Resolution CM/ResDH(2007)80 [1]

Execution of the judgment of the European Court of Human Rights

Buck against Germany

(Application No. 41604/98, judgment of 28 April 2005, final on 28 July 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns searches and seizure of document carried out in the applicant ' s home and business premises in order to identify the driver of a car belonging to the applicant ' s company (violation of Article 8, see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Germany ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix,

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close its examination.

Appendix to Resolution CM /ResDH(2007)80

Information about the measures to comply with the judgment in the case of

Buck against Germany

Introductory case summary

The case concerns the search and seizure of documents carried out in the applicant ' s home and business premises in order to identify the driver of a car belonging to the applicant ' s company. In 1996, this car was detected speeding by radar (28 kph above the speed-limit). The applicant ' s son was fined about € 60. He appealed against this decision, indicating that at least 15 other people could have been driving the car at the relevant time. In the trial the applicant refused to give evidence, as he was entitled to do as a family member, so the district court issued a warrant to search his business and residential premises. The applicant ' s son was later convicted on the basis of an expert opinion comparing the radar photograph with a passport photograph submitted by the municipality.

The European Court found the search and seizure could not be considered proportionate under the specific circumstances of the case, as in particular it concerned a minor road-traffic offence committed by a third party, that there were other means of establishing who was responsible for the offence, and that the search warrant was drafted too broadly given the circumstances of the case and the potential damage to the applicant ' s professional reputation given that he was not suspected of any offence (violation of Article 8).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

2 000 EUR

2 000 EUR

P aid on 18/08/2005

b) Individual measures

Referring to its landmark judgment of 30 April 1997, the German Federal Constitutional Court acknowledged the right of the applicant to have the lawfulness of the search and seizure order examined retrospectively. Regarding non-pecuniary damage, the European Court held that the finding of a violation constituted in itself sufficient just satisfaction.

II. General measures

The judgment of the European Court was sent out by letter of the Government Agent of 13 May 2005 to the courts and justice authorities concerned, i.e. the Ministry of Justice of Baden-Württemberg and the Federal Constitutional Court . All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( www.bmj.de Themen: Menschenrechte , EGMR ) which provides a direct link to the European Court ' s website for judgments in German www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch / ).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Germany has thus complied with its obligations under Article 46 paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.