AS TO THE ADMISSIBILITY OF
Application No. 15882/89
by Theodor BOTKA and Farhad PAYA
against Austria
The European Commission of Human Rights sitting in private on
29 March 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M. NOWICKI
Mr. M. de SALVIA, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 August 1989 by
Theodor BOTKA and Farhad PAYA against Austria and registered on
11 December 1989 under file No. 15882/89;
Having regard to the report provided for in Rule 47 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
parties, may be summarised as follows.
The first applicant, born in 1905, is an Austrian national and
resident in Klagenfurt. He is a painter and composer by profession.
Before the Commission he is represented by the second applicant, a
lawyer practising in Klagenfurt. The second applicant, born in 1954,
is also an Austrian national.
A. The particular circumstances of the case
On 29 August 1988 Mr. G. informed the Klagenfurt Federal Police
Department (Bundespolizeidirektion) that he suspected Mr. R. of
committing criminal offences to the financial disadvantage of the first
applicant, who was taken care of by Mr. R., and the first applicant's
brother. This information was forwarded to the Klagenfurt Public
Prosecutor's Office (Staatsanwaltschaft) which instructed the Police
Department to investigate into the circumstances of the first applicant
and his brother and their relationship with Mr. R., and in particular
any financial transactions.
In the course of the investigations, a social worker of the
Klagenfurt Municipal Office, a physician employed by the Klagenfurt
Health Office and a police officer visited the first applicant at his
home on 16 September 1988. The social worker, in his subsequent
report, referred to some difficulties with Mrs. R., the wife of the
suspect Mr. R., who did not wish that they entered and disturbed the
first applicant; he then described the first applicant's living
conditions and in detail the disorder in the apartment and general
state of neglect, and the information gathered in the course of the
conversation with the first applicant, inter alia as to his vague
knowledge about his financial situation and the fact that he had made
Mrs. R. his sole heir.
Furthermore, on the same occasion, the first applicant was
examined by a physician employed by the Klagenfurt Health Office. In
his report dated 27 September 1988, the doctor stated in detail the
first applicant's state of physical health and his impressions as to
his mental health. Having also consulted the first applicant's general
practitioner, he concluded that the first applicant, although he did
not suffer from any important phases of disorientation, might be in
need of support, in particular in financial matters.
Moreover, on 21 September 1988 a police officer of the Klagenfurt
Federal Police Department, upon appointment with the second applicant,
inspected the first applicant's apartment and questioned the first
applicant in the apartment of Mr. and Mrs. R. According to his report
of the same date, he had put questions as to the first applicant's
will, the circumstances of him living in the house of Mr. R., and his
financial situation, in particular his various savings booklets. The
second applicant had confirmed that he had the savings booklets in
safe-keeping; however, referring to his professional secrecy, he
refused any indications as to the number of savings booklets as well
as the amount of savings concerned. The officer also expressed doubts
whether the second applicant, having regard to his acquaintance with
Mr. R., could impartially act on the first applicant's behalf.
On 29 September 1988 the Police Department submitted its report
to the Public Prosecutor's Office.
On 28 October 1988 the Prosecutor's Office requested the
Investigating Judge at the Klagenfurt Regional Court (Landesgericht)
to open preliminary investigations, especially to hear Mr. R. on the
charges against him, to order an expert opinion as regards the first
applicant's and his brother's physical and mental state of health at
present and in 1980, and to hear the first applicant and his brother
as witnesses.
On 28 October 1988 the Investigating Judge instructed Dr. S. to
prepare his expert opinion. In November 1988 the first applicant
refused an examination by Dr. S. The expert did not, therefore,
examine him; no expert opinion was prepared at that time.
Subsequently, the Klagenfurt District Court (Bezirksgericht), ex
officio, opened guardianship proceedings regarding the first applicant.
On 5 December 1988 a judge of the District Court heard the first
applicant. According to a file note, the judge concerned had gathered
the impression that the first applicant might no longer be in a
position to handle all his financial matters. The District Court
ordered continuation of the guardianship proceedings. The first
applicant's appeals in this respect remained unsuccessful.
On 30 January 1989 an Investigating Judge at the Klagenfurt
Regional Court ordered the search of the second applicant's law office
in order to find the first applicant's and his brother's savings
booklets, all other documents relating to their assets as well as all
other evidence concerning their assets and financial transactions.
Such evidence should be seized. The search would not take place if all
documents were handed over voluntarily. Furthermore the search should
be effected without previously hearing the second applicant; he should
be heard in the course of or after the search. A representative of the
Carinthian Lawyers' Association (Rechtsanwaltskammer) should be present
at the search. The Investigating Judge referred to S. 139 of the Code
of Criminal Procedure (Strafprozeßordnung).
In its reasoning, the Investigating Judge stated in particular
that it was known to the Court that the second applicant represented
both the first applicant and his brother as well as the suspect Mr. R.
and his wife. Thus conflicts of interests were unavoidable. Having
regard to charges laid by the Klagenfurt Federal Police Department,
there was a reasonable suspicion that Mr. R. had committed fraudulent
conversion and fraud to the disadvantage of the first applicant and his
brother who were both considerably helpless due to their age and their
physical state. The Judge noted that the brothers concerned had owned
two houses which had been sold more than ten years ago and the proceeds
had been paid into several savings accounts at three different Austrian
banking institutes. Some of the savings booklets as well as securities
owned by the brothers were kept by Mr. R. According to statements of
the first applicant and his brother, part of the savings booklets and
documents and instructions relating to their assets were kept by the
second applicant. The Judge considered that the search was necessary
on the ground that the suspect Mr. R. refused to disclose the extent
to which he administered the first applicant's and his brother's assets
or the extent to which such assets were given to him.
The search warrant was amended as regards the second applicant's
address in the morning of 1 February 1989.
On 1 February 1989 the second applicant's law office was searched
by two police officers of the Klagenfurt Federal Police Department in
the presence of two court witnesses and a lawyer as representative of
the Lawyers' Association. At the same time, the first applicant was
questioned by the Investigating Judge at the Klagenfurt Regional Court
in the presence of Dr. S., the psychiatric expert.
According to a report of one police officer about the search of
the second applicant's law office, which was dated 1 February 1989, the
persons participating in the search arrived at the second applicant's
law office at noon. The second applicant was not present. Following
some inquiries he was contacted at the suspect's premises, where a
search was carried out at the same time, and he arrived at 12h35 at his
office. He received a copy of the search warrant. The second applicant
stated he would not voluntarily hand over the savings booklets and
other documents without permission by the first applicant and his
brother, or his brother's curator. Both the second applicant and the
representative of the Lawyers' Association declared that they
considered the search warrant to be illegal. The representative of the
Lawyers' Association further requested that the Investigating Judge as
well as the Public Prosecutor concerned should be called to the second
applicant's law office.
The report continued that the second applicant then accompanied
one of the police officers to the apartment of the suspect Mr. R. The
first applicant was heard in the presence of the Investigating Judge
and the psychiatric expert S. Upon the second applicant's question,
the first applicant refused permission to consult his personal
documents and savings booklets and to file them with the Court. The
Investigating Judge thereupon ordered that the savings booklets should
not be seized and that a file in the second applicant's law office
concerning the matters of the two brothers should be put under seal and
in safe-keeping. Upon return to his law office, the second applicant
and the representative of the Lawyers' Association stated that they
considered the seizure of the file concerned unlawful. Nevertheless,
the file, handed over by the second applicant, was sealed in accordance
with the instructions given by the Investigating Judge and later
deposited at the Klagenfurt Regional Court. At the end of the search,
the second applicant also declared that he did not represent the
suspect Mr. R., but only the first applicant, and that he had
represented the first applicant's brother until a curator had been
appointed.
The report of the representative of the Lawyers' Association
dated 1 February 1989 essentially corresponded with the above report.
According to the record of the first applicant's questioning as
witness in the early afternoon of 1 February 1989, the first applicant
answered a series of questions put both by the Investigating Judge and
by Dr. S. The first applicant stated in particular that he and his
brother had in the past sold two houses, one of them to Mr. R. in
exchange for the right to occupy one apartment in a house owned by the
latter. He and his brother perceived a monthly rent from the Regional
Government and owned securities and savings booklets representing
considerable values, Mrs. R. being authorised to dispose of these
accounts. The first applicant also stated that the relevant documents
were at the bank or with the second applicant, and he permitted the
Court to verify the accuracy of his financial matters and to inspect
the documents concerned.
On 2 February 1989 the Investigating Judge, in the presence of
the second applicant, inspected the contents of the safe No. 50 at a
Ferlach banking institute.
On 3 February 1989 the file seized in the second applicant's law
office was opened at the Klagenfurt Regional Court. The lawyer
representing the Lawyers' Association in this case consulted the file
in the presence of the Investigating Judge and the second applicant,
and stated that it contained, apart from court documents, only
documents which could not be examined without the permission of the
first applicant and his brother. Upon the second applicant's request,
the file was handed back without having been inspected by the Regional
Court.
On 14 February 1989 the first applicant, represented by the
second applicant, informed the Klagenfurt Regional Court that he had
been questioned in the presence of the psychiatric expert S. apparently
in order to enable the expert to prepare an opinion on the question of
his capacity to enter into legal transactions. He complained about
this procedure and objected to any examination by the expert S. whom
he challenged for lack of professional competence and for his Nazi
past. He also submitted a private expert opinion confirming his
capacity to enter into legal transactions.
On 16 February 1989 the Investigating Judge at the Klagenfurt
Regional Court ordered that the employees of a Ferlach banking
institute had to hand over for court safe-keeping all savings booklets,
securities, deposit receipts etc. contained in the safe No. 50.
The Investigating Judge, referring to the criminal proceedings
against Mr. R., found in particular that the second applicant had
deposited various savings booklets and securities belonging to the
first applicant and his brother in the above safe. Having examined the
contents of that safe on 2 February 1989, he found that a particular
savings booklet with a deposit of about AS 550,000 had, contrary to the
statements of the first applicant, not been in the safe. It was
unclear whether this amount had been used to buy securities or had been
improperly used, and therefore all financial transactions had to be
examined. Thus all savings booklets had to be seized.
The Investigating Judge noted that the first applicant,
apparently the owner of the savings booklets and other documents, had
expressly agreed to the examination of all his savings booklets when
heard as witness on 1 February 1989; any revocation or reservation
notified to the Court by third persons were therefore irrelevant. In
any event, the seizure had to be effected under S. 143 of the Code of
Criminal Procedure.
The Investigating Judge subsequently carried out the order of
16 February 1989 in that he consulted in detail the contents of the
safe No. 50 at the Ferlach banking institute, prepared a list and
copies of the documents found. The contents of the safe were
afterwards put back.
On 21 February 1989 the applicants lodged a complaint about the
decisions of 30 January, 1 and 16 February 1989 with the Klagenfurt
Regional Court. They submitted in particular that the search warrant
had not been precise. The search had in part been carried out at a
Rosental banking institute. Furthermore, the first applicant had not
agreed that files concerning his matters be handed over. It was true
that the first applicant, in the presence of the Investigating Judge
and the psychiatric expert, had agreed to an examination of his savings
booklets and securities, however, only to an informal examination of
his safe without any notes or copies to be taken. Moreover the search
warrant of 16 February 1989 incorrectly referred to a banking institute
at Ferlach whereas the safe at a Rosental banking institute was
examined and the complete contents were copied. S. 145 of the Code of
Criminal Procedure would only have provided for sealing and
safe-keeping.
On 6 March 1989 the Klagenfurt Regional Court appointed the
psychiatric expert S. to prepare an opinion on the question whether the
first applicant was capable to enter into legal transactions, at the
present time as well as in 1980 when he had transferred real estate to
the suspect R. and his wife in exchange for a free right to occupy an
apartment. An opinion should also be prepared as regards the first
applicant's brother.
On 14 March 1989 the first applicant challenged the expert S. for
lack of professional qualifications and in view of his professional
activities under the Nazi regime. He also filed a complaint with the
Klagenfurt Regional Court about the decision of 6 March 1989.
On 23 March 1989 the Judges' Chamber (Ratskammer) at the
Klagenfurt Regional Court dismissed the applicants' complaint against
the decisions of 30 January, 1 and 16 February 1989, which concerned
the search warrants in respect of the second applicant's law office and
the safe at a banking institute, respectively.
With regard to the search complained of, the Judges' Chamber,
referring to S. 139 et seq. of the Code of Criminal Procedure, found
in particular that there had been a reasonable suspicion of fraudulent
conversion to the disadvantage of the first applicant and his brother.
The brothers owned various savings booklets and other assets. The
suspect R. had refused to disclose in how far he administered the first
applicant's and his brother's assets and had received gifts, and he had
not voluntarily handed over the relevant evidence. The second
applicant had been orally given legal power by the suspect's wife in
the presence of police officers on the occasion of the search.
Furthermore the second applicant could not rely on his duty of secrecy
as counsel as on 1 February 1989, when he was heard by the
Investigating Judge, the first applicant had agreed to the inspection
of his savings booklets.
As regards the seizure of the savings booklets at the Ferbach or
the Rosental banking institute, respectively, the Regional Court
referred to the consent given by the first applicant and considered
that one savings booklet had been missing in the bank safe and,
therefore, the deposits on all other savings booklets had to be
examined in order to verify the money transfers.
On 23 March 1989 the Klagenfurt Regional Court also dismissed the
first applicant's complaint about the decision of 6 March 1989
appointing the medical expert S. The Regional Court considered that
the expert was highly qualified. Any doubts as regards the expert's
impartiality would have to be verified by the Investigating Judge. The
private expert opinion submitted by the first applicant could not
replace the evidence given by a court-appointed expert. Having regard
to the charges, namely fraudulent conversion to the disadvantage of the
first applicant and his brother, who due to their age and their
physical and mental situation were no longer capable to enter into
legal transactions, the examination of their capacity to enter into
legal transactions had to be established by psychiatric expert
evidence. The decision of 6 March 1989 was thus in conformity with
S. 132 of the Code of Criminal Procedure. The Regional Court continued
that the Code of Criminal Procedure did not provide for a legal basis
to enforce a psychiatric examination of a witness. Should the first
applicant refuse an examination, the expert could only base himself
upon the file, his observation of the first applicant on the occasion
of his examination by the Investigating Judge and, possibly, his
attendance at a later trial.
On 4 April 1989 the expert S. submitted his opinion as to the
first applicant's and his brother's capacity to enter into legal
transactions. He concluded that there were no indications that the
first applicant had not been capable to enter into legal transactions
in 1980, the time of a contract with Mr. R. concerning real estate.
Furthermore, there was no sufficient basis to establish the first
applicant's actual capacity to deal with all personal matters.
On 27 September 1989 the Klagenfurt District Court authorised the
adoption concluded between the first applicant as chosen father and R.
as adopted child. The District Court found in particular that the
first applicant had been living since March 1981 with R. and his wife,
and that R. had granted him a right to occupy an apartment for
lifetime. Since conclusion of the adoption contract in November 1988
the first applicant was fully taken care of by R.
On 16 February 1990 the criminal investigation proceedings
against the suspect R. were discontinued in accordance with S. 109
para. 1 of the Code of Criminal Procedure.
On 14 May 1990 the Klagenfurt District Court discontinued the
proceedings concerning the appointment of a guardian for the first
applicant. The District Court noted that at a hearing in December 1988
it had gained the impression that the first applicant suffered from
disturbances in his short-term memory and was not fully capable to
judge his actions, in particular signatures. However, following the
adoption, the applicant's matters could be handled by his adopted son,
Mr. R., and there was no further need for a guardian.
B. Relevant domestic law
According to S. 109 para. 1 of the Austrian Code of Criminal
Procedure (Strafprozeßordnung) preliminary investigations are
discontinued by the Investigating Judge, if the prosecutor withdraws
the charges or declares that there is no reason for further judicial
prosecution.
S. 113 of the Code of Criminal Procedure provides in particular
that, in the course of preliminary investigations or of the proceedings
after indictment, any person affected by a decision or delay caused by
the Investigating Judge may lodge a complaint with the Judges' Chamber
at the Regional Court. The Judges' Chamber decides upon the complaint
after having heard the Investigating Judge and the Public Prosecutor.
S. 132 of the Code of Criminal Procedure provides for an
examination of the injured person in cases of bodily injuries.
SS. 139 to 149 of the Code of Criminal Procedure concern the
search of premises and persons and the seizure of objects.
S. 139 para. 1 provides in particular that a search may only be
carried out if there is a reasonable suspicion, that in the premises
concerned a person suspected of having committed a crime or other
criminal offence is hiding, or that there are objects, the possession
or examination of which is relevant for a particular criminal
investigation. According to S. 140 paras. 1 and 2, a search should in
general only be carried out after a hearing of the person concerned,
and only if the person or objects searched are not voluntarily rendered
and if the reasons resulting in the search have not been eliminated.
It is not required to hear persons of bad reputation, or to have such
a hearing where there is danger in delay.
S. 143 para. 1 of the Code of Criminal Procedure provides that,
if objects relevant for the investigations or subject to forfeiture or
confiscation are found, they have to be listed and taken into
safekeeping at the court or to be kept by the court or to be seized.
It refers, in this respect, to S. 98 according to which objects in
safe-keeping have to be put into an envelope to be sealed by the court,
or a label avoiding any substitution or confusion has to be attached.
S. 145 of the Code of Criminal Procedure concerns the search and
seizure of documents. S. 145 para. 2 provides that, if the owner of
documents does not permit the search, the documents have to be sealed
and deposited at the court; furthermore, the Judes' Chamber at the
Regional Court has to be immediately requested to decide whether the
documents are to be searched or handed back.
COMPLAINTS
1. The applicants complain that the search warrant of 30 January
1989 and its implementation violated their rights under Article 8 of
the Convention. They consider in particular that the measures, in
particular the seizure of one of the second applicant's files, were
unlawful and disregarded the second applicant's duty of professional
secrecy.
2. The applicants also complain under Article 8 of the Convention
about the decision of the Klagenfurt Regional Court of 16 February 1989
concerning the seizure of documents in a bank safe. They submit that
the search of the bank safe, the seizure of its contents and the making
of copies thereof was also unlawful and circumvented in particular
S. 145 para. 2 of the Code of Criminal Procedure.
3. Furthermore the first applicant complains under Article 8 para. 1
of the Convention about the decision of the Klagenfurt Regional Court
of 6 March 1989 to appoint a psychiatric expert in order to examine his
capacity to enter into legal transactions.
4. Moreover, the applicants complain under Article 13 in conjunction
with Article 8 of the Convention that the appeal proceedings before the
Regional Court pursuant to S. 113 of the Code of Criminal Procedure did
not afford a fair and public hearing and could not, therefore, be
regarded as an effective remedy to complain about the alleged violation
of their Convention rights.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 August 1989 and registered
on 11 December 1989.
On 1 July 1991 the Commission decided to communicate the
application to the respondent Government.
The Government's observations were submitted on 29 November 1991.
The applicant's observations in reply were submitted on 18 February
1992.
THE LAW
1. The applicants complain that the search warrant of 30 January
1989, its implementation and the seizure of a file violated their
rights under Article 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention, so far as relevant,
provides as follows:
"1. Everyone has the right to respect for his private ... 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 ... for the
prevention of disorder or crime, ... or for the protection of the
rights and freedoms of others."
The Government maintain that the right to respect for his home
under Article 8 para. 1 (Art. 8-1) of the Convention did not extend to
the second applicant's law office.
The Commission recalls that the search of a law office may
interfere with the lawyer's rights to respect for his private life, his
home and correspondence (Eur. Court H.R., Niemietz judgment of
16 December 1992, paras. 27-33, to be published in Series A
no. 251-B).
The Commission finds that the search warrant of 30 January 1989
in respect of the applicant's law office, its execution on 1 February
1989 and the seizure of one of the second applicant's files amounted
to an interference with the second applicant's rights under Article 8
para. 1 (8-1), and, regarding the documents contained in the file, also
of the first applicant's rights under Article 8 para. 1 (Art. 8-1).
Such interference violates Article 8 (Art. 8), if it is not justified
under paragraph 2 of Article 8 (Art. 8-2) as being in accordance with
the law and necessary in a democratic society to achieve one of the
aims mentioned therein.
The Government contend that the search warrant of 30 January
1989, its implementation and the seizure of one file were based on
S. 139 para. 1, S. 143 of the Code of Criminal Procedure. The
suspicion against Mr. R. at the time in question justified the search
warrant. They further submit that the second applicant's law office
was in fact not searched, as, though under protest, he had handed over
the file concerned. The file in question had not been inspected by the
authorities, but only been looked through by a representative of the
Lawyers' Association and then returned to the second applicant.
The applicants consider that the search concerned as well as the
seizure of a lawyer's file were unlawful, were based on unfounded
suspicions, and disregarded the second applicant's duty of professional
secrecy.
The Commission notes that the search warrant issued by an
Investigating Judge at the Klagenfurt Regional Court on 30 January 1989
was based upon S. 139 of the Code of Criminal Procedure. In its
decision of 23 March 1989 the Judges' Chamber at the Klagenfurt
Regional Court confirmed the lawfulness of the search warrant under
S. 139 et seq. of the Code on Criminal Procedure. The Commission,
considering the arguments put forward by the applicants as well as the
objections lodged by the representative of the Carinthian Lawyers'
Association on the occasion of the search, finds no indication of non-
observance of the relevant provisions of the Code of Criminal
Procedure. Consequently, the measures complained of were in accordance
with Austrian law.
The Commission is of the opinion that the interference aimed at
the prevention of crime and the protection of the rights of others,
namely those of the first applicant and his brother.
It remains to be examined whether the interference was necessary
in a democratic society to accomplish the said aims.
The Commission recalls that, in Article 8 para. 2 (Art. 8-2) as
in several other provisions of the Convention, the phrase "necessary
in a democratic society" implies the existence of a "pressing social
need". The Contracting States enjoy a certain margin of appreciation
in assessing whether such a need exists, but this goes hand in hand
with a European supervision which covers the basic legislation and the
decisions applying it, even those given by an independent court (Eur.
Court H.R., Barfod judgment of 22 February 1989, Series A No. 149, p.
12, para. 28; Silver and Others judgment of 25 March 1983, Series A No.
61, pp. 37 - 38, para. 97).
The Commission must thus determine whether there were relevant
reasons for the search warrant of 30 January 1989, its implementation
and the seizure of one of the second applicant's files, and whether
these measures were, in the particular circumstances of the case,
proportionate to the legitimate aims pursued.
The search was ordered in the context of criminal proceedings
against Mr. R., who was suspected of fraud and fraudulent conversion
to the disadvantage of two elderly brothers, one of whom, the first
applicant, was living in an apartment in Mr. R.'s house. The search
had the purpose of discovering the first applicant's and his brother's
savings booklets and other documents possibly revealing financial
transactions to their disadvantage. In the search warrant, the
Investigating Judge in detail summed up the result of the criminal
investigations at that stage supporting the suspicion against Mr. R.
The search complained of was not directed against the suspect
Mr. R., but against the second applicant as a third person on the
ground that he was the first applicant's counsel and had indicated on
an earlier occasion that he had the savings booklets concerned in safe-
keeping.
As regards the circumstances of the search, the Commission puts
particular emphasis on the fact that already the search warrant of
30 January 1989 took special procedural safeguards with regard to the
search which could affect the second applicant in his position as a
lawyer, i.e. his professional secrecy. The search was in fact attended
by a representative of the Carinthian Lawyers' Association. Moreover,
the second applicant's law office was not inspected since, though under
protest, he handed over the file concerning the first applicant. In
this respect the Commission also notes that this file was sealed and
taken into safe-keeping at the Regional Court where only the
representative of the Lawyers' Association consulted it. The file was
then returned to the second applicant.
The Commission, taking these different aspects of the present
case into account, finds that there were relevant reasons to justify
the measures complained of. On balance, the interference does not
appear disproportionate to the legitimate aims pursued, namely the
prevention of crime and the protection of the rights of others.
Accordingly, the measures complained of were justified under
paragraph 2 of Article 8 (Art. 8-2).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants also complain under Article 8 (Art. 8) of the
Convention about the decision of the Klagenfurt Regional Court of
16 February 1989 concerning the seizure of documents in a bank safe.
They submit that the search of the bank safe, the seizure of its
contents and the making of copies thereof were also unlawful and
circumvented in particular S. 145 para. 2 of the Code of Criminal
Procedure.
The Government submit that the order in question had been taken
on the basis of the first applicant's explicit permission of 1 February
1989 to have his financial situation verified. The measure thus served
the first applicant's interests. The second applicant had presented
the alleged revocation of this permission dated 16 February 1989 only
on the occasion of the actual examination of the safe when it was
correctly regarded as being irrelevant.
The Commission, considering that the order of 16 February 1989
and the subsequent inspection of the first applicant's savings booklets
and other documents in the safe amounted to an interference with his
right under Article 8 para. 1 (Art. 8-1), finds it was justified under
paragraph 2 of Article 8 (Art. 8-2).
The Commission notes that the order concerned did not only refer
to the first applicant's permission of 1 February 1989, but also, in
view of the pending criminal investigations, to S. 143 of the Code of
Criminal Procedure. Moreover, the Klagenfurt Regional Court, in its
decision of 23 March 1989, confirmed the lawfulness of the inspection
of the safe and its contents. Despite the applicants' argument that
the first applicant had later revoked his permission for an overall
examination of his financial matters, the Commission is therefore
satisfied that the measures complained of were in accordance with
Austrian law.
The interference aimed at the prevention of crime and the
protection of the first applicant's and his brother's interests.
The Commission finds that the reasons set forth in the decision
of 16 February 1989 to seize the contents of the safe concerned were
relevant in the light of the suspicion that fraud and fraudulent
conversion had been committed by Mr. R. to the disadvantage of the
first applicant. The Commission notes that the Investigating Judge had
first consulted the contents of the safe in the presence of the second
applicant. Only because of remaining doubts, he decided to consult in
detail the contents of the safe and to make copies thereof. Having
further regard to the first applicant's permission of 1 February 1989,
the Commission is of the opinion that the order concerning the first
applicant's safe, as well as consultation and copying of its contents
in the course of the criminal investigations against Mr. R. were not
disproportionate.
For these reasons, the Commission is satisfied that the
interference complained of was necessary in a democratic society for
the prevention of crime and for the protection of the first applicant's
rights. It was thus justified under Article 8 para. 2 (Art. 8-2).
Consequently, this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Furthermore the first applicant complains under Article 8 para. 1
(Art. 8-1) of the Convention about the decision of the Klagenfurt
Regional Court of 6 March 1989 to appoint the psychiatric expert Dr.
S. in order to prepare an expert opinion on his capacity to enter into
legal transactions.
According to the Government, the preparation of the expert
opinion by Dr. S. did not involve an examination of the first applicant
against his will or other coercive measures. It did not, therefore,
amount to an interference with his right under Article 8 para. 1
(Art. 8-1). They further submit that, in any event, this measure was
in accordance with the Code of Criminal Procedure, and necessary for
the prevention of crime and for the protection of the first applicant's
rights.
The Commission observes that the expert S. prepared the opinion
on the first applicant's mental health in the course of criminal
proceedings against Mr. R., suspected of having defrauded the first
applicant as well as his brother. The charges against Mr. R. raised,
inter alia, the question of the first applicant's mental health.
The Commission notes that the preparation of the opinion in
question did not necessitate any particular examination of the first
applicant by Dr. S. In particular, when, following the appointment of
Dr. S. as expert in October 1988, the first applicant refused an
examination, no further steps, such as coercive measures, were taken.
The first applicant has not submitted that, at that time, he challenged
Dr. S. for bias. Furthermore, Dr. S. accompanied the Investigating
Judge on the occasion of the first applicant's questioning as witness
on 1 February 1989, when the first applicant did not object, but
voluntarily answered also the questions put by the expert. Moreover,
the expert, in his opinion of April 1989, did not establish any
negative findings on the first applicant's capacity to enter into legal
transactions.
In these particular circumstances, the Commission finds that the
appointment of the expert S. to prepare an expert opinion on questions
of the first applicant's mental health does not show any lack of
respect for the first applicant's right to respect for his private life
under Article 8 para. 1 (Art. 8-1) of the Convention.
Consequently, this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Moreover, the applicants complain under Article 13 in conjunction
with Article 8 (Art. 13+8) of the Convention that the appeal
proceedings before the Judges' Chamber at the Regional Court pursuant
to S. 113 of the Code of Criminal Procedure did not afford a fair and
public hearing and could not, therefore, be regarded as an effective
remedy to complain about the alleged violation of their Convention
rights.
Article 13 (Art. 13) of the Convention provides that everyone
whose rights and freedoms as set forth in the Convention are violated
should have an effective remedy before a national authority.
Article 13 (Art. 13) of the Convention requires a remedy in
domestic law where an individual has an arguable claim to be the victim
of a violation of his rights under the Convention. An arguable claim
falls to be considered on the particular facts of each case and the
nature of the legal issue raised (cf. Eur. Court H.R., Plattform "Ärzte
für das Leben" judgment of 21 June 1988, Series A no. 139, p. 11,
paras. 25, 27).
The Commission recalls that the applicants' 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 on the
ground that the measures complained of were justified under paragraph
2 of Article 8 (Art. 8-2). Taking the specific circumstances of the
present case into account, the Commission does not find any prima facie
issues under Article 8 (Art. 8) which could be considered as arguable
claims within the meaning of Article 13 (Art. 13). Consequently,
Article 13 (Art. 13) does not apply in respect of the applicants'
complaints under Article 8 (Art. 8) of the Convention.
It follows that this complaint is likewise manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy