AS TO THE ADMISSIBILITY OF
Application No. 17540/90
by Christian Neumayr
against Austria
The European Commission of Human Rights sitting in private on
8 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
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 26 September 1990
by Christian Neumayr against Austria and registered on 10 December 1990
under file No. 17540/90;
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
A. The particular circumstances of the case
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1959, is an Austrian national. He is
resident at Obertrum, Austria, and a clerk by profession. Before the
Commission, he is represented by Mr. G. Reiter, a lawyer practising in
Salzburg.
On 23 August 1989 the Investigating Judge at the Salzburg
Regional Court (Landesgericht), in the context of criminal proceedings
against Mr. S., the applicant and others, ordered the search of the
notary office of Mr. H. G. Brunner, a public notary practising in
Salzburg, in order to find documents and files concerning the suspects,
who were listed in an annex to the search warrant. Such documents,
except information submitted by the notary's clients, were to be
seized. The Regional Court referred to S. 139 and S. 143 of the
Austrian Code of Criminal Procedure (Strafprozeßordnung). The Court
instructed the Vienna Economic Police (Wirtschaftspolizei), together
with the Salzburg Federal Police Directorate (Bundespolizeidirektion),
to execute the search. A representative of the Salzburg Notaries'
Association should be invited to the search.
The Regional Court found in particular that Mr. S., the applicant
and others were suspected of having committed fraud, fraudulent
conversion and bankruptcy offences in that they had, in leading
positions in various companies, issued real property shares while the
corresponding property was sold to other persons. The commercial
registry showed that various transactions concerning at least one of
the firms involved were concluded in the notary's office. The Regional
Court therefore assumed that documents and files concerning this firm,
which were of paramount importance for the further inquiries, could be
found. The Court referred in particular to a contract concluded
between four of the suspects on 3 June 1985.
Referring to SS. 143 and 152 para. 1 (1) of the Code of Criminal
Procedure, the Court ordered that all communications to the notary
containing information from his clients were to be exempted from the
search and seizure, not however other incriminating material, such as
documents of a client kept by the notary.
On 12 September 1989, at 10 hrs., two officials of the Federal
Ministry of the Interior (Bundesministerium für Inneres) presented the
search and seizure warrant to Mr. Brunner in his office. They asked
him to deliver the documents concerned voluntarily. Mr. Brunner
refused. In this respect, he referred to a decision of the Salzburg
Notaries' Association of 31 July 1989 according to which the request
of the Investigating Judge to deliver the documents concerned
contravened S. 37 paras. 1 and 3 of the Regulations on Notaries
(Notariatsordnung), in conjunction with S. 152 para. 1 (2) of the Code
of Criminal Procedure. Thereupon, the civil servant conducting the
search agreed that the documents could be deposited with the Notaries'
Association within two weeks where they would be sealed and kept until
judicial review of the search and seizure warrant. As from 11 hrs.,
a member of the Salzburg Notaries' Association had been present.
The complaint which Mr. Brunner lodged with the Judges' Chamber
(Ratskammer) at the Salzburg Regional Court was dismissed on 5 October
1989. The Judges' Chamber found that the search of the notary's office
was in accordance with S. 139 para. 1 of the Code of Criminal
Procedure, as well as S. 37 of the Regulations on Notaries. The
Austrian and the Salzburg Notaries' Association also unsuccessfully
lodged complaints about the search and seizure warrant.
On 23 October 1989 the Salzburg Regional Court ordered the
seizure of the documents deposited at the Notaries' Association.
On 27 March 1990 the Judges' Chamber at the Salzburg Regional
Court rejected the applicant's complaint about the search and seizure
warrant of 23 August 1989 on the ground that he had failed to show how
far this decision had affected him, in particular that the warrant
applied to documents concerning his private matters or otherwise his
relationship with Mr. Brunner.
On 23 May 1990 the Linz Court of Appeal (Oberlandesgericht)
dismissed the applicant's hierarchical complaint (Aufsichtsbeschwerde).
The Court of Appeal referred to an earlier decision dismissing the
hierarchical complaint of the Austrian Notaries' Association about the
search warrant concerned. Furthermore, it noted that the decision of
the Judges' Chamber of 27 March 1990, denying the applicant, one of the
accused in the criminal proceedings concerned, the right to lodge a
complaint, had been incorrect. However, it did not show any incorrect
practice in general necessitating hierarchical measures.
On 10 July 1990 the documents which had been seized in October
1989 were transmitted to the Salzburg Regional Court in sealed
envelopes. On 1 August 1990 the Judges' Chamber at the Salzburg
Regional Court ordered that the documents in question be examined by
the Investigating Judge, information obtained from clients being
excluded. Further appeals lodged by Mr. Brunner remained unsuccessful.
On 28 November 1990 the Investigating Judge at the Salzburg
Regional Court examined the documents concerned. Various documents
contained in three envelopes, a legal opinion on articles of
association of a company and annexes, as well as copies of other
contracts, were seized. Some documents were given back.
On 23 January 1991 the Judges' Chamber at the Salzburg Regional
Court, upon Mr. Brunner's complaint, decided that all documents
contained in the first envelope, and some of the documents contained
in the second and the third envelopes be given back to him. The
remainder of the complaint was dismissed. The Judges' Chamber
considered in particular that S. 152 para. 1 (2) of the Code of
Criminal Procedure covered any information which defence or other
counsel, notaries and trustees received, in their professional
capacity, from their clients. As regards the documents which continued
to be retained, namely three copies of a contract on a holding company
(Zusammenarbeits- und Holdinggesellschaftsvertrag), three letters of
a tax advising firm to a tax office, as well as a record of the meeting
of the supervisory board of a limited company which had been certified
by Mr. Brunner on 7 July 1989 and filed by him with the commercial
registry at the Feldkirch Regional Court, the Judges' Chamber found
that they had not been established at Mr. Brunner's office, nor had
they been intended for his information and they had not only been
produced for his files.
On 31 January 1992 the Austrian Supreme Court dismissed the plea
of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur
Wahrung des Gesetzes) lodged by the Attorney General (Generalpro-
kuratur) against the continued retention of one of the documents, i.e.
the record of the meeting of the supervisory board of a limited
company.
In the detailed reasoning of its decision, the Supreme Court
noted that the Code of Criminal Procedure did not explicitly provide
for any limitations on the seizure of objects. The Supreme Court then
examined the ratio of the accused person's right to refuse statements
and the different situations entitling witnesses to refuse testimony,
and their implication for the seizure of objects. It noted that the
notary, as the defence counsel, lawyer or economic consultant, were
only entitled to refuse evidence supplied in the confidential context
of their professional relationship with their clients. The primary
purpose of this provision was not to protect the professional secrecy
of lawyers, notaries etc., but to protect the defence rights of the
accused so that there was no risk that information given to his defence
counsel could be used by the prosecution to his disadvantage. The
provision had been extended to notaries and economic consultants in
view of their possible involvement in the defence.
The Supreme Court continued that limitations on the seizure of
objects had to be seen against this background. The seizure of
documents kept by persons belonging to this professional group was only
prohibited to the extent that the objects, in particular documents, had
been produced with their assistance and that the fact that they kept
such a document was necessarily linked to the contract with their
client. Thus only written information by their clients, and written
material on their inquiries in fulfilment of their contract, i.e. file
notes, or information obtained by third persons in relation to their
contract were covered by the prohibition on seizure. Furthermore, the
prohibition extended to the product of the work of counsel or the
notary for the client, unless this document, or copies thereof, had
been made public, e.g. had been recorded in public registries, or if
correspondence with public authorities was concerned.
As regards three copies of the contract on a holding company, the
Supreme Court considered that they had been sent to Mr. Brunner to give
an advisory opinion and therefore did not constitute information, but
evidence which already existed. The same applied to three letters
which had been sent to a tax office. The record on the meeting of the
supervisory board of a limited company had already been entered in the
commercial registry at the time of its seizure.
B. Relevant domestic law
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 taken or by a delay
caused by the Investigating Judge may lodge a complaint with the
Judges' Chamber at the Regional Court, which decides upon the complaint
in camera after having heard the Investigating Judge and the Public
Prosecutor.
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 there are objects,
the possession or examination of which are relevant for a particular
criminal investigation. According to S. 140 paras. 1 and 2, a search
should in general only be carried out after having previously heard the
person concerned, and only if the objects to be sought are not
voluntarily surrendered and if the reasons resulting in the search have
not been eliminated. The person concerned need not be heard where
there is imminent danger.
S. 143 para. 1 of the Code of Criminal Procedure provides that,
if objects relevant for the investigation or subject to forfeiture or
confiscation are found, they have to be listed and taken into safe-
keeping at the court or kept by the court or seized. The provision
refers, in this respect, to S. 98 according to which objects in safe-
keeping have to be placed in an envelope to be sealed by the court, or
a label preventing any substitution or confusion has to be attached.
S. 152 para. 1 exempts lawyers, notaries and business trustees
from the obligation to give evidence as witnesses in respect of
information given to them in the exercise of their function.
S. 37 of the Regulations on Notaries provides that the notary
is obliged to keep confidentiality concerning the deliberations in his
presence unless he has to give information according to the Regulations
on Notaries.
COMPLAINTS
The applicant complains that the search and seizure warrant of
23 August 1989 concerning the notary's office of Mr. Brunner in
Salzburg violated his rights under Article 8 of the Convention. The
applicant, in respect of the proceedings relating to the search and
seizure warrant, also invokes Article 6, in particular Article 6
para. 3 (c), of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 September 1990 and
registered on 10 December 1990.
On 6 January 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 10 April 1992 the Government submitted their observations.
The applicant submitted his observations in reply on 15 June 1992.
THE LAW
1. The applicant complains that the search and seizure warrant of
23 August 1989 violated his rights under Article 8 (Art. 8) of the
Convention.
Article 8 (Art. 8) of the Convention, so far as relevant, states:
"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 ... for the
prevention of disorder or crime, ... or for the protection of the
rights and freedoms of others."
The Government submit that the applicant cannot claim to be
victim of a violation of his Convention rights in respect of the
warrant of 23 August 1989 which concerned Mr. Brunner's office. They
also contend that the applicant lodged this complaint out of time, as
he had not duly stated it in his first correspondence with the
Commission, but only in a later letter. They further point out that
this warrant had not been executed, and that the applicant had failed
to show that any of his correspondence with Mr. Brunner had been
affected by the later procedure. In any event, the warrant complained
of was justified under Article 8 para. 2 (Art. 8-2).
The applicant submits that the warrant of 23 August 1989 affected
him in his capacity as accused in the criminal proceedings concerned,
and could extend to his correspondence with Mr. Brunner. The
formulation was not sufficient to make clear that information from
clients was to be excluded. He submits that he had sent to Mr. Brunner
one of the documents which continued to be seized, namely the copy of
a contract on a holding company.
The Commission notes that on 23 August 1989 the Investigating
Judge at the Salzburg Regional Court, in the context of criminal
proceedings against the applicant and others, ordered the search of
Mr. Brunner's office in order to find documents and files concerning
the suspects, and the seizure of such documents, except information
submitted by his clients. The search was in fact not carried out, on
the condition that the documents concerned were brought to the Salzburg
Notaries' Association where they were to be kept pending the judicial
review of the search and seizure warrant. The Austrian courts
confirmed the lawfulness of the warrant concerned, and the documents
were then seized, transmitted to the Salzburg Regional Court and
inspected by the Investigating Judge. Some documents continued to be
retained.
The Commission, assuming compliance with the conditions under
Article 26 (Art. 26) of the Convention, considers that the search and
seizure warrant concerned extended to incriminating material in the
criminal proceedings against, inter alia, the applicant. Such
documents at the notary's office could relate to information about the
applicant. Having regard to the fact that the warrant was in fact not
executed, and that the applicant did not show that the procedure
related to information and data which were protected by his rights
under Article 8 para. 1 (Art. 8-1), the question arises whether the
applicant may claim to be a victim, within the meaning of Article 25
para. 1 (Art. 25-1), and whether there was an interference with his
rights under Article 8 para. 1 (Art. 8-1) of the Convention.
However, the Commission leaves this question open, as the measure
complained of is anyway justified under paragraph 2 of Article 8
(Art. 8-2) for the following reasons.
The Commission finds that the search and seizure warrant was
based on S. 139 and S. 143 of the Austrian Code of Criminal Procedure,
as confirmed by the Judges' Chamber at the Salzburg Regional Court and
also the Austrian Supreme Court, and was thus "in accordance with the
law" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
.
The interference pursued a legitimate aim within the meaning of
Article 8 para. 2 (Art. 8-2), namely the prevention of crime.
As regards the question of necessity, 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 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 considers that, in the context of the criminal
proceedings against the applicant and other suspects, the reasons
adduced by the Investigating Judge to issue the warrant of 23 August
1989, as confirmed by the Austrian courts, are relevant to the
legitimate aim pursued.
The Commission further notes that the criminal proceedings, in
the context of which the warrant complained of was issued, were, inter
alia, directed against the applicant. The warrant explicitly
privileged information obtained from clients, and also envisaged the
presence of a representative of the Salzburg Notaries' Association on
the occasion of the search. The fact that, upon Mr. Brunner's
objections, the search was not carried out, and he himself deposited
the documents concerned at the Notaries' Association, where they were
kept sealed until termination of the judicial review, excluded any risk
of excess. The Commission also notes that one of the documents which
continued to be retained, namely the copy of a contract on a holding
company, had been sent by the applicant. However, there is no
indication that any material concerning the applicant, which was not
related to the criminal proceedings against him, had been affected.
In these circumstances, the Commission, balancing the applicant's
interests and the public interest in the prevention of crime, considers
that there is nothing to show that the measure complained of was
disproportionate. The Austrian authorities did not go beyond the
margin of appreciation left to the national authorities under
paragraph 2 of Article 8 (Art. 8-2) of the Convention.
It follows that the applicant's complaint under Article 8
(Art. 8) is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant has further invoked Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention and Article 1 of Protocol No. 1 (P1-1)
in respect of his above complaint. Article 6 para. 3 (c) (Art. 6-3-c)
of the Convention guarantees a right to adequate legal representation,
to be seen in the general context of Article 6 para. 1 (Art. 6-1) and
the fairness of the criminal proceedings as a whole. Article 1 of
Protocol No. 1 (P1-1) ensures the right to the peaceful enjoyment of
possessions.
The Commission finds that the warrant of 23 August 1989 formed
part of the criminal proceedings against the applicant and did not, as
such, constitute a separate procedure for the purposes of Article 6
(Art. 6) of the Convention. The Commission cannot find that this
aspect rendered the proceedings as a whole unfair.
Furthermore, the applicant's submissions do not disclose any
appearance of a violation of his property rights under Article 1 of
Protocol No. 1 (P1-1).
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.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(M. de Salvia) (C.A. Nørgaard)
Full & Egal Universal Law Academy