AS TO THE ADMISSIBILITY OF
Applications Nos. 21858/93 and 21905/93
by T. K. and H. A. K.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 November 1995, 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. MARXER
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 applications introduced respectively on
25 March and 12 May 1993 by T. K. and H. A. K. against Austria and
registered respectively on 17 and 24 May 1993 under files Nos. 21858/93
and 21905/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
19 June 1995 and the observations in reply submitted by the
applicants on 11 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, Austrian nationals, are spouses. The applicant
in application No. 21858/93 ("the first applicant"), born in 1932, is
a housewife. The applicant in application No. 21905/93 ("the second
applicant"), born in 1906, is a businessman. Before the Commission
they are represented by Dr. Peter Lambert, a lawyer practising in
Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
The particular circumstances of the case
On 19 June 1992 a bank was robbed in the vicinity of the
applicants` residence in Vienna. Some 10 to 15 minutes later a bomb
attack was committed against the X. family. The police considered that
both offences had been committed by the same individual.
On 20 June 1992 the duty judge (Journalrichter) of the Vienna
Regional Court (Landesgericht für Strafsachen) gave permission, at the
request of the Public Prosecutor (Staatsanwalt), for a three weeks
period of surveillance of the telephone the second applicant was the
subscriber to. The decision was based on the suspicion that the
applicants` son had committed the aforesaid offences, and as he was
fugitive, it was considered most likely that he would contact his
parents.
The surveillance was carried out from 20 June to 11 July 1992.
On the latter date, when the surveillance ended, an internal police
report recommended that the second applicant should not yet be notified
about the surveillance for "crimino-tactical" reasons as the police
thought that the applicants were concealing their son`s whereabouts.
On 28 September 1992 the second applicant received a letter from
the Vienna Regional Court dated 22 September 1992 informing him about
the surveillance of his telephone. The second applicant appealed
against the surveillance of his telephone to the Vienna Court of Appeal
(Oberlandesgericht). He complained in particular that the surveillance
was unlawful as there was no strong suspicion against his son and as
it was not probable that the surveillance would facilitate the arrest
of his son.
On 5 November 1992 the Vienna Court of Appeal rejected the second
applicant`s appeal on the ground that there had been a strong suspicion
of his son. However, in a separate letter of the same date to the
President of the Regional Court, the Court of Appeal noted that this
surveillance had not been approved by the Judges' Chamber (Ratskammer)
without delay as the Code of Criminal Procedure (Strafprozessordnung)
provided for, but only two months later.
On 23 April 1993 the Vienna Court of Appeal declared inadmissible
a similar complaint by the first applicant on the ground that she was
not the subscriber to the telephone at issue and therefore lacked
standing under Austrian law to introduce such a complaint.
On 8 May 1993 the applicants' son returned from Thailand to
Austria, and on 9 December 1993 the criminal proceedings against him
were stayed.
On 3 March 1995 (i.e. after the applications had been
communicated to the respondent Government pursuant to Rule 48
para. 2 (b) of the Commission's Rules of Procedure) the Attorney
General's Office (Generalprokuratur) lodged a plea of nullity for
preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des
Gesetzes) with the Supreme Court (Oberster Gerichtshof) as regards the
surveillance of the telephone to which the second applicant was the
subscriber.
On 4 April 1995 the Supreme Court found that Sections 149a para.
2 and 149b para. 2 of the Code of Criminal Procedure as then in force
had been violated in that the investigating judge had failed to apply
forwith for the approval of the surveillance by the Judges' Chamber and
informed the subscriber of the surveillance belatedly.
The Supreme Court held, inter alia:
[Original]
"Soferne Aufnahmen oder schriftliche Aufzeichnungen der
überwachten Ferngespräche noch vorhanden sind, wird im Hinblick
auf die Beendigung des Strafverfahrens gegen [den Sohn der
Beschwerdeführer] durch Einstellung ... gemäss § 149c Abs 1
letzter Halbsatz, Abs 5 und Abs 7 StPO vorzugehen sein."
[Translation]
"So far as there are still tape recordings or written transcripts
of the telephone conversations under surveillance, and bearing
in mind that the proceedings against [the applicants' son] have
been stayed, Section 149c paras. 1 (last half-sentence), 5 and
7 of the Code of Criminal Procedure will have to be applied."
The applicants submit that in the oral grounds of the judgment
the Vice-President of the Supreme Court held that there had been no
violation of Article 8 of the Convention in the second applicant's
case.
The Government state that no tape recordings of the surveillance
now exist, and that the Vienna Regional Court was requested to ensure
that any transcripts of the taped telephone calls be destroyed in
compliance with the Supreme Court's decision.
Relevant domestic law
The surveillance of telephone calls in Austria was at the
relevant period governed by Sections 149a and 149b of the Code of
Criminal Procedure. The relevant provisions stipulate as follows:
[Translation]
Section 149a
"(1) Surveillance of telephone communications including the
recording of their contents is only permissible when it can be
expected that it can contribute to elucidation of a deliberate
criminal act punishable with more than one year`s imprisonment
and when
1. the subscriber is under strong suspicion of having
committed the offence himself, or
2. there are reasons to assume that a person under strong
suspicion of the offence is staying with the subscriber or
that such a person will enter into contact with the
subscriber by means of that telephone ...
(2) The Judges' Chamber has power to order surveillance of
telephone communications. If delay would be prejudicial the
order can also be issued by the investigating judge who however
has to apply for the approval of the Judges' Chamber forthwith.
If approval is refused the investigating judge has to revoke his
order immediately and to have the records destroyed." ...
Section 149b
"(1) As soon as the prerequisites for further surveillance have
fallen away the Judges' Chamber shall order immediate cessation
of the surveillance. When the criminal proceedings are
suspended, the investigating judge shall make this order at the
same time as suspending the proceedings.
(2) After the surveillance has ended the investigating judge
shall notify the subscriber as well as the suspect (accused) of
the surveillance. At the same time the subscriber has to be
given an opportunity to consult the records ...
(3) If the subscriber considers himself adversely affected by the
fact that the Judges' Chamber ordered, approved or maintained the
surveillance, he has the right to lodge a complaint with the
second instance court (Section 114) within fourteen days from
service of the investigating judge`s notification." ...
By virtue of the Criminal Procedure Amendment Act 1993
(Strafprozessänderungsgesetz) the provisions governing the surveillance
of telephone communications have been amended.
Thus, under Section 149a para. 2 (b) of the Code of Criminal
Procedure surveillance of telephone communications is permissible,
inter alia, when there are reasons to assume that a person under strong
suspicion of the offence will establish contact with the telephone to
be put under surveillance (and not only with the subscriber, as under
the earlier law).
Section 149b para. 4 of the Code now provides expressly for the
possibility to delay informing the subscriber and the accused of the
surveillance after its termination for as long as such informing would
compromise the investigation.
The newly added Section 149c of the Code of Criminal Procedure,
so far as relevant, reads as follows:
[Translation]
"(1) The surveillance of telephone conversations and the
recording of their contents shall be carried out by the
investigating judge or by the police agency authorised by him in
agreement with the telecommunications authority. The
investigating judge or the police agency shall examine the tape
recordings and transcribe those parts that are relevant for the
investigation and that may be used as evidence (para. 3). These
written records shall be included in the file while the
recordings shall be kept in the custody of the court and deleted
after the termination of the proceedings. ...
(5) Persons involved in telephone conversations have the right
to inspect the written records to the extent that they relate to
the phone calls placed by them. The investigating judge shall
inform such persons, where their identity is known or can be
established without particular procedural difficulties, of their
right under this paragraph as well as under paragraph 7. ...
(7) Those parts of the written recordings that cannot be relevant
for criminal proceedings or may not be used as evidence shall be
destroyed at the request of the public prosecutor or the accused
or ex officio. Persons involved in telephone calls are also
entitled to lodge such request inasmuch as their conversations
are concerned."
COMPLAINTS
The applicants complain that their right to respect for their
private and family life under Article 8 of the Convention was violated
by the surveillance of their telephone conversations. They claim in
particular that the surveillance was unlawful for the following
reasons:
a) there was no strong suspicion against their son as required
by domestic law;
b) it was not approved by the Judges' Chamber of the Regional
Court "forthwith" as required by domestic law, but only two
months later;
c) the cessation of the surveillance was not ordered by the
Judges' Chamber as required by Section 149b para. 1 of the Code
of Criminal Procedure as then in force;
d) the applicants were only informed about the surveillance
belatedly and the reasons given were not provided for by domestic
law; and
e) the surveillance of the first applicant`s telephone
conversations was not governed by domestic law.
The applicants further complain that the surveillance was not
necessary within the meaning of Article 8 para. 2 of the Convention as
it was unlikely that both crimes had been committed by the same person.
Finally, the first applicant complains that as under Austrian law
only the subscriber can complain of the surveillance she did not have
an effective remedy before a national authority as required by Article
13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 21858/93 was introduced on 25 March 1993 and
Application No. 21905/93 on 12 May 1993. They were registered on
17 and 24 May 1993 respectively.
On 30 November 1994 the Commission decided to join the
applications and to communicate them to the respondent Government
pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.
The Government's written observations of 14 June 1995 were
submitted on 19 June 1995, after an extension of the time-limit fixed
for that purpose. The applicants replied on 11 July 1995.
THE LAW
The applicants allege a violation of Article 8 (Art. 8) of the
Convention which 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 and morals, or for the protection of rights
and freedoms of others."
The first applicant also complains that she did not have an
effective remedy before a national authority. She alleges a violation
of Article 13 (Art. 13) of the Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government contend, inter alia, that the applicants can under
no circumstances claim to be victims as regards the interference with
their telephone conversations since by virtue of the Supreme Court's
decision of 4 April 1995 the alleged violations have been acknowledged
and remedied on the domestic level.
This is contested by the applicants. They submit that the
Supreme Court not only failed to rule expressly that there had been a
violation of Article 8 (Art. 8) of the Convention, but in the oral
grounds of the judgment its Vice-President expressed himself to the
contrary. They consider that the alleged violations have not been
remedied since the Supreme Court did not expressly order to destroy the
written recordings of their telephone conversations.
In addition, the first applicant contends that there were no
proceedings for the protection of the law instituted in her respect.
The Commission observes that since the applications were
communicated to the respondent Government, the matter has been remitted
to the Supreme Court, which on 4 April 1995 found that the surveillance
of the second applicant's telephone had been unlawful. The Supreme
Court in effect ordered destruction of any remaining taped and written
records of the conversations involving both applicants pursuant to
Section 149c paras. 1 and 7 of the Code of Criminal Procedure.
The applicants were thereby granted redress, and in the
Commission's view it is irrelevant that there were no separate
proceedings instituted in respect of the first applicant. The alleged
oral statement by the Vice-President of the Supreme Court and the fact
that the judgment contains no formal finding of a violation of Article
8 (Art. 8) of the Convention cannot change this position, either.
The Commission further notes that the relevant domestic law has
been amended so that there is now express provision for delaying
information as to telephone surveillance, and a third party will also
be informed that his or her conversations have been subjected to
surveillance and will have certain rights of inspection and destruction
of the records.
In the Commission's view, these facts taken together constitute
appropriate redress for the alleged violations of Articles 8 and 13
(Art. 8, 13) of the Convention. In these circumstances, the applicants
can no longer claim to be victims of the alleged violations of the
Convention.
It follows that the applications are 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 APPLICATIONS INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy