Lexploria

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)

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SCHUSCHOU v. AUSTRIA

SCHUSCHOU v. AUSTRIA