FIFTH SECTION

DECISION

Application no. 43005/07 by FRANK GMBH against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 15 November 2011 as a Chamber composed of:

Dean Spielmann , President, Elisabet Fura , Karel Jungwiert , Boštjan M. Zupančič , Mark Villiger , Ganna Yudkivska , Angelika Nußberger , judges, and Claudia Westerdiek , Section Registra r ,

Having regard to the above application lodged on 2 October 2007 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant company ,

Having deliberated, decides as follows:

THE FACTS

The applicant company , Frank GmbH , is a limited liability company under German law with its seat in Koblenz , Germany . Mr Stefan Frank, a German national who was born in 1964 and lives in Koblenz , is its managing director . The applicant company is represented before the Court by Mr I. Fromm , a lawyer practising in Koblenz .

A. The circumstances of the case

The facts of the case, as submitted by the applicant company , may be summarised as follows.

On 22 August 2005 the applicant company was approached by the Kassel Regional Government ( Regierungspräsidium ) and asked to specify who had been driving a lorry owned by the applicant company on motorway no. 3 at 4.02 a.m. on 11 August 2005. There was a standard notice printed on the form which read: “Please indicate the name and address of the person responsible for the offence, by doing so you will avoid further investigations”. The applicant company indicated the full name and address of the driver J.S.

On 17 October 2005 the Kassel Regional Government accused J.S. of having exceeded the maximum speed limit by 44 km/h at the named date and time while driving a lorry registered to the applicant company; it imposed a fine of 150 euros (EUR) on him for a speeding offence and suspended his driving licence ( Fahrverbot ) for a month. J.S. objected to the fine, claiming that he had not been the driver of the vehicle at the relevant time.

On 26 October 2005 the applicant company refused to hand over to the police the tachograph ( Tachoscheibe ) that had been in use at the relevant time in the lorry at question.

On 8 November 2005 the Koblenz District Court issued a search warrant to search the applicant company ’ s business premises and if necessary its cars in order to seize the specific tachograph which had been in use in the lorry in question on 11 August 2005. In its reasoning the court mentioned that the tachograph was indispensable for clearly identifying the driver of the lorry.

On 11 November 2005 the police entered the office premises of the applicant company. The specific cabinet where the tachographs were stored was searched and the tachograph which was specified in the search warrant was seized.

The applicant company and J.S. appealed against the search and seizure warrant after the seizure took place. The applicant company argued that the search warrant had not been proportionate, as the company was not suspected of any infringement or regulatory offence. What was at stake, a fine of 150 EUR and a temporary suspension of the driving licence for one month, did not justify a search warrant for the premises of third persons. Besides, the search warrant had not been necessary, as the applicant company had previously specified the driver ’ s name and address.

On 12 December 2005 the Koblenz Regional Court dismissed the appeal. Whereas the appeal by J.S. was not admitted for lack of standing, the appeal by the applicant company was considered on the merits. The Court acknowledged that the search order by its nature had infringed the right to respect for the company ’ s domicile, which was an acknowledged right for legal persons also, even if to a lesser extent. However, the infringement had been justified as the search had served a legitimate interest and had been proportionate to the aim pursued. The court pointed out that the proportionality of a search warrant concerning a third person ’ s domicile had to be scrutinised even more intensively when only a regulatory offence was at stake and not a criminal one. Nevertheless, the legislator had not excluded searches and seizures for regulatory offences in general. Otherwise, the identity of a driver suspected of a traffic offence would often remain unclear and the offence could not be prosecuted. There was a legitimate public interest in controlling road traffic and prosecuting offenders, as this protected the general public against the dangers inherent in road traffic. In this particular case the search had been proportionate as the police had merely looked for the cabinet where the tachographs were kept and taken only the tachograph in question. The functioning of the company had not been disturbed, nor had this particular tachograph been in any way significant for the proper functioning of the business. The court further underlined that in the particular circumstances of this case a tachograph had been an undisputable way to identity the person who had committed the regulatory offence as there had been no other means for the prosecution to establish his or her identity. For these reasons, the seizure of the tachograph was declared proportional.

On 16 January 2006 the applicant company raised a constitutional complaint with the Federal Constitutional Court . It pointed out that, contrary to the assumption of the Koblenz Regional Court , there had been other ways to identify the driver in question. Firstly, the District Court could have requested a photograph of J.S. in order to compare it with a radar photograph. Secondly, the applicant company could have identified its employee by the radar photo. In its legal reasoning the applicant company explicitly referred to the Court ’ s reasoning in Buck v. Germany , no. 41604/98, ECHR 2005 ‑ IV . It further mentioned that the execution of the search and seizure warrant had had negative effects for the company ’ s public reputation.

On 4 September 2006 J.S. conceded that he had been driving the lorry and confessed to the traffic offence in a hearing before the Limburg District Court.

On 5 September 2007 a panel of three judges of the Federal Constitutional Court refused to admit the complaint. In its reasoning the Court mentioned that there was no appearance of arbitrariness or disproportionality in the prior court decisions, in particular the decision of the Koblenz Regional Court . It pointed out that the applicant company had in fact not fully cooperated with the investigating authorities as it had refused to hand over the tachograph voluntarily. The court added that the applicant company itself had mentioned in the proceedings before the Koblenz Regional Court that the identity of the driver who had committed the regulatory offence might not have been determined without the contested measures.

B. Relevant domestic law

According to section 24 § 1 of the Road Traffic Act ( Straßenverkehrsgesetz ), a violation of a regulation of the Road Traffic Regulations ( Straßenverkehrsordnung ), is considered a regulatory offence ( Ordnungswidrigkeit ). Under regulation 39 § 1 traffic signs have to be complied with.

Regulatory offences are governed by the Act on Regulatory Offences ( Ordnungswidrigkeitengesetz ). According to its section 46 § 1, the provisions of ordinary law governing criminal procedure - in particular the Code of Criminal Procedure - are applicable by analogy to the procedure in respect of regulatory offences, subject to the exceptions laid down in the said Act.

Article 103 § 1 of the Code of Criminal Procedure ( Strafprozessordnung ) provides that the home and other premises ( Wohnung und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate traces of an offence or to seize specific objects, provided always that there are facts to suggest that such person, traces or objects is or are to be found on the premises to be searched.

COMPLAINTS

The applicant company complains that the search of its business premises and the seizure of a specific tachograph in order to prosecute a traffic offence committed by one of its employees was disproportionate and therefore constitutes a violation of Article 8 § 1 of the Convention.

THE LAW

The applicants company ’ s complaint concerning the proportionality of the search and seizure warrant issued by the Koblenz District Court relies on Article 8 of the Convention, which provides, in so far as relevant:

“1. oo Everyone has the right to respect for his private ... life, his home ...

2. oo 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 ne cessary in a democratic society , in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant company argued in particular that the search and seizure warrant had been disproportionate, as it had not been clear at the date of its issuance that other ways of identifying the driver who had committed the regulatory offence were futile. The applicant company further argued that it had cooperated fully with the national agencies as it had identified the driver ’ s name and address. Invoking the reasoning of the Court ’ s judgment in Buck v. Germany , no. 41604/98, § 49 , ECHR 2005 ‑ IV , the applicant company argue d that the tachograph had not been essential for the conviction, as J.S., the alleged driver, had later withdr a w n his initial objection and confessed to the offence before the Limburg District Court. The applicant company further pointed out that the search had had an adverse effect on its public reputation.

The Court notes that an infringement of the applicant company ’ s guaranteed right to respect for its “home” by the police search cannot be disputed. The Court has already held ( Buck v. Germany , no. 41604/98, § 31, ECHR 2005 ‑ IV , Niemietz v. Germany , 16 December 1992, § 30, Series A no. 251 ‑ B ) that the notion of “home” in Article 8 § 1 does encompass the registered office, branches and other business premises of a company.

The Court accordingly has to determine whether the interference was justified under paragraph 2 of Article 8. In the case of Buck v. Germany (see above, §§ 38 and 41) the Court held that Article 103 § 1 of the Code of Criminal Procedure, taken together with section 46 § 1 of the Act on Regulatory Offences, empowers the District Court judge to issue a search and seizure warrant for the premises of a person other than the one accused of a regulatory offence. Here, both the Koblenz Regional Court and the Federal Constitutional Court considered the search and seizure warrant to have been lawful in terms of the said domestic law. The Court sees no reason to arrive at a different conclusion. Moreover, the disputed measures were aimed at disclosing the identity of the person liable for the speeding offence in question. These aims are consistent with the Convention, as they prevent disorder and protect the rights of others, notably the rights of other road users to protection of life and limb.

The measures taken by the Koblenz District Court were also “necessary in a democratic society”. The Court reiterates that it has found the safeguards provided by German legislation and jurisprudence against abuse in the sphere of searches and seizures in general adequate and effective (see Buck v. Germany , ibid ., § 46 ).

As to the proportionality of the search and seizure warrant in the present case, the Court notes that the search warrant was strictly limited to the seizure of the specific tachograph with the automatic record of the speed on it. The Court further notes that the Koblenz Regional Court diligently reviewed the lawfulness of the search warrant, taking into due account the constitutional protection of business premises and the circumstance that the applicant company was not itself the suspect of an offence.

The Court observes that, judging from what was submitted, the search was not performed in an obtrusive manner. As the search warrant was carefully formulated, the police officers who executed the warrant were only required to look for the cabinet where tachographs were kept and took the tachograph in question. It would not appear that the functioning of the company was particularly disturbed. There are no indications that this particular tachograph was in any way significant for the proper functioning of the business.

The Court considers that the applicant company had an opportunity to avoid the search and seizure measure by voluntarily handing over the tachograph on 26 October 2005.

It follows that this complaint must be rejected as manifestly ill-founded , in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these r easons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Dean Spielmann              Registrar              President