The European Commission of Human Rights sitting in private on
6 October 1986, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. TENEKIDES
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
Sir Basil HALL
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 17 December 1984 by Z.A. and
I.M-A. against Austria and registered on 27 December 1984 under file No.
11332/85;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the applicants,
may be summarised as follows:
The applicants, a married couple, are Austrian citizens and resident
in Linz, Austria. Both work as employees. Before the Commisson they
are represented by Dr. B. Binder, a lawyer practising in Linz.
From 1 May to 30 June 1984 the applicants lodged, in addition to their
principal residence in Linz, at a students' hostel in the same town.
At the hostel, they had two adjoining rooms, the first applicant
No. 304 and the second applicant No. 303, which were linked by an
unlocked door. According to investigations of the police these rooms
constituted a married couple's flat.
On 26 June 1984 two persons robbed a bank near Linz and then escaped
in a light blue Mazda car with a car plate which had been stolen near
the students' hostel.
On 27 June 1984 the Steyr Regional Court (Kreisgericht) issued a
search warrant (Hausdurchsuchungsbefehl) to the first applicant
concerning his principal residence as well as room No. 303 at the
students' hostel. The search warrant expressly extended to his "home
as well as other rooms belonging to his household". The Regional
Court relied on S. 139 para. 1 of the Code of Criminal Procedure which
reads:
"The search of a home, i.e. the search of the lodgings and other rooms
belonging to the household, is only allowed in the case of a
reasonable suspicion that a person is hiding who is suspected of a
crime or an offence or that there are objects, the possession or
examination of which could be important in respect of a certain
investigation."
Under S. 140 para. 3 of the Austrian Code of Criminal Procedure
(Strafprozessordnung) a search may as a rule only be effected by
virtue of a warrant which has been issued by a court and states the
reasons therefor.
In the Court's view, there existed a reasonable suspicion that the
first applicant had committed the bank robbery. Thus, his wife, the
second applicant, owned a car of the same type as the one the robbers
had escaped in. Moreover the first applicant lived at the students'
hostel not far from where the car plate used during the bank robbery
had been stolen. Moreover, he had been absent at the relevant time
and had then acted suspiciously by prohibiting an employee at the
students' hostel to enter his room. He had also unexpectedly
announced that he would soon leave the hostel.
The Court furthermore decided that, as delay would be dangerous, the
first applicant should not be heard prior to the search. In this
respect the Court invoked S. 140 para. 2 of the Code of Criminal
Procedure which provides that it is not necessary to hear the person
concerned prior to a search, if, inter alia, delay would be dangerous.
On the same day the police entered the hostel and searched room
No. 303 which had been stated in the search warrant. After having
noticed that this was the second applicant's room the police then also
searched the first applicant's room No. 304.
The search was completed without any results. After having examined
the first applicant's alibi, the police excluded him from the list of
suspects. On 7 August 1984, the Steyr Public Prosecution Authority
(Staatsanwaltschaft) closed the investigation proceedings in respect
of the first applicant.
On 2 August 1984, both applicants requested the Linz Federal Police
Directorate (Bundespolizeidirektion), the first applicant also the
Steyr District Court, to deliver a certificate concerning the search.
They also requested a declaration that no suspicious objects had been
found. Such a request is possible under S. 141 para. 3 of the Code of
Criminal Procedure in the case of a search, which has not been ordered
by a court. Pursuant to S. 142 para. 4 of the Code of Criminal
Procedure the person concerned by a search may request a confirmation
that no suspicious facts have been disclosed. As a result, however,
only the first applicant received a copy of the search warrant as well
as the confirmation dated 3 August 1984 on 7 August 1984.
On 16 August 1984 the second applicant unsuccessfully addressed the
same request to the Upper Austrian Police Department
(Landesgendarmeriekommando für Oberösterreich).
On 30 August 1984, the Steyr Regional Court dismissed the first
applicant's complaint (Beschwerde) in respect of the search warrant.
S. 113 of the Code of Criminal Procedure provides for an appeal to the
competent Regional Court by anybody whose interests have been
infringed by an act of an investigating judge. The Court found in
particular that the applicant's conduct had justified the search
warrant pursuant to S. 139 para. 1 and S. 140 para. 2 of the Code of
Criminal Procedure. The additional search of the room No. 304 did not
concern the lawfulness of the search warrant as such. Moreover, both
rooms were connected by an unlocked door and had been used as a
married couple's flat. Consequently, the rooms had been lawfully
searched as "lodgings and other rooms belonging to the household"
within the meaning of S. 139 para. 1 of the Code of Criminal
Procedure.
The applicants did not lodge constitutional complaints to the Austrian
Constitutional Court (Verfassungsgerichtshof) under S. 144 of the
Federal Constitution (Bundesverfassungsgesetz) which provides:
"The Constitutional Court pronounces on rulings by administrative
authorities insofar as the applicant alleges an infringement by the
ruling of a constitutionally guaranteed right or the infringement of
personal rights on the score of an illegal ordinance, an
unconstitutional law, or an unlawful treaty. On the same premises the
Court likewise pronounces on complaints against the exercise of direct
administrative power and compulsion against a particular individual."
COMPLAINTS
1. The first applicant complains under Article 8 (Art. 8)
of the Convention that his room No. 304 at the students' hostel was
not searched in accordance with Austrian law, i.e. S. 139 para. 1 of
the Code of Criminal Procedure inasmuch as the search warrant did not
mention his room number. Moreover, the warrant had only been based on
specious reasons. Thus, the colour of his wife's car differed from
that of the car used after the robbery. He had also not been absent
from 25 to 27 June 1984. His announcement concerning his departure
could not be considered as unexpected on the ground that the room had
only been rented on a temporary basis and inasmuch as it occurred at
the end of the month. Moreover, the search warrant failed to mention
reasons why delay would have been dangerous. Finally his room was
searched in the presence of a secretary of the students' hostel who
was therefore able to take note of details concerning his private
correspondence.
2. The second applicant complains also under Article 8 (Art. 8)
of the Convention that her room No. 303 was not searched in accordance
with Austrian law, as the search warrant did not refer to her
personally and had mentioned her room number only by mistake.
Moreover, she had not been heard prior to the search.
3. The applicants furthermore submit that constitutional
complaints to the Austrian Constitutional Court would not have been
admissible. The search warrant was addressed to the first applicant
and erroneously mentioned the number of the second applicant's room at
the students' hostel. The search of both rooms could not, therefore,
be considered as action by the police exceeding their competence and
could consequently not be challenged with a constitutional complaint.
THE LAW
1. The first applicant complains under Article 8 (Art. 8)
of the Convention that his room at the students' hostel was unlawfully
searched by the police. Article 8 (Art. 8) reads:
"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."
The Commission notes at the outset that the first applicant did not
lodge a constitutional complaint to the Austrian Constitutional Court.
He rather availed himself of the appeal to the Regional Court under
S. 113 of the Code of Criminal Procedure.
The Commission observes that under S. 144 of the Federal Constitution
the Constitutional Court is only competent to pronounce on complaints
concerning rulings by administrative authorities or on complaints
against the exercise of direct administrative power and compulsion,
respectively. In the case of a search effected on the basis of a
court's warrant, the constitutional complaint is only admissible to
the extent that an excess of the court's order by the administrative
authorities is challenged.
An issue therefore arises as to whether the first applicant has
properly exhausted domestic remedies within the meaning of Article 26
(Art. 26) of the Convention. The Commission nevertheless leaves this
question open, since the above complaint is in any event manifestly
ill-founded for the following reasons.
The Commission finds that the first applicant's room at the students'
hostel constituted a part of his home within the meaning of Article 8
para. 1 (Art. 8-1). The search by the police on 27 June 1984
therefore amounted to an interference with the first applicant's right
to respect for his home guaranteed by Article 8 para. 1 (Art. 8-1).
The Commission's next task is to examine whether this interference was
justified under Article 8 para. 2 (Art. 8-2). According to Article 8
para. 2 (Art. 8-2) the interference must have been effected "in
accordance with the law". The Commission recalls that the logic of the
system of safeguards established by the Convention sets limits upon
the scope of the power of review exercised by the Convention organs in
this respect. It is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law (see Eur.
Court H.R., Malone judgment of 2 August 1984, Series A. no. 82,
pp. 31-33 paras. 66-68; mutatis mutandis Barthold judgment of
25 March 1985, Series A no. 90, p. 22 para. 48). In the instant case,
the Commission has had regard to the relevant S. 139 para. 1 and
S. 140 paras. 2 and 3 of the Austrian Code of Criminal Procedure. It
notes that the Regional Court in its decision on 30 August 1984
carefully examined the various suspicious facts in respect of the
first applicant's conduct. In the given circumstances, the Commission
does not find it unreasonable if the Court considered the warrant as
well as the ensuing search of the first applicant's home as lawful
and, thereby, also referred to the search of his room at the students'
hostel which had not been correctly identified in the warrant. The
Commission is, therefore, satisfied that the interference at issue was
effected "in accordance with the law" within the meaning of Article 8
para. 2 (Art. 8-2).
Moreover, the Commission is of the opinion that the interference with
the first applicant's right to respect for his home was necessary in a
democratic society for the prevention of crime.
In these circumstances the Commission finds that the interference, by
the search complained of, with the first applicant's right to respect
for his home was justified under Article 8 para. 2 (Art. 8-2)
of the Convention. The complaint does not, therefore, disclose any
appearance of a violation of the rights and freedoms set forth in the
Convention and especially in Article 8 (Art. 8).
It follows that the first applicant's complaint under Article 8
(Art. 8) of the Convention is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The second applicant complains under Article 8 (Art. 8)
of the Convention that the search of her room No. 303 at the students'
hostel constituted an unlawful interference with her right to respect
for her home. She points out that the search warrant was not
addressed to her personally and only erroneously mentioned her room
number.
The Commission notes first that the second applicant failed to appeal
to the Regional Court under S. 113 of the Code of Criminal Procedure
as well as to lodge a constitutional complaint to the Constitutional
Court under S. 144 of the Austrian Constitution. The question
therefore arises whether the second applicant has exhausted domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention.
However, the Commission does not consider it necessary to decide this
issue, as also the second applicant's complaint under Article 8
(Art. 8) is manifestly ill-founded for the following reasons.
The Commission notes that according to the relevant S. 139 para. 1 of
the Austrian Code of Criminal Procedure a lawful search refers to the
home of the person concerned which comprises his lodgings and other
rooms belonging to the household. In the present case the Regional
Court, in its decision of 30 August 1984, considered the applicants'
two connected rooms at the students' hostel as a married couple's flat
and, therefore, found that the search of the second applicant's room
was also covered by the search warrant concerning the first applicant.
In these circumstances the Commission does not find it unreasonable
that the Regional Court concluded that the search of the second
applicant's room at the students' hostel was in accordance with
Austrian law within the meaning of Article 8 para. 2 (Art. 8-2)
of the Convention.
The interference with the second applicant's right to respect for her
home was also necessary in a democratic society for the prevention of
crime.
The Commission finds that, in these circumstances, the interference
with the second applicant's right to respect for her home was
justified under Article 8 para. 2 (Art. 8-2) of the Convention. It
does not, therefore, disclose any appearance of a violation of the
rights set forth in Article 8 (Art. 8).
It follows that the second applicant's complaint is also 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)