Application No. 10949/84
                       by H.N.
                       against the Federal Republic of Germany


The European Commission of Human Rights sitting in private on
10 December 1986, the following members being present:

                      MM. C. A. NØRGAARD, President
                          G. SPERDUTI
                          J. A. FROWEIN
                          F. ERMACORA
                          G. JÖRUNDSSON
                          S. TRECHSEL
                          B. KIERNAN
                          A. S. GÖZÜBÜYÜK
                          A. WEITZEL
                          J. C. SOYER
                          H. G. SCHERMERS
                          H. DANELIUS
                          G. BATLINER
                          J. CAMPINOS
                          H. VANDENBERGHE
                      Mrs G. H. THUNE
                      Mr. F. MARTINEZ

                      Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 April 1984 by
H.N. against the Federal Republic of Germany and registered
on 3 May 1984 under file No. 10949/84;

Having regard to

-       the Commission's decision of 4 March 1985 to give notice of
the application to the respondent Government and invite them, in
accordance with Rule 42 para. 2 (b) of the Rules of Procedure, to
submit observations in writing on the admissibility and merits;

-       the President's rulings of 29 May and 9 July 1985 granting
requests of the respondent Government to extend the time-limit fixed
for this purpose;

-       the observations submitted by the respondent Government on
2 August 1985 and the observations in reply submitted by the applicant
on 20 September 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the parties may be summarised as follows:

The applicant is a German citizen born in 1948 who resides in
Frankfurt.  She has filed a previous application (N° 9190/80) which
the Commission declared inadmissible on 11 March 1982.  The present
case relates to new and different facts.

I.      The applicant owns a dwelling house in Frankfurt which she
acquired in 1981 in an auction ordered by the court against the
previous owner who was a friend of hers.  She claims that the house is
unfit for permanent occupation due to noise originating from a nearby
underground line.  It appears, however, that several persons
nevertheless live there at least from time to time.  It was in fact
observed from a police station which is situated just across the
street that the house is inhabited, and as nobody was registered at
this address, the police invited the inhabitants by a note to
regularise their situation in accordance with the applicable
registration regulations (Meldebestimmungen).  Notwithstanding this
fact the city's housing authority suspected that the house was not
inhabited and was thus used for other than residential purposes
contrary to the provisions of the Rent Law Improvement Act
(Mietrechtsverbesserungsgesetz, BGBl. 1971 I 1745).

Article 6 para. 1 of this Act empowers the Land Government to issue
ordinances whereby the use of housing for other than residential
purposes may be subjected to the requirement of an administrative
authorisation in certain localities with an acute housing shortage.
Article 6 para. 2 provides for regulatory fines (Ordnungsbussen) of up
to DM 20.000.- in cases of contravention.  These provisions are
applicable in Frankfurt by virtue of an ordinance issued by the
Hessian Government in 1972 (GVBl 1972 I 19).

The Frankfurt housing authority conducted correspondence with the
applicant on the application of this legislation to her house since
November 1982.  Eventually it instituted regulatory proceedings
(Ordnungswidrigkeitsverfahren) against her on the suspicion of her
having breached Article 6 of the Act.  In this connection it applied
to the District Court (Amtsgericht) of Frankfurt for the issue of a
search warrant with a view to securing evidence on the occupation of
the house, namely by verifying the state of the apartments
(Feststellung des Zustandes der Wohnungen).

According to information provided by the Government a search for the
same purpose had already been ordered by the Court in relation to the
previous owner in 1979.  It had revealed that at that time the
premises had not been used for residential purposes.

Before granting the search warrant in relation to the applicant on the
housing authority's above request, the Court first invited that
authority to comment on the applicant's statement that the house was
unfit for residential occupation.  The authority denied this stating
that the construction work of the underground railway had been
completed.  On 17 January 1984, the Court issued the warrant which was
based on Section 102 of the Code of Criminal Procedure
(Strafprozessordnung) and Section 46 (1) of the Regulatory Offences
Act (Gesetz über Ordnungswidrigkeiten).  The search pursuant to this
warrant was carried out on 14 February 1984.

The applicant had shortly beforehand got knowledge of the intended
measure and tried to file a remedy in the morning of 14 February i.e.
before the measure was executed.  However, according to her statements
this turned out to be impossible because the search warrant had not
yet been notified to her and she could not therefore indicate the file
number.  The applicant states that she was told by officials of the
Frankfurt District Court that they did not know of any search warrant
against her.

The applicant was present at the execution of the search later the
same day and, basing herself on the information obtained from the
District Court, raised objections against the validity of the search
warrant which was presented to her on this occasion.  She also
objected to the taking of photographs in the house and to the
preparation of lists of the objects found there.  However, the search
was carried out despite these objections.

The applicant subsequently filed a complaint against the search
warrant, claiming that it was unlawful in several respects.  The
applicant submitted that the house was in fact inhabited and the
authority knew that it was inhabited, the registration provisions -
which allowed for exemptions - being irrelevant in this context.
However, the house was unfit for permanent occupation and therefore
outside the scope of the above legislation.  The applicant further
alleged a violation of her right to be heard, in particular by reason
of the impossibility to file a remedy against the search prior to its
execution.  She also invoked her legal interest to have the lawfulness
of the search reviewed having regard to its consequences and the
danger of repetition of similar measures.

The complaint was first examined by the District Court pursuant to
Section 306 (2) of the Code of Criminal Procedure which provides for a
decision on redress (Abhilfeentscheidung) by the judge whose decision
is being challenged.  However, on 24 February 1984 the District Court
refused to amend its decision and referred the complaint to the
Regional Court (Landgericht) of Frankfurt.

The Regional Court rejected the complaint by a decision of
13 March 1984.  In conformity with a decision of the Federal
Constitutional Court (Bundesverfassungsgericht) (BVerfGE 49, 329 = NJW
79, 154) it held that the applicant lacked a legal interest in the
review of the search order after it had been executed.  Such a legal
interest existed only in exceptional circumstances, if there were
serious consequences of the measure, a danger of repetition of a
similar measure, or a grave interference with rights of the interested
person. None of these conditions were met in the applicant's case
where the search served only the purpose of inspecting a house with a
view to establishing the kind of its use.  This was not as such a
serious measure and in view of the clear results there was no danger
of repetition.  The measure was also justified because of the serious
suspicion against the applicant and her refusal to allow the housing
authority access to the building.  The court further considered that
there had been no violation of the applicant's procedural rights: a
hearing before the issue of the search warrant was excluded by its
purpose, and the applicant's claim that she had been prevented from
filing a remedy before its execution was not substantiated, in any
event such a remedy would not have had suspensive effect and therefore
could not have prevented the search in question.

In her original submissions to the Commission the applicant claimed
that even without taking the matter to the Federal Constitutional
Court she must be deemed to have exhausted the domestic remedies.  In
this respect she referred to the Federal Constitutional Court's
case-law according to which there is no legal interest to have a
search warrant reviewed after it has actually been carried out
(BVerfGE 49, 329 and 59,96).  She submitted that in those
circumstances a constitutional appeal was bound to fail and therefore
ineffective. She did not inform the Commission that she had in fact
nevertheless lodged a constitutional appeal (Verfassungsbeschwerde).

On 7 September 1984, this constitutional appeal was rejected by a
three-judge committee of the Federal Constitutional Court.  It did not
accept the appeal on the ground that it lacked prospects of success.
In the reasons it noted that the Regional Court's decision had not
been limited to an examination of the applicant's legal interest, but
that in the context of this examination the Court had also dealt with
the substantive justification of the search warrant and had found it
to be lawful.  Accordingly, there was no appearance of the applicant
having been denied the right to be heard on the danger of a possible
repetition of the measure.  As the authority had submitted numerous
reports, including information from the police station, on the
suspicion that the house was unoccupied, it could not be said that the
arguments to the opposite effect submitted by the applicant had not
been considered by the Court.  The applicant was not entitled to be
heard prior to the execution of the District Court's decision because
in view of the danger of her changing the condition of the rooms in
question it could appear necessary to execute this decision
immediately.  After the execution of the decision, the applicant was
in fact granted the right to be heard because both the District Court
and the Regional Court decided on the lawfulness of the search
warrant.  In view of the contents of the file, it further could not be
said that the legal and constitutional conditions for issuing a search
warrant were not fulfilled.  The search warrant described the
suspicion and the evidence to be secured by the search with sufficient
precision,and therefore the requirements of the rule of law had been
respected.  It was not objectionable that, for the purpose of
clarifying the suspicion, evidence had been taken by making photos and
drawing up lists of objects.  Finally it was stated that the
applicable provisions of the Rent Law Improvement Act were not
unconstitutional, nor had the applicant shown that the conditions for
the application of these provisions were not met.

The applicant took a further remedy on 14 March 1984 by requesting a
judicial decision under Section 23 of the Court Organisation
(Introductory Provisions) Act (EGGVG = Einführungsgesetz zum
Gerichtsverfassungsgesetz) concerning the way in which the search had
been ordered and carried out.  The Frankfurt Court of Appeal
(Oberlandesgericht) rejected this application on 1 June 1984, finding
that it was inadmissible insofar as it challenged acts of the
judiciary, namely the earlier court proceedings ordering the search
and the executive measures taken by the police and housing authority
under the authority of the relevant court order.  Insofar as the
applicant had challenged the taking of photos and the drawing up of
lists of objects the application was considered as unfounded because
these measures were reasonable and lawful in the circumstances.
Following objections by the applicant this decision was confirmed by
the Court of Appeal on 23 July 1984.  The applicant's constitutional
appeal concerning this matter was rejected by a decision of the
Federal Constitutional Court of 6 November 1984.

The applicant has not informed the Commission of the result of the
regulatory proceedings in the context of which the above search
warrant was issued.

II.     A further search of the same house took place in the
applicant's absence on 27 July 1984.  This time it was based on a
search warrant issued by the District Court of Frankfurt on
12 September 1983 against the previous owner of the house in connection
with criminal proceedings based on a suspicion of forgery of documents
(Urkundenfälschung).  The search was ordered for the purpose of
securing evidence, i.e. typewriters which might have been used for the
forgery.  The warrant referred to two different addresses, including
the one at the applicant's house.  However, despite repeated attempts
by the police the accused could not be found at either of these
addresses.  Finally, the police were requested on 3 July 1984 to open
the apartments by force.  The other apartment was searched on
26 July 1984, and the rooms used by him at the applicant's house on
27 July. According to the Government the condition of the property on
this occasion basically corresponded with the findings made at the
previous search on 14 February 1984.  Three typewriters belonging to
the applicant were seized at this search.  The seizure was confirmed
by a decision of the District Court of 6 August 1984.

The applicant tried to appeal against the above search warrant, but on
20 August 1984 the District Court refused to amend its decision.  It
accordingly submitted the appeal to the Regional Court of Frankfurt
which, on 22 August, rejected this remedy as inadmissible.  It
considered that after the actual execution of the search the applicant
lacked standing to have the lawfulness of the search warrant reviewed,
there being no indication on the basis of her submissions that there
was a continuing legal interest.  In this respect the Court again
referred to the Federal Constitutional Court's case-law (see above).

Insofar as the applicant had also tried to challenge the seizure of
her typewriters, she was referred to the possibility of appealing
separately against the District Court's decision of 6 August 1984.
The typewriters were eventually released to the applicant by a further
decision of the District Court of 24 September 1984.

In her original submissions to the Commission, the applicant claimed
also in respect of the above proceedings that a constitutional appeal
would be ineffective.  Again, she did not inform the Commission that
she nevertheless had lodged a constitutional appeal.

The Federal Constitutional Court decided on the constitutional appeal
on 30 October 1984 finding that it had no prospects of success. It
noted that the search had been directed against a person different
from the applicant whom the investigating authorities had suspected to
live in the applicant's property.  Accordingly this measure was
covered by the judicial decision.  The Federal Constitutional Court
was not competent to control whether the competent court had based its
decision on wrong factual assumptions.  In any event there were no
unreasonable or arbitrary considerations, nor was there any appearance
of other violations of constitutional law.  The Regional Court's
decision further did not infringe constitutional law insofar as it had
assumed that the applicant's challenge of the search warrant had
become without object (prozessual überholt).  A violation of the
Convention could not be challenged by a constitutional appeal.

COMPLAINTS

1.      The applicant now complains that her Convention rights have
been violated in several respects.  She claims that she has exhausted
all domestic remedies available to her before lodging a constitutional
complaint because such a complaint would not have been effective
having regard to the Federal Constitutional Court's case-law.

2.      The applicant considers that both searches were unjustified
and that they interfered with her rights under Article 8 (Art. 8)
of the Convention (private life and home) and Article 1 of
Protocol N° 1 (P1-1) (peaceful enjoyment of possessions), read in
conjunction with Articles 14, 17 and 18 of the Convention (Art. 14,
art. 17, art. 18).

As regards the first search, the applicant challenges not only the
search as such, but also the underlying legislation.  She considers
that the application of the provisions of the Rent Law Improvement Act
concerning restrictions on the use of property in the City of
Frankfurt was not justified at the relevant time because there was in
fact no serious housing shortage.  For this reason she claims that the
measures taken against her were disproportionate and discriminatory.

The search itself was in her view unjustified for the further reason
that there was no sufficient initial suspicion of the house in
question being unoccupied.  It was unlawful for the housing authority
to intrude into an inhabited house and to interfere with the
applicant's private sphere by taking photographs and making lists of
her personal possessions.  The applicant further considers that,
lacking a reasonable justification, the measure was also
discriminatory.

As regards the second search, the applicant puts forward similar
reasons.  Also in this case there was in her submission no sufficient
initial suspicion of a criminal offence, in particular there was no
such suspicion against herself, and therefore it was also unjustified
that the search was carried out in her home and property and that her
typewriters were seized.  The principle of proportionality was
allegedly violated in several respects, in particular because the
search warrant was not directed against the applicant herself, because
it dated back almost a year and its aim could have been achieved also
by less severe measures, e.g. by the taking of samples of typescript.

3.      The applicant's principal complaints in both cases are related
to the procedure followed which the applicant considers to have been
in breach of Articles 6 and 13 of the Convention. The applicant claims
that it is contrary to Article 6 that in each case she was not heard
prior to the issue or execution of the search warrants, and that after
their execution the courts refused to deal in substance with her
arguments by which she sought to challenge the lawfulness of these
search warrants.

The applicant complains of the same facts also under Article 13
of the Convention.  She claims in particular that the combined effect
of being refused a judicial review of the lawfulness of the search
warrants prior to their being issued or executed, and of the
subsequent finding that she lacked a legal interest for obtaining
such review, deprived her of any effective remedy before the domestic
authorities by which she could assert her rights under Article 8 of
the Convention.  In this respect she challenges the Federal
Constitutional Court's case-law according to which a legal interest
for a judicial review ex post generally does not exist as regards
control both by the ordinary courts and by the Federal Constitutional
Court itself.

PROCEEDINGS

The application insofar as it concerns the first search was introduced
on 12 April 1984 and registered on 3 May 1984.  Insofar as the second
search is concerned, the applicant first wrote to the Commission on
23 September 1984.

The Commission decided on 4 March 1985 to give notice of the
application to the respondent Government and to invite them, in
accordance with Rule 42 para. 2 (b) of its Rules of Procedure, to
submit observations in writing on the admissibility and merits of the
application.  The Government were asked to deal in particular with the
questions arising under Articles 26 and 13 of the Convention read in
conjunction with Article 8.

The original time limit for the submission of the Government's
observations (17 May 1985) was at their request extended, first until
1 July, and then until 16 August 1985.

In the meantime, the applicant had informed the Commission by letter
of 17 March 1985 that she had actually lodged a constitutional
complaint against the first search warrant.  This information was
transmitted to the Government on 25 March 1985 and at the same time
the applicant was asked whether she had lodged a constitutional
complaint also regarding the second search warrant.  The applicant
confirmed this by a letter of 4 May 1985 which was likewise
transmitted to the Government.

The Government submitted their observations on 2 August 1985, and the
applicant submitted her observations in reply on 10 September 1985.

In connection with the present case, the Commission was also
approached by the Hessian Administrative Tribunal and the City of
Frankfurt on the question of a suspension of certain proceedings
pending before the Administrative Tribunal.  By a letter of
20 May 1986 the applicant eventually requested the Commission to order
the suspension of these proceedings.  The Commission's President ruled
on 4 June 1986 that the conditions for indicating an interim measure
to the respondent Government (Rule 36 of the Commission's Rules of
Procedure) were not met.

SUBMISSIONS OF THE PARTIES

A.      The Government

Scope of the application

The Government consider that the only point at issue is whether the
judicial decisions ordering the two searches in the applicant's house
and finding these searches to be lawful were compatible with the
Convention.  The way in which the searches were carried out by the
competent administrative authorities is not in issue.

Exhaustion of remedies

The question as to the exhaustion of domestic remedies has in the
meantime been settled by the information provided by the applicant,
according to which she in fact filed constitutional complaints against
both search warrants.  The domestic remedies are therefore exhausted
in compliance with Article 26 of the Convention.

On Article 13 of the Convention

The Government contest the allegation that there was no prior judicial
review of the search orders in question.  The search warrants were
issued after application to the District Court by the competent
authorities.  On each occasion the Court examined in the context of
court proceedings laid down by statute whether the conditions for
ordering the searches were fulfilled.  The orders were granted by
decisions of 17 January 1984 and 12 September 1983, respectively.

The Government, referring to the Federal Constitutional Court's
case-law (decision 2BvR 1055/76 of 11 October 1978, BVerfGE 49, 329,
341), submit that judicial search warrants are judicial acts in formal
and substantive respects.  Where an application is made for the
issuing of a search warrant the judge must examine whether the
statutory prerequisites for issuing such a warrant have been
fulfilled.  He acts on his own judicial responsibility and is not
bound by the application.  Accordingly, the Government consider that
the judicial search warrants in the present case were "prior judicial
reviews of the searches in question".

The Government submit that there is a further judicial review by the
same judge through the "decisions on redress" (Section 306 (2) of the
Code of Criminal Procedure) which in the present case were given on
24 February 1984 and 20 August 1984, respectively.  Again, the
District Court had to decide with reference to the complaint made and
in judicial independence whether the search warrants should be set
aside, but on each occasion it declined to do so.  As no redress was
granted by the judge of first instance, the matter had to be referred
to the Regional Court, which, however, confirmed the decisions of the
District Court.

The Federal Constitutional Court has held that there is generally no
continued legal interest in the judicial review of a search warrant
after its actual execution.  This ruling only applies to judicial
search warrants.  The Government consider this aspect as particularly
important.  The underlying consideration is that there is no continued
legal interest to have the merits of a search warrant reviewed where
the examination has previously been made by a judge.

Moreover, even in respect of judicial search warrants, the principle
is not applied without exception.  A further judicial examination will
nevertheless take place where "substantial consequences of an
interference or the risk of repetition - and possibly also the gravity
of the legal violation - substantiate a continued interest in judicial
examination" (BVerfGE 49, 329, 338).

In any event there is also an examination on the merits by the Federal
Constitutional Court following the lodging of a complaint of
unconstitutionality.  The Government refer to a decision of the
Federal Constitutional Court of 16 June 1981 (BVerfGE 57, 346, 354)
according to which "it would not accord with the importance of the
basic right under Article 13 of the Basic Law if the right to lodge a
complaint of unconstitutionality against searches of residential
premises ceased to apply - without more - as soon as the search is
concluded".  Thus, the case-law of the Federal Constitutional Court
not only does not exclude examination of a judicial search warrant on
the merits, but, on the contrary, allows such examination.

In the Government's view, it cannot be objected that, after a
court-ordered search has been carried out, relevant higher courts
assume on principle that the cause of complaint has been overtaken by
the facts.  Setting aside the warrant after the search has been
carried out indeed would make no sense.  The measure which has already
been carried out cannot be undone.  It only seems possible to declare
subsequently the measure unlawful.  For such a declaration, a
legitimate interest in obtaining judicial relief is required in
accordance with general procedural principles.  This in turn can only
be assumed when negative after-effects emanate from the warrant, such
as substantial consequences of the interference, risk of repetition,
and special gravity of the legal violation.  In such cases there is an
examination on the merits of the preceding judicial search warrant
without prejudice to the possibility to demand compensation for
violation of an official duty.  The restriction of examination of
search warrants on the merits to those cases where legal interest in
the decision still exists is a requirement of procedural economy. This
way of proceeding also helps to conduct the proceedings expeditiously.
Searches carried out without prior judicial warrant are, however,
reviewable.

The manner in which a search is carried out by the administrative
authority concerned is also subject to control by the court under
Section 23 of the Court Organisation (Introductory Provisions) Act.
In the present case the applicant made use of these proceedings.

The Government submit that the mechanism stipulated in Article 13
of the Convention applies above all vis-à-vis administrative
acts and interference by public authority with basic rights which fall
outside the scope of Articles 5 and 6 of the Convention.  The latter
provisions have introduced a requirement of special judicial remedies
in fields traditionally covered in the Convention States by judicial
guarantees, that is, the fields of criminal and civil law and
deprivation of liberty.  In relation to substantive legal provisions
not covered by these judicial remedies, a comparable stipulation and
specific elaboration of legal remedies was not undertaken.  The
situation in the individual Contracting States was too diverse in this
respect.  Article 13 was created for this area.  It also makes
provision for a domestic examination, but leaves it to the Contracting
States how to make provision for the stipulated examination.
Protection by an independent court is not required.  The protection
given by Article 13 of the Convention has therefore deliberately been
made less differentiated and has been less intensively elaborated.
Attention must be paid to the indicated differences in the degree of
control in relation to the different substantive human rights
guaranteed in the Convention if it is desired to interpret the
Convention's guarantees of proceedings in a manner that does justice
to the system as a whole while respecting the will of the Contracting
States.

In addition to certain principles expressly stated in the case-law of
the Convention organs on the interpretation of Article 13, the
Government consider that the following additional principles are
implied in the decisions of the Convention organs:

a) Article 13 provides for a legal remedy only in respect of
executive measures and not in respect of acts of the judiciary.

b) The requirements of Article 13 are also fulfilled if
there is an examination by an independent national court before
implementation of an administrative measure affecting the citizen,
without the party affected making an application for such examination.

Ad a). Article 13 of the Convention goes back to Article 8
of the Universal Declaration of Human Rights of the United Nations
according to which everyone has the right to an effective remedy by
the competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law.  Protection by the
national courts against acts perpetrated by national authorities other
than the courts is intended here.  The position can be no different in
relation to Article 13 of the Convention.  If Article 13
no longer requires independent courts as organs of review
but only speaks of an "effective remedy before a national authority"
this does nothing to change the fact that reference is made to
protection by a particular national authority and not against the
decision of such an authority. If it is further stated that there is
protection against violations committed by "persons acting in an
official capacity", then it is the executive that is meant here.

An interpretation of Article 13 of the Convention to the
effect that protection against decisions of a national controlling
authority within the meaning of Article 13 might also be
intended would lead to the nonsensical result that - following a
decision by such an authority - protection could be claimed over and
over again. Moreover, in this way a duty incumbent on Contracting
States to establish proceedings for a remedy vis-à-vis court decisions
would be read into this Article - which does not exist.

Hence, the Commission has rightly deemed the special guarantee of
Article 5 para. 4 of the Convention to be a lex specialis
to Article 13 of the Convention and, where violation of this
guarantee is established, the Commission has not additionally examined
the remedy from the point of view of Article 13.  This only
seems consistent if Article 13 is seen as a guarantee of
proceedings in relation to acts of the executive and not also as a
guarantee of proceedings in relation to acts of the judiciary.  If, as
in the case under consideration, a national court as a "national
authority" within the meaning of Article 13 of the
Convention has given a decision, then this Article does not make
provision for a further domestic examination.  Rather, domestic
recourse to the courts will, in these circumstances, have been
exhausted.

The guarantee of a legal remedy is moulded in a comparable fashion in
the Basic Law (Grundgesetz) of the Federal Republic of Germany.  In
Article 19 para. 4 of the Basic Law it is stated as follows:

"Should any person's right be violated by public authority, recourse
to the court shall be open to him".

The Federal Constitutional Court has held in its decisions (BVerfGE
49, 329, 340 with further references) that acts of the judiciary are
not acts of a public authority in the above sense, for Article 19
para. 4 of the Basic Law makes provision for protection by the judge
and not against the judge.  In relation to cases of the kind under
consideration here the Federal Constitutional Court has concluded that
the basic right to proceedings under Article 19 para. 4 of the Basic
Law is normally complied with if there is an examination by an
independent court before the search of residential premises takes
place.

Accordingly, with regard to the present case, it must be assumed that
the impugned judicial search warrants must already be regarded as
examinations by a national authority within the meaning of Article 13
of the Convention, which does not establish a further remedy
against such judicial search warrants.

Ad b). It is true that Article 13 of the Convention assumes
that action will be taken by a national authority on a "remedy" being
sought.  However, it cannot be inferred from this that - in order for
the requirements of Article 13 to be met - Contracting
States must make provision for action to be taken by a national
authority for the purpose of examining executive acts only at the
stage when a remedy is sought.  On the contrary, it is compatible with
the meaning of Article 13 of the Convention if examination
by an independent authority also takes place - for instance on
application by an authority - without the affected party giving the
impetus and seeking a remedy.  This applies all the more when the
"advance deployment" of a legal remedy is intended to make such a
remedy as effective as possible in the interests of the citizen.  This
was the case here.

Article 13 para. 2 of the Basic Law requires - in the interests of the
citizen affected - the involvement of an independent judge before a
search of residential premises is carried out.  The judge has to
examine in advance the action the administrative authority intends to
take as to whether the statutory preconditions have been fulfilled.
The judge only becomes active when the authority has made an
application and then has to give a decision on his own judicial
responsibility and within the context of statutory procedural
guarantees.  The granting of a hearing in accordance with the law is,
as a matter of principle, also one of the procedural guarantees that
have to be observed.  The judge can only dispense with a previous
hearing of the affected party where this hearing would endanger the
objective of the search for which application was made.  The judge has
to take a decision on this in each case and in the exercise of his
judicial discretion (BVerfGE 57, 346, 359).  If the hearing does not
take place, statutory provision is also expressly made in Sections 33a
and 311a of the Code of Criminal Procedure for a subsequent hearing
where the party affected is still suffering a disadvantage.

The involvement of a judge prior to a search - in accordance with
Article 13 para. 2 of the Basic Law - is intended to prevent the
situation where a search of residential premises is only subjected to
judicial control after it has been carried out, the reason being that
at this latter stage interference with the right to protection of the
home will already have occurred.  This would, however, be compatible
with the requirements of Article 13 of Convention.  The Basic Law,
going further than what is required in Article 13, provides for a
prior fundamental judicial examination in order to prevent the
occurrence of legal violations - as far as possible - through early
involvement of an independent judge.  It would be a nonsensical result
for this particularly effective legal remedy - deployed in advance -
not to be accepted as a remedy within the meaning of Article 13 of the
Convention simply because - by its very nature - it is often not
possible for it to be sought.

Article 13 of the Convention does not require any special
configuration for domestic remedies.  Thus, it must be left to
Contracting States to decide whether to exercise particularly
effective control through an independent national authority preceding
a search of residential premises and without a relevant application
being made by the party affected.  In the Federal Republic of Germany
it is even a case of independent national courts becoming active as
national examining authorities.  Protection against interference with
residential premises in the Federal Republic of Germany is arranged in
a manner similarly effective to that in which court protection in
cases of deprivation of liberty is arranged.  In addition to
examination of a search measure by a court, the party affected also
has the right in cases of violation of official duty to demand
compensation pursuant to Section 839 of the Civil Code (Bürgerliches
Gesetzbuch).  The legal remedy for searches of residential premises
basically corresponds to the requirements laid down in Article 5
paras. 4 and 5 of the Convention for cases of deprivation of liberty.

It follows from this that the present applicant's claim to effective
domestic control was satisfied by the court proceedings preceding the
searches.

Notwithstanding the above arguments, the Government observe that there
were further remedies available to the applicant after the searches
had been carried out.  In fact, three further examinations by the
courts took place in relation to each search.  They included the
District Court's decisions on redress followed by the Regional Court's
decisions on the complaints lodged and finally by the examination of
the Federal Constitutional Court.  All these examinations by
independent judges must individually, but at the very least in their
totality, be seen as an effective remedy before a national authority.

Neither the Regional Court nor the Federal Constitutional Court
limited themselves to finding that the course of complaint had been
overtaken by the facts.  They also carried out an examination on the
merits, i.e. whether there had been a violation of the applicant's
basic rights.

In the case of the second search, the applicant was not affected in
her rights because the search order was not made against her but
against another person.  Consequently, she could not be a victim of
this judicial order within the meaning of Article 25 of the
Convention.  The applicant's complaints in this respect are
inadmissible already for this reason.  Insofar as the applicant was
actually affected, i.e. by the seizure of typewriters, other judicial
remedies were available to her which she did in fact use, but this
matter is outside the scope of the present application.

On Article 8 of the Convention

The Government submit that, in the present case, there was no home
worthy of protection pursuant to Article 8 para. 1.  In this
respect, Article 13 of the Basic Law is wider than Article 8 para. 1
of the Convention, which is limited to the actual private
living sphere and does not cover business and storage premises as
well.  The applicant did not have any personal focal point of her
existence, attributable to her private sphere in terms of Article 8
para. 1 of the Convention, in the house when the premises
were searched.  A different address was registered as her place of
residence, and before the search on 14 February 1984 all
communications of the authorities with her were made at this other
address.  Neither the applicant nor anybody else is registered with
the police at the house in question and, by observations from the
police station situated across the street, the property there is known
to have been standing empty for years.  Only the letter box is
occasionally emptied.  The applicant herself has claimed that the
house was unfit for lasting residential occupation because of
unhealthy living conditions.  There are no water nor electricity
supplies in the house, and the searches revealed that it was only used
for storage purposes.

In any event, the requirements of Article 8 para. 2 were
met. The searches were carried out within the framework of statutory
provisions, on the first occasion for establishing whether there had
been a regulatory offence, and on the second occasion, for clarifying
a criminal offence.

On Article 1 of Protocol No. 1

The Government observe that the first search was necessary for the
implementation of the Rent Law Improvement Act which regulates the use
of property in accordance with the general interest.  It does not
provide for any inadmissible interference with property rights.  This
was established in a decision of the Federal Constitutional Court of
4 February 1975 (BVerfGE 38, 348).  The second search was necessary in
the context of criminal proceedings.

Conclusion

The Government, therefore, request the Commission to declare the
application inadmissible.  As regards the first search, it is
manifestly ill-founded; and as regards the second search, the
applicant cannot claim to be a victim or, alternatively, the
application is manifestly ill-founded also in this respect.

B.    The applicant

On the facts

The applicant observes that the Government have submitted certain new
facts which had not been brought to her notice at an earlier date.  In
particular, the fact that the District Court asked the Housing Office
for comments on the applicant's allegations that the house was not
inhabitable before it issued the search order shows an additional
violation of the applicant's rights under Article 6 of the
Convention. Her right to be heard was violated by this one-sided
measure, in particular because the information given by the Housing
Office was not correct.  It was limited to a statement that the
construction of the underground railway had been completed, but the
applicant had in fact claimed that nuisance was emanating from the
operation of the underground railway and not the construction work.
She had also offered evidence to this effect and therefore it is
likely that another decision would have been taken if she had been
heard.

As regards the criminal proceedings underlying the second search, the
applicant submits that there was no sufficient suspicion of a criminal
act.  Apart from that the search was also unjustified because of the
long period of time which elapsed between the search warrant and its
execution during which no judicial supervision of the measures taken
by the authorities took place.  The fact that the accused had earlier
lived in the applicant's house did not justify execution of the search
warrant after an essential change of circumstances.  In this context
it is particularly important that the ownership right in the house was
ascribed to the applicant in the land register in May 1984.  The
accused had in the meantime moved out and the search warrant against
him in fact also referred to his correct address at a different place.

On Article 13 of the Convention

The applicant contests the Government's interpretation of Article 13
according to which an effective domestic remedy under this
provision must only be granted in the area of acts of the
administration.  The text of Article 13 makes no distinction
between administrative and judicial acts and the only relevant
criterion is that there must be an effective remedy.

If acts of the judiciary were excluded from the scope of Article 13,
it would be deprived of any meaning in a case like the
present one. The Convention organs have already stated that an
effective domestic remedy must be given against search warrants if the
person concerned has not been previously heard.  For this reason, the
search warrants themselves cannot be seen as effective domestic
remedies in the present case because on no previous occasion had the
applicant been heard.

If there is no hearing, the person concerned has no possibility of
influencing the decision which thus is based on the unilateral
submissions of the other party.  In the present case these submissions
were incorrect or incomplete.  In particular regarding the first
search the authorities had failed to submit to the court the statement
of the police station that the house was indeed occupied and the
applicant had not been heard on the nuisance emanating from the
underground railway.

In any event, it follows from a global consideration of the Convention
that the aim should be the prevention of violations of fundamental
rights rather than their redress after they have actually occurred.
Seen in this light, a hearing of the person concerned before the
search is carried out would be a more effective remedy.

In the applicant's view only a remedy which leads to a thorough
examination of complaints raised on the basis of fundamental
principles of democracy can be considered as effective.  The remedies
taken by the applicant after the searches did not fulfil these
criteria.  Neither the Regional Court, nor the Federal Constitutional
Court examined the applicant's complaints thoroughly and on the basis
of fundamental democratic principles.  In particular, they failed to
consider the danger of repetition alleged by the applicant in her
submissions, referring to a statement of the Housing Office which had
in fact announced further controls.  The danger of repetition was
indeed recognised by the Frankfurt Court of Appeal in its decision of
1 June 1984, but the Regional Court and the Federal Constitutional
Court denied it.  There were, therefore, divergent decisions of the
competent courts on this important issue, but in effect all courts
declared the applicant's complaints inadmissible.  The Federal
Constitutional Court did not sufficiently deal with the facts nor with
the divergence of opinion between the above courts.

The applicant submits that the lawfulness of the search was in essence
confirmed on the ground that the applicant had refused access to her
property and that the Housing Office had made certain allegations
against her that her house was not used for residential purposes.
Despite the applicant's submissions to the contrary and the evidence
submitted by her, in particular the statement of the police, this
suspicion of a regulatory offence was confirmed.  The applicant
submits that the sources of the Housing Office's information were not
disclosed to her and that she was not granted access to the file and
therefore could not oppose the concrete allegations made against her.
In her view the assessment of the evidence in this way was contrary to
the requirements of Article 6 of the Convention and at the
same time the remedies must be deemed as ineffective for the purposes
of Article 13.

The applicant further considers that the aim of the search was to
establish that the residential premises were unoccupied.  Therefore,
there could not be any danger that she would remove evidence from
these premises as they were presumed to be empty.  A hearing could
have been granted at short notice and it would have been practically
impossible for her to change the condition of the property completely
in the short time available.

The applicant also challenges the underlying legislation.  She
contests that at the relevant time there was in fact a shortage of
residential accommodation in the Federal Republic of Germany in
general, and in Frankfurt in particular.  In support of this
submission she has submitted several pieces of evidence including a
statement of the competent municipal councillor and press reports.
This material had been laid before the Federal Constitutional Court
and she also declared that she could submit further evidence for the
period before 1983.  However, this evidence was not taken into
account.

As regards the second search, the Federal Constitutional Court's
decision was clearly based on the principle of lack of legal interest
because the Regional Court's decision based on this principle was
fully confirmed.  As the important change of circumstances between the
issuing of the search warrant and its execution was not taken into
account, it is not understandable why the Federal Constitutional Court
came to the conclusion that there had been no unreasonable, arbitrary
considerations.  The factual assumptions in these decisions were
wrong, and the applicant was unable to obtain a control as to whether
the facts originally assumed did still exist.  Therefore, the
applicants' remedies were not considered with the required care and
were ineffective also for this reason.

On Article 8 of the Convention and Article 1 of Protocol No. 1

The applicant submits that she had a personal focus of life coming
within her private sphere at the property searched.  The Government's
argument that there was no home within the meaning of Article 8
para. 1 of the Convention overlooks that a home does not
only exist where a person has his or her main residence.  It is lawful
to have several places of residence and each residence counts within
the private sphere and is protected by Article 8 para. 1.
It is correct that the applicant's main residence reported to the
authorities was elsewhere and that no other residence had been
reported.  However, in view of the existence of exemptions from the
duty to report, this does not prove that she did not actually have a
residence in the house in question.  The correspondence with the
applicant was in part addressed to her at this house already before
14 February 1984.  If nobody else was reported to the police as living at
this house, this again does not prove that nobody lived there.
Section 25 of the Hessian Act on the duty to report one's residence
(Meldegesetz) allows a person to live temporarily at a certain address
without reporting.  This applies if a person does not live at the same
address for more than two months even if there are several such
periods during a year.

The applicant also observes that the Federal Constitutional Court
confirmed the constitutionality of Article 6 of the Rent Law
Improvement Act only in so far as it applied to residential premises
not used for the purposes of the owner.  In its decision of 4 February
1975 quoted by the Government (BVerfGE 38, 348, 365) the court
expressly stated this and added that the owner has in principle the
right to determine himself how much room he will use for his own
residential purposes, because this does not affect the designation of
the object as serving residential purposes.  To live in certain
premises only from time to time is perfectly sufficient to make those
premises a home within the meaning of Article 8 para. 1 of the Convention.

The applicant submits that the offence stipulated in Article 6 of the
Rent Law Improvement Act is not failure to report to the police, but
failure to use the premises for residential purposes.  The applicant
maintained throughout the proceedings that she was exempted from a
duty to report and that the house was in fact inhabited.  This was
also confirmed by the statement from the police station situated
across the street.  The fact that the house was unfit for permanent
habitation because of the noise from the underground railway did not
exclude that it was possible to live there from time to time.  The
finding in the memorandum on the search that there was no water and
electricity supply does not prove anything because this memorandum was
in the applicant's opinion prepared in an unlawful manner, in
particular it was not signed by all parties including the applicant
and therefore section 11 of the Hessian Administrative Execution Act
(Verwaltungsvollstreckungsgesetz) was violated.  The statement that
the rooms were used exclusively for storage purposes is also
incorrect.  The applicant submits that some of the photos taken at the
search show that there were in fact sleeping and washing facilities
and, in so far as the furniture was not in its place, this can be
explained by the fact that construction work had been undertaken and
the furniture temporarily removed from its normal place.  Also during
the time of repair work, residential premises must in principle be
regarded as a home and are not deprived of the protection of
Article 8.

In the applicant's view, the Government's statements according to
which there was no home are based on findings which do not correspond
to the true facts.  Several legal provisions were disregarded in this
respect and the non-observance of these provisions in her case
constitutes discrimination contrary to Article 14 of the Convention.

As to the necessity of the first search under Article 8 para. 2
the applicant submits that it cannot be justified by the
Federal Constitutional Court's decision dating back ten years which
confirmed the constitutionality of the Rent Law Improvement Act.  The
necessity of such a measure must be determined at the relevant time.
In the applicant's submission a housing shortage did not exist when
the proceedings for offences under the above Act were taken against
her. In fact, the housing shortage had not even existed at the time of
the Federal Constitutional Court's above decision, as appears from
press reports which show that already then there was a surplus of
residential accommodation available on the market.  The fact that the
Rent Law Improvement Act is nevertheless applied up to the present
date violates in the applicant's opinion Article 8 of the
Convention, Article 1 of Protocol No. 1 also Articles 17
and 18 of the Convention because of lack of proportionality.

As regards the second search, the applicant contests the Government's
argument that she was no victim.  Her rights under Article 8
of the Convention and Article 1 of Protocol No. 1 were clearly
interfered with, and therefore she can claim to be a victim.

The applicant, therefore, fully maintains her application.

THE LAW

1.      The applicant complains that two searches carried out at her
house in Frankfurt violated her rights under Article 8 (Art. 8)
of the Convention and Article 1 of Protocol No. 1 (P1-1).  She also
invokes Articles 14 (Art. 14), 17 (Art. 17) and 18 (Art. 18) of the
Convention in this respect.

The applicant further complains of the relevant proceedings, claiming
that her rights under Articles 6 (Art. 6) and 13 (Art. 13) of the
Convention were violated.

2.      The Commission first observes that it comes close to an abuse
of the right of petition (Article 27 para. 2 of the Convention)
(Art. 27-2) that the applicant failed to inform it of the fact that
she had actually lodged complaints of unconstitutionality against both
search warrants in question while pretending at the same time that
such complaints did not constitute effective remedies and therefore
need not be exhausted. The Commission was thereby misled to assume
that no complaints of unconstitutionality had been lodged, and it
communicated the case to the respondent Government on this erroneous
basis.  The applicant was slow in providing the relevant information
even after the communication of the case and this led to unnecessary
delays in the proceedings.

Although with some hesitation, the Commission assumes in the
applicant's favour that she misunderstood the Commission's procedure
and the importance of the information withheld, and that she thus did
not deliberately cause the Commission's above error.

3.      The applicant first complains that the searches carried out in
her house were not justified and infringed her rights under Article 8
(Art. 8) of the Convention.  Insofar as relevant to the present case this
provision ensures to everyone the right to respect for his private
life and home.  The Government submit that the searches concerned
unoccupied premises which neither constituted the applicant's home nor
a focal point of her private life.  The applicant submits that the
factual situation was different.

There is no need to decide in this case whether and to what extent the
protection against searches enshrined in Article 8 (Art. 8) of the
Convention is applicable to other than residential premises
(cf. No. 8689/79, Dec. 9.12.80, unpublished, concerning the search of
a bank, No. 9614/81, Dec. 12.10.83, D.R. 34, p.119 concerning the search
of a lawyer's office, and No. 10461/83, Chappell v. United Kingdom,
Dec. 14.3.85, to be published, concerning the search of commercial
premises).  At any rate these measures were justified under Article 8
para. 2 (Art. 8-2) as being "in accordance with the law", as pursuing a
legitimate aim covered by this provision, and as being "necessary in a
democratic society" for the attainment of that aim.

a)      As regards the first search, the applicant contests its
lawfulness mainly by challenging the legislation underlying the
regulatory proceedings in the context of which the search was ordered.
However, it is not these regulatory proceedings as such which are at
issue here, but only the search ordered in connection with them.  In
this respect it is sufficient that the Rent Law Improvement Act
provides for the regulatory offence of leaving residential premises
unoccupied, and that there was a reasonable suspicion of the applicant
having committed that offence.  Moreover, in view of the applicant's
failure to provide the necessary information to the competent
authorities, the conditions for issuing a search warrant against her,
under Section 46 (1) of the Regulatory Offences Act read in
conjunction with Section 102 of the Code of Criminal Procedure, were
clearly met.  This has been confirmed by several decisions of the
domestic courts.  The search was therefore "in accordance with the
law".

Regulatory proceedings must be considered as criminal proceedings for
the purposes of the Convention (cf. Eur. Court H.R. Öztürk judgment
of 21 February 1984, Series A no. 73), and therefore the search also
pursued a legitimate aim covered by Article 8 para. 2 (Art. 8-2)
of the Convention, namely the "prevention of crime".  It can be left
open whether, in view of the general purpose of the underlying
legislation, it was also justified "in the interest ... of the
economic well-being of the country".

Finally, the Commission considers that the search in question could
reasonably be regarded as proportionate in the circumstances and thus
as "necessary in a democratic society".

b)      As regards the second search, the applicant submits that it
was unlawful because it concerned the previous owner of the house who
allegedly no longer lived there;  moreover, that the relevant search
warrant had been issued almost a year before it was executed, at a
time when the property right had not yet been ascribed to her;
finally, that  there was no sufficent suspicion of a criminal offence.

The Commission finds, however, that this search had a legal basis in
the relevant provisions of the Code of Criminal Procedure (Sections
102 and 103) and that it was therefore "in accordance with the law" as
required by Article 8 para. 2 (Art. 8-2) of the Convention.  It
further served a legitimate purpose, namely the "prevention of crime".
The Commission considers that the limits of the principle of
proportionality were not overstepped, and that this search can
therefore also be considered as "necessary in a democratic society".

It follows that, concerning both searches, the applicant's complaints
under Article 8 (Art. 8) of the Convention are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

4.      The applicant further invokes Article 1 of Protocol No. 1
(P1-1), claiming that her right to the peaceful enjoyment of her
possessions was unjustifiably interfered with.

a)      Insofar as this complaint concerns the interference by the
searches with the use of the applicant's property, it must be recalled
that the measures in question served the purpose of preventing
regulatory or criminal offences and they thus were "in accordance with
the general interest".  As regards the lawfulness and proportionality
of these measures, the Commission refers to its above findings under
Article 8 (Art. 8) of the Convention.  It follows that the measures
were fully covered by Article 1 para. 2 of Protocol No. 1 (P1-1-2),
insofar as any separate issue could arise under this provision.

b)      Insofar as the applicant complains in addition that the
legislation underlying the first search, i.e. the Rent Law Improvement
Act and its implementing provisions for the City of Frankfurt,
contravenes Article 1 of the Protocol (P1-1), the Commission considers
that the applicant has not exhausted domestic remedies in conformity
with the requirements of Article 26 (Art. 26) of the Convention.  In
fact she has not informed the Commission of the outcome of the
regulatory proceedings in question nor of any measures, apart from the
search, which were taken against her on the basis of this legislation.

Moreover, even assuming that the applicant may be considered as having
exhausted domestic remedies by alluding to this problem in her appeals
concerning the search procedure, the complaint would still have to be
rejected as in any case the legislation in question contains a
regulation "to control the use of property in accordance with the
general interest" and is thus covered by Article 1 para. 2 of Protocol
No. 1 (P1-1-2).

c)      Insofar as the applicant finally complains of the seizure of
her typewriters at the second search, she can no longer claim to be a
victim of a violation of her rights under Article 1 of Protocol No. 1
(P1-1) as the said typewriters were returned to her on
24 September 1984. In any event the temporary removal of the
typewriters for the purpose of securing evidence in a criminal
procedure is again covered by Article 1 para. 2 (P1-1-2).

It follows that the applicant's complaints under Article 1 of Protocol
No. 1 (P1-1) are manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.

5.      The applicant has further invoked Articles 14 (Art. 14),
17 (Art. 17) and 18 (Art. 18) of the Convention.  However, she has
failed to show that she was treated differently from any other person
or group of persons in a similar situation, nor has it been
established that the measures taken against her were used for any
purposes extraneous to the relevant proceedings or for the destruction
or inadmissible limitation of her human rights. These complaints are
therefore also manifestly ill-founded.

6.      The applicant's procedural complaints concern exclusively the
search procedure as such, and not the underlying regulatory or
criminal proceedings, nor the proceedings concerning the seizure
effected at the second search.  In these circumstances there is no
room to apply Article 6 (Art. 6) of the Convention which the applicant
invokes regarding the refusal of a hearing prior to the execution of
the searches.  The search proceedings as such did not concern the
determination of the applicant's civil rights and obligations, nor of
a criminal charge against her.  It follows that the applicant's
procedural complaint under Article 6 (Art. 6) is ratione materiae
incompatible with the provisions of the Convention and must be
rejected under Article 27 para. 2 (Art. 27-2).

7.      The remaining procedural complaint is under Article 13
(Art. 13) of the Convention.  According to this provision everyone
whose rights and freedoms set forth in the Convention are violated
shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.  The applicant claims that she has had
no effective remedy either before the searches were carried out or
afterwards.

The Commission does not find it necessary to determine whether a
previous judicial determination of the justification of the searches
in question without an application or hearing of the applicant could
fulfil the requirements of Article 13 (Art. 13) of the Convention as
claimed by the Government.  In the present case the search warrants,
as executed, were in any event reviewed in subsequent court
proceedings.

The Commission notes that the applicant in fact appealed against the
searches after they had been carried out, and her appeals were each
time considered by the District Court, the Regional Court and finally
the Federal Constitutional Court.  It is true that in this context
reference was made to the case-law of the Federal Constitutional Court
according to which the legal interest in reviewing a search which has
already taken place is limited to certain circumstances.  An issue
could indeed arise under Article 13 (Art. 13) if this case-law had
been applied in such a way as to exclude any examination of the
lawfulness and substantive justification of the searches in question
in the light of the specific complaints raised by the applicant.
However, it clearly appears from the relevant court decisions that the
merits of the applicant's complaints were also considered in both
cases.  In particular the Federal Constitutional Court dealt with the
question whether the applicant's constitutional rights had been
violated, and there is no indication that the applicant's arguments in
this respect were disregarded.

It follows that the applicant did in fact have effective domestic
remedies in which she could raise her claims concerning the two
searches, and her complaints under Article 13 (Art. 13) of the
Convention are therefore manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission                 President of the Commission

       (H.C. KRÜGER)                              (C.A. NØRGAARD)