AS TO THE ADMISSIBILITY OF
Application No. 20494/92
by G. and G. Ltd.
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 21 April 1992
by G. and G. Ltd. against Austria and registered on 13 August
1992 under file No. 20494/92;
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 first applicant is an Austrian citizen, residing in
Luxembourg. Between 1985 and 1986, he was employed by the second
applicant, a real estate administration company registered in
Salzburg. Before the Commission, both are represented by Mr. K.
Vavrovsky, a lawyer practising in Salzburg.
The facts, as submitted by the applicants, may be summarised
as follows.
In June 1989, the Investigating Judge (Untersuchungsrichter)
of the Salzburg Regional Court (Landesgericht), Judge C.,
instituted preliminary investigations (Voruntersuchung) against
the first applicant and several other persons inter alia on the
suspicion of aggravated fraud and fraudulent conversion.
In May 1990 Judge H. was appointed Investigating Judge in
the first applicant's case, replacing Judge C. who had fallen
ill. Judge H. had been, during her preparatory service for
judges, working as a trainee (Richteramtsanwärter) with the
Presiding Judge of the Judges' Chamber (Vorsitzender der
Ratskammer) of the Salzburg Regional Court, which, inter alia,
supervises Investigating Judges.
On 3 July 1991 Judge H., referring to Sections 139 and 140
of the Code of Criminal Procedure, ordered a search of the
premises of the second applicant. The warrant stated that all co-
suspects were presumed to have committed the criminal offences
inter alia as owners or as managers of the second applicant. The
search was conducted under the supervision of several court-
appointed experts.
On 16 October 1991 the Judges' Chamber of the Salzburg
Regional Court dismissed the applicants' appeal against the
search and the seizure of various documents. The Judges' Chamber
considered that none of the alleged procedural flaws had an
impact on the lawfulness of the search. In particular, Judge H.
had been correctly appointed. Moreover, no objection could be
made under Austrian law against a search being supervised by
court-appointed experts, once it had been ordered by a judge. The
decision was served on 28 October 1991.
At the time of the introduction of the application the
criminal proceedings were still pending. The applicants' did not
supply further information about the state of the proceedings.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention
that the search to which the second applicant was subjected was
unlawful on the ground that it was not carried out under the
personal direction of the Investigating Judge.
2. They further complain under Article 6 para. 1 of the
Convention that the former Investigating Judge in the proceedings
against the first applicant had been discharged and replaced by
Judge H. They also complain about the bias of two of the experts
carrying out the search, as these experts were employees of an
accountant who might possibly get involved in compensation
proceedings against the second applicant.
THE LAW
1. Both applicants complain that the search carried out in the
second applicant's premises violated Article 8 (Art. 8) of the
Convention.
As regards the first applicant, the Commission considers
that this applicant was not directly affected by this measure.
The fact that the search was carried out in the context of
criminal proceedings against the first applicant does not
constitute a sufficient relation to the measure complained of.
Consequently, the first applicant cannot claim to be a victim of
a violation of Article 8 (Art. 8) of the Convention.
Furthermore, the Commission, assuming that the search of the
professional premises complained of raises an issue under Article
8 para. 1 (Art. 8-1), as far as the second applicant is concerned
(Eur. Court H.R., Niemietz judgment of 16 December 1992, Series A
no. 251-B, paras. 27-33, considers that such interference would
be justified under paragraph 2 of that provision.
The Commission notes that search was based on Section 139
of the Code of Criminal Procedure and that the Judges' Chamber,
in its decision of 16 October 1991, found that the search had
been carried out in accordance with the Austrian law, which does
not require for a search to be supervised by an Investigating
Judge. The Commission considers that the reasoning of the Judges'
Chamber cannot be regarded as arbitrary or unreasonable. Thus,
the interference complained of was in accordance with the law.
Moreover, in view of the reasons given in the search warrant
of 3 July 1991 and the applicants' submissions, there is no
indication that the search could not be regarded as necessary in
a democratic society for the prevention of crime.
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 further complain under Article 6 para. 1
(Art. 6-1) of the Convention about the appointment of the
Investigating Judge H. in the criminal proceedings against the
first applicant, and about the alleged bias of two of the experts
participating in the above-mentioned search.
The Commission, even assuming that the second applicant can
reasonably claim to be a victim within the meaning of Article 25
(Art. 25) of the Convention of the alleged violation of Article
6
(Art. 6), finds that the circumstances referred to, which relate
to the pre-trial stage, do not appear decisive to such an extent
that they could, as such, affect the fairness of the proceedings
against the first applicant as a whole. The Commission notes in
particular that the applicant's complaint about the appointment
of the Investigating Judge H. was rejected by the Judges' Chamber
at the Salzburg Regional Court, which confirmed the lawfulness
of the search of the premises.
This part of the application is therefore also 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