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DEMEL v. AUSTRIA

Doc ref: 17679/91 • ECHR ID: 001-1801

Document date: April 7, 1994

Inbound citations: 2
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Cited paragraphs: 0
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Outbound citations: 0

DEMEL v. AUSTRIA

Doc ref: 17679/91 • ECHR ID: 001-1801

Document date: April 7, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 17679/91

by Karlheinz DEMEL

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 24 October

1990 by Karlheinz Demel against Austria and registered on 17

January 1991 under file No. 17679/91;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to the observations submitted by the

respondent Government on 19 February 1993 and the observations

in reply submitted by the applicant on 15 April 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted by the parties, may

be summarised as follows:

The applicant, an Austrian citizen born in 1937, resides in

Vienna. Before the Commission, he is represented by Mr. W.

Strigl, a lawyer practising in Vienna.

In May 1989 criminal proceedings were instituted against the

applicant, a judge, on the suspicion of in particular being an

accessory after the fact (Begünstigung).

On 25 July 1989 the Investigating Judge at the Vienna

Regional Court, in the context of the above charges ordered the

tapping of the applicant's telephone conversations for a period

of four weeks, as it was assumed that the applicant might remove

and destroy pieces of evidence.

The Judges' Chamber (Ratskammer) at the Vienna Regional

Court subsequently approved the surveillance order. During the

relevant period a number of conversations of the applicant were

recorded on tapes and subsequently transcribed.

On 20 November and 28 November 1989 the Investigating Judge

at the Vienna Regional Court, in the context of further charges

brought against the applicant for having given false testimony

as a witness at a trial in January 1989, again ordered the secret

surveillance of the applicant's telephone conversations for a

period of four weeks which was later prolonged until 31 January

1990. The surveillance order was subsequently approved by the

Judges' Chamber.

On 19 April 1990 the applicant's counsel was informed about

the tapping of the applicant's telephone conversations.

On 8 May 1990 the applicant complained to the Vienna Court

of Appeal (Oberlandesgericht) that the secret surveillance of his

telephone conversations during the above periods had been

unlawful and unjustified. He also requested the destruction of

all tapes and records. On 26 July 1990 the Vienna Court of Appeal

dismissed the applicant's complaints.

Following a decision of the Austrian Supreme Court (Oberster

Gerichtshof) of 23 April 1991 upon a plea of nullity for the

preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des

Gesetzes) and further decisions of the Vienna Regional Court

dated 4 June and 16 December 1991 as well as 3 June 1992, all

records of the applicant's telephone conversations were

destroyed.

On 28 September 1993 the Supreme Court, upon a further plea

of nullity for the preservation of the law, declared that the

decisions of the Investigating Judge of 25 July 1989, 20 November

and 28 November 1989 ordering the surveillance of the applicant's

telephone conversations were unlawful. The Supreme Court

considered in particular that the Investigating Judge had failed

to submit promptly its decision for approval to the Judges'

Chamber, as required by Section 149a of the Code of Criminal

Procedure.

COMPLAINTS

The applicant complains under Articles 6, 8 and 10 of the

Convention about the secret surveillance of his telephone and the

recording of his telephone conversations as well as the refusal

to destroy the relevant records.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 October 1990 and

registered on 17 January 1991.

On 14 October 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 19 February 1993 the Government submitted their

observations. The observations in reply by the applicant were

submitted on 15 April 1993.

By letter of 20 December and 21 December 1993, respectively,

the applicant and the Government informed the Commission about

the judgment of the Supreme Court of 28 September 1993. The

applicant wishes to pursue his application on the ground that the

Supreme Court did not consider all his arguments.

THE LAW

The applicant's complaints under Article 6, 8 and 10

(Art. 6, 8, 10) of the Convention relate to the secret

surveillance of his telephone conversations ordered on 25 July,

20 November and

28 November 1989.

The Commission notes that, following a decision of the

Supreme Court of 23 April 1991 and further decisions of the

Vienna Regional Court dated 4 June and 16 December 1991 as well

as 3 June 1992, all records of the applicant's telephone

conversations were destroyed. Moreover, on 28 September 1993, in

proceedings following a plea of nullity for the preservation of

the law, the Austrian Supreme Court declared the secret

surveillance measures retrospectively unlawful.

The Commission considers that these decisions taken together

constitute appropriate redress for the alleged violations of

Articles 6, 8 and 10 (Art. 6, 8, 10) of the Convention.

In these circumstances, the Commission finds that the

applicant can no longer claim to be a victim of the alleged

violations of the Convention.

His complaint is, therefore, 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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