AS TO THE ADMISSIBILITY OF
Application No. 21402/93
by Peter SCHNABL
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 2 December 1992
by Peter SCHNABL against Austria and registered on 19 February 1993
under file No. 21402/93;
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 submitted by the applicant, may be
summarised as follows.
The applicant, born in 1939, is an Austrian national. He is a
lawyer practising and residing in Vienna. In the proceedings before the
Commission he is represented by Mr. W. Lenneis, a lawyer also
practising in Vienna.
A. The particular circumstances of the case
In May 1988 the Vienna Regional Criminal Court (Landesgericht)
opened preliminary investigations (Voruntersuchung) against E.S.
relating to the bankruptcy of the K. company, i.e. pawnbrokers. The
applicant, who had acted as counsel of the K. company, was heard as a
witness.
On 14 October 1991 the Vienna Regional Criminal Court asked the
Vienna Finance Directorate (Finanzlandesdirektion) to request
information and examine the files of a number of limited companies,
including the K. company, and other taxable persons, including the
applicant, and to inform the Regional Court about the results. The
Court stated that preliminary examinations (Vorerhebungen) were
conducted against E.S. and others, including the applicant, on the
suspicion of tax evasion or aiding and abetting tax evasion.
On 10 December 1991 the Finance Authority (Finanzamt) submitted
a statement of facts (Sachverhaltsdarstellung) to the Regional Court.
It said in particular that the applicant had been the majority
shareholder of a number of limited companies including the K. company,
and had, for a short period, acted as its managing director. He had
also held a majority of shares in the M. Property Management Company.
Further, the Finance Authority stated that a rough estimate led to the
assumption that, for the years 1983/84, 1985 and 1988 the applicant and
his wife, according to their declarations of income and expenditure,
did not dispose of the necessary means to maintain their family.
Therefore, there was a suspicion of tax evasion.
On 28 January 1992 the Investigating Judge at the Vienna Regional
Criminal Court referring to S. 139 et seq. of the Code of Criminal
Procedure (Strafprozeßordnung) issued a search warrant concerning the
applicant's private home, his office and the office of M. Property
Management Company. It stated that the search was aimed at finding and
seizing documents containing information on the applicant's assets and
income as well as documents concerning his involvement with a number
of limited companies, including the K. company.
On 17 March 1992 the search was carried out in the applicant's
private home and in his office, in absence of the applicant. However,
a representative of the Chamber of Lawyers was present, who objected
to an immediate examination of the documents seized. They were,
therefore, deposited at the Regional Court.
On 30 March 1992 the applicant's counsel was allowed to inspect
parts of the file and obtained a copy of the Finance Authority's
submissions of 10 December 1991.
On 31 March 1992 the applicant lodged a complaint with the
Judges' Chamber (Ratskammer) of the Vienna Regional Criminal Court. He
complained in particular that the submissions by the Finance Authority
of 10 December 1991 only contained a rough estimate and were
inconsistent. Even assuming that the calculations were correct, there
was no suspicion of tax evasion of more than AS 1 million, falling
within the competence of the courts. Moreover, the search warrant,
contrary to S. 140 para. 1 of the Code of Criminal Procedure, had
stated that it was not necessary to hear him prior to the search. The
applicant also submitted that most of the documents seized were files
concerning his clients and contained no information about his income.
In these and the following proceedings, the applicant was represented
by counsel.
On 29 April 1992 the Judges' Chamber dismissed the applicant's
complaint. It found that there had been reasonable grounds for
suspecting him of having committed tax offences. While the statement
of facts of 10 December 1991 submitted by the Finance Authority
appeared somewhat summary, the Authority, upon the Regional Court's
request, had meanwhile submitted more detailed calculations, supporting
the suspicion of tax evasion against the applicant, falling within the
competence of the courts, which had also been the reason for the search
warrant. As regards the applicant's complaint that he had not been
heard prior to the search, the Judges' Chamber, referring to an earlier
decision of the Constitutional Court, found that non-compliance with
S. 140 para. 1 of the Code of Criminal Procedure did not constitute an
interference with his right to respect for his home.
The decision of the Judges' Chamber was served on the applicant's
counsel on 22 May 1992 and received by the applicant on 27 May 1992.
On 9 June 1992 the Constitutional Court (Verfassungsgerichtshof)
rejected the applicant's complaint, finding that it was not competent
to deal with it. The Constitutional Court noted that the applicant had
raised complaints relating to the institution of criminal proceedings
against him, the search of his premises and the conduct of several
authorities, including the Public Prosecutor's Office and the Vienna
Finance Directorate with regard to the contested proceedings. The Court
found that, even assuming that some of these acts constituted an
execution of orders or coercive measures by an administrative authority
(Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und
Zwangsgewalt), the review of their lawfulness would fall within the
competence of the Independent Administrative Tribunals (unabhängige
Verwaltungssenate). As regards any acts imputable to the courts, it was
not competent for their review either. This decision was served on the
applicant's counsel on 9 July 1992.
On 26 August 1992 the Judges' Chamber gave its consent under
S. 145 para. 2 of the Code of Criminal Procedure for a review of the
documents which had been seized during the search. It noted in
particular that the representative of the Chamber of Lawyers, being
present during the search, had objected to an immediate review on the
ground that they contained information subject to professional secrecy.
The Judges' Chamber found that a review would serve the purpose of
separating files containing such information, which would be returned
without being examined, from other material.
The proceedings against the applicant are still pending.
B. Relevant domestic law and practice
SS. 139 to 145 of the Code of Criminal Procedure (Strafprozeß-
ordnung) concern the search of premises, the seizure of objects and the
examination of documents.
S. 139 para. 1 provides that the home and other premises of a
person may be searched if there are reasonable grounds to believe that
a person suspected of a criminal offence was hiding there, or that
objects relevant for the investigation were to be found.
S. 140 states that usually the person whose premises are to be
searched has to be heard prior to the search (para. 1). As a rule, the
search has to be ordered by the investigating judge (para. 3).
If objects, which might be relevant for the investigations, are
found, they have to be deposited at the court or be seized (S. 143
para. 1).
In case the owner objects to the examination of documents, they
have to be sealed and deposited with the court. The Judges' Chamber has
to decide immediately whether they may be examined or have to be
returned (S. 145 para. 2).
According to S. 113 of the Code of Criminal Procedure, anyone who
considers that his rights have been infringed by a decision (Verfügung)
of the investigating judge can bring a complaint before the Judges'
Chamber.
According to S. 53 para. 1 (b) of the Tax Offences Act
(Finanzstrafgesetz) the prosecution of tax offences falls within the
competence of the courts if the offence was committed intentionally and
the sum relevant for the penalty is more than AS 1 million.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention that
the search of his premises impinged on matters of professional secrecy.
Further, the applicant considers that the Courts were not competent
under S. 53 of the Tax Offences Act, to investigate this matter, as in
his view, there was no suspicion of tax evasion of more than AS 1
million. Moreover, he submits that the proceedings were unfair as he
was not informed about the suspicion against him and was not granted
access to the file. Further the search warrant lacked a proper
reasoning and he was not heard before the search was carried out.
2. The applicant complains under Article 8 of the Convention that
the search of his private home and his office violated his right to
respect for his home. He submits in particular that the search warrant
was unlawful, as there were no reasonable grounds to suspect him of
having committed an offence. Moreover, he complains that the search
warrant did not sufficiently specify the documents to be seized.
3. The applicant also complains under Article 14 that the conduct
of criminal proceedings against him was arbitrary. He submits in
particular that the Courts would not open preliminary investigations
or issue a search warrant in comparable cases.
4. Under Article 1 of Protocol No. 1 the applicant complains that
the seizure of files violated his right to property.
THE LAW
1. The applicant raises various complaints under Article 6 (Art. 6)
of the Convention regarding the criminal proceedings against him. He
also complains under Article 14 (Art. 14) that the opening of
preliminary investigations against him and the conduct of the
proceedings were arbitrary.
As regards the decisions complained of, the Commission recalls
that it is not competent to deal with an application alleging that
errors of law or fact have been committed by domestic courts, except
were it considers that such errors might have involved a possible
violation of the Convention (No. 10000/82, Dec. 4.7.83, D.R. 33
p. 255).
As regards the complaint about the unfairness of the proceedings,
the Commission recalls that the compliance with the requirements of a
fair trial must be examined in each case having regard to the
development of the proceedings as a whole. However, it cannot be
excluded that a specific factor may be so decisive as to enable the
fairness of the trial to be assessed at an earlier stage in the
proceedings (Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court
H.R. Series A no. 96, p. 15).
In the present case, the proceedings have not attained trial
stage. Thus, an examination of the proceedings as a whole is not
possible. Moreover, there is no indication that the matters complained
of, were so decisive as to allow an assessment of the fairness of the
proceedings at the stage of the preliminary examinations. In this
context, the Commission notes in particular that the applicant,
assisted by counsel, got access to parts of the file after the search
of his premises, and was able to lodge a complaint with the Judges'
Chamber. Furthermore, the applicant failed to show that the opening of
the proceedings against him amounted to discrimination contrary to
Article 14 (Art. 14).
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 further complains under Article 8 (Art. 8) of the
Convention about the search of his private home and his office. He also
invokes Article 14 (Art. 14).
Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter "after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken." "The final decision" refers only
to domestic remedies which can be considered to be "efficient and
sufficient" for the purpose of rectifying the subject-matter of the
complaint (No. 11763/85, Dec. 9.3.89, D.R. 60 p. 137).
The applicant submits that the final decision within the meaning
of Article 26 (Art. 26) of the Convention was given by the
Constitutional Court on 9 June 1992, (served on 9 July 1992), or
eventually by the Judges' Chamber on 26 August 1992.
The Commission finds that the complaint brought before the
Constitutional Court was not an effective remedy as the Court was not
competent to deal with the matters raised by the applicant. Further,
his complaint lodged with the Judges' Chamber, which resulted in its
decision of 26 August 1992, related to a different issue, namely the
question of whether the documents seized were to be examined and,
therefore, did not constitute an effective remedy with regard to the
search of the applicant's premises as such.
The Commission considers that the final decision on the
lawfulness of the search warrant and the actual circumstances of the
search of the applicant's premises was already given by the Judges'
Chamber on 29 April 1992, and was served on the applicant's counsel on
22 May 1992 and received by the applicant on 27 May 1992, that is more
than six months before the introduction of his application on 2
December 1992. The Commission, therefore, finds that the applicant
failed to comply with the six-months'-rule laid down in Article 26
(Art. 26) of the Convention.
It follows that this part of the application has to be rejected
in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicant finally complains that the seizure of files during
the search of his premises constituted a violation of his right to
property as guaranteed by Article 1 of Protocol No. 1 (P1-1).
The Commission, assuming exhaustion of domestic remedies, finds
that the seizure of files in the context of criminal proceedings may
constitute an interference with the applicant's right to peaceful
enjoyment of his possessions, falling within the scope of the second
paragraph of this Article.
The Commission finds no indication in the file that the seizure,
based on the search warrant, was not in accordance with Austrian law
or did not serve a legitimate aim, namely the prevention of crime. In
this respect, the Commission notes that the Judges' Chamber in its
decision of 29 April 1992 found that the search warrant, on which the
seizure was based, was in accordance with the provisions of the Code
of Criminal procedure, in particular in that there were reasonable
grounds for suspecting the applicant of having committed tax offences.
Moreover, the measure was proportionate, as the Austrian law provides
special safeguards to separate files which may contain information
subject to professional secrecy from other material and return them
without examination. Thus, there is no appearance of a violation of the
applicant's right to peaceful enjoyment of his possessions within the
meaning of Article 1 of Protocol No. 1 (P1-1).
It follows that 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 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