the search on 14 February 1984 all

communications of the authorities with her were made at this other

address.  Neither the applicant nor anybody else is registered with

the police at the house in question and, by observations from the

police station situated across the street, the property there is known

to have been standing empty for years.  Only the letter box is

occasionally emptied.  The applicant herself has claimed that the

house was unfit for lasting residential occupation because of

unhealthy living conditions.  There are no water nor electricity

supplies in the house, and the searches revealed that it was only used

for storage purposes.

In any event, the requirements of Article 8 para. 2 were

met. The searches were carried out within the framework of statutory

provisions, on the first occasion for establishing whether there had

been a regulatory offence, and on the second occasion, for clarifying

a criminal offence.

On Article 1 of Protocol No. 1

The Government observe that the first search was necessary for the

implementation of the Rent Law Improvement Act which regulates the use

of property in accordance with the general interest.  It does not

provide for any inadmissible interference with property rights.  This

was established in a decision of the Federal Constitutional Court of

4 February 1975 (BVerfGE 38, 348).  The second search was necessary in

the context of criminal proceedings.

Conclusion

The Government, therefore, request the Commission to declare the

application inadmissible.  As regards the first search, it is

manifestly ill-founded; and as regards the second search, the

applicant cannot claim to be a victim or, alternatively, the

application is manifestly ill-founded also in this respect.

B.    The applicant

On the facts

The applicant observes that the Government have submitted certain new

facts which had not been brought to her notice at an earlier date.  In

particular, the fact that the District Court asked the Housing Office

for comments on the applicant's allegations that the house was not

inhabitable before it issued the search order shows an additional

violation of the applicant's rights under Article 6 of the

Convention. Her right to be heard was violated by this one-sided

measure, in particular because the information given by the Housing

Office was not correct.  It was limited to a statement that the

construction of the underground railway had been completed, but the

applicant had in fact claimed that nuisance was emanating from the

operation of the underground railway and not the construction work.

She had also offered evidence to this effect and therefore it is

likely that another decision would have been taken if she had been

heard.

As regards the criminal proceedings underlying the second search, the

applicant submits that there was no sufficient suspicion of a criminal

act.  Apart from that the search was also unjustified because of the

long period of time which elapsed between the search warrant and its

execution during which no judicial supervision of the measures taken

by the authorities took place.  The fact that the accused had earlier

lived in the applicant's house did not justify execution of the search

warrant after an essential change of circumstances.  In this context

it is particularly important that the ownership right in the house was

ascribed to the applicant in the land register in May 1984.  The

accused had in the meantime moved out and the search warrant against

him in fact also referred to his correct address at a different place.

On Article 13 of the Convention

The applicant contests the Government's interpretation of Article 13

according to which an effective domestic remedy under this

provision must only be granted in the area of acts of the

administration.  The text of Article 13 makes no distinction

between administrative and judicial acts and the only relevant

criterion is that there must be an effective remedy.

If acts of the judiciary were excluded from the scope of Article 13,

it would be deprived of any meaning in a case like the

present one. The Convention organs have already stated that an

effective domestic remedy must be given against search warrants if the

person concerned has not been previously heard.  For this reason, the

search warrants themselves cannot be seen as effective domestic

remedies in the present case because on no previous occasion had the

applicant been heard.

If there is no hearing, the person concerned has no possibility of

influencing the decision which thus is based on the unilateral

submissions of the other party.  In the present case these submissions

were incorrect or incomplete.  In particular regarding the first

search the authorities had failed to submit to the court the statement

of the police station that the house was indeed occupied and the

applicant had not been heard on the nuisance emanating from the

underground railway.

In any event, it follows from a global consideration of the Convention

that the aim should be the prevention of violations of fundamental

rights rather than their redress after they have actually occurred.

Seen in this light, a hearing of the person concerned before the

search is carried out would be a more effective remedy.

In the applicant's view only a remedy which leads to a thorough

examination of complaints raised on the basis of fundamental

principles of democracy can be considered as effective.  The remedies

taken by the applicant after the searches did not fulfil these

criteria.  Neither the Regional Court, nor the Federal Constitutional

Court examined the applicant's complaints thoroughly and on the basis

of fundamental democratic principles.  In particular, they failed to

consider the danger of repetition alleged by the applicant in her

submissions, referring to a statement of the Housing Office which had

in fact announced further controls.  The danger of repetition was

indeed recognised by the Frankfurt Court of Appeal in its decision of

1 June 1984, but the Regional Court and the Federal Constitutional

Court denied it.  There were, therefore, divergent decisions of the

competent courts on this important issue, but in effect all courts

declared the applicant's complaints inadmissible.  The Federal

Constitutional Court did not sufficiently deal with the facts nor with

the divergence of opinion between the above courts.

The applicant submits that the lawfulness of the search was in essence

confirmed on the ground that the applicant had refused access to her

property and that the Housing Office had made certain allegations

against her that her house was not used for residential purposes.

Despite the applicant's submissions to the contrary and the evidence

submitted by her, in particular the statement of the police, this

suspicion of a regulatory offence was confirmed.  The applicant

submits that the sources of the Housing Office's information were not

disclosed to her and that she was not granted access to the file and

therefore could not oppose the concrete allegations made against her.

In her view the assessment of the evidence in this way was contrary to

the requirements of Article 6 of the Convention and at the

same time the remedies must be deemed as ineffective for the purposes

of Article 13.

The applicant further considers that the aim of the search was to

establish that the residential premises were unoccupied.  Therefore,

there could not be any danger that she would remove evidence from

these premises as they were presumed to be empty.  A hearing could

have been granted at short notice and it would have been practically

impossible for her to change the condition of the property completely

in the short time available.

The applicant also challenges the underlying legislation.  She

contests that at the relevant time there was in fact a shortage of

residential accommodation in the Federal Republic of Germany in

general, and in Frankfurt in particular.  In support of this

submission she has submitted several pieces of evidence including a

statement of the competent municipal councillor and press reports.

This material had been laid before the Federal Constitutional Court

and she also declared that she could submit further evidence for the

period before 1983.  However, this evidence was not taken into

account.

As regards the second search, the Federal Constitutional Court's

decision was clearly based on the principle of lack of legal interest

because the Regional Court's decision based on this principle was

fully confirmed.  As the important change of circumstances between the

issuing of the search warrant and its execution was not taken into

account, it is not understandable why the Federal Constitutional Court

came to the conclusion that there had been no unreasonable, arbitrary

considerations.  The factual assumptions in these decisions were

wrong, and the applicant was unable to obtain a control as to whether

the facts originally assumed did still exist.  Therefore, the

applicants' remedies were not considered with the required care and

were ineffective also for this reason.

On Article 8 of the Convention and Article 1 of Protocol No. 1

The applicant submits that she had a personal focus of life coming

within her private sphere at the property searched.  The Government's

argument that there was no home within the meaning of Article 8

para. 1 of the Convention overlooks that a home does not

only exist where a person has his or her main residence.  It is lawful

to have several places of residence and each residence counts within

the private sphere and is protected by Article 8 para. 1.

It is correct that the applicant's main residence reported to the

authorities was elsewhere and that no other residence had been

reported.  However, in view of the existence of exemptions from the

duty to report, this does not prove that she did not actually have a

residence in the house in question.  The correspondence with the

applicant was in part addressed to her at this house already before

14 February 1984.  If nobody else was reported to the police as living at

this house, this again does not prove that nobody lived there.

Section 25 of the Hessian Act on the duty to report one's residence

(Meldegesetz) allows a person to live temporarily at a certain address

without reporting.  This applies if a person does not live at the same

address for more than two months even if there are several such

periods during a year.

The applicant also observes that the Federal Constitutional Court

confirmed the constitutionality of Article 6 of the Rent Law

Improvement Act only in so far as it applied to residential premises

not used for the purposes of the owner.  In its decision of 4 February

1975 quoted by the Government (BVerfGE 38, 348, 365) the court

expressly stated this and added that the owner has in principle the

right to determine himself how much room he will use for his own

residential purposes, because this does not affect the designation of

the object as serving residential purposes.  To live in certain

premises only from time to time is perfectly sufficient to make those

premises a home within the meaning of Article 8 para. 1 of the Convention.

The applicant submits that the offence stipulated in Article 6 of the

Rent Law Improvement Act is not failure to report to the police, but

failure to use the premises for residential purposes.  The applicant

maintained throughout the proceedings that she was exempted from a

duty to report and that the house was in fact inhabited.  This was

also confirmed by the statement from the police station situated

across the street.  The fact that the house was unfit for permanent

habitation because of the noise from the underground railway did not

exclude that it was possible to live there from time to time.  The

finding in the memorandum on the search that there was no water and

electricity supply does not prove anything because this memorandum was

in the applicant's opinion prepared in an unlawful manner, in

particular it was not signed by all parties including the applicant

and therefore section 11 of the Hessian Administrative Execution Act

(Verwaltungsvollstreckungsgesetz) was violated.  The statement that

the rooms were used exclusively for storage purposes is also

incorrect.  The applicant submits that some of the photos taken at the

search show that there were in fact sleeping and washing facilities

and, in so far as the furniture was not in its place, this can be

explained by the fact that construction work had been undertaken and

the furniture temporarily removed from its normal place.  Also during

the time of repair work, residential premises must in principle be

regarded as a home and are not deprived of the protection of

Article 8.

In the applicant's view, the Government's statements according to

which there was no home are based on findings which do not correspond

to the true facts.  Several legal provisions were disregarded in this

respect and the non-observance of these provisions in her case

constitutes discrimination contrary to Article 14 of the Convention.

As to the necessity of the first search under Article 8 para. 2

the applicant submits that it cannot be justified by the

Federal Constitutional Court's decision dating back ten years which

confirmed the constitutionality of the Rent Law Improvement Act.  The

necessity of such a measure must be determined at the relevant time.

In the applicant's submission a housing shortage did not exist when

the proceedings for offences under the above Act were taken against

her. In fact, the housing shortage had not even existed at the time of

the Federal Constitutional Court's above decision, as appears from

press reports which show that already then there was a surplus of

residential accommodation available on the market.  The fact that the

Rent Law Improvement Act is nevertheless applied up to the present

date violates in the applicant's opinion Article 8 of the

Convention, Article 1 of Protocol No. 1 also Articles 17

and 18 of the Convention because of lack of proportionality.

As regards the second search, the applicant contests the Government's

argument that she was no victim.  Her rights under Article 8

of the Convention and Article 1 of Protocol No. 1 were clearly

interfered with, and therefore she can claim to be a victim.

The applicant, therefore, fully maintains her application.

THE LAW

1.      The applicant complains that two searches carried out at her

house in Frankfurt violated her rights under Article 8 (Art. 8)

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

invokes Articles 14 (Art. 14), 17 (Art. 17) and 18 (Art. 18) of the

Convention in this respect.

The applicant further complains of the relevant proceedings, claiming

that her rights under Articles 6 (Art. 6) and 13 (Art. 13) of the

Convention were violated.

2.      The Commission first observes that it comes close to an abuse

of the right of petition (Article 27 para. 2 of the Convention)

(Art. 27-2) that the applicant failed to inform it of the fact that

she had actually lodged complaints of unconstitutionality against both

search warrants in question while pretending at the same time that

such complaints did not constitute effective remedies and therefore

need not be exhausted. The Commission was thereby misled to assume

that no complaints of unconstitutionality had been lodged, and it

communicated the case to the respondent Government on this erroneous

basis.  The applicant was slow in providing the relevant information

even after the communication of the case and this led to unnecessary

delays in the proceedings.

Although with some hesitation, the Commission assumes in the

applicant's favour that she misunderstood the Commission's procedure

and the importance of the information withheld, and that she thus did

not deliberately cause the Commission's above error.

3.      The applicant first complains that the searches carried out in

her house were not justified and infringed her rights under Article 8

(Art. 8) of the Convention.  Insofar as relevant to the present case this

provision ensures to everyone the right to respect for his private

life and home.  The Government submit that the searches concerned

unoccupied premises which neither constituted the applicant's home nor

a focal point of her private life.  The applicant submits that the

factual situation was different.

There is no need to decide in this case whether and to what extent the

protection against searches enshrined in Article 8 (Art. 8) of the

Convention is applicable to other than residential premises

(cf. No. 8689/79, Dec. 9.12.80, unpublished, concerning the search of

a bank, No. 9614/81, Dec. 12.10.83, D.R. 34, p.119 concerning the search

of a lawyer's office, and No. 10461/83, Chappell v. United Kingdom,

Dec. 14.3.85, to be published, concerning the search of commercial

premises).  At any rate these measures were justified under Article 8

para. 2 (Art. 8-2) as being "in accordance with the law", as pursuing a

legitimate aim covered by this provision, and as being "necessary in a

democratic society" for the attainment of that aim.

a)      As regards the first search, the applicant contests its

lawfulness mainly by challenging the legislation underlying the

regulatory proceedings in the context of which the search was ordered.

However, it is not these regulatory proceedings as such which are at

issue here, but only the search ordered in connection with them.  In

this respect it is sufficient that the Rent Law Improvement Act

provides for the regulatory offence of leaving residential premises

unoccupied, and that there was a reasonable suspicion of the applicant

having committed that offence.  Moreover, in view of the applicant's

failure to provide the necessary information to the competent

authorities, the conditions for issuing a search warrant against her,

under Section 46 (1) of the Regulatory Offences Act read in

conjunction with Section 102 of the Code of Criminal Procedure, were

clearly met.  This has been confirmed by several decisions of the

domestic courts.  The search was therefore "in accordance with the

law".

Regulatory proceedings must be considered as criminal proceedings for

the purposes of the Convention (cf. Eur. Court H.R. Öztürk judgment

of 21 February 1984, Series A no. 73), and therefore the search also

pursued a legitimate aim covered by Article 8 para. 2 (Art. 8-2)

of the Convention, namely the "prevention of crime".  It can be left

open whether, in view of the general purpose of the underlying

legislation, it was also justified "in the interest ... of the

economic well-being of the country".

Finally, the Commission considers that the search in question could

reasonably be regarded as proportionate in the circumstances and thus

as "necessary in a democratic society".

b)      As regards the second search, the applicant submits that it

was unlawful because it concerned the previous owner of the house who

allegedly no longer lived there;  moreover, that the relevant search

warrant had been issued almost a year before it was executed, at a

time when the property right had not yet been ascribed to her;

finally, that  there was no sufficent suspicion of a criminal offence.

The Commission finds, however, that this search had a legal basis in

the relevant provisions of the Code of Criminal Procedure (Sections

102 and 103) and that it was therefore "in accordance with the law" as

required by Article 8 para. 2 (Art. 8-2) of the Convention.  It

further served a legitimate purpose, namely the "prevention of crime".

The Commission considers that the limits of the principle of

proportionality were not overstepped, and that this search can

therefore also be considered as "necessary in a democratic society".

It follows that, concerning both searches, the applicant's complaints

under Article 8 (Art. 8) of the Convention are manifestly ill-founded

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

Convention.

4.      The applicant further invokes Article 1 of Protocol No. 1

(P1-1), claiming that her right to the peaceful enjoyment of her

possessions was unjustifiably interfered with.

a)      Insofar as this complaint concerns the interference by the

searches with the use of the applicant's property, it must be recalled

that the measures in question served the purpose of preventing

regulatory or criminal offences and they thus were "in accordance with

the general interest".  As regards the lawfulness and proportionality

of these measures, the Commission refers to its above findings under

Article 8 (Art. 8) of the Convention.  It follows that the measures

were fully covered by Article 1 para. 2 of Protocol No. 1 (P1-1-2),

insofar as any separate issue could arise under this provision.

b)      Insofar as the applicant complains in addition that the

legislation underlying the first search, i.e. the Rent Law Improvement

Act and its implementing provisions for the City of Frankfurt,

contravenes Article 1 of the Protocol (P1-1), the Commission considers

that the applicant has not exhausted domestic remedies in conformity

with the requirements of Article 26 (Art. 26) of the Convention.  In

fact she has not informed the Commission of the outcome of the

regulatory proceedings in question nor of any measures, apart from the

search, which were taken against her on the basis of this legislation.

Moreover, even assuming that the applicant may be considered as having

exhausted domestic remedies by alluding to this problem in her appeals

concerning the search procedure, the complaint would still have to be

rejected as in any case the legislation in question contains a

regulation "to control the use of property in accordance with the

general interest" and is thus covered by Article 1 para. 2 of Protocol

No. 1 (P1-1-2).

c)      Insofar as the applicant finally complains of the seizure of

her typewriters at the second search, she can no longer claim to be a

victim of a violation of her rights under Article 1 of Protocol No. 1

(P1-1) as the said typewriters were returned to her on

24 September 1984. In any event the temporary removal of the

typewriters for the purpose of securing evidence in a criminal

procedure is again covered by Article 1 para. 2 (P1-1-2).

It follows that the applicant's complaints under Article 1 of Protocol

No. 1 (P1-1) are manifestly ill-founded within the meaning of Article 27

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

5.      The applicant has further invoked Articles 14 (Art. 14),

17 (Art. 17) and 18 (Art. 18) of the Convention.  However, she has

failed to show that she was treated differently from any other person

or group of persons in a similar situation, nor has it been

established that the measures taken against her were used for any

purposes extraneous to the relevant proceedings or for the destruction

or inadmissible limitation of her human rights. These complaints are

therefore also manifestly ill-founded.

6.      The applicant's procedural complaints concern exclusively the

search procedure as such, and not the underlying regulatory or

criminal proceedings, nor the proceedings concerning the seizure

effected at the second search.  In these circumstances there is no

room to apply Article 6 (Art. 6) of the Convention which the applicant

invokes regarding the refusal of a hearing prior to the execution of

the searches.  The search proceedings as such did not concern the

determination of the applicant's civil rights and obligations, nor of

a criminal charge against her.  It follows that the applicant's

procedural complaint under Article 6 (Art. 6) is ratione materiae

incompatible with the provisions of the Convention and must be

rejected under Article 27 para. 2 (Art. 27-2).

7.      The remaining procedural complaint is under Article 13

(Art. 13) of the Convention.  According to this provision everyone

whose rights and freedoms 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.  The applicant claims that she has had

no effective remedy either before the searches were carried out or

afterwards.

The Commission does not find it necessary to determine whether a

previous judicial determination of the justification of the searches

in question without an application or hearing of the applicant could

fulfil the requirements of Article 13 (Art. 13) of the Convention as

claimed by the Government.  In the present case the search warrants,

as executed, were in any event reviewed in subsequent court

proceedings.

The Commission notes that the applicant in fact appealed against the

searches after they had been carried out, and her appeals were each

time considered by the District Court, the Regional Court and finally

the Federal Constitutional Court.  It is true that in this context

reference was made to the case-law of the Federal Constitutional Court

according to which the legal interest in reviewing a search which has

already taken place is limited to certain circumstances.  An issue

could indeed arise under Article 13 (Art. 13) if this case-law had

been applied in such a way as to exclude any examination of the

lawfulness and substantive justification of the searches in question

in the light of the specific complaints raised by the applicant.

However, it clearly appears from the relevant court decisions that the

merits of the applicant's complaints were also considered in both

cases.  In particular the Federal Constitutional Court dealt with the

question whether the applicant's constitutional rights had been

violated, and there is no indication that the applicant's arguments in

this respect were disregarded.

It follows that the applicant did in fact have effective domestic

remedies in which she could raise her claims concerning the two

searches, and her complaints under Article 13 (Art. 13) of the

Convention are therefore manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission                 President of the Commission

       (H.C. KRÜGER)                              (C.A. NØRGAARD)