AS TO THE ADMISSIBILITY OF
Application No. 28630/95
by RAIFFEISENBANK Kötschach-Mauthen
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 22 August 1995 by
RAIFFEISENBANK Kötschach-Mauthen against Austria and registered on
21 September 1995 under file No. 28630/95;
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 applicant is a bank, registered as a co-operative society
with limited liability (Genossenschaft mit beschränkter Haftung) and
having its place of business in Kötschach-Mauthen. Before the
Commission the applicant bank is represented by Mr. Unterasinger, a
lawyer practising in Graz.
The facts, as submitted by the applicant bank, may be summarised
as follows.
A. The particular circumstances of the case
On 17 November 1994 the applicant bank dismissed its employee
A.S. due to several irregularities in respect of customer accounts.
Subsequently, the Carinthia Regional Constabulary (Landesgendarmerie-
kommando) started investigations against A.S. on the suspicion of
embezzlement (Untreue).
On 8 June 1995 the applicant bank, upon the Regional
Constabulary's request, filed a written statement of the facts. It
stated that A.S. had misappropriated clients' money in ten cases which
it listed in detail. However, A.S. had in the meantime made good the
entire damage. As this was the case the applicant bank had abstained
from filing a criminal information (Strafanzeige).
On 12 July 1995 the investigating judge at the Klagenfurt
Regional Court (Landesgericht) ordered that banker's duty of
confidentiality (Bankgeheimnis) be lifted in respect of the customer
accounts at issue. Furthermore, he ordered the applicant bank to grant
the investigating police officers access to the relevant bank files,
to make the necessary copies and to hand over a copy of the report of
the internal audit to the police officers. In his reasoning, the
investigating judge stated that the Regional Court conducted
preliminary inquiries (Vorerhebungen) against A.S. on the suspicion of
having embezzled clients' money in at least ten cases with a total
damage of about ATS 3,7 million and of having falsified documents.
On 26 July 1995 the applicant bank filed a complaint with the
Review Chamber (Ratskammer) of the Klagenfurt Regional Court. It
submitted, in particular, that the order to lift the banker's duty of
confidentiality was disproportionate, as it had already submitted a
detailed statement of the facts and further questions could have been
put to a representative. Moreover, A.S. had made good the entire
damage.
On 8 August 1995 the Review Chamber at the Klagenfurt Regional
Court dismissed the applicant bank's complaint. It held, in particular,
that the decision was based on Section 38 para. 2 (1) of the Banking
Act (Bankwesengesetz). According to this provision the bank was not
under a duty to respect banker's duty of confidentiality vis-a-vis the
criminal courts, if criminal proceedings had been instituted. As
preliminary inquiries were being conducted against A.S. the lifting of
banker's duty of confidentiality in respect of the ten accounts at
issue was in accordance with the law.
On 2 October 1995 the investigating judge, referring to S. 139
of the Code of Criminal Procedure (Strafprozeßordnung), issued a
warrant ordering the search inter alia of the business premises of the
applicant bank for documents relating to the customer accounts
concerned and to seize these documents. The investigating judge stated
that the managing director of the bank had obstructed the police
officers in their investigations and finally handed over an incomplete
file of documents, where the numbers of the accounts had been
oblitterated. Moreover, an employee of the bank had failed to answer
the police officers' questions.
The search was carried out on 3 October 1995 by officers of the
Regional Constabulary. A number of documents were inspected by the
officers and then handed over to them by the bank's manager in a sealed
envelope.
On 10 October 1995 the applicant bank filed a complaint
concerning the issue of the search warrant with the Review Chamber of
the Klagenfurt Regional Court. The applicant bank submitted that the
issuing of the search warrant had been disproportionate, since the
competent employee had not been heard. The applicant bank referred to
S. 140 of the Code of Criminal Procedure providing that the search had
to take place after the questioning of the person concerned and was
only admissible if this questioning had not resulted in the voluntary
handing over of the objects sought, or in the search becoming otherwise
unnecessary.
On 30 October 1995 the Review Chamber at the Klagenfurt Regional
Court dismissed the applicant bank's complaint. It noted that the
investigating judge had issued the search warrant only after the
applicant bank had failed to hand over all documents which were
necessary for the clarification of the case. Moreover, S. 140 of the
Code of Criminal Procedure was only a regulatory provision serving as
a guideline. It could be disregarded if the circumstances of the case
so required. Since the applicant bank had not voluntarily handed over
the complete files, the questioning of the managing director or an
employee of the applicant bank had not been necessary.
On 13 November 1995 the applicant company filed a request under
S. 145 of the Code of Criminal Procedure with the Review Chamber of the
Klagenfurt Regional Court. It asked that the documents which were
handed over in a sealed envelope during the search remain unopened or
be opened in the presence of a representative of the applicant bank.
On 21 November 1995 the Review Chamber of the Klagenfurt Regional
Court gave its decision. It noted that on 3 October 1995, on the
occasion of the search, the managing director of the applicant bank had
voluntarily handed over the relevant documents to officers of the
Regional Constabulary. The documents had been checked in the presence
of two representatives of the bank and every single document had been
discussed. Thereafter, the documents had been sealed upon the request
of the managing director. While the search and seizure had been in
accordance with the law, the removal of the seal ordered by the
investigating judge was contrary to S. 145 para. 3 of the Code of
Criminal Procedure, as the investigating judge had failed to invite a
representative of the bank to attend the removal of the seal.
On 30 July 1996 the Klagenfurt District Court returned the
applicant bank's documents on the ground that the criminal proceedings
against A.S. had been discontinued.
B. Relevant domestic law
SS. 139 to 149 of the Code of Criminal Procedure concern the
search of premises and persons and the seizure of objects and
documents.
S. 139 para. 1 provides in particular that a search may only be
carried out if there is a reasonable suspicion that in the premises
concerned a person suspected of having committed a criminal offence is
hiding, or that there are objects the possession or examination of
which is relevant for a particular criminal investigation. According
to S. 140 para. 1, a search should in general only be carried out after
the person concerned has been questioned, and if the objects searched
are not voluntarily handed over, provided the reasons justifying the
search have not ceased to exist. S. 140 para. 3 provided that, as a
rule, a search may only be carried out on the basis of a reasoned
search warrant issued by a judge.
S. 143 para. 1 provides that, if objects are found which may be
relevant for the investigations, they are to be seized.
S. 145 of the Code of Criminal Procedure contains special
provisions for the search and seizure of documents. Paragraph 1 states
that measures are to be taken to ensure that the contents of documents
are not laid open to unauthorized persons. Paragraph 3 provides that
documents which are seized and deposited at the court must be put in
a sealed envelope unless an inventory is immediately drawn up. The
party concerned has to be invited to attend the removal of the seal.
COMPLAINTS
1. The applicant bank complains under Article 8 of the Convention
about the lifting of banker's duty of confidentiality. It submits that
the court's order was likely to interfere with the private life of its
customers and to affect its reputation. The applicant bank further
submits that it was unlawful to lift its duty of confidentiality in the
course of preliminary inquiries, since in its view, they do not
constitute criminal proceedings.
2. The applicant bank also complains under Article 8 of the
Convention about the search of its premises and the seizure of
documents. It submits, in particular, that the search warrant was
disproportionate as the court could have obtained the necessary
information by questioning a representative of the bank. Moreover, the
investigating judge ordered the unsealing of the documents seized
without a representative of the applicant bank being present and failed
to make an inventory of these documents.
3. Further, the applicant bank complains under Article 6 of the
Convention that the proceedings, both, as regards the lifting of
banker's duty of confidentiality and the issuing of the search warrant,
were unfair.
THE LAW
1. The applicant bank complains under Article 8 (Art. 8) of the
Convention about the lifting of banker's duty of confidentiality. It
submits that the court's order was likely to interfere with the private
life of its customers and to affect its reputation. Further it
considers that the lifting of banker's duty of confidentiality was
unlawful.
a. As to the applicant bank's complaint that the lifting of banker's
duty of confidentiality interfered with the private life of its
customers, the Commission recalls that, under Article 25 (Art. 25) of
the Convention, an applicant cannot claim to be the victim of a breach
of the rights or freedoms protected by the Convention unless there is
a sufficiently direct connection between the applicant and the injury
he maintains he suffered as a result of the alleged breach (cf.
No. 11724/85, Dec. 5.2.90, D.R. 64, p. 72).
The Commission notes that banker's duty of confidentiality was
lifted as regards a certain number of customer accounts which were the
subject of the preliminary inquiries directed against A.S., a former
employee of the applicant bank, on the suspicion of embezzlement. In
this respect only the holders of the accounts, but not the applicant
bank, can claim to be a victim of the alleged violation.
Therefore, the Commission considers that this part of the
application is incompatible ratione personae with the provisions of the
Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
b. The applicant bank further complains that the lifting of banker's
duty of confidentiality affected its good reputation. The Commission,
finds that, even if the right to a good reputation can be considered
as forming part of the notion of "private life", the applicant bank's
complaint about the lifting of banker's duty of confidentiality as
regards customer accounts concerns the rights of its clients. In any
event, the applicant bank itself has not made out a case that it had
any private life which fell within the protection of Article 8
(Art. 8) of the Convention or with which there had been any
interference (see mutatis mutandis, Open Door and Dublin Well Woman v.
Ireland, Comm. Report 7.3.91, para. 64, Eur. Court HR, Series A no.
246-A, p. 61).
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 applicant bank also complains under Article 8 (Art. 8) of the
Convention about the search of its premises and the seizure of
documents.
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 in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission does not have to examine in the present case,
whether Article 8 (Art. 8), sets up a safeguard against a search and
seizure concerning a legal person, such as the applicant bank (cf.
No. 12592/86, Dec. 6.3.89, D.R. 60, p. 201 at p. 203 where the question
whether the search of a bank's premises affected its "home" within the
meaning of Article 8 (Art. 8) was also left open), since the complaint
is in any case inadmissible for the following reasons.
The search warrant, issued by an investigating judge at the
Klagenfurt Regional Court, was based upon Section 139 of the Code of
Criminal Procedure. This is not contested by the applicant bank. Nor
has it been alleged that the seizure of documents was unlawful. The
applicant bank only complains that following the seizure, the
investigating judge failed to invite its representative to attend the
removal of the seal from the envelope containing the documents seized.
Admittedly, the Review Chamber at the Klagenfurt Regional Court, in its
decision of 21 November 1995, found that the removal of the seal was
contrary to S. 145 para. 3 of the Code of Criminal Procedure. However,
it also found that the lawfulness of the search and seizure as such
were not affected by this procedural irregularity. The Commission,
recalling that it is primarily for the national authorities, notably
the courts, to interpret and apply domestic law, finds no reason to
depart from the Review Chamber's finding (Eur. Court HR, Kruslin v.
France judgment of 24 April 1990, Series A no. 176-A, p. 21, para. 29).
The search was conducted in order to find evidence relevant for
the criminal proceedings against the former employee of the applicant
bank. Thus, the interference served a legitimate aim, namely the
prevention of crime.
It determining whether the measures complained of were "necessary
in a democratic society", the Commission will consider whether in the
light of the case as a whole, the reasons adduced to justify them were
relevant and sufficient and whether the measures were proportionate to
the legitimate aim pursued (see Eur. Court HR, Niemietz v. Germany
judgment of 16 December 1992, Series A no. 251-B, pp. 35-36, para. 37).
In the present case, the investigating judge first only lifted
banker's duty of confidentiality in respect of ten accounts. In the
search warrant of 2 October 1995, the investigating judge, stating that
the applicant bank had failed to hand over the complete files and had
refused to answer questions, ordered the search for and seizure of
documents relating to these accounts. The Review Chamber by decision
of 30 October 1995 dismissed the applicant bank's argument that the
search could have been avoided by questioning one of its employees. In
these circumstances, the Commission finds that the reasons given by the
domestic authorities were relevant and sufficient and that the search
was proportionate to the legitimate aim pursued.
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.
3. The applicant bank complains further under Article 6 (Art. 6) of
the Convention about the unfairness of the proceedings in respect of
the lifting of banker's duty of confidentiality and the search warrant.
The Commission notes that the criminal proceedings in the course
of which banker's duty of confidentiality was lifted and the search was
ordered were not directed against the applicant bank, but against its
former employee and thus did not determine a criminal charge against
the applicant bank. Nor did they determine the applicant bank's civil
rights and obligations. It follows that these proceedings do not come
within the scope of Article 6 para. 1 (Art. 6-1) of the Convention as
regards the applicant bank (No. 12592/86, Dec. 6.3.89, loc. cit.).
This part of the application is, therefore, incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy