Searches and seizures carried out at a lawyer’s offices or home
II. RELEVANT DOMESTIC LAW 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. PROCEEDINGS BEFORE THE COMMISSION 23. In his application (no. 13710/88) lodged with the Commission on 15 February 1988, Mr Niemietz alleged that the search had violated his right to respect for his home and correspondence, guaranteed by Article 8 (art. 8) of the Convention, and had also, by impairing the goodwill of his law office and his reputation as a lawyer, constituted a breach of his rights under Article 1 of Protocol No. 1 (P1-1). In addition, he submitted that, contrary to Article 13 (art. 13) of the Convention, he had no effective remedies before German authorities in respect of those complaints. 24. By decision of 5 April 1990, the Commission declared the complaints under Article 8 (art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) admissible and the remainder of the application inadmissible. In its report of 29 May 1991 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 8 (art. 8) of the Convention and that no separate issue arose under Article 1 of Protocol No. 1 (P1-1). The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT 25. At the hearing, the Agent of the Government invited the Court to find that the Federal Republic of Germany had not violated Article 8 (art. 8) of the Convention in the present case. The applicant, for his part, requested the Court to hold that the search of his office had constituted a breach of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION 26. Mr Niemietz alleged that the search of his law office had given rise to a breach of Article 8 (art. 8) of the Convention, which reads as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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 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." This submission was accepted by the Commission, on the basis that the search constituted an unjustified interference with the applicant ’ s private life and home. A. Was there an "interference"? 27. In contesting the Commission ’ s conclusion, the Government maintained that Article 8 (art. 8) did not afford protection against the search of a lawyer ’ s office. In their view, the Convention drew a clear distinction between private life and home, on the one hand, and professional and business life and premises, on the other. 28. In arriving at its opinion that there had been an interference with Mr Niemietz ’ s "private life" and "home", the Commission attached particular significance to the confidential relationship that exists between lawyer and client. The Court shares the Government ’ s doubts as to whether this factor can serve as a workable criterion for the purposes of delimiting the scope of the protection afforded by Article 8 (art. 8). Virtually all professional and business activities may involve, to a greater or lesser degree, matters that are confidential, with the result that, if that criterion were adopted, disputes would frequently arise as to where the line should be drawn. 29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual ’ s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time. To deny the protection of Article 8 (art. 8) on the ground that the measure complained of related only to professional activities - as the Government suggested should be done in the present case - could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. In fact, the Court has not heretofore drawn such distinctions: it concluded that there had been an interference with private life even where telephone tapping covered both business and private calls (see the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25); and, where a search was directed solely against business activities, it did not rely on that fact as a ground for excluding the applicability of Article 8 (art. 8) under the head of "private life" (see the Chappell v. the United Kingdom judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, para. 26, and pp. 21-22, para. 51.) 30. As regards the word "home", appearing in the English text of Article 8 (art. 8), the Court observes that in certain Contracting States, notably Germany (see paragraph 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word "domicile" has a broader connotation than the word "home" and may extend, for example, to a professional person ’ s office. In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person ’ s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words "home" and "domicile" could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of "private life" (see paragraph 29 above). 31. More generally, to interpret the words "private life" and "home" as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities (see, for example, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to "interfere" to the extent permitted by paragraph 2 of Article 8 (art. 8-2); that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case. 32. To the above-mentioned general considerations, which militate against the view that Article 8 (art. 8) is not applicable, must be added a further factor pertaining to the particular circumstances of the case. The warrant issued by the Munich District Court ordered a search for, and seizure of, "documents" - without qualification or limitation - revealing the identity of Klaus Wegner (see paragraph 10 above). Furthermore, those conducting the search examined four cabinets with data concerning clients as well as six individual files (see paragraph 11 above); their operations must perforce have covered "correspondence" and materials that can properly be regarded as such for the purposes of Article 8 (art. 8). In this connection, it is sufficient to note that that provision does not use, as it does for the word "life", any adjective to qualify the word "correspondence". And, indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see the above-mentioned Huvig judgment, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25). Again, in a number of cases relating to correspondence with a lawyer (see, for example, the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, and the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), the Court did not even advert to the possibility that Article 8 (art. 8) might be inapplicable on the ground that the correspondence was of a professional nature. 33. Taken together, the foregoing reasons lead the Court to find that the search of the applicant ’ s office constituted an interference with his rights under Article 8 (art. 8). B. Was the interference "in accordance with the law"? 34. The applicant submitted that the interference in question was not "in accordance with the law", since it was based on suspicions rather than facts and so did not meet the conditions laid down by Article 103 of the Code of Criminal Procedure (see paragraph 19 above) and since it was intended to circumvent the legal provisions safeguarding professional secrecy. 35. The Court agrees with the Commission and the Government that that submission must be rejected. It notes that both the Munich I Regional Court and the Federal Constitutional Court considered that the search was lawful in terms of Article 103 of the aforesaid Code (see paragraphs 15-16 and 19 above) and sees no reason to differ from the views which those courts expressed. C. Did the interference have a legitimate aim or aims? 36. Like the Commission, the Court finds that, as was not contested by the applicant, the interference pursued aims that were legitimate under paragraph 2 of Article 8 (art. 8-2), namely the prevention of crime and the protection of the rights of others, that is the honour of Judge Miosga. D. Was the interference "necessary in a democratic society"? 37. As to whether the interference was "necessary in a democratic society", the Court inclines to the view that the reasons given therefor by the Munich District Court (see paragraph 10 above) can be regarded as relevant in terms of the legitimate aims pursued. It does not, however, consider it essential to pursue this point since it has formed the opinion that, as was contended by the applicant and as was found by the Commission, the measure complained of was not proportionate to those aims. It is true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, cannot be classified as no more than minor. On the other hand, the warrant was drawn in broad terms, in that it ordered a search for and seizure of "documents", without any limitation, revealing the identity of the author of the offensive letter; this point is of special significance where, as in Germany, the search of a lawyer ’ s office is not accompanied by any special procedural safeguards, such as the presence of an independent observer. More importantly, having regard to the materials that were in fact inspected, the search impinged on professional secrecy to an extent that appears disproportionate in the circumstances; it has, in this connection, to be recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of the Convention. In addition, the attendant publicity must have been capable of affecting adversely the applicant ’ s professional reputation, in the eyes both of his existing clients and of the public at large. E. Conclusion 38. The Court thus concludes that there was a breach of Article 8 (art. 8). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 39. Mr Niemietz also argued that, by impairing his reputation as a lawyer, the search constituted a violation of Article 1 of Protocol No. 1 (P1-1), which provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 40. Having already taken into consideration, in the context of Article 8 (art. 8), the potential effects of the search on the applicant ’ s professional reputation (see paragraph 37 above), the Court agrees with the Commission that no separate issue arises under Article 1 of Protocol No. 1 (P1-1). III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 41. Article 50 (art. 50) of the Convention reads: "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 42. In a letter filed on 16 December 1991 (see paragraph 4 above), the applicant requested the Court, taking into account in particular the damage caused to the reputation of his practice, to award him under Article 50 (art. 50) compensation of a type and amount to be determined by the Court in its discretion. 43. The Court is unable to accede to that request. The applicant has, in the first place, not established that the breach of Article 8 (art. 8) caused him pecuniary damage. If and in so far as it may have occasioned non-pecuniary damage, the Court considers, like the Delegate of the Commission, that its finding of a violation constitutes of itself sufficient just satisfaction therefor. Finally, although Mr Niemietz stated at the hearing that his request extended to his costs and expenses referable to the proceedings in Germany and in Strasbourg, he has supplied no particulars of that expenditure.
The Court held that there had been a violation of Article 8 of the Convention finding that the interference complained of had not been proportionate to the legitimate aim pursued – namely the prevention of crime and the protection of the rights of others – and could not be regarded as necessary in a democratic society. The Court noted in particular that, while it was true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, could not be classified as no more than minor, on the other hand, the warrant was drawn in broad terms. Moreover, having regard to the materials that were in fact inspected, it considered that the search had impinged on professional secrecy to an extent that appeared disproportionate in the circumstances. In this connection, the Court recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (right to a fair trial) of the Convention.