Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22287/93

by O.L.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 December 1993, 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

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 28 May 1993 by

O.L. against Austria and registered on 20 July 1993 under file No.

22287/93;

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 they have been submitted by the

applicant, may be summarised as follows.

The applicant is an Austrian citizen, born in 1942 and residing

in Graz. She owns a private trading company in Graz. Before the

Commission she is represented by Mr. H. Pausch, a lawyer practising in

Graz.

A. The particular circumstances of the case

On 7 June 1990, the Graz Industrial Safety Office (Arbeits-

inspektorat) inspected the premises of the applicant's company and

controlled whether the relevant safety rules were complied with.

On 21 May 1991 the Graz Executive Council (Magistrat) found that

the applicant, in her position as employer, had committed several

infractions of the Industrial Safety Act (Arbeitnehmerschutzgesetz),

the Industrial Safety Regulations (Allgemeine Arbeitnehmerschutz-

verordnung), the Child and Juvenile Labour Act (Kinder- und Jugend-

beschäftigungsgesetz) and the Working Time Act (Arbeitszeitgesetz). The

Council imposed a fine of ATS 9,000.

In its decision, the Council, proceeding from the findings of the

Graz Industrial Safety Office of 7 June 1990, noted that the applicant

had failed to record the inspections of the fire extinguishers, that

no copies of the Industrial Safety Act as well as other relevant

regulations had been posted at a place easily accessible. Moreover, one

of the employees spent most of her working time in a room without

aeration or ventilation. The applicant had also failed to keep a

separate record on the personal data of a particular juvenile employee

and to post a copy of the Child and Juvenile Working Act and other

relevant provisions at a place easily accessible. Finally, two of her

employees had exceeded on several occasions the maximum of ten working

hours per day, and there had been no records on the hours worked.

In these and the following proceedings the applicant was

represented by Mr. Pausch.

On 6 April 1992 the Office of the Styrian Regional Government

(Amt der Landesregierung) dismissed the applicant's appeal (Berufung).

On 1 December 1992 the Austrian Constitutional Court

(Verfassungsgerichtshof) declined to entertain the applicant's

constitutional complaint about a violation of her right to respect for

her domicile, her right to equality, her right to a hearing in

accordance with the law and the freedom of profession. The

Constitutional Court found that the most of the applicant's submissions

did not raise any constitutional issues. To the extent that

constitutional questions were concerned, the Constitutional Court found

that, having regard to the tasks of the Industrial Safety Office, her

complaints had no prospect of success. The case was referred to the

Administrative Court.

The Constitutional Court's decision was served on 18 January

1993. The proceedings before the Administrative Court are still

pending.

B. Relevant domestic law

According to S. 1 of the Austrian Industrial Safety Act

(Arbeitnehmerschutzgesetz), this Act contains provisions on the

protection of the life and health of employees in the context of their

employment and the protection of morals according to age and sexe of

the employees. S. 2 provides that the precaution to be taken extends

to all measures in order to prevent occupational accidents and

diseases, or measures which otherwise result from hygienic necessities

or considerations of morals. Enterprises must be equipped, run and

managed accordingly. Details concerning inter alia the workrooms, the

technical equipment, the fitness of employees and special safety

measures, further concerning the duties of employers and employees are

regulated in the ensuing provisions. According to S. 24, regulations

govern further details.

The Working Time Act (Arbeitszeitgesetz) lays down, inter alia,

that the normal working time should not exceed eight hours per day, or,

in case of an increased volume of work, not exceed ten hours per day.

The Child and Juvenile Labour Act (Kinder- und Jugend-

beschäftigungsgesetz) provide for a special protection of juveniles at

work.

The Industrial Safety (Proceedings) Act 1974 (Arbeitsinspektions-

gesetz, published in the Federal Gazette 1974/143) governs the control

of the legal provisions on industrial safety by the Industrial Safety

Office (Arbeitsinspektion).

According to S. 3 of the Industrial Safety (Proceedings) Act,

safety officers have the right to enter and inspect the premises of an

enterprise at any time in order to control its compliance with the

provisions on industrial safety. The safety officer has to inform the

employer or his representative about his presence in the enterprise,

but this should not unnecessarily delay the inspection. There should

be no such information, if such information could render the inspection

ineffective. The employer or his representative are entitled to

accompany the safety officer upon his inspection; upon his request,

they are obliged to do so. The employer has to make sure that during

his absence an employee gives the opportunity to the safety officer to

enter the enterprise premises.

The Industrial Safety Office is entitled to request the

institution of criminal proceedings in case that a safety officer

establishes contravention against safety rules (S. 6). The Office may

also request that particular measures to ensure the industrial safety

in a given enterprise are ordered, or, in case of urgency, order such

measures itself (S. 7). The Office participates in all administrative

proceedings involving questions of the protection of employees (S. 8).

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the Austrian authorities inspected her firm without having had a

written search warrant issued by a court.

THE LAW

The applicant complains that an official of the Graz Industrial

Safety Office entered and inspected her firm without having had a

written search warrant issued by a court. She invokes Article 8

(Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society ... for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Commission, assuming exhaustion of the domestic remedies, as

required by Article 26 (Art. 26) of the Convention, finds that the

inspection effected by an official of the Graz Industrial Safety Office

in the premises of the applicant's company could be regarded as an

interference with her right under Article 8 para. 1 (Art. 8-1) of the

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

Series A no. 251-B, paras. 29-33).

Such interference is in breach with Article 8 (Art. 8), if it was

not justified under paragraph 2 of Article 8 (Art. 8-2) as being in

accordance with the law and necessary in a democratic society to

achieve one of the aims listed in this provisions. In this respect, the

Commission recalls that the entitlement of the Contracting States to

"interfere" with the right under Article 8 para. 1 (Art. 8-1) might

well be more far-reaching where professional or business activities or

premises were involved than would otherwise be the case (Eur. Court

H.R., Niemietz judgment, loc. cit., para. 31).

The Commission considers the legal basis for the challenged

inspection was S. 3 of the Industrial Safety (Proceedings) Act. The

Austrian Constitutional Court, in its decision of 1 December 1992,

found that, having regard to the tasks of the Industrial Safety Office,

the applicant's complaint about a violation of her right to respect for

her domicile had no prospect of success.

Furthermore, the Commission finds that the said Act, published

in the Federal Gazette, is adequately accessible to the public.

Moreover, given the field of industrial matters governed by the rules

on industrial safety and the limited nature of the powers under S. 3

of the Act, the circumstances and procedures of routine checks in

industrial enterprises are indicated with sufficient clarity to the

employers to whom in particular this provision is destined. The absence

of a judicial authorisation under S. 3 does not, regarding the nature

and circumstances of such routine checks, affect their lawfulness

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission also considers that the interference in question

pursued the protection of health and morals and also of the rights of

others, namely the employees, which are legitimate aims under paragraph

2 of Article 8 (Art. 8-2).

The Commission recalls that, in Article 8 para. 2 (Art. 8-2), as

in several other provisions of the Convention, the phrase "necessary

in a democratic society" implies the existence of a "pressing social

need". The Contracting States enjoy a certain margin of appreciation

in assessing whether such a need exists, but this goes hand in hand

with a European supervision (Eur. Court H.R., Silver and Others

judgment of 25 March 1983, Series A No. 61, pp. 37 - 38, para. 97;

Funke judgment of 25 February 1993, Series A no. 256-A, para. 55).

In the present case, the Commission notes that the inspection of

the premises of the applicant's company was effected as a routine check

on her compliance, as employer, with the relevant rules on industrial

safety and related matters, in the absence of any particular

investigations directed against her.

It is true that the applicant does complain about the absence of

any requirement of a judicial warrant regarding the inspections under

S. 3 of the Industrial Safety (Proceedings) Act, without, however,

pointing at any arbitrariness.

The Commission recalls that the domestic law permitting an

interference with the right under Article 8 para. 1 (Art. 8-1) must

afford adequate and effective safeguards against abuse (cf. Eur. Court

H.R., Klass and Others judgment of 6 September 1978, Series A no. 28,

p. 23, paras. 49-50; Funke judgment, loc. cit., para. 56). Thus, in

the case of wide powers accorded to customs authorities to effect, in

the context of criminal investigations, house searches and seizures in

order to obtain physical evidence of tax offences and, where

appropriate, to prosecute those responsible, the relevant legislation,

in the absence of any requirement of a judicial warrant, was not

regarded as being consistent with Article 8 (Art. 8) of the Convention

(Eur. Court H.R., Funke judgment, loc. cit., para. 57).

In the present case, the Commission finds that, balancing the

general nature of routine checks in the sphere of industrial safety,

the limited rights accorded to the safety officer under S. 3 to enter

and inspect industrial premises, and the conduct of such inspections,

against the necessity to ensure industrial safety in the general

interests of employees, there is no indication that the interference

complained of was not proportionate to the legitimate aims pursued

within the meaning of Article 8 para. 2 (Art. 8-2).

It follows that the application is 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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