AS TO THE ADMISSIBILITY OF
Application No. 17679/91
by Karlheinz DEMEL
against Austria
The European Commission of Human Rights (First Chamber)
sitting in private on 7 April 1994, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 October
1990 by Karlheinz Demel against Austria and registered on 17
January 1991 under file No. 17679/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having regard to the observations submitted by the
respondent Government on 19 February 1993 and the observations
in reply submitted by the applicant on 15 April 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as they have been submitted by the parties, may
be summarised as follows:
The applicant, an Austrian citizen born in 1937, resides in
Vienna. Before the Commission, he is represented by Mr. W.
Strigl, a lawyer practising in Vienna.
In May 1989 criminal proceedings were instituted against the
applicant, a judge, on the suspicion of in particular being an
accessory after the fact (Begünstigung).
On 25 July 1989 the Investigating Judge at the Vienna
Regional Court, in the context of the above charges ordered the
tapping of the applicant's telephone conversations for a period
of four weeks, as it was assumed that the applicant might remove
and destroy pieces of evidence.
The Judges' Chamber (Ratskammer) at the Vienna Regional
Court subsequently approved the surveillance order. During the
relevant period a number of conversations of the applicant were
recorded on tapes and subsequently transcribed.
On 20 November and 28 November 1989 the Investigating Judge
at the Vienna Regional Court, in the context of further charges
brought against the applicant for having given false testimony
as a witness at a trial in January 1989, again ordered the secret
surveillance of the applicant's telephone conversations for a
period of four weeks which was later prolonged until 31 January
1990. The surveillance order was subsequently approved by the
Judges' Chamber.
On 19 April 1990 the applicant's counsel was informed about
the tapping of the applicant's telephone conversations.
On 8 May 1990 the applicant complained to the Vienna Court
of Appeal (Oberlandesgericht) that the secret surveillance of his
telephone conversations during the above periods had been
unlawful and unjustified. He also requested the destruction of
all tapes and records. On 26 July 1990 the Vienna Court of Appeal
dismissed the applicant's complaints.
Following a decision of the Austrian Supreme Court (Oberster
Gerichtshof) of 23 April 1991 upon a plea of nullity for the
preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des
Gesetzes) and further decisions of the Vienna Regional Court
dated 4 June and 16 December 1991 as well as 3 June 1992, all
records of the applicant's telephone conversations were
destroyed.
On 28 September 1993 the Supreme Court, upon a further plea
of nullity for the preservation of the law, declared that the
decisions of the Investigating Judge of 25 July 1989, 20 November
and 28 November 1989 ordering the surveillance of the applicant's
telephone conversations were unlawful. The Supreme Court
considered in particular that the Investigating Judge had failed
to submit promptly its decision for approval to the Judges'
Chamber, as required by Section 149a of the Code of Criminal
Procedure.
COMPLAINTS
The applicant complains under Articles 6, 8 and 10 of the
Convention about the secret surveillance of his telephone and the
recording of his telephone conversations as well as the refusal
to destroy the relevant records.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 October 1990 and
registered on 17 January 1991.
On 14 October 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 19 February 1993 the Government submitted their
observations. The observations in reply by the applicant were
submitted on 15 April 1993.
By letter of 20 December and 21 December 1993, respectively,
the applicant and the Government informed the Commission about
the judgment of the Supreme Court of 28 September 1993. The
applicant wishes to pursue his application on the ground that the
Supreme Court did not consider all his arguments.
THE LAW
The applicant's complaints under Article 6, 8 and 10
(Art. 6, 8, 10) of the Convention relate to the secret
surveillance of his telephone conversations ordered on 25 July,
20 November and
28 November 1989.
The Commission notes that, following a decision of the
Supreme Court of 23 April 1991 and further decisions of the
Vienna Regional Court dated 4 June and 16 December 1991 as well
as 3 June 1992, all records of the applicant's telephone
conversations were destroyed. Moreover, on 28 September 1993, in
proceedings following a plea of nullity for the preservation of
the law, the Austrian Supreme Court declared the secret
surveillance measures retrospectively unlawful.
The Commission considers that these decisions taken together
constitute appropriate redress for the alleged violations of
Articles 6, 8 and 10 (Art. 6, 8, 10) of the Convention.
In these circumstances, the Commission finds that the
applicant can no longer claim to be a victim of the alleged
violations of the Convention.
His complaint is, therefore, 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.
Secretary to the First Chamber President of the First
Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy