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H.B. v. AUSTRIA

Doc ref: 16148/90 • ECHR ID: 001-1633

Document date: September 8, 1993

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H.B. v. AUSTRIA

Doc ref: 16148/90 • ECHR ID: 001-1633

Document date: September 8, 1993

Cited paragraphs only

Application No. 16148/90

by H.B.

against Austria

The European Commission of Human Rights sitting in private on

8 September 1993, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 6 December 1989

by H.B. against Austria and registered on 8 February 1990 under file

No. 16148/90;

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 1936, is an Austrian national. He is a

public notary practising in Salzburg.

On 23 August 1989 the Investigating Judge at the Salzburg

Regional Court (Landesgericht), in the context of criminal proceedings

against others, ordered the search of the applicant's notary office in

order to find documents and files concerning several suspects. Such

documents, except information submitted by clients, were to be seized.

On 12 September 1989 two officials of the Federal Ministry of the

Interior (Bundesministerium für Inneres) presented the search and

seizure warrant to the applicant, and asked him to deliver the

documents concerned voluntarily. Following some discussion, it was

agreed that the applicant could deposit the documents concerned with

the Notaries' Association where they would be sealed and kept until

judicial review of the search and seizure warrant.

On 5 October 1989 the Judges' Chamber (Ratskammer) at the

Salzburg Regional Court dismissed the applicant's complaint against the

search and seizure warrant.

On 23 October 1989 the Investigating Judge at the Salzburg

Regional Court ordered that the documents, which had been deposited at

the Notaries' Association, be seized. The documents were transmitted

to the Court on 10 July 1990.

On 1 August 1990 the Judges' Chamber at the Salzburg Regional

Court ordered that the documents in question be examined by the

Investigating Judge, information obtained from clients being excluded.

The applicant's appeal was dismissed by the Judges' Chamber at the

Salzburg Regional Court on 10 October 1990. On 31 October 1990 the

Linz Court of Appeal (Oberlandesgericht) dismissed the applicant's

further complaint and decided not to take any supervisory measures.

On 28 November 1990 the Investigating Judge at the Salzburg

Regional Court examined the documents concerned. Various documents

were seized, the remainder was given back. On 23 January 1991 the

Judges' Chamber at the Salzburg Regional Court, upon the applicant's

complaint, decided that only five documents be retained, while all

other documents were to be given back to the applicant.

On 31 January 1992 the Austrian Supreme Court (Oberster

Gerichtshof) dismissed the plea of nullity for the preservation of the

law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) lodged by the

Attorney General (Generalpro-kuratur) against the continued retention

of one of the documents.

COMPLAINTS

1. The applicant complained that the search and seizure warrant of

23 August 1989 violated his rights under Article 8 of the Convention.

The applicant, in this respect, also invoked Article 6, in particular

Article 6 para. 3 (c), of the Convention.

2. Furthermore, the applicant complained under Article 13 in

conjunction with Article 8 of the Convention that he did not have an

effective remedy against the search and seizure warrant.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 December 1989 and registered

on 8 February 1990.

On 6 January 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 15 April 1992 the Government submitted their observations.

The applicant submitted his observations in reply on 15 June 1992.

On 30 July 1993 the Government submitted the English translation

of their observations on the admissibility and merits, which were

forwarded to the applicant on 4 August 1993.

By letter of 10 August 1993 the applicant informed the Commission

that, in the light of the Government's observations, he wished to

withdraw his application.

REASONS FOR THE DECISION

The Commission notes that the applicant complained that the

search and seizure warrant of 23 August 1989, and the subsequent

seizure and inspection of documents kept at his office, violated his

rights under Articles 6 and 8 of the Convention. He also complained

under Article 13 in conjunction with Article 8 of the Convention that

he did not have an effective remedy in this respect.

By letter of 10 August 1993 the applicant informed the Commission

that he wished to withdraw his application.

In these circumstances, the Commission finds that it is not

justified to continue the examination of the present application,

pursuant to Article 30 para. 1 (a) of the Convention. Moreover, there

are no reasons of a general character affecting respect for Human

Rights as defined in the Convention which require the further

examination of this application.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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