Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21837/93

by Heinz TALIRZ

against Austria

The European Commission of Human Rights sitting in private on

2 March 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 February 1993

by Heinz TALIRZ against Austria and registered on 12 May 1993 under

file No. 21837/93;

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 applicant, born in 1939, is an Austrian citizen and resident

in Innsbruck. He formerly was a manager of a limited company involved

in the road construction business.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

A. Particular circumstances of the case

In April 1991 the Innsbruck Regional Court (Landesgericht) opened

a preliminary investigation (Voruntersuchung) against the applicant and

several other persons on the suspicion of having committed grave fraud

and breach of trust. On the occasion of a search carried out on the

premises of a company involved in the case, further evidence was found

indicating that the applicant had deliberately ordered partial expert

opinions (Gefälligkeitsgutachten) to the detriment of his company.

On 13 July 1992 the Investigating Judge ordered, pursuant to

Section 149a of the Code of Criminal Procedure (Strafprozeßordnung),

the tapping of the applicant's telephone for a period of one month. The

Judge found this measure necessary on the ground of the danger of the

applicant's collusion with his co-suspects and a danger in delay. The

Judge, in particular having regard to new evidence, found on the

occasion of the above search, considered that conspiracy to pervert the

course of the investigations was reasonably to be expected. Moreover,

the tapping of the applicant's telephone could clarify the relations

between the co-suspects and the background to the case.

On 22 July 1992 the Judges' Chamber (Ratskammer) of the Innsbruck

Regional Court approved the decision. The Judges' Chamber confirmed in

detail the Investigating Judge's considerations.

On 19 August 1992 the Judges' Chamber formally terminated the

tapping of the applicant's telephone. On 27 August 1992 this decision

was served and the applicant informed that his telephone had been

tapped.

On 1 December 1992 the Innsbruck Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal against the tapping of his

telephone. It noted that the applicant had not denied the existence of

a reasonable suspicion of his having committed an offence punishable

with more than one year's imprisonment. The tapping of the applicant's

telephone had been important to clarify the interconnections, regarding

the charges at issue, between the applicant and various companies

involved in the case.

On 23 December 1992 the Innsbruck Regional Court restricted the

applicant's access to parts of the case-file as there still existed a

danger of collusion. The Regional Court inter alia stated that there

was collusion between the suspects and the witnesses and that the

telephone tapping had shown that there had been several contacts

between the applicant, his co-suspects and several witnesses.

On 20 January 1993 the Judges' Chamber of the Innsbruck Regional

Court, upon appeal of the applicant, granted him full access to these

files.

B. Relevant domestic law

Section 149a of the Code of Criminal Procedure (Strafprozeß-

ordnung), so far as relevant, provides that the telephone of a person

against whom there are serious suspicions of having deliberately

committed a criminal offence punishable with more than one year's

imprisonment might be tapped in order to further the investigation of

the case. The decision is to be taken upon request of the Investigating

Judge by the Judges' Chamber of the Regional Court. In cases of danger

in delay, the Investigating Judge may take such decisions himself; such

decisions must subsequently be approved by the Judges' Chamber.

According to Section 149b, the Judges' Chamber declares the

tapping terminated, as soon as the legal requirements are no longer

complied with. The Investigating Judge then informs the suspected

person that his telephone has been tapped, and permits inspection of

the records of the tapped conversations. Retrospectively, an appeal may

be filed with the Court of Appeal, which, if granted, entails the

destruction of the records concerned.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention about

a violation of his right to respect for his private life due to the

telephone tapping. He contends that the mere suspicion against him did

not justify such a measure.

2. He also complains under Article 6 para. 3 (b) of the Convention

about the restriction on his access to parts of the case-file.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention about the decision of the Investigating Judge of the

Innsbruck Regional Court to order the tapping of his telephone.

The Commission considers that the tapping of the applicant's

telephone was an interference by a public authority with his right to

respect for his "private life". Such interference is in breach of

Article 8 (Art. 8) of the Convention, unless it is "in accordance with

the law" and is "necessary in a democratic society" for one of the aims

referred to in paragraph 2 (Art. 8-2) of this provision.

The legal basis for the tapping of the applicant's telephone was

Section 149a of the Austrian Code of Criminal Procedure. As regards the

necessary "quality" of the law (Eur. Court H.R., Kruslin judgment of

24 April 1990, Series A no. 176-A, pp. 20-25, paras. 27-36), the

Commission considers that Section 149a and Section 149b of the Austrian

Code of Criminal Procedure define the category of serious offences and

the suspicion necessary to order the tapping of a suspect's telephone.

These provisions also lay down the judicial procedure in such cases,

including the termination of the tapping by the Judges' Chamber as soon

as the legal requirements are no longer complied with, the subsequent

information of the person concerned, his right to appeal, and, in case

of a successful appeal, the destruction of the records concerned.

In these circumstances, the Commission is satisfied that the law

in question offers adequate safeguards against arbitrary interferences

and does meet the criteria of accessibility and foreseeability. The

interference complained of was thus "in accordance with the law".

Moreover, the applicant's telephone was tapped in the course of

preliminary investigations against him and others and aimed at "the

prevention of crime", which is a legitimate aim under Article 8 para. 2

(Art. 8-2).

As regards the question whether the interference complained of

was "necessary in a democratic society", the Commission recalls that

this phrase implies the existence of a pressing social need. The

Contracting States enjoy a certain margin of appreciation in assessing

whether such a need for an interference exists, but it goes hand in

hand with European supervision (see, Eur. Court H.R., Funke judgment

of 25 February 1993, para. 55, to be published in Series A no. 256 A)

In the present case, the impugned measure was taken in the

context of preliminary proceedings against the applicant and others on

the suspicion of grave fraud and breach of trust. At the relevant time,

the suspicion against the applicant had been further confirmed by the

results of a search carried out in the premises of a company involved

in the case. The measure complained of was ordered to prevent collusion

between the applicant, co-suspects and witnesses and did not last

longer than one month. Moreover, the records of the tapping showed

several attempts of collusion between the applicant, his co-suspects

and some witnesses.

In the particular circumstances of the case, the Commission finds

that the measure complained of can reasonably be considered 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 applicant also complains under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention about the restriction on his access to

documents contained in the case-files.

The Commission recalls that alleged violations of Article 6

(Art. 6) are to be examined having regard to the proceedings as a whole

once concluded, although it is not impossible that a particular

procedural element could be so decisive that the conduct of proceedings

can be assessed at an earlier stage (No. 9938/82, Dec. 15.7.86, D.R.

48 p. 31). The applicant's access to the files was restricted for one

month in the course of preliminary investigations. There is no

indication that this circumstance was so decisive as to amount in

itself to a breach of Article 6 (Art. 6).

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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

TALIRZ v. AUSTRIA

TALIRZ v. AUSTRIA

LEXI