Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21402/93

by Peter SCHNABL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 2 December 1992

by Peter SCHNABL against Austria and registered on 19 February 1993

under file No. 21402/93;

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

summarised as follows.

The applicant, born in 1939, is an Austrian national. He is a

lawyer practising and residing in Vienna. In the proceedings before the

Commission he is represented by Mr. W. Lenneis, a lawyer also

practising in Vienna.

A. The particular circumstances of the case

In May 1988 the Vienna Regional Criminal Court (Landesgericht)

opened preliminary investigations (Voruntersuchung) against E.S.

relating to the bankruptcy of the K. company, i.e. pawnbrokers. The

applicant, who had acted as counsel of the K. company, was heard as a

witness.

On 14 October 1991 the Vienna Regional Criminal Court asked the

Vienna Finance Directorate (Finanzlandesdirektion) to request

information and examine the files of a number of limited companies,

including the K. company, and other taxable persons, including the

applicant, and to inform the Regional Court about the results. The

Court stated that preliminary examinations (Vorerhebungen) were

conducted against E.S. and others, including the applicant, on the

suspicion of tax evasion or aiding and abetting tax evasion.

On 10 December 1991 the Finance Authority (Finanzamt) submitted

a statement of facts (Sachverhaltsdarstellung) to the Regional Court.

It said in particular that the applicant had been the majority

shareholder of a number of limited companies including the K. company,

and had, for a short period, acted as its managing director. He had

also held a majority of shares in the M. Property Management Company.

Further, the Finance Authority stated that a rough estimate led to the

assumption that, for the years 1983/84, 1985 and 1988 the applicant and

his wife, according to their declarations of income and expenditure,

did not dispose of the necessary means to maintain their family.

Therefore, there was a suspicion of tax evasion.

On 28 January 1992 the Investigating Judge at the Vienna Regional

Criminal Court referring to S. 139 et seq. of the Code of Criminal

Procedure (Strafprozeßordnung) issued a search warrant concerning the

applicant's private home, his office and the office of M. Property

Management Company. It stated that the search was aimed at finding and

seizing documents containing information on the applicant's assets and

income as well as documents concerning his involvement with a number

of limited companies, including the K. company.

On 17 March 1992 the search was carried out in the applicant's

private home and in his office, in absence of the applicant. However,

a representative of the Chamber of Lawyers was present, who objected

to an immediate examination of the documents seized. They were,

therefore, deposited at the Regional Court.

On 30 March 1992 the applicant's counsel was allowed to inspect

parts of the file and obtained a copy of the Finance Authority's

submissions of 10 December 1991.

On 31 March 1992 the applicant lodged a complaint with the

Judges' Chamber (Ratskammer) of the Vienna Regional Criminal Court. He

complained in particular that the submissions by the Finance Authority

of 10 December 1991 only contained a rough estimate and were

inconsistent. Even assuming that the calculations were correct, there

was no suspicion of tax evasion of more than AS 1 million, falling

within the competence of the courts. Moreover, the search warrant,

contrary to S. 140 para. 1 of the Code of Criminal Procedure, had

stated that it was not necessary to hear him prior to the search. The

applicant also submitted that most of the documents seized were files

concerning his clients and contained no information about his income.

In these and the following proceedings, the applicant was represented

by counsel.

On 29 April 1992 the Judges' Chamber dismissed the applicant's

complaint. It found that there had been reasonable grounds for

suspecting him of having committed tax offences. While the statement

of facts of 10 December 1991 submitted by the Finance Authority

appeared somewhat summary, the Authority, upon the Regional Court's

request, had meanwhile submitted more detailed calculations, supporting

the suspicion of tax evasion against the applicant, falling within the

competence of the courts, which had also been the reason for the search

warrant. As regards the applicant's complaint that he had not been

heard prior to the search, the Judges' Chamber, referring to an earlier

decision of the Constitutional Court, found that non-compliance with

S. 140 para. 1 of the Code of Criminal Procedure did not constitute an

interference with his right to respect for his home.

The decision of the Judges' Chamber was served on the applicant's

counsel on 22 May 1992 and received by the applicant on 27 May 1992.

On 9 June 1992 the Constitutional Court (Verfassungsgerichtshof)

rejected the applicant's complaint, finding that it was not competent

to deal with it. The Constitutional Court noted that the applicant had

raised complaints relating to the institution of criminal proceedings

against him, the search of his premises and the conduct of several

authorities, including the Public Prosecutor's Office and the Vienna

Finance Directorate with regard to the contested proceedings. The Court

found that, even assuming that some of these acts constituted an

execution of orders or coercive measures by an administrative authority

(Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und

Zwangsgewalt), the review of their lawfulness would fall within the

competence of the Independent Administrative Tribunals (unabhängige

Verwaltungssenate). As regards any acts imputable to the courts, it was

not competent for their review either. This decision was served on the

applicant's counsel on 9 July 1992.

On 26 August 1992 the Judges' Chamber gave its consent under

S. 145 para. 2 of the Code of Criminal Procedure for a review of the

documents which had been seized during the search. It noted in

particular that the representative of the Chamber of Lawyers, being

present during the search, had objected to an immediate review on the

ground that they contained information subject to professional secrecy.

The Judges' Chamber found that a review would serve the purpose of

separating files containing such information, which would be returned

without being examined, from other material.

The proceedings against the applicant are still pending.

B. Relevant domestic law and practice

SS. 139 to 145 of the Code of Criminal Procedure (Strafprozeß-

ordnung) concern the search of premises, the seizure of objects and the

examination of documents.

S. 139 para. 1 provides that 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 was hiding there, or that

objects relevant for the investigation were to be found.

S. 140 states that usually the person whose premises are to be

searched has to be heard prior to the search (para. 1). As a rule, the

search has to be ordered by the investigating judge (para. 3).

If objects, which might be relevant for the investigations, are

found, they have to be deposited at the court or be seized (S. 143

para. 1).

In case the owner objects to the examination of documents, they

have to be sealed and deposited with the court. The Judges' Chamber has

to decide immediately whether they may be examined or have to be

returned (S. 145 para. 2).

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

considers that his rights have been infringed by a decision (Verfügung)

of the investigating judge can bring a complaint before the Judges'

Chamber.

According to S. 53 para. 1 (b) of the Tax Offences Act

(Finanzstrafgesetz) the prosecution of tax offences falls within the

competence of the courts if the offence was committed intentionally and

the sum relevant for the penalty is more than AS 1 million.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that

the search of his premises impinged on matters of professional secrecy.

Further, the applicant considers that the Courts were not competent

under S. 53 of the Tax Offences Act, to investigate this matter, as in

his view, there was no suspicion of tax evasion of more than AS 1

million. Moreover, he submits that the proceedings were unfair as he

was not informed about the suspicion against him and was not granted

access to the file. Further the search warrant lacked a proper

reasoning and he was not heard before the search was carried out.

2. The applicant complains under Article 8 of the Convention that

the search of his private home and his office violated his right to

respect for his home. He submits in particular that the search warrant

was unlawful, as there were no reasonable grounds to suspect him of

having committed an offence. Moreover, he complains that the search

warrant did not sufficiently specify the documents to be seized.

3. The applicant also complains under Article 14 that the conduct

of criminal proceedings against him was arbitrary. He submits in

particular that the Courts would not open preliminary investigations

or issue a search warrant in comparable cases.

4. Under Article 1 of Protocol No. 1 the applicant complains that

the seizure of files violated his right to property.

THE LAW

1. The applicant raises various complaints under Article 6 (Art. 6)

of the Convention regarding the criminal proceedings against him. He

also complains under Article 14 (Art. 14) that the opening of

preliminary investigations against him and the conduct of the

proceedings were arbitrary.

As regards the decisions complained of, the Commission recalls

that it is not competent to deal with an application alleging that

errors of law or fact have been committed by domestic courts, except

were it considers that such errors might have involved a possible

violation of the Convention (No. 10000/82, Dec. 4.7.83, D.R. 33

p. 255).

As regards the complaint about the unfairness of the proceedings,

the Commission recalls that the compliance with the requirements of a

fair trial must be examined in each case having regard to the

development of the proceedings as a whole. However, it cannot be

excluded that a specific factor may be so decisive as to enable the

fairness of the trial to be assessed at an earlier stage in the

proceedings (Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court

H.R. Series A no. 96, p. 15).

In the present case, the proceedings have not attained trial

stage. Thus, an examination of the proceedings as a whole is not

possible. Moreover, there is no indication that the matters complained

of, were so decisive as to allow an assessment of the fairness of the

proceedings at the stage of the preliminary examinations. In this

context, the Commission notes in particular that the applicant,

assisted by counsel, got access to parts of the file after the search

of his premises, and was able to lodge a complaint with the Judges'

Chamber. Furthermore, the applicant failed to show that the opening of

the proceedings against him amounted to discrimination contrary to

Article 14 (Art. 14).

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 8 (Art. 8) of the

Convention about the search of his private home and his office. He also

invokes Article 14 (Art. 14).

Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with a matter "after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken." "The final decision" refers only

to domestic remedies which can be considered to be "efficient and

sufficient" for the purpose of rectifying the subject-matter of the

complaint (No. 11763/85, Dec. 9.3.89, D.R. 60 p. 137).

The applicant submits that the final decision within the meaning

of Article 26 (Art. 26) of the Convention was given by the

Constitutional Court on 9 June 1992, (served on 9 July 1992), or

eventually by the Judges' Chamber on 26 August 1992.

The Commission finds that the complaint brought before the

Constitutional Court was not an effective remedy as the Court was not

competent to deal with the matters raised by the applicant. Further,

his complaint lodged with the Judges' Chamber, which resulted in its

decision of 26 August 1992, related to a different issue, namely the

question of whether the documents seized were to be examined and,

therefore, did not constitute an effective remedy with regard to the

search of the applicant's premises as such.

The Commission considers that the final decision on the

lawfulness of the search warrant and the actual circumstances of the

search of the applicant's premises was already given by the Judges'

Chamber on 29 April 1992, and was served on the applicant's counsel on

22 May 1992 and received by the applicant on 27 May 1992, that is more

than six months before the introduction of his application on 2

December 1992. The Commission, therefore, finds that the applicant

failed to comply with the six-months'-rule laid down in Article 26

(Art. 26) of the Convention.

It follows that this part of the application has to be rejected

in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.

3. The applicant finally complains that the seizure of files during

the search of his premises constituted a violation of his right to

property as guaranteed by Article 1 of Protocol No. 1 (P1-1).

The Commission, assuming exhaustion of domestic remedies, finds

that the seizure of files in the context of criminal proceedings may

constitute an interference with the applicant's right to peaceful

enjoyment of his possessions, falling within the scope of the second

paragraph of this Article.

The Commission finds no indication in the file that the seizure,

based on the search warrant, was not in accordance with Austrian law

or did not serve a legitimate aim, namely the prevention of crime. In

this respect, the Commission notes that the Judges' Chamber in its

decision of 29 April 1992 found that the search warrant, on which the

seizure was based, was in accordance with the provisions of the Code

of Criminal procedure, in particular in that there were reasonable

grounds for suspecting the applicant of having committed tax offences.

Moreover, the measure was proportionate, as the Austrian law provides

special safeguards to separate files which may contain information

subject to professional secrecy from other material and return them

without examination. Thus, there is no appearance of a violation of the

applicant's right to peaceful enjoyment of his possessions within the

meaning of Article 1 of Protocol No. 1 (P1-1).

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) (A. WEITZEL)

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SCHNABL v. AUSTRIA

SCHNABL v. AUSTRIA

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