AS TO THE ADMISSIBILITY OF
Application No. 21837/93
by Heinz TALIRZ
against Austria
The European Commission of Human Rights sitting in private on
2 March 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 23 February 1993
by Heinz TALIRZ against Austria and registered on 12 May 1993 under
file No. 21837/93;
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 applicant, born in 1939, is an Austrian citizen and resident
in Innsbruck. He formerly was a manager of a limited company involved
in the road construction business.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
A. Particular circumstances of the case
In April 1991 the Innsbruck Regional Court (Landesgericht) opened
a preliminary investigation (Voruntersuchung) against the applicant and
several other persons on the suspicion of having committed grave fraud
and breach of trust. On the occasion of a search carried out on the
premises of a company involved in the case, further evidence was found
indicating that the applicant had deliberately ordered partial expert
opinions (Gefälligkeitsgutachten) to the detriment of his company.
On 13 July 1992 the Investigating Judge ordered, pursuant to
Section 149a of the Code of Criminal Procedure (Strafprozeßordnung),
the tapping of the applicant's telephone for a period of one month. The
Judge found this measure necessary on the ground of the danger of the
applicant's collusion with his co-suspects and a danger in delay. The
Judge, in particular having regard to new evidence, found on the
occasion of the above search, considered that conspiracy to pervert the
course of the investigations was reasonably to be expected. Moreover,
the tapping of the applicant's telephone could clarify the relations
between the co-suspects and the background to the case.
On 22 July 1992 the Judges' Chamber (Ratskammer) of the Innsbruck
Regional Court approved the decision. The Judges' Chamber confirmed in
detail the Investigating Judge's considerations.
On 19 August 1992 the Judges' Chamber formally terminated the
tapping of the applicant's telephone. On 27 August 1992 this decision
was served and the applicant informed that his telephone had been
tapped.
On 1 December 1992 the Innsbruck Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal against the tapping of his
telephone. It noted that the applicant had not denied the existence of
a reasonable suspicion of his having committed an offence punishable
with more than one year's imprisonment. The tapping of the applicant's
telephone had been important to clarify the interconnections, regarding
the charges at issue, between the applicant and various companies
involved in the case.
On 23 December 1992 the Innsbruck Regional Court restricted the
applicant's access to parts of the case-file as there still existed a
danger of collusion. The Regional Court inter alia stated that there
was collusion between the suspects and the witnesses and that the
telephone tapping had shown that there had been several contacts
between the applicant, his co-suspects and several witnesses.
On 20 January 1993 the Judges' Chamber of the Innsbruck Regional
Court, upon appeal of the applicant, granted him full access to these
files.
B. Relevant domestic law
Section 149a of the Code of Criminal Procedure (Strafprozeß-
ordnung), so far as relevant, provides that the telephone of a person
against whom there are serious suspicions of having deliberately
committed a criminal offence punishable with more than one year's
imprisonment might be tapped in order to further the investigation of
the case. The decision is to be taken upon request of the Investigating
Judge by the Judges' Chamber of the Regional Court. In cases of danger
in delay, the Investigating Judge may take such decisions himself; such
decisions must subsequently be approved by the Judges' Chamber.
According to Section 149b, the Judges' Chamber declares the
tapping terminated, as soon as the legal requirements are no longer
complied with. The Investigating Judge then informs the suspected
person that his telephone has been tapped, and permits inspection of
the records of the tapped conversations. Retrospectively, an appeal may
be filed with the Court of Appeal, which, if granted, entails the
destruction of the records concerned.
COMPLAINTS
1. The applicant complains under Article 8 of the Convention about
a violation of his right to respect for his private life due to the
telephone tapping. He contends that the mere suspicion against him did
not justify such a measure.
2. He also complains under Article 6 para. 3 (b) of the Convention
about the restriction on his access to parts of the case-file.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention about the decision of the Investigating Judge of the
Innsbruck Regional Court to order the tapping of his telephone.
The Commission considers that the tapping of the applicant's
telephone was an interference by a public authority with his right to
respect for his "private life". Such interference is in breach of
Article 8 (Art. 8) of the Convention, unless it is "in accordance with
the law" and is "necessary in a democratic society" for one of the aims
referred to in paragraph 2 (Art. 8-2) of this provision.
The legal basis for the tapping of the applicant's telephone was
Section 149a of the Austrian Code of Criminal Procedure. As regards the
necessary "quality" of the law (Eur. Court H.R., Kruslin judgment of
24 April 1990, Series A no. 176-A, pp. 20-25, paras. 27-36), the
Commission considers that Section 149a and Section 149b of the Austrian
Code of Criminal Procedure define the category of serious offences and
the suspicion necessary to order the tapping of a suspect's telephone.
These provisions also lay down the judicial procedure in such cases,
including the termination of the tapping by the Judges' Chamber as soon
as the legal requirements are no longer complied with, the subsequent
information of the person concerned, his right to appeal, and, in case
of a successful appeal, the destruction of the records concerned.
In these circumstances, the Commission is satisfied that the law
in question offers adequate safeguards against arbitrary interferences
and does meet the criteria of accessibility and foreseeability. The
interference complained of was thus "in accordance with the law".
Moreover, the applicant's telephone was tapped in the course of
preliminary investigations against him and others and aimed at "the
prevention of crime", which is a legitimate aim under Article 8 para. 2
(Art. 8-2).
As regards the question whether the interference complained of
was "necessary in a democratic society", the Commission recalls that
this phrase implies the existence of a pressing social need. The
Contracting States enjoy a certain margin of appreciation in assessing
whether such a need for an interference exists, but it goes hand in
hand with European supervision (see, Eur. Court H.R., Funke judgment
of 25 February 1993, para. 55, to be published in Series A no. 256 A)
In the present case, the impugned measure was taken in the
context of preliminary proceedings against the applicant and others on
the suspicion of grave fraud and breach of trust. At the relevant time,
the suspicion against the applicant had been further confirmed by the
results of a search carried out in the premises of a company involved
in the case. The measure complained of was ordered to prevent collusion
between the applicant, co-suspects and witnesses and did not last
longer than one month. Moreover, the records of the tapping showed
several attempts of collusion between the applicant, his co-suspects
and some witnesses.
In the particular circumstances of the case, the Commission finds
that the measure complained of can reasonably be considered as
necessary in a democratic society for the prevention of crime.
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 also complains under Article 6 para. 3 (b)
(Art. 6-3-b) of the Convention about the restriction on his access to
documents contained in the case-files.
The Commission recalls that alleged violations of Article 6
(Art. 6) are to be examined having regard to the proceedings as a whole
once concluded, although it is not impossible that a particular
procedural element could be so decisive that the conduct of proceedings
can be assessed at an earlier stage (No. 9938/82, Dec. 15.7.86, D.R.
48 p. 31). The applicant's access to the files was restricted for one
month in the course of preliminary investigations. There is no
indication that this circumstance was so decisive as to amount in
itself to a breach of Article 6 (Art. 6).
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 Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy