Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23193/94

by Karl KOSEK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 May 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 23 December 1993

by Karl KOSEK against Austria and registered on 6 January 1994 under

file No. 23193/94;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant, born in 1938, is an Austrian national residing in

Vienna. In the proceedings before the Commission he is represented by

Mr. A. Friedberg, a lawyer practising in Vienna.

A. The particular circumstances of the case

On 24 March 1993 the applicant, a car dealer by profession,

bought a car from B.W. for AS 280,000. The registration papers, which

carried B.W.'s name, were also handed over to the applicant.

Subsequently, criminal proceedings were instituted against B.W. on the

suspicion of having fraudulently obtained the car from A.W.

On 30 April 1993 officers of the Economic Police of the Vienna

Federal Police Authority (Wirtschaftspolizei der Bundespolizei-

direktion) seized the car and the registration papers on the

applicant's premises. They acted of their own motion without a warrant

of seizure by the investigating judge. It appears that the applicant

was suspected of having received stolen property. However, the

investigations against him were discontinued.

On 3 May 1993 the applicant requested the Vienna Regional

Criminal Court (Landesgericht) to lift the seizure of the car and the

papers or to take a formal decision to uphold it. Moreover, he declared

that he joined the criminal proceedings against B.W. as a private party

(Privatbeteiligter). In these and the subsequent proceedings the

applicant was represented by counsel.

On 19 May 1993 the investigating judge (Untersuchungsrichter) at

the Regional Court, referring to S. 1425 of the Civil Code (Allgemeines

bürgerliches Gesetzbuch), decided that the car and the relevant papers

be deposited at the Favoriten District Court (Bezirksgericht). The

investigating judge found that different persons had asserted claims

with regard to the car, which could not be decided upon in the criminal

proceedings. He listed four persons as being concerned by the deposit

(Erlagsgegner), i.e. the applicant, the car dealer A. W., the suspect

B.W., and the company for which the suspect had worked.

On 3 September 1993 the investigating judge dismissed a further

request by the applicant to lift the seizure in his favour. He found

that the decision of 19 May 1993 had transferred the competence to

decide the issue to the Favoriten District Court. The said decision had

been served on the applicant's counsel on 4 June 1993 and the applicant

had not lodged a complaint against it.

On 22 September 1993 the Favoriten District Court accepted the

deposit. It found that the car and the papers would only be handed over

to one of the four persons concerned upon a concerted written request

by all four of them or on the basis of a final and enforceable court

decision.

On 30 September 1993 the applicant lodged an appeal (Beschwerde)

against the investigating judge's decision of 3 September 1993. He

submitted in particular that the seizure of the car and its

registration papers was unlawful in that the investigating judge never

issued a warrant of seizure. Moreover, the seizure was not necessary

for the criminal investigation at issue, as it would have been

sufficient to make a photo of the car and copies of the registration

papers. Finally, the applicant complained that the deposit of the car

with the Favoriten District Court as ordered by the decision of

19 May 1993 and confirmed by the decision of 3 September 1993 was not

in accordance with the law. S. 1425 of the Civil Code related to civil

proceedings and could not serve as a legal basis for the deposit of

items which had been seized in the course of criminal proceedings.

On 27 October 1993 the Review Chamber (Ratskammer) of the Vienna

Regional Criminal Court dismissed the applicant's appeal. It found that

B.W. was under strong suspicion of having fraudulently obtained the car

at issue from A.W. He had registered the car under the name of the

company for which he was working as a manager and had then sold it to

the applicant. Following the seizure of the car, the applicant and A.W.

both requested to lift the seizure in their favour. In view of these

contradictory claims the investigating judge decided on 19 May 1993

that the car be deposited at the Favoriten District Court. As regards

the applicant's complaint against the decision of 3 September 1993,

which had dismissed his renewed request to lift the seizure, the Review

Chamber found that it was not relevant any more, as the seizure had

already been lifted as a result of the decision to deposit the car at

the district court. Finally, the Review Chamber found that it was not

called upon to decide whether the seizure of the car by the officers

of the Vienna Federal Police Authority had been in accordance with the

law. However, it appeared that there was a suspicion of having received

stolen property against the applicant and that, therefore, the police

officers feared that he might sell the car.

By letter of 20 March 1995 the applicant submitted that he had

meanwhile brought an action before the competent civil courts and had

obtained a judgment in default (Versäumungsurteil) against the other

persons concerned by the deposit of the car, which had, however, not

yet become final.

B. Relevant domestic law

1. Code of Criminal Procedure (Strafprozeßordnung)

SS. 139 to 143 concern the search of premises and the seizure of

objects.

According to S. 139 the home and other premises of a person may

be searched if there are reasonable grounds to believe that a person

suspected of a criminal offence is hiding there, or that objects

relevant for the investigation are to be found.

S. 143 states that if objects are found, which might be relevant

for the investigation, they have to be seized.

According to S. 47 a person whose rights have been violated by

an offence may join the criminal proceedings until the opening of the

trial on the basis of his claims under civil law and thereby becomes

a private party (Privatbeteiligter).

S. 367 para. 1 provides that, if objects belonging to a private

party are found among the possessions of the accused, a co-accused or

an accomplice or in a place where they were deposited by one of these

persons, the Court has to order that they be returned as soon as the

judgment becomes final. With the consent of the accused, the object at

issue may be returned immediately.

According to S. 367 para. 2 an object belonging to a private

party may be returned by the investigating judge before the trial if

the object is not needed as evidence any more (subpara. 1) and if

neither the accused nor a third person claim to have a right to this

object and if there are no other circumstances which would cast doubt

on the rights of the person requesting the return (subpara. 2).

S. 367 para. 3 provides that if a request for the return of

objects is dismissed under para. 2 subpara. 2, the seizure has to be

lifted and the object has to be deposited at the competent district

court in accordance with S. 1425 of the Civil Code.

According to S. 113 of the Code of Criminal Procedure, anyone who

considers that his rights have been infringed by a decision of the

investigating judge may, in the course of the preliminary

investigations, lodge an appeal with the Review Chamber.

2. Civil Code (Allgemeines bürgerliches Gesetzbuch)

S. 1425 of the Civil Code provides that the debtor, who is unable

to fulfil his obligation, inter alia because the creditor is unknown,

absent or unwilling to accept payment, may request that the item he

owes to the creditor be deposited in court. If he has lawfully done so

and if the creditor has been notified of the deposit, the deposit has

the effect of settling the debt.

COMPLAINTS

1. The applicant complains under Article 1 of Protocol No. 1 that

the seizure of the car was unlawful in that it was not in accordance

with S. 143 of the Code of Criminal Procedure. He submits in particular

that the seizure was not necessary for the investigation, as it would

have been sufficient to make a photo of the car and copies of the

papers. Moreover, as regards the subsequent deposit of the car at the

Favoriten District Court, he submits that there was no legal basis for

applying S. 1425 of the Civil Code in the course of criminal

proceedings.

2. Further, the applicant complains under Article 6 of the

Convention that his property was seized without proper proceedings. He

submits in particular that the Vienna Regional Criminal Court failed

to decide on his request that the seizure be lifted. Instead, it

ordered the deposit of the car with the District Court, thereby

preventing that it be returned to him.

THE LAW

1. The applicant complains under Article 1 of Protocol No. 1

(P1-1) about the seizure of his car and its subsequent deposit at the

Favoriten District Court.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary

to control the use of property in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission finds that the seizure of the car and its

subsequent deposit do not concern a deprivation of property within the

meaning of paragraph 1 of Article 1 (Art. 1-1), but must be considered

as control of the use of property falling within the scope of the

second paragraph of this Article.

The Commission recalls that this paragraph requires that the

interference with a person's peaceful enjoyment of his possessions is

lawful and serves a legitimate aim. Moreover the interference must be

proportionate, achieving a fair balance between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights, whereby the State

enjoys a wide margin of appreciation (see Eur. Court H.R., Fredin

judgment of 18 February 1991, Series A no. 192, pp. 16-17,

paras. 48-51; Agosi judgment of 24 October 1986, Series A no. 108,

p. 18, para. 52).

a. The applicant complains that the seizure of the car was not in

accordance with S. 143 of the Code of Criminal Procedure. He submits

in particular that it was not necessary for the investigation, as it

would have been sufficient to make a photo of the car and copies of the

papers.

The Commission recalls that the power of the Convention organs

to review compliance with domestic law is limited (Eur. Court H.R.,

Fredin judgment loc. cit., p. 16, para. 50). The Commission notes that

S. 143 of the Code of Criminal Procedure, which states that objects

that might be relevant for the investigations, have to be seized,

leaves a certain discretion to the authorities. However, it appears

that this discretion has to be exercised with a view to the suspicion

which prevails at the time of the seizure. In this respect, the Review

Chamber, in its decision of 27 October 1993, found that at the time of

the seizure there was a suspicion against B.W. of having fraudulently

obtained the car. Further, there was a suspicion against the applicant

of having received stolen property and, eventually, a danger that he

might sell the car. In these circumstances, the Commission finds that

there is nothing in the applicant's submissions to indicate that the

seizure of the car at issue was unlawful.

The Commission further finds that the contested seizure served

a legitimate aim, i.e. the safeguarding of evidence in the course of

criminal proceedings.

As regards the proportionality of the interference, the

Commission finds that, according to the file, the seizure of the car

was based on the suspicion of criminal offences against B.W. and

against the applicant, respectively. Moreover, the seizure is only a

provisional measure which was, according to the Review Chamber, lifted

as a result of the investigating judge's decision to deposit the car

at the district court. In these circumstances, the Commission finds

that the seizure complained of was not disproportionate.

b. The applicant also complains that the subsequent deposit of the

car at the Favoriten District Court was unlawful. He submits that there

was no legal basis for applying S. 1425 of the Civil Code in the course

of criminal proceedings.

In the present case, the applicant joined the criminal

proceedings against B.W. as a private party and requested that the car

be returned to him. In his decision of 19 May 1993 the investigating

judge, finding that different persons had asserted claims with regard

to the car, decided that the car be deposited at the Favoriten District

Court in accordance with S. 1425 of the Civil Code. Upon the

applicant's appeal, this decision was confirmed by the Review Chamber

on 27 October 1993.

As regards the lawfulness of the measure complained of, the

Commission notes in particular that S. 367 para. 3 of the Code of

Criminal Procedure refers to S. 1425 of the Civil Code. It states that,

if a request by a private party for the return of objects has to be

dismissed because, inter alia, more than one person claims to have a

right to this object, the seizure has to be lifted and the object has

to be deposited at the competent district court. Thus, the applicant's

submissions do not suffice to conclude that the measure complained of

was contrary to Austrian law.

The Commission further considers that the interference at issue

pursued a legitimate aim, namely to secure the car until a decision

about conflicting claims be taken by a civil court.

As regards the proportionality of the interference, the

Commission notes that the car was deposited at the district court on

the ground that different persons had asserted claims to it. According

to the file, civil proceedings to pursue these claims are available to

the persons who are, like the applicant, concerned by the deposit. In

these circumstances, the Commission finds that the measure complained

of was not disproportionate.

If 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. Further, the applicant complains under Article 6 (Art. 6) of the

Convention that his property was seized without proper proceedings. He

submits in particular that the court failed to decide on his request

that the seizure be lifted. Instead, it ordered the deposit of the car

with the district court, thereby preventing that it be returned to him.

Article 6 (Art. 6), so far as relevant, reads as follows:

"In the determination of his civil rights and obligations ...

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal ... "

The Commission finds that this complaint raises the question

whether the applicant had access to a court competent to decide whether

the seizure of the car be lifted and whether it be returned to him,

decisions which involve a determination of the applicant's civil rights

within the meaning of Article 6 (Art. 6).

a. As regards the seizure, the Review Chamber of the Vienna Regional

Criminal Court, in its decision of 27 October 1993, stated explicitly

that the decision of 19 May 1993 to deposit the car at the Favoriten

District Court had the effect of lifting the seizure. The Commission

notes that S. 367 para. 3 of the Code of Criminal Procedure provides

that if a request for the return of objects has to be dismissed, inter

alia on the ground that more than one person claims to have a right to

the seized object, the seizure has to be lifted and the object has to

be deposited at the district court. Thus, the applicant had access to

a court, which actually decided on the lifting of the seizure.

b. As regards the subsequent deposit of the car, the Commission

notes that the Favoriten District Court, when accepting the deposit of

the car on 22 September 1993, stated that it would be handed over to

one of the persons concerned on the basis of a final and enforceable

court decision. Meanwhile, the applicant has, in civil proceedings,

obtained a judgment in default against the other persons concerned by

the deposit. Although this judgment is not yet final, it shows that the

applicant has access to the civil courts in order to obtain the return

of the car.

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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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KOSEK v. AUSTRIA

KOSEK v. AUSTRIA

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