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G. AND G. LTD v. AUSTRIA

Doc ref: 20494/92 • ECHR ID: 001-1822

Document date: April 7, 1994

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G. AND G. LTD v. AUSTRIA

Doc ref: 20494/92 • ECHR ID: 001-1822

Document date: April 7, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20494/92

by G. and G. Ltd.

against Austria

The European Commission of Human Rights (First Chamber)

sitting in private on 7 April 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

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 21 April 1992

by G. and G. Ltd. against Austria and registered on 13 August

1992 under file No. 20494/92;

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 first applicant is an Austrian citizen, residing in

Luxembourg. Between 1985 and 1986, he was employed by the second

applicant, a real estate administration company registered in

Salzburg. Before the Commission, both are represented by Mr. K.

Vavrovsky, a lawyer practising in Salzburg.

The facts, as submitted by the applicants, may be summarised

as follows.

In June 1989, the Investigating Judge (Untersuchungsrichter)

of the Salzburg Regional Court (Landesgericht), Judge C.,

instituted preliminary investigations (Voruntersuchung) against

the first applicant and several other persons inter alia on the

suspicion of aggravated fraud and fraudulent conversion.

In May 1990 Judge H. was appointed Investigating Judge in

the first applicant's case, replacing Judge C. who had fallen

ill. Judge H. had been, during her preparatory service for

judges, working as a trainee (Richteramtsanwärter) with the

Presiding Judge of the Judges' Chamber (Vorsitzender der

Ratskammer) of the Salzburg Regional Court, which, inter alia,

supervises Investigating Judges.

On 3 July 1991 Judge H., referring to Sections 139 and 140

of the Code of Criminal Procedure, ordered a search of the

premises of the second applicant. The warrant stated that all co-

suspects were presumed to have committed the criminal offences

inter alia as owners or as managers of the second applicant. The

search was conducted under the supervision of several court-

appointed experts.

On 16 October 1991 the Judges' Chamber of the Salzburg

Regional Court dismissed the applicants' appeal against the

search and the seizure of various documents. The Judges' Chamber

considered that none of the alleged procedural flaws had an

impact on the lawfulness of the search. In particular, Judge H.

had been correctly appointed. Moreover, no objection could be

made under Austrian law against a search being supervised by

court-appointed experts, once it had been ordered by a judge. The

decision was served on 28 October 1991.

At the time of the introduction of the application the

criminal proceedings were still pending. The applicants' did not

supply further information about the state of the proceedings.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention

that the search to which the second applicant was subjected was

unlawful on the ground that it was not carried out under the

personal direction of the Investigating Judge.

2. They further complain under Article 6 para. 1 of the

Convention that the former Investigating Judge in the proceedings

against the first applicant had been discharged and replaced by

Judge H. They also complain about the bias of two of the experts

carrying out the search, as these experts were employees of an

accountant who might possibly get involved in compensation

proceedings against the second applicant.

THE LAW

1. Both applicants complain that the search carried out in the

second applicant's premises violated Article 8 (Art. 8) of the

Convention.

As regards the first applicant, the Commission considers

that this applicant was not directly affected by this measure.

The fact that the search was carried out in the context of

criminal proceedings against the first applicant does not

constitute a sufficient relation to the measure complained of.

Consequently, the first applicant cannot claim to be a victim of

a violation of Article 8 (Art. 8) of the Convention.

Furthermore, the Commission, assuming that the search of the

professional premises complained of raises an issue under Article

8 para. 1 (Art. 8-1), as far as the second applicant is concerned

(Eur. Court H.R., Niemietz judgment of 16 December 1992, Series A

no. 251-B, paras. 27-33, considers that such interference would

be justified under paragraph 2 of that provision.

The Commission notes that search was based on Section 139

of the Code of Criminal Procedure and that the Judges' Chamber,

in its decision of 16 October 1991, found that the search had

been carried out in accordance with the Austrian law, which does

not require for a search to be supervised by an Investigating

Judge. The Commission considers that the reasoning of the Judges'

Chamber cannot be regarded as arbitrary or unreasonable. Thus,

the interference complained of was in accordance with the law.

Moreover, in view of the reasons given in the search warrant

of 3 July 1991 and the applicants' submissions, there is no

indication that the search could not be regarded as necessary in

a democratic society for the prevention of crime.

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 applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention about the appointment of the

Investigating Judge H. in the criminal proceedings against the

first applicant, and about the alleged bias of two of the experts

participating in the above-mentioned search.

The Commission, even assuming that the second applicant can

reasonably claim to be a victim within the meaning of Article 25

(Art. 25) of the Convention of the alleged violation of Article

6(Art. 6), finds that the circumstances referred to, which relate

to the pre-trial stage, do not appear decisive to such an extent

that they could, as such, affect the fairness of the proceedings

against the first applicant as a whole. The Commission notes in

particular that the applicant's complaint about the appointment

of the Investigating Judge H. was rejected by the Judges' Chamber

at the Salzburg Regional Court, which confirmed the lawfulness

of the search of the premises.

This part of the application is therefore 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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