Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12474/86

by Roland KANTHAK

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 11 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

Mrs. J. LIDDY

Mr. H.C. KRÜGER 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 9 July 1985

by Roland KANTHAK against the Federal Republic of Germany and registered

on 15 October 1986 under file No. 12474/86;

Having regard to

- the first report of May 1987 provided for in Rule 40 of the

Rules of Procedure of the Commission;

- the Commission's decision of 13 July 1987 to bring the

application to the notice of the respondent Government

and to invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

10 November 1987 and the observations in reply submitted

by the applicant on 30 December 1987.

- the second report of February 1988 provided for in Rule 40 of the

Rules of Procedure of the Commission;

- the Commission's decision of 9 March 1988 to invite the

parties to a hearing on the admissibility and merits of the

application;

- the submissions made by the parties at the hearing on

11 October 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, which do not appear to be in dispute

between the parties, may be summarised as follows.

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

in Berlin. Before the Commission he is represented by Mr. G. Schantl,

a lawyer practising at Ettlingen.

In the early morning of 22 March 1982 the applicant arrived

with a companion in his camping car in Karlsruhe. He parked the

camping car on a public road near a synagogue and spent the night

there. At about 02.00 hours a patrol of the Karlsruhe Police, which

had been informed about a camping car with Berlin registration plates

parking near the synagogue, found the camping car with a radio set in

operation in the driver's cabin and the rear windows covered with

curtains. Upon the policemen's request for an identity check the

applicant opened a small window and handed his own and his companion's

passports over. About 09.30 hours the police effected a further

identity check as it considered that the first one had not

sufficiently clarified the occupants' identities. About 10.00 hours

the Karlsruhe Police ordered the search of the camping car in view of

a possible risk for the synagogue near by. The camping car was then

searched.

On 2 April 1982 the Karlsruhe Police, upon the applicant's

appeal (Widerspruch) against the search of his camping car, informed

him that he had to appeal to the administrative courts. On

13 September 1982 the applicant withdrew his appeal.

On 7 October 1982 the applicant instituted proceedings before

the Karlsruhe Administrative Court (Verwaltungsgericht) to have the

search of his camping car reviewed. He submitted in particular that

he had a legal interest in such a review on the grounds that the

search had depreciated him and that there was a danger of repetition.

Moreover he alleged that the relevant provisions of the Baden

Wuerttemberg Police Act (Polizeigesetz) had not been complied with in

his case as there were no persons in his camping car who could have

been arrested. Furthermore, there was no danger ahead, consequently,

a search warrant issued by a court would have been necessary.

S. 25 paras. 2 and 5 of the Police Act provide inter alia that

the police may search a place of residence if there are facts

justifying the assumption that someone in the place of residence may

be taken into custody or something in the place of residence may be

confiscated or seized. If there is danger ahead, the search may be

carried out without a court order.

On 24 February 1983 the Karlsruhe Administrative Court

(Verwaltungsgericht) declared the applicant's complaint of the alleged

unlawfulness of the search inadmissible. The Court found that the

applicant requested the judicial review of an administrative

measure which had already been executed (Fortsetzungsfeststellungs-

klage). The applicant's withdrawal of his administrative appeal did

not affect this request as it could not be interpreted as a general

waiver of his right to appeal. However, the Court considered that the

applicant lacked a legal interest (schutzwürdiges Interesse) to have

the search reviewed. It found that the applicant had not sufficiently

substantiated a danger of repetition. The Court, in this respect, had

in particular regard to the fact that it was generally forbidden to

spend the night on public roads in Karlsruhe. Furthermore it

considered that there was no necessity to rehabilitate the applicant,

as the search did not depreciate him. The search was only meant to

enable the police to identify all occupants of the applicant's camping

car.

On 27 June 1984 the Baden Wuerttemberg Administrative Court of

Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal

(Berufung). The Court confirmed the reasoning of the Administrative

Court that the applicant lacked a legal interest to have the

lawfulness of the search reviewed. The Court referred in particular

to a judgment of the Federal Administrative Court (Bundesverwaltungs-

gericht) of 21 November 1980 according to which a legal interest of a

non-pecuniary nature might, in cases of an alleged interference with

basic rights, follow from the right to an effective remedy under S. 19

para. 4 of the Basic Law (Grundgesetz). However, the Court of Appeal

found that also in such circumstances the legal interest could not be

assumed solely on the basis of a possible interference with the

applicant's rights under the Basic Law if there were no consequent

effects in future. S. 19 para. 4 of the Basic Law did not provide for

a right to have abstract questions of law clarified. The Court

considered that the alleged interference with the applicant's right to

respect for his home under S. 13 of the Basic Law did not have any

factual consequences in future. The purely theoretical possibility

that the applicant might stay again with his camping car in Karlsruhe

and be subjected to another search did not amount to a concrete danger

of repetition. Finally, the Court held that the regulation of the

right of access to court such as to exclude a decision on the merits

in cases where the claimant lacks a special legal interest in such a

decision did not impair the right to an effective remedy, as

guaranteed by S. 19 para. 4 of the Basic Law as well as by Article 13

of the Convention. The Court did not grant leave to appeal on points

of law (Revision).

On 14 August 1984 the applicant lodged a request for leave to

appeal on points of law (Nichtzulassungsbeschwerde) to the Federal

Administrative Court. He submitted in particular that his case was of

fundamental importance as regards the question whether or not he had

an unconditional right to have the alleged violation of his basic

rights established after the measure complained of was completed. He

also referred, in this respect, to Articles 8 and 13 of the

Convention. Furthermore he submitted that the decision of the Court

of Appeal deviated from the decision of the Federal Administrative

Court of 21 November 1980.

On 26 November 1984 the Federal Administrative Court dismissed

the applicant's request. The Court found that the conditions under S.

132 para. 2 of the German Code of Administrative Court Procedure

(Verwaltungsgerichtsordnung) were not met. S. 132 para. 2 provides

that leave to appeal is to be granted (1) if the matter in dispute is

of fundamental importance; or (2) if the judgment deviates from a

decision of the Federal Administrative Court and is based upon that

deviation; or (3) if, in the cases of an alleged procedural defect,

the judgment might be based upon that defect. The Court considered in

particular that the applicant's case was not fundamentally important

on the ground that there were no decisive legal issues requiring

clarification in the interests of uniformity or development of law.

It recalled, in this respect, its constant jurisprudence according to

which the special requirement of a legal interest to have the alleged

unlawfulness of administrative measures established was not

objectionable from a constitutional point of view. Furthermore, the

Court held that the applicant had not shown in what respect the

challenged judgment allegedly deviated from the earlier decision

referred to. It observed that the Court of Appeal based its

considerations upon the principles stated in that decision. The proper

application of those principles in the present case could not be

examined upon a request for leave to appeal.

On 22 April 1985 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Court found in particular that the

administrative courts' application of the procedural law could not be

objected from a constitutional point of view.

COMPLAINTS

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

Convention that the search of his camping car violated his right for

respect of his home. He considers that the notion of "home" covers a

camping car. He submits that the search was unlawful under German law

on the ground that it had been effected by the police without a search

warrant issued by a court. He alleges that the conditions for a

search without search warrant, i.e. in particular imminent danger,

were not met.

2. The applicant also complains under Article 13 in conjunction

with Article 8 para. 1 of the Convention that he had no effective

remedy before a German authority to have the allegedly unlawful search

of his camping car reviewed. He submits that the German

administrative courts declared his appeal inadmissible for lack of

legal interest without a decision on the merits as regards the search

complained of.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 July 1985 and registered

on 15 October 1986.

On 13 July 1987 the Commission decided to invite the

respondent Government to present observations on the admissibility and

merits of the application. The Government's observations were

submitted on 10 November 1987 and the observations in reply submitted

by the applicant on 30 December 1987.

On March 1988 the Commission decided to invite the parties to

a hearing on the admissibility and merits of the application.

At the hearing which was held on 11 October 1988 the parties

were represented as follows:

The Government:

Mr. Meyer-Ladewig Ministerialdirigent,

Federal Ministry of Justice, Agent

Mr. Wanner Staatsanwalt,

Federal Ministry of Justice, Adviser

Mr. Fuchs Kriminalrat,

Karlsruhe Police Office, Adviser

The applicant

Mr. Schantl Counsel.

SUBMISSIONS OF THE PARTIES

A. The Respondent Government

II. As to the complaint under Article 8 of the Convention

The Government consider that the applicant's camping car was

no "home" within the meaning of Article 8 of the Convention on the

ground that it did not serve any permanent residential purpose and was

not parked on a place where the applicant could lawfully spend the

night.

Furthermore the Government submit that the search would, in

any case, be justified under Article 8 para. 2 of the Convention. It

was lawful under S. 25 para. 2 subpara. 1(a) and 2 and para. 5 of the

Baden Wuerttemberg Police Act. The Government state that the applicant

and his companion caused suspicion having parked their camping car at

night on a public road near to a synagogue. Moreover, the search

served the aim of protecting public safety and, given the degree and

kind of suspicion, it was necessary and appropriate in a democratic

society.

III. As to the complaint under Article 13 in conjunction with

Article 8 of the Convention

The Government maintain that Article 13 of the Convention does

not prevent the Contracting States from having, in their legal

systems, procedural requirements such as a legal interest in having a

search which was already carried out reviewed. The Government consider

that no legal protection has to be granted in cases where the person

concerned only has a theoretical interest to have the lawfulness of a

measure which was already carried out reviewed.

Furthermore, the Government, referring to the judgments of

the European Court of Human Rights in the cases of Boyle and Rice

(judgment of 27 April 1988, Series A no. 131), and Plattform "Ärzte

für das Leben"(judgment of 21 June 1988, Series A no. 139), consider

that the applicant has no arguable claim to be a victim of a violation

of his right under Article 8 of the Convention on the ground that the

search did not unlawfully interfere with that right.

IV. Conclusion

The Government request the Commission to declare the

application inadmissible as being manifestly ill-founded

(Article 27 para. 2 of the Convention).

B. The Applicant

In the applicant's opinion Article 13 of the Convention

excludes that the right to an effective remedy depends upon a special

legal interest. Furthermore he maintains that the search of his

camping car without a search warrant issued by a court appeared to be

at least a prima facie violation of his right to respect for his home

under Article 8 para. 1 of the Convention and his complaint in this

respect had, therefore, to be considered as an arguable one within the

meaning of Article 13 of the Convention.

THE LAW

1. The applicant complains under Article 8 para. 1 (Art. 8-1) of

the Convention that the search of his camping car violated his right

to respect for his home. He considers in particular that the search

effected by the German police without court order was unlawful under

German law and could not, therefore, be justified under Article 8

para. 2 (Art. 8-2) of the Convention.

Article 8 (Art. 8) of the Convention provides, inter alia, that

everyone has the right to respect for his private life and his home,

and that 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 public

safety, for the prevention of disorder or crime, or for the protection

of the rights and freedoms.

The respondent Government contend that the applicant's camping

car was no home within the meaning of Article 8 para. 1 (Art. 8-1) of

the Convention. Furthermore, given the suspicion caused by the

applicant's camping car parked near a synagogue the search was, in any

event, justified under Article 8 para. 2 (Art. 8-2) of the Convention

as being lawful and necessary in a democratic society in the interests

of public safety.

The Commission need not decide whether the applicant's camping

car is to be regarded as the applicant's home within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention on the ground that any

interference, in this respect, with the applicant's right to respect

for his private life or home was justified under Article 8 para. 2

(Art. 8-2) of the Convention.

The Commission finds that the search of the applicant's

camping car was in accordance with the law for the purposes of Article

8 para. 2 (Art. 8-2) of the Convention.

The Commission, in this respect, notes in particular that the

search in question was based upon S. 25 paras. 2 and 5 of the Baden

Wuerttemberg Police Act according to which the police may search a

place of residence if there are facts justifying the assumption that

someone in the place of residence may be taken into custody, or

something be confiscated or seized. The search may be carried out

without court order in case of imminent danger, this being interpreted

as danger for the success of the search.

The Commission considers that it is not its task to interpret

German law as to the correct meaning of "imminent danger". In the

present case, the competent German authority have based their decision

to search the applicant's camping car without a court order on an

interpretation of the relevant legal provisions which does not appear

to be arbitrary.

Furthermore the search of the applicant's camping car can be

considered necessary in the interest of public safety and for the

protection of the rights and freedoms of others. The applicant had

his camping car parked on a public road near a synagogue and spent the

night there. The particular circumstances of his stay caused

considerable suspicion, and in the morning the German police

authorities reasonably assumed that immediate steps had to be taken in

order to investigate the matter and to avert any possible danger to

the synagogue nearby. The Commission considers that this interference

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

not appear disproportionate to the legitimate aim pursued.

It follows that the applicant's complaint under Article 8

(Art. 8) of the Convention is manifestly ill-founded within the

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

2. The applicant further complains under Article 13 (Art. 13) in

conjunction with Article 8 (Art. 8) of the Convention that he had no

effective remedy before a German authority to have the allegedly

unlawful search of his camping car reviewed.

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

whose rights and freedoms as set forth in this Convention are violated

shall have an effective remedy before a national authority.

The Commission observes that three German administrative

courts dealt with the present case without, however, examining the

merits. They considered that the applicant lacked a legal interest to

have his case determined. The Commission finds that an issue under

Article 13 (Art. 13) of the Convention could arise if the case-law of the

German courts according to which the legal interest in having a search

reviewed which was already carried out is applied in such a way as to

exclude any examination of the lawfulness and substantive justification

of the search in question (cf. No. 10949/84, Dec. 10.12.86, to be

published in D.R.). However, the Commission can leave this question

open on the ground that this complaint is anyway manifestly

ill-founded for the following reasons.

Article 13 (Art. 13) of the Convention is a substantive right

and its application does not depend on the existence of a breach of

another right or freedom as set forth in the Convention. This

provision requires a remedy in domestic law where an individual has an

arguable claim to be the victim of a violation of his rights under the

Convention. An arguable claim falls to be determined on the

particular facts of each case and the nature of the legal issue raised

(cf. Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21

June 1988, Series A no. 139, paras. 25, 27).

The Commission recalls that the applicant's complaint under

Article 8 (Art.8) of the Convention must be rejected as being manifestly

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

the Convention on the ground that the search of his camping car was in

accordance with German law and necessary in a democratic society in

the interests of public safety and for the protection of the rights

and freedoms of others.

Moreover the Commission, taking into account the specific

circumstances of the case, finds that the complaint does not give rise

to a prima facie issue under Article 8 (Art.8) of the Convention and thus

cannot be considered to be an arguable claim. Consequently, Article

13 (Art. 13) of the Convention does not apply in respect of the applicant's

complaint under Article 8 (Art. 8) of the Convention.

It follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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KANTHAK v. the FEDERAL REPUBLIC OF GERMANY

KANTHAK v. the FEDERAL REPUBLIC OF GERMANY