Resolution CM/ResDH(2012)69[1]
Execution of the judgment of the European Court of Human Rights
Wieser and Bicos Beteiligungen GmbH against Austria
(Application No. 74336/01, judgment of 16/10/2007, final on 16/01/2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the right to respect for the correspondence of the applicants (violation of Article 8, paragraph 1) (see details in Appendix);
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent State paid the first applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2012)69
Information about the measures to comply with the judgment in the case of
Wieser and Bicos Beteiligungen GmbH against Austria
Introductory case summary
The case concerns the violation of the right to respect for the correspondence of the applicants, a lawyer who is the owner and general manager of a limited-liability company (the first applicant) and the company itself (the second applicant), on account of a search and seizure of electronic data in their premises, carried out in October 2000 on the basis of a search warrant issued by the Salzburg Regional Court, upon a request for legal assistance by the Naples Public Prosecutor’s Office (violation of Article 8).
The Court noted that the procedural guarantees provided in the Code of Criminal Procedure had not been respected with regard to the search and seizure of electronic data: the Bar Association member who was present in the premises could not properly exercise his supervisory function as regards the electronic data, the report on the search was not drawn up at the end of the search but only later the same day, and the first applicant was not informed of the results of the search. The Court also found that the police officers’ failure to comply with the procedural safeguards designed to prevent abuse or arbitrariness and to protect the lawyer’s duty of professional secrecy rendered the search and seizure of the electronic data disproportionate to the legitimate aim pursued.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction paid to the first applicant
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
2 500 EUR
10 000 EUR
12 500 EUR
Paid on 27/03/2008
b) Individual measures
Following a request for legal assistance from Italy, the Austrian Ministry of Justice sent the case file, including the disc with the electronic data, to the Naples Public Prosecutor’s Office on 23/03/2001. By letter of 27/09/2010, the Austrian authorities requested the Italian authorities to consider either destroying or strictly limiting the use of the data sent to them following the search of the applicant’s office. The Italian authorities, replied by letter of 11/02/2011, informing the Austrian authorities that the data in question had not been used as evidence during the proceedings in Italy and that it could no longer be used in the future either, as the Italian court’s judgment had become final.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
Austrian law contains detailed provisions for the seizure of objects and, in addition, specific rules for the seizure of documents. It has been established in the domestic courts’ case-law that these provisions also apply to the search and seizure of electronic data. The Austrian authorities have indicated that this case was an isolated incident resulting from its particular circumstances.
The judgment was published in German in two law journals (ÖJZ 2008/4 and Newsletter 2007, p. 258, available online at ). It was also sent out to the Ministry of Justice, the Ministry of the Interior, the Salzburg Independent Administrative Panel and the Constitutional Service of the Federal Chancellery on 29/01/2008. Further, the Austrian Prime Minister’s Office sent a circular note of 27/08/2009 to Federal Ministries, the Constitutional Court, the Administrative Court, the Supreme Court, the Asylum Court, Parliament, the governments of all nine Austrian Länder, the Liaison Office of the Länder with the Federal authorities, all Human Rights Coordinators at the Federal Ministries, all Independent Administrative Panels of the Länder, as well as all Directorates-General of the Federal Chancellery (Prime Minister’s Office) which was also published on the website of the Federal Chancellery.
In view of the above, no other general measure was deemed necessary by the Committee of Ministers.
III.Conclusions of the respondent State
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the Court in this case, that these measures will prevent new similar violations and that Austria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 6 June 2012 at the 1144th Meeting of the Ministers’ Deputies.
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