AS TO THE ADMISSIBILITY OF
Application No. 22287/93
by O.L.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 1 December 1993, 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
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 28 May 1993 by
O.L. against Austria and registered on 20 July 1993 under file No.
22287/93;
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
applicant, may be summarised as follows.
The applicant is an Austrian citizen, born in 1942 and residing
in Graz. She owns a private trading company in Graz. Before the
Commission she is represented by Mr. H. Pausch, a lawyer practising in
Graz.
A. The particular circumstances of the case
On 7 June 1990, the Graz Industrial Safety Office (Arbeits-
inspektorat) inspected the premises of the applicant's company and
controlled whether the relevant safety rules were complied with.
On 21 May 1991 the Graz Executive Council (Magistrat) found that
the applicant, in her position as employer, had committed several
infractions of the Industrial Safety Act (Arbeitnehmerschutzgesetz),
the Industrial Safety Regulations (Allgemeine Arbeitnehmerschutz-
verordnung), the Child and Juvenile Labour Act (Kinder- und Jugend-
beschäftigungsgesetz) and the Working Time Act (Arbeitszeitgesetz). The
Council imposed a fine of ATS 9,000.
In its decision, the Council, proceeding from the findings of the
Graz Industrial Safety Office of 7 June 1990, noted that the applicant
had failed to record the inspections of the fire extinguishers, that
no copies of the Industrial Safety Act as well as other relevant
regulations had been posted at a place easily accessible. Moreover, one
of the employees spent most of her working time in a room without
aeration or ventilation. The applicant had also failed to keep a
separate record on the personal data of a particular juvenile employee
and to post a copy of the Child and Juvenile Working Act and other
relevant provisions at a place easily accessible. Finally, two of her
employees had exceeded on several occasions the maximum of ten working
hours per day, and there had been no records on the hours worked.
In these and the following proceedings the applicant was
represented by Mr. Pausch.
On 6 April 1992 the Office of the Styrian Regional Government
(Amt der Landesregierung) dismissed the applicant's appeal (Berufung).
On 1 December 1992 the Austrian Constitutional Court
(Verfassungsgerichtshof) declined to entertain the applicant's
constitutional complaint about a violation of her right to respect for
her domicile, her right to equality, her right to a hearing in
accordance with the law and the freedom of profession. The
Constitutional Court found that the most of the applicant's submissions
did not raise any constitutional issues. To the extent that
constitutional questions were concerned, the Constitutional Court found
that, having regard to the tasks of the Industrial Safety Office, her
complaints had no prospect of success. The case was referred to the
Administrative Court.
The Constitutional Court's decision was served on 18 January
1993.
The proceedings before the Administrative Court are still
pending.
B. Relevant domestic law
According to S. 1 of the Austrian Industrial Safety Act
(Arbeitnehmerschutzgesetz), this Act contains provisions on the
protection of the life and health of employees in the context of their
employment and the protection of morals according to age and sexe of
the employees. S. 2 provides that the precaution to be taken extends
to all measures in order to prevent occupational accidents and
diseases, or measures which otherwise result from hygienic necessities
or considerations of morals. Enterprises must be equipped, run and
managed accordingly. Details concerning inter alia the workrooms, the
technical equipment, the fitness of employees and special safety
measures, further concerning the duties of employers and employees are
regulated in the ensuing provisions. According to S. 24, regulations
govern further details.
The Working Time Act (Arbeitszeitgesetz) lays down, inter alia,
that the normal working time should not exceed eight hours per day, or,
in case of an increased volume of work, not exceed ten hours per day.
The Child and Juvenile Labour Act (Kinder- und Jugend-
beschäftigungsgesetz) provide for a special protection of juveniles at
work.
The Industrial Safety (Proceedings) Act 1974 (Arbeitsinspektions-
gesetz, published in the Federal Gazette 1974/143) governs the control
of the legal provisions on industrial safety by the Industrial Safety
Office (Arbeitsinspektion).
According to S. 3 of the Industrial Safety (Proceedings) Act,
safety officers have the right to enter and inspect the premises of an
enterprise at any time in order to control its compliance with the
provisions on industrial safety. The safety officer has to inform the
employer or his representative about his presence in the enterprise,
but this should not unnecessarily delay the inspection. There should
be no such information, if such information could render the inspection
ineffective. The employer or his representative are entitled to
accompany the safety officer upon his inspection; upon his request,
they are obliged to do so. The employer has to make sure that during
his absence an employee gives the opportunity to the safety officer to
enter the enterprise premises.
The Industrial Safety Office is entitled to request the
institution of criminal proceedings in case that a safety officer
establishes contravention against safety rules (S. 6). The Office may
also request that particular measures to ensure the industrial safety
in a given enterprise are ordered, or, in case of urgency, order such
measures itself (S. 7). The Office participates in all administrative
proceedings involving questions of the protection of employees (S. 8).
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the Austrian authorities inspected her firm without having had a
written search warrant issued by a court.
THE LAW
The applicant complains that an official of the Graz Industrial
Safety Office entered and inspected her firm without having had a
written search warrant issued by a court. She invokes Article 8
(Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention provides as follows:
"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
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission, assuming exhaustion of the domestic remedies, as
required by Article 26 (Art. 26) of the Convention, finds that the
inspection effected by an official of the Graz Industrial Safety Office
in the premises of the applicant's company could be regarded as an
interference with her right under Article 8 para. 1 (Art. 8-1) of the
Convention (Eur. Court H.R., Niemietz judgment of 16 December 1992,
Series A no. 251-B, paras. 29-33).
Such interference is in breach with Article 8 (Art. 8), if it was
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 listed in this provisions. In this respect, the
Commission recalls that the entitlement of the Contracting States to
"interfere" with the right under Article 8 para. 1 (Art. 8-1) might
well be more far-reaching where professional or business activities or
premises were involved than would otherwise be the case (Eur. Court
H.R., Niemietz judgment, loc. cit., para. 31).
The Commission considers the legal basis for the challenged
inspection was S. 3 of the Industrial Safety (Proceedings) Act. The
Austrian Constitutional Court, in its decision of 1 December 1992,
found that, having regard to the tasks of the Industrial Safety Office,
the applicant's complaint about a violation of her right to respect for
her domicile had no prospect of success.
Furthermore, the Commission finds that the said Act, published
in the Federal Gazette, is adequately accessible to the public.
Moreover, given the field of industrial matters governed by the rules
on industrial safety and the limited nature of the powers under S. 3
of the Act, the circumstances and procedures of routine checks in
industrial enterprises are indicated with sufficient clarity to the
employers to whom in particular this provision is destined. The absence
of a judicial authorisation under S. 3 does not, regarding the nature
and circumstances of such routine checks, affect their lawfulness
within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission also considers that the interference in question
pursued the protection of health and morals and also of the rights of
others, namely the employees, which are legitimate aims under paragraph
2 of Article 8 (Art. 8-2).
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 (Eur. Court H.R., Silver and Others
judgment of 25 March 1983, Series A No. 61, pp. 37 - 38, para. 97;
Funke judgment of 25 February 1993, Series A no. 256-A, para. 55).
In the present case, the Commission notes that the inspection of
the premises of the applicant's company was effected as a routine check
on her compliance, as employer, with the relevant rules on industrial
safety and related matters, in the absence of any particular
investigations directed against her.
It is true that the applicant does complain about the absence of
any requirement of a judicial warrant regarding the inspections under
S. 3 of the Industrial Safety (Proceedings) Act, without, however,
pointing at any arbitrariness.
The Commission recalls that the domestic law permitting an
interference with the right under Article 8 para. 1 (Art. 8-1) must
afford adequate and effective safeguards against abuse (cf. Eur. Court
H.R., Klass and Others judgment of 6 September 1978, Series A no. 28,
p. 23, paras. 49-50; Funke judgment, loc. cit., para. 56). Thus, in
the case of wide powers accorded to customs authorities to effect, in
the context of criminal investigations, house searches and seizures in
order to obtain physical evidence of tax offences and, where
appropriate, to prosecute those responsible, the relevant legislation,
in the absence of any requirement of a judicial warrant, was not
regarded as being consistent with Article 8 (Art. 8) of the Convention
(Eur. Court H.R., Funke judgment, loc. cit., para. 57).
In the present case, the Commission finds that, balancing the
general nature of routine checks in the sphere of industrial safety,
the limited rights accorded to the safety officer under S. 3 to enter
and inspect industrial premises, and the conduct of such inspections,
against the necessity to ensure industrial safety in the general
interests of employees, there is no indication that the interference
complained of was not proportionate to the legitimate aims pursued
within the meaning of Article 8 para. 2 (Art. 8-2).
It follows that the application is 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