Lexploria

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

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RAIFFEISENBANK KÖTSCHACH-MAUTHEN v. AUSTRIA

RAIFFEISENBANK KÖTSCHACH-MAUTHEN v. AUSTRIA

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