Lexploria

The European Commission of Human Rights sitting in private on

13 March 1986 the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 April 1984 by R.

D. against the Federal Republic of Germany and registered on 2 May

1984 under file N° 10928/84;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure of the

Commission;

- the decision of 7 March 1985 to communicate the application for

observations on admissibility and merits;

- the respondent Government's observations dated 18 June 1985 and

the applicant's observations in reply dated 13 September 1985;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen and practises as a lawyer in Berlin.

A. The measure taken against the applicant

On 28 October 1983 he was chosen as defence counsel by one D H who had

been arrested shortly before on the suspicion of dealing with

counterfeit money. On 29 October 1983 the applicant informed the

District Court (Amtsgericht) Tiergarten in Berlin accordingly. This

information was received by the court on 1 November 1983.

On 31 October 1983 a woman called the applicant telling him she was a

friend of D H's and had some of his belongings in her possession which

she did not want to hand out to D H's wife. The applicant agreed to

accept the objects in question, inter alia, a locked portfolio, the

contents of which were unknown to the applicant. He signed a receipt.

On 2 November 1983 the District Court (Amtsgericht) in Tiergarten in

Berlin issued a search and seizure order against the applicant at the

Public Prosecutor's request. It is stated in the order that D H was

suspected of having produced counterfeit money of about 3 million DM

and that there were reasons to believe the search and seizure would

procure evidence against the suspect D H, namely a portfolio which was

deposited by D H's girlfriend and presumably contained printing plates

used to produce counterfeit money. It is further stated in the order

that a search and seizure could be avoided if the object was handed

out voluntarily.

On the same day the applicant was visited by the Public Prosecutor who

was accompanied by a police officer. According to a report prepared

by the police officer the applicant first argued that a seizure was

excluded by Section 97 of the Code on Criminal Procedure (StPO) (see

below, "The Legal Situation"). In reply he was informed that Section

97 StPO did not apply as there was reason to believe that the

portfolio contained objects produced in connection with a criminal

offence. He eventually agreed to hand out the portfolio. As he did

not know the combination of the portfolio's combination lock the

portfolio had to be opened by force. It turned out that the portfolio

contained documents and other objects which, at first sight, were not

connected with the offence of counterfeiting money. The police

officer concluded his report that in view of the applicant's

opposition the seizure needed to be confirmed by the judge, only then

could the contents of the portfolio be examined in detail.

The applicant's appeal (Beschwerde) against the search and seizure

order of November 1983 was rejected on 17 November 1983 as being

inadmissible, on the ground that the order complained of had been

executed and therefore the applicant's appeal was without object.

The applicant also raised objections (Widerspruch) against the seizure

of the portfolio and of a plastic bag with documents belonging to D H.

The Public Prosecution however did not release the objects but sent

them to the District Court requesting that the applicant's motion be

rejected. The Prosecution considered that the documents seized should

be examined in order to find out whether they contained indications

that D H had recently travelled to the Isle of Jersey where

counterfeit money had been issued. Eventually the seized objects were

released on 24 November 1983.

The applicant also lodged a hierarchical complaint (Dienst-

aufsichtsbeschwerde) against the Public Prosecutor who had requested

the search and seizure order against him. On 30 March 1984 the Public

Prosecutor's Office at the Court of Appeal (Kammergericht) informed

him that his complaint was considered to be unfounded. It is pointed

out in this decision that at his arrest D H was found to be in

possession of a film negative which turned out to have been used for

the production of the printing plates with which 1,600,000 DM fake

money had been printed. In these circumstances the Prosecutor dealing

with the case had reasons to believe that D H, who admitted to be

hand-compositor by profession, was also in possession of the printing

plates.

B. The criminal proceedings against D H

On 27 October 1983 the police effected a search and discovered

counterfeit money in the shop and apartment of one U. The evidence

found led to another search in the apartment of another suspect, A.

Near this apartment two persons being in the possession of counterfeit

money were arrested. Further counterfeit money as well as forged

Yougoslave petrol tickets and material for the production of forged

papers was found in the apartment where the police likewise found and

arrested D H.

On 2 November 1983 the police received an anonymous phone call

informing them that objects belonging to D H had been deposited by his

girlfriend with the applicant.

The Public Prosecutor dealing with the case was informed accordingly.

Suspecting that the portfolio contained printing plates for

counterfeit money the Public Prosecutor immediately made a request for

a search and seizure in the applicant's office.

In the course of the investigation proceedings it was found that the

applicant had travelled in September 1983 to the Isle of Jersey

together with a further suspect, who carried counterfeit money, which

was stolen from him on the island and issued there. However no

sufficient evidence was collected against D H of having known of or

participated in the counterfeiting offence.

The arrest warrant against D H was set aside on 7 December 1983 and

the proceedings against him were eventually discontinued.

C. The legal situation

According to Section 94 (1) of the Code on Criminal Procedure (StPO)

objects, which may be of importance as evidence, can be seized or

otherwise secured.

("(1) Gegenstände, die als Beweismittel für die Untersuchung von

Bedeutung sein können, sind in Verwahrung zu nehmen oder in anderer

Weise sicherzustellen.")

Under Section 95 (1) StPO a person who has such an object in his

possession is obliged to show it or to hand it over if so requested.

("(1) Wer einen Gegenstand der vorbezeichneten Art in seinem

Gewahrsam hat, ist verpflichter, ihn auf Erfordern vorzulegen und

auszuliefern.")

According to Section 97 (1) N°s 1 - 3, correspondence exchanged

between the suspect and his defence counsel, as well as notes taken by

defence counsel on information received from the suspect he is

defending and other objects, to which the right to refuse evidence

under Section 53 (1) N° 2 extends, may not be seized.

(§ 97 (1) Der Beschlagnahme unterliegen nicht

1. schriftliche Mitteilungen zwischen dem Beschuldigten und den

Personen, die nach § 52 oder 53 (1) N° 1 - 3 das Zeugnis verweigern

dürfen;

2. Aufzeichnungen, welche die in § 53 Abs 1 Nr 1 bis 3 a Genannten

über die ihnen vom Beschuldigten anvertrauten Mitteilungen oder über

andere Umstände gemacht haben, auf die sich das

Zeugnisverweigerungsrecht erstreckt;

3. andere Gegenstände einschliesslich der ärztlichen

Untersuchungsbefunde, auf die sich das Zeugnisver- weigerungsrecht der

in § 53 Abs 1 Nr 1 bis 3 a Genannten erstreckt.")

According to Section 53 (1) N° 2 StPO a defence counsel can refuse to

give evidence on information received in connection with the exercise

of the suspect's defence from the suspect himself or otherwise.

(§ 53 Abs 1: "Zur Verweigerung des Zeugnisses sind ferner berechtigt:

1. ....

2. Verteidiger des Beschuldigten über das, was ihnen in dieser

Eigenschaft anvertraut worden oder bekanntgeworden ist.")

Search and seizure orders against other persons than the suspect are,

according to Section 103 (1) StPO admitted only for the purpose of

arresting the suspect or of obtaining evidence concerning a criminal

offence and if there are indications that the person or the object

wanted can be found in the locality where the search is supposed to

take place.

("1. Bei anderen Personen sind Durchsuchungen nur zur Ergreifung des

Beschuldigten oder zur Verfolgung von Spuren einer Sraftat oder zur

Beschlagnahme bestimmter Gegenstände und nur dann zulässig, wenn

Tatsachen vorliegen, aus denen zu schliessen ist, dass die gesuchte

Person, Spur oder Sache sich in den zu durchsuchenden Räumen

befindet.")

COMPLAINTS

The applicant complains of the search and seizure order against him.

He considers that the measure was meant to impair the rights of the

defence in the proceedings against D H. He furthermore considers that

the measure violated Art 8 of the Convention because it was

disproportionate to the aim pursued. The court, so he argues, should

first have requested him, in accordance with Section 95 StPO, to hand

over the portfolio voluntarily.

PROCEEDINGS BEFORE THE COMMISSION

The Commission decided on 7 March 1985 to communicate the application

to the respondent Government for observations on admissibility and

merits. The observations dated 18 June 1985 were received on 27 June

1985 and the applicant's reply on 17 September 1985.

SUMMARY OF THE PARTIES' OBSERVATIONS

A. The respondent Government

Pointing out that the applicant only complains of the search and

seizure order of 2 November 1983 and not of the seizure

(Sicherstellung) of D H's belongings, ie a portfolio and a plastic

bag, the respondent Government admit that the applicant has exhausted

domestic remedies with regard to his complaint. They consider however

that the complaint is clearly ill-founded. First it was doubtful

whether the right guaranteed by Art 8 (1) (Art. 8-1) extended to the

office of a lawyer.

If however the scope of Art 8 (Art. 8) was larger there was

nevertheless no interference with the right guaranteed because the

search and seizure order expressly mentioned that a search could be

avoided if the objects wanted were handed over voluntarily. The

applicant chose this possibility and consequently no search had to be

carried out.

In any event the search and seizure order was justified under

Art 8 (2) (Art. 8-2) of the Convention for the prevention of crime in

view of the following circumstances:

- D H was found on his arrest to be in possession of a film negative

having served to produce counterfeit money;

- shortly before his arrest he had been in Jersey where counterfeit

money was issued;

- he was an experienced printer.

The ojects searched for were not, under German law, exempt from search

and seizure because on the one hand they had not been entrusted to the

applicant for the purposes of D H's defence and on the other hand

there was justified suspicion that they contained instrumenta et

producta sceleris.

The measure was not disproportionate as it served the interests of the

proper administration of justice. The search order expressly

mentioned the portfolio and thereby it was made sure that the search

did not extend and could not be extended to documents being in the

applicant's files and serving the defence of D H.

B. The applicant

The applicant argues that the protection of Art 8 (1) (Art. 8-1) of

the Convention extends to offices. In any event he points out that

the apartment in which he runs his office is at the same time serving

as his home.

He submits that although the objects in question had not been given to

him for the purposes of the defence they had nevertheless been

entrusted to him in his capacity as defence counsel and were therefore

exempted from search and seizure.

In any event as he did not have time until 2 November 1983 to examine

the contents of the portfolio and the plastic bag it could not have

been excluded at the moment of the search that the documents contained

therein were needed for the purposes of the defence. Furthermore he

alleges that the police knew that the portfolio had for several weeks

before D H's arrest been in the possession of a third person and could

not therefore contain printing plates used for the production of

counterfeit money.

He denies that D H held a negative film in his hand when he was

arrested. On the other hand, it was true that for a short while D H

carried a bag with counterfeit money without, however, being aware of

this fact. Therefore the anonymous phone call informing the police of

the deposit of certain of D H's belongings at the applicant's office

in no way justified believing the objects in question contained

printing plates used for producing counterfeit money.

In any event the measure complained of was disproportionate as it

mainly served to intimidate and discredit the defence. The police

could have avoided the search and seizure order simply by asking D H,

who was in prison, whether he agreed to have the objects in question

inspected.

THE LAW

The applicant has complained of a search and seizure order issued

against him on 2 November 1983 in connection with investigation

proceedings against one D H, who had been arrested on the suspicion of

having participated in counterfeiting money and who had chosen the

applicant as his defence counsel.

The Commission has mainly considered this complaint under Art 8 of the

Convention (Art. 8) which guarantees, in its first paragraph, inter

alia, the right to respect for everyone's home.

The respondent Government submitted that the search and seizure order

concerned the applicant's office and not his home and that in any

event it was not executed as it left the applicant the possibility to

hand out D H's belongings voluntarily which he chose to do.

The Commission does not have to determine whether the protection of

the home as afforded by Art 8 (1) (Art. 8-1) extends generally to

offices. It considers that a search and seizure order given against a

person who uncontestedly carries on his professional activities at

his home would interfere with that person's right to respect for his

home. It is true that the search and seizure order against the

applicant did not have to be executed as it left the applicant the

possibility to hand over the objects wanted by the prosecution

authorities voluntarily. However, the Commission considers that the

search and seizure order nevertheless amounted to an interference with

the applicant's right under Art 8 (1) (Art. 8-1) as it left him

practically no other choice than to hand over the objects he kept at

his apartment.

The interference complained of is, however, justified under para 2 of

Art 8 (Art. 8). The search and seizure order was based on Sections 94

et seq of the German Code on Criminal Procedure (StPO) which, inter

alia, forbids search and seizure with regard to documents handed over

by a suspect to his defence counsel for the purposes of the defence.

In the present case it has not been alleged that the objects deposited

with the applicant by a friend of his client D H were meant to serve

for the purposes of the defence. In fact the applicant accepted them

in a rather careless manner, he did not even inspect the portfolio and

plastic bag to find out what they contained. In these circumstances

his argument cannot be accepted that the objects might have contained

documents which could have served for the purposes of the defence. In

any event it has not been alleged that any such documents turned out

to have been among the material handed over by the applicant to the

Public Prosecutor. On the other hand, it cannot, in the circumstances

of the case, be found that the prosecuting authorities arbitrarily

assumed the portfolio could contain the printing plates which had been

used for the production of counterfeit money. Counterfeit money was

in fact found at various places, inter alia, in the apartment where D

H, a printer by profession, was arrested and in Jersey where D H had

spent holidays. It follows that the search and seizure order was

issued in accordance with the law for the purpose of preventing crime.

It was also necessary in a democratic society and proportionate to the

legitimate aim pursued. In this context the Commission has on the one

hand particular regard to the fact that the applicant was D H's chosen

defence counsel. On the other hand, however, it has to be taken into

consideration that the prosecuting authorities had justified reasons

to believe the portfolio deposited with the applicant contained

objects serving to produce counterfeit money. It further has to be

noted in this context that the applicant was given the possibility to

avoid a search in his office by handing over D H's belongings

voluntarily. Thus the danger was excluded that in connection with a

search the prosecution took cognisance of material in the applicant's

office relating to his activity as a defence counsel in D H's matter

or other cases.

The Commission finds in these circumstances that the applicant's

complaint does not disclose any appearance of a violation of the

rights and freedoms set out in the Convention and in particular in

Art 8 (Art. 8).

It follows that the application is manifestly ill-founded within the

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

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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D. v. THE FEDERAL REPUBLIC OF GERMANY

D. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI