AS TO THE ADMISSIBILITY OF
Application No. 22446/93
by Waltraud SCHUSCHOU
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 5 August 1993 by
Waltraud SCHUSCHOU against Austria and registered on 11 August 1993
under file No. 22446/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 23 January 1995 and the observations in reply submitted
by the applicant on 4 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1960. She owns an
inn in Meiningen. Before the Commission, she is represented by
Mr. W. L. Weh, a lawyer practising in Bregenz.
The facts, as they have been submitted by the parties, may be
summarised as follows.
On 20 August 1991 the Feldkirch Administrative Authority
(Bezirkshauptmannschaft) requested the Rankweil Police Office to check
whether K., a Turkish citizen against whom a residence prohibition had
been issued, had left the country. The request reached the Police
Office on 14 September 1991, and on 23 September 1991 two police
officers went to the applicant's inn where, according to information
by the municipality, K. had still rented a room. They entered this inn
through the main entrance. The applicant was not present. Having met
nobody in the corridor, the police officers, who knew the premises,
opened an unlocked door with the sign "no entrance" and saw two persons
one of whom, being asked about the abode of K., identified himself as
K. The police officers asked K. for his passport. K., who had only
little command of German, answered that his passport was upstairs in
his room and offered to show his passport. The police officers
accompanied K. to his room in the first floor where K. wanted to fetch
his passport. K. did not object to the presence of the police
officers. The applicant, having arrived in the meantime in K.'s room,
then informed the police officers that K. had filed an application for
political asylum and had also applied for a working permit. Thereupon,
the police officers requested K. to appear the following week at the
police station with an interpreter in order to clarify his situation
and left the inn.
On 24 September 1991 the applicant lodged a complaint with the
Vorarlberg Independent Administrative Senate (Unabhängiger Verwaltungs-
senat) about the events of 23 September 1991, claiming that the police
officers had executed a search in her inn without a search warrant.
On 16 December 1991 the Independent Administrative Senate, after
having inspected (Augenscheinsverhandlung) the applicant's inn and
having heard the various police officers, the applicant and K.,
rejected her complaint. The Senate found in particular that the fact
that the police officers had entered the applicant's inn in order to
verify K's abode did not constitute a search or inspection of her inn.
Such a search or any other coercive measures had been unnecessary, as
K. had immediately identified himself. No exercise of coercive
measures had even been alleged by the applicant. Moreover, it followed
from the statements of all witnesses and of the applicant, that no
search had taken place in K.'s room. The sign "no entrance" on the
unlocked door accessible from the corridor was, like the signs on other
doors in that corridor, merely an information for the guests in order
to distinguish the room behind it from the bar; and all guests coming
from the restaurant who wished to go to the toilets had to pass through
this room. The sign could not, therefore, be regarded as a prohibition
to enter this room. The Senate noted further that the police officers
wanted to avoid disturbance by their presence in the restaurant. The
Senate concluded that there had been no interference with the
applicant's rights under Article 8 of the Convention.
On 29 September 1992 the Constitutional Court declined to
entertain the applicant's constitutional complaint, the decision being
served on 22 February 1993. On 16 February 1993 the Constitutional
Court referred the case to the Administrative Court (Verwaltungs-
gerichtshof).
On 3 May 1993 the Administrative Court rejected the applicant's
complaint. The Administrative Court stated that it had no jurisdiction
in the present case. The decision was served on 24 May 1993.
COMPLAINTS
The applicant complains under Article 8 of the Convention about
an alleged search of her inn which infringed her right to respect of
her home. She further complains under Article 13 of the Convention
about both the Constitutional Court's and the Administrative Court's
refusal to deal with her complaint against the Independent
Administrative Senate's decision of 16 December 1991.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 August 1993 and registered
on 11 August 1993.
On 12 October 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
23 January 1995. The applicant replied on 4 April 1995.
THE LAW
1. The applicant complains that the events on 23 September 1991
amounted to a violation of her right to respect for her home. She
relies on Article 8 (Art. 8) of the Convention which provides that
"everyone has the right to respect for his private and family life, his
home and his correspondence".
The Government submit that there was no interference with the
applicant's right to respect for her home under Article 8 (Art. 8) of
the Convention. The protection of one's home under Article 8
(Art. 8) of the Convention extended only to premises in the private
sphere of life of the person concerned. This intimate sphere, however,
did not include corridors in inns on which abut mainly rooms intended
to be rented to guests as such corridors were typically not intended
to be part of an individual's intimate personal sphere and were
normally not used as such. Thus, the corridor leading to the
applicant's guest rooms was not part of her home within the meaning of
Article 8 (Art. 8) of the Convention. In this respect it was
irrelevant that the door the police officers had used was marked "no
entrance", as the actual use of the premises in question and not its
designation was decisive for the protection afforded by Article 8
(Art. 8) of the Convention. Even assuming that there was an
interference with the applicant's right to respect of her home, such
an interference was justified under paragraph 2 of Article 8 (Art. 8-2)
for the prevention of disorder and crime.
The applicant submits that the Aliens Police Act, as in force at
the relevant time, did not provide for house searches. Thus, if the
Independent Administrative Senate would have found that the conduct of
the police officers on 23 September 1991 had amounted to a house search
such a search would have been unlawful. The fact that the two police
officers had entered through a door marked "no entrance" instead of
entering the restaurant and asking there for K. could only be
understood as a house search. This house search, however, was neither
in accordance with the law nor necessary in a democratic society. If
the aim of the visit of the police officers was merely to question K.,
it would have been sufficient to ask for him in the restaurant.
The Commission recalls that it is consonant with the essential
object and purpose of Article 8 (Art. 8) of the Convention, namely to
protect the individual against arbitrary interference by the public
authority, that the words "private life" and "home" are interpreted as
including certain professional or business activities or premises (Eur.
Court H.R., Niemietz judgment of 16 December 1992, Series A no. 251-B,
p. 33, para. 31). The applicant's complaint about the events on
23 September 1991 when two police officers entered her inn might,
therefore, come within the ambit of Article 8 para. 1
(Art. 8-1) of the Convention.
The Commission notes that the two police officers had been
instructed to check whether the Turkish citizen K. against whom a
residence prohibition had been issued had left the country. They had
entered the applicant's inn in order verify K.'s abode, and, having
found K. in one of the rooms, they checked his identity and told him
to come at a later date to the police station to have his situation
clarified. The Austrian authorities, referring to the case-law of the
Constitutional Court, found that the police officers' entering of the
inn did not constitute a search of the applicant's home, noting that,
throughout the visit, no coercive measure was taken. In particular,
according to the Independent Administrative Senate, which had inspected
the premises and heard several witnesses, the police officers had not
breached a prohibition to enter a particular room and they had only
accompanied K. to his room, when he fetched his passport. Any
questioning by the police officers only concerned K. himself and not
the applicant.
In these circumstances, the Commission, having regard to the
purpose of the police visit in the applicant's inn and particularly the
absence of any coercive measures with a view to enforce a search for
K. or to arrest him, finds that the events complained of did not amount
to an interference with her right to respect for her home or private
life within the meaning of Article 8 para. 1 (Art. 8-1).
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 13 (Art. 13) of the
Convention about both the Constitutional Court's and the Administrative
Court's refusal to deal with her complaint.
The Commission recalls that Article 13 (Art. 13) of the
Convention requires a remedy in domestic law only in respect of
grievances which can be regarded as "arguable" in terms of the
Convention (Eur. Court H.R., Powell and Rayner judgment of 21 February
1990, Series A no. 172, p. 14, para. 31).
The Commission, referring to its above finding that the police
officers' visit at the applicant's inn did not constitute an
interference with her right to respect of her home, considers that the
applicant has no "arguable claim" for the purposes of Article 13
(Art. 13). Consequently, Article 13 (Art. 13) of the Convention does
not apply in respect of the applicant's complaint under Article 8
(Art. 8) of the Convention.
It follows that this part of the application is likewise
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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy