CASE OF NIEMIETZ v. GERMANY
Violation of Art. 8;No separate issue under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
C. Russo;John Freeland;N. Valticos
6. Mr Niemietz lives in Freiburg im Breisgau, Germany, where he practises as a lawyer (Rechtsanwalt). 7. On 9 December 1985 a letter was sent by telefax from the Freiburg post office to Judge Miosga of the Freising District Court (Amtsgericht). It related to criminal proceedings for insulting behaviour (Beleidigung) pending before that court against Mr J., an employer who refused to deduct from his employees’ salaries and pay over to the tax office the Church tax to which they were liable. The letter bore the signature of one Klaus Wegner - possibly a fictitious person -, followed by the words "on behalf of the Anti-clerical Working Group (Antiklerikaler Arbeitskreis) of the Freiburg Bunte Liste (multi-coloured group)" and a post-office box number. It read as follows: "On 10.12.1985 the trial against Mr [J.] will take place before you. We, the Anti-clerical Working Group of the Freiburg Bunte Liste, protest most strongly about these proceedings. In the FRG, the Church, on the basis of the Hitler concordat and in violation of the State’s duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily annoyance. Among other things, the FRG is the only State which acts as Church-tax collector. It requires employers, whether they be Christians or not, to pay over Church tax for their Christian employees and thus relieve the Church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the Church in this way and has made an appropriate arrangement whereby the Church tax of his Christian employees is paid without his own involvement. This attempt - in a State which counts the separation of State and Church among its basic principles - to insist upon just such a separation has not only exposed [J.] to persistent vexation and interferences on the part of State authorities, culminating in the tax office employing coercive measures, such as attachment, to collect from him Church tax which his employees had already paid a long time previously. It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour. Were it your task as the competent judge to conduct an unbiased examination of this ‘case of insulting behaviour’, then it must be said that you have not only failed to carry out this task, but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the Church. It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use every avenue open to us, in particular our international contacts, to bring to public notice this action of yours, which is incompatible with the principles of a democratic State subscribing to the rule of law. We shall follow the further course of the proceedings against [J.] and expect you to abandon the path of terrorisation which you have embarked upon, and to reach the only decision appropriate in this case - an acquittal." 8. The applicant had, as a city councillor, been chairman for some years of the Freiburg Bunte Liste, which is a local political party. He had also played a particularly committed role in, although he had never been a member of, its Anti-clerical Working Group, which sought to curtail the influence of the Church. Until the end of 1985 certain of the mail for the Bunte Liste, which had as its address for correspondence only the post-office box number that had been given in the letter to Judge Miosga, had been delivered to the office (Bürogemeinschaft) of the applicant and a colleague of his; the latter had also been active on behalf of the party and had acted for it professionally. 9. On 13 January 1986 the Director of the Munich I Regional Court (Landgericht) requested the Munich public prosecutor’s office (Staatsanwaltschaft) to institute criminal proceedings against Klaus Wegner for the offence of insulting behaviour, contrary to Article 185 of the Criminal Code. Attempts to serve a summons on him were unsuccessful. The applicant’s colleague refused to give any information about Klaus Wegner or his whereabouts and other attempts to identify him failed. 10. In the context of the above-mentioned proceedings the Munich District Court issued, on 8 August 1986, a warrant to search the law office of the applicant and his colleague and the homes of Ms D. and Ms G. The warrant read as follows: "Preliminary investigations against Klaus Wegner concerning Article 185 of the Criminal Code Decision The search of the following residential and business premises for documents which reveal the identity of ‘Klaus Wegener’ [sic] and the seizure of such documents is ordered. 1. Office premises shared by the lawyers Gottfried Niemietz and ..., 2. Home (including adjoining rooms and cars) of Ms [D.] ..., 3. Home (including adjoining rooms and cars) of Ms [G.] Reasons On 9 December 1985 a letter insulting Judge Miosga of the Freising District Court was sent by telefax from the Freiburg post office. It was sent by the Anti-clerical Working Group of the Freiburg Bunte Liste. The letter was signed by one Klaus Wegener. Until now it has not been possible to identify the signatory. The Freiburg Bunte Liste could not be contacted by mail otherwise than through a box number. Until the end of 1985 such mail was forwarded to the office of Niemietz and ..., and since the start of 1986 to Ms [D.]. It has therefore to be assumed that documents throwing light on the identity of Klaus Wegener can be found at the premises of the above-mentioned persons. Furthermore, it is to be assumed that there are such documents in the home of Ms [G.], the Chairwoman of the Freiburg Bunte Liste. For these reasons, it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision." 11. The search of the law office, the need for which the investigating authorities had first tried to obviate by questioning a witness, was effected by representatives of the Freiburg public prosecutor’s office and the police on 13 November 1986. According to a police officer’s report drawn up on the following day, the premises were entered at about 9.00 a.m. and inspected in the presence of two office assistants. The actual search began at about 9.15 a.m., when the applicant’s colleague arrived, and lasted until about 10.30 a.m. The applicant himself arrived at 9.30 a.m. He declined to give any information as to the identity of Klaus Wegner, on the ground that he might thereby expose himself to the risk of criminal prosecution. Those conducting the search examined four filing cabinets with data concerning clients, three files marked respectively "BL", "C.W. -Freiburg District Court ..." and "G. - Hamburg Regional Court" and three defence files marked respectively "K.W. - Karlsruhe District Court ...", "Niemietz et al. - Freiburg District Court ..." and "D. - Freiburg District Court". According to the applicant, the office’s client index was also looked at and one of the files in question was its "Wegner defence file". Those searching neither found the documents they were seeking nor seized any materials. In the proceedings before the Commission, the applicant stated that he had been able to put aside in time documents pointing to the identity of Klaus Wegner and had subsequently destroyed them. 12. The homes of Ms D. and Ms G. were also searched; documents were found that gave rise to a suspicion that the letter to Judge Miosga had been sent by Ms D. under an assumed name. 13. On 10 December 1986 the Chairman of the Freiburg Bar Association, who had been informed about the search by the applicant’s colleague, addressed a formal protest to the President of the Munich District Court. The Chairman sent copies to the Bavarian Minister of Justice and the Munich Bar Association and invited the latter to associate itself with the protest. In a reply of 27 January 1987, the President of the Munich District Court stated that the search was proportionate because the letter in question constituted a serious interference with a pending case; hence no legal action on the protest was necessary. 14. The criminal proceedings against "Klaus Wegner" were later discontinued for lack of evidence. 15. On 27 March 1987 the Munich I Regional Court declared an appeal (Beschwerde) lodged by the applicant, pursuant to Article 304 of the Code of Criminal Procedure, against the search warrant to be inadmissible, on the ground that it had already been executed ("wegen prozessualer Überholung"). It considered that in the circumstances there was no legal interest in having the warrant declared unlawful. It had not been arbitrary, since there had been concrete indications that specified material would be found. There was no ground for holding that Article 97 of the Code of Criminal Procedure (see paragraph 21 below) had been circumvented: the warrant had been based on the fact that mail for the Freiburg Bunte Liste had for some time been delivered to the applicant’s office and it could not be assumed that that mail could concern a lawyer-client relationship. In addition, personal honour was not so minor a legal interest as to render the search disproportionate. There could be no question in the present case of preventing a lawyer from freely exercising his profession. 16. On 28 April 1987 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) against the search warrant of 8 August 1986 and the Munich I Regional Court’s decision of 27 March 1987. On 18 August a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the complaint for adjudication, on the ground that it did not offer sufficient prospects of success. The Federal Constitutional Court also found that the Munich I Regional Court’s decision of 27 March 1987 that the applicant’s appeal was inadmissible was not objectionable in terms of constitutional law. Furthermore, as regards the actual execution of the warrant, Mr Niemietz had not exhausted the remedy available to him under section 23(1) of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz). 17. The search complained of was ordered in the context of criminal proceedings for insulting behaviour, an offence punishable by imprisonment for a maximum, where no physical violence is involved, of one year or a fine (Article 185 of the Criminal Code). 18. Article 13 para. 1 of the Basic Law (Grundgesetz) guarantees the inviolability of the home (Wohnung); this provision has been consistently interpreted by the German courts in a wide sense, to include business premises (see, in particular, the Federal Constitutional Court’s judgment of 13 October 1971 - Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, p. 54). 19. Article 103 of the Code of Criminal Procedure 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 indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person, indications or objects is or are to be found on the premises to be searched. 20. Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under Article 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under section 23(1) of the Introductory Act to the Courts Organisation Act. 21. In Germany a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters. An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (Article 203 para. 1(3) of the Criminal Code). A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity (Article 53 para. 1(2) and (3) of the Code of Criminal Procedure). The last-mentioned provisions, in conjunction with Article 97, prohibit, with certain exceptions, the seizure of correspondence between lawyer and client. 22. In its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v. Commission [1989] European Court Reports ("ECR") 2859 at 2924, the Court of Justice of the European Communities stated as follows: "Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities. No other inference is to be drawn from Article 8(1) (art. 8-1) of the European Convention on Human Rights which provides that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. The protective scope of that article is concerned with the development of man’s personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject. None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v. Commission [1962] ECR 449)." This statement was affirmed in the same court’s judgments of 17 October 1989 in Case 85/87 Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6.