AS TO THE ADMISSIBILITY OF

                      Application No. 17540/90

                      by Christian Neumayr

                      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 26 September 1990

by Christian Neumayr against Austria and registered on 10 December 1990

under file No. 17540/90;

      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

A.    The particular circumstances of the case

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

parties, may be summarised as follows.

      The applicant, born in 1959, is an Austrian national.  He is

resident at Obertrum, Austria, and a clerk by profession.  Before the

Commission, he is represented by Mr. G. Reiter, a lawyer practising in

Salzburg.

      On 23 August 1989 the Investigating Judge at the Salzburg

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

against Mr. S., the applicant and others, ordered the search of the

notary office of Mr. H. G. Brunner, a public notary practising in

Salzburg, in order to find documents and files concerning the suspects,

who were listed in an annex to the search warrant.  Such documents,

except information submitted by the notary's clients, were to be

seized.  The Regional Court referred to S. 139 and S. 143 of the

Austrian Code of Criminal Procedure (Strafprozeßordnung).  The Court

instructed the Vienna Economic Police (Wirtschaftspolizei), together

with the Salzburg Federal Police Directorate (Bundespolizeidirektion),

to execute the search.  A representative of the Salzburg Notaries'

Association should be invited to the search.

      The Regional Court found in particular that Mr. S., the applicant

and others were suspected of having committed fraud, fraudulent

conversion and bankruptcy offences in that they had, in leading

positions in various companies, issued real property shares while the

corresponding property was sold to other persons.  The commercial

registry showed that various transactions concerning at least one of

the firms involved were concluded in the notary's office.  The Regional

Court therefore assumed that documents and files concerning this firm,

which were of paramount importance for the further inquiries, could be

found.  The Court referred in particular to a contract concluded

between four of the suspects on 3 June 1985.

      Referring to SS. 143 and 152 para. 1 (1) of the Code of Criminal

Procedure, the Court ordered that all communications to the notary

containing information from his clients were to be exempted from the

search and seizure, not however other incriminating material, such as

documents of a client kept by the notary.

      On 12 September 1989, at 10 hrs., two officials of the Federal

Ministry of the Interior (Bundesministerium für Inneres) presented the

search and seizure warrant to Mr. Brunner in his office.  They asked

him to deliver the documents concerned voluntarily.  Mr. Brunner

refused.  In this respect, he referred to a decision of the Salzburg

Notaries' Association of 31 July 1989 according to which the request

of the Investigating Judge to deliver the documents concerned

contravened S. 37 paras. 1 and 3 of the Regulations on Notaries

(Notariatsordnung), in conjunction with S. 152 para. 1 (2) of the Code

of Criminal Procedure.  Thereupon, the civil servant conducting the

search agreed that the documents could be deposited with the Notaries'

Association within two weeks where they would be sealed and kept until

judicial review of the search and seizure warrant.  As from 11 hrs.,

a member of the Salzburg Notaries' Association had been present.

      The complaint which Mr. Brunner lodged with the Judges' Chamber

(Ratskammer) at the Salzburg Regional Court was dismissed on 5 October

1989.  The Judges' Chamber found that the search of the notary's office

was in accordance with S. 139 para. 1 of the Code of Criminal

Procedure, as well as S. 37 of the Regulations on Notaries.  The

Austrian and the Salzburg Notaries' Association also unsuccessfully

lodged complaints about the search and seizure warrant.

      On 23 October 1989 the Salzburg Regional Court ordered the

seizure of the documents deposited at the Notaries' Association.

      On 27 March 1990 the Judges' Chamber at the Salzburg Regional

Court rejected the applicant's complaint about the search and seizure

warrant of 23 August 1989 on the ground that he had failed to show how

far this decision had affected him, in particular that the warrant

applied to documents concerning his private matters or otherwise his

relationship with Mr. Brunner.

      On 23 May 1990 the Linz Court of Appeal (Oberlandesgericht)

dismissed the applicant's hierarchical complaint (Aufsichtsbeschwerde).

The Court of Appeal referred to an earlier decision dismissing the

hierarchical complaint of the Austrian Notaries' Association about the

search warrant concerned.  Furthermore, it noted that the decision of

the Judges' Chamber of 27 March 1990, denying the applicant, one of the

accused in the criminal proceedings concerned, the right to lodge a

complaint, had been incorrect.  However, it did not show any incorrect

practice in general necessitating hierarchical measures.

      On 10 July 1990 the documents which had been seized in October

1989 were transmitted to the Salzburg Regional Court in sealed

envelopes.  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.  Further appeals lodged by Mr. Brunner remained unsuccessful.

      On 28 November 1990 the Investigating Judge at the Salzburg

Regional Court examined the documents concerned.  Various documents

contained in three envelopes, a legal opinion on articles of

association of a company and annexes, as well as copies of other

contracts, were seized.  Some documents were given back.

      On 23 January 1991 the Judges' Chamber at the Salzburg Regional

Court, upon Mr. Brunner's complaint, decided that all documents

contained in the first envelope, and some of the documents contained

in the second and the third envelopes be given back to him.  The

remainder of the complaint was dismissed.  The Judges' Chamber

considered in particular that S. 152 para. 1 (2) of the Code of

Criminal Procedure covered any information which defence or other

counsel, notaries and trustees received, in their professional

capacity, from their clients.  As regards the documents which continued

to be retained, namely three copies of a contract on a holding company

(Zusammenarbeits- und Holdinggesellschaftsvertrag), three letters of

a tax advising firm to a tax office, as well as a record of the meeting

of the supervisory board of a limited company which had been certified

by Mr. Brunner on 7 July 1989 and filed by him with the commercial

registry at the Feldkirch Regional Court, the Judges' Chamber found

that they had not been established at Mr. Brunner's office, nor had

they been intended for his information and they had not only been

produced for his files.

      On 31 January 1992 the Austrian Supreme Court 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, i.e.

the record of the meeting of the supervisory board of a limited

company.

      In the detailed reasoning of its decision, the Supreme Court

noted that the Code of Criminal Procedure did not explicitly provide

for any limitations on the seizure of objects.  The Supreme Court then

examined the ratio of the accused person's right to refuse statements

and the different situations entitling witnesses to refuse testimony,

and their implication for the seizure of objects.  It noted that the

notary, as the defence counsel, lawyer or economic consultant, were

only entitled to refuse evidence supplied in the confidential context

of their professional relationship with their clients.  The primary

purpose of this provision was not to protect the professional secrecy

of lawyers, notaries etc., but to protect the defence rights of the

accused so that there was no risk that information given to his defence

counsel could be used by the prosecution to his disadvantage.  The

provision had been extended to notaries and economic consultants in

view of their possible involvement in the defence.

      The Supreme Court continued that limitations on the seizure of

objects had to be seen against this background.  The seizure of

documents kept by persons belonging to this professional group was only

prohibited to the extent that the objects, in particular documents, had

been produced with their assistance and that the fact that they kept

such a document was necessarily linked to the contract with their

client.  Thus only written information by their clients, and written

material on their inquiries in fulfilment of their contract, i.e. file

notes, or information obtained by third persons in relation to their

contract were covered by the prohibition on seizure.  Furthermore, the

prohibition extended to the product of the work of counsel or the

notary for the client, unless this document, or copies thereof, had

been made public, e.g. had been recorded in public registries, or if

correspondence with public authorities was concerned.

      As regards three copies of the contract on a holding company, the

Supreme Court considered that they had been sent to Mr. Brunner to give

an advisory opinion and therefore did not constitute information, but

evidence which already existed.  The same applied to three letters

which had been sent to a tax office.  The record on the meeting of the

supervisory board of a limited company had already been entered in the

commercial registry at the time of its seizure.

B.    Relevant domestic law

      S. 113 of the Code of Criminal Procedure provides in particular

that, in the course of preliminary investigations or of the proceedings

after indictment, any person affected by a decision taken or by a delay

caused by the Investigating Judge may lodge a complaint with the

Judges' Chamber at the Regional Court, which decides upon the complaint

in camera after having heard the Investigating Judge and the Public

Prosecutor.

      SS. 139 to 149 of the Code of Criminal Procedure concern the

search of premises and persons and the seizure of objects.

      S. 139 para. 1 provides in particular that a search may only be

carried out if there is a reasonable suspicion that there are objects,

the possession or examination of which are relevant for a particular

criminal investigation.  According to S. 140 paras. 1 and 2, a search

should in general only be carried out after having previously heard the

person concerned, and only if the objects to be sought are not

voluntarily surrendered and if the reasons resulting in the search have

not been eliminated.  The person concerned need not be heard where

there is imminent danger.

        S. 143 para. 1 of the Code of Criminal Procedure provides that,

if objects relevant for the investigation or subject to forfeiture or

confiscation are found, they have to be listed and taken into safe-

keeping at the court or kept by the court or seized.  The provision

refers, in this respect, to S. 98 according to which objects in safe-

keeping have to be placed in an envelope to be sealed by the court, or

a label preventing any substitution or confusion has to be attached.

        S. 152 para. 1 exempts lawyers, notaries and business trustees

from the obligation to give evidence as witnesses in respect of

information given to them in the exercise of their function.

        S. 37 of the Regulations on Notaries provides that the notary

is obliged to keep confidentiality concerning the deliberations in his

presence unless he has to give information according to the Regulations

on Notaries.

COMPLAINTS

      The applicant complains that the search and seizure warrant of

23 August 1989 concerning the notary's office of Mr. Brunner in

Salzburg violated his rights under Article 8 of the Convention.  The

applicant, in respect of the proceedings relating to the search and

seizure warrant, also invokes Article 6, in particular Article 6

para. 3 (c), of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 26 September 1990 and

registered on 10 December 1990.

      On 6 January 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

      On 10 April 1992 the Government submitted their observations.

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

THE LAW

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

23 August 1989 violated his rights under Article 8 (Art. 8) of the

Convention.

      Article 8 (Art. 8) of the Convention, so far as relevant, states:

      "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

      prevention of disorder or crime, ... or for the protection of the

      rights and freedoms of others."

      The Government submit that the applicant cannot claim to be

victim of a violation of his Convention rights in respect of the

warrant of 23 August 1989 which concerned Mr. Brunner's office.  They

also contend that the applicant lodged this complaint out of time, as

he had not duly stated it in his first correspondence with the

Commission, but only in a later letter.  They further point out that

this warrant had not been executed, and that the applicant had failed

to show that any of his correspondence with Mr. Brunner had been

affected by the later procedure.  In any event, the warrant complained

of was justified under Article 8 para. 2 (Art. 8-2).

      The applicant submits that the warrant of 23 August 1989 affected

him in his capacity as accused in the criminal proceedings concerned,

and could extend to his correspondence with Mr. Brunner.  The

formulation was not sufficient to make clear that information from

clients was to be excluded.  He submits that he had sent to Mr. Brunner

one of the documents which continued to be seized, namely the copy of

a contract on a holding company.

      The Commission notes that on 23 August 1989 the Investigating

Judge at the Salzburg Regional Court, in the context of criminal

proceedings against the applicant and others, ordered the search of

Mr. Brunner's office in order to find documents and files concerning

the suspects, and the seizure of such documents, except information

submitted by his clients.  The search was in fact not carried out, on

the condition that the documents concerned were brought to the Salzburg

Notaries' Association where they were to be kept pending the judicial

review of the search and seizure warrant.  The Austrian courts

confirmed the lawfulness of the warrant concerned, and the documents

were then seized, transmitted to the Salzburg Regional Court and

inspected by the Investigating Judge.  Some documents continued to be

retained.

      The Commission, assuming compliance with the conditions under

Article 26 (Art. 26) of the Convention, considers that the search and

seizure warrant concerned extended to incriminating material in the

criminal proceedings against, inter alia, the applicant.  Such

documents at the notary's office could relate to information about the

applicant.  Having regard to the fact that the warrant was in fact not

executed, and that the applicant did not show that the procedure

related to information and data which were protected by his rights

under Article 8 para. 1 (Art. 8-1), the question arises whether the

applicant may claim to be a victim, within the meaning of Article 25

para. 1 (Art. 25-1), and whether there was an interference with his

rights under Article 8 para. 1 (Art. 8-1) of the Convention.

      However, the Commission leaves this question open, as the measure

complained of is anyway justified under paragraph 2 of Article 8

(Art. 8-2) for the following reasons.

      The Commission finds that the search and seizure warrant was

based on S. 139 and S. 143 of the Austrian Code of Criminal Procedure,

as confirmed by the Judges' Chamber at the Salzburg Regional Court and

also the Austrian Supreme Court, and was thus "in accordance with the

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

Convention.

.

      The interference pursued a legitimate aim within the meaning of

Article 8 para. 2 (Art. 8-2), namely the prevention of crime.

      As regards the question of necessity, 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 margin of appreciation in assessing whether such a need

exists, but this goes hand in hand with a European supervision which

covers the basic legislation and the decisions applying it, even those

given by an independent court (Eur. Court H.R., Barfod judgment of 22

February 1989, Series A no. 149, p. 12, para. 28; Silver and Others

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

      The Commission considers that, in the context of the criminal

proceedings against the applicant and other suspects, the reasons

adduced by the Investigating Judge to issue the warrant of 23 August

1989, as confirmed by the Austrian courts, are relevant to the

legitimate aim pursued.

      The Commission further notes that the criminal proceedings, in

the context of which the warrant complained of was issued, were, inter

alia, directed against the applicant.  The warrant explicitly

privileged information obtained from clients, and also envisaged the

presence of a representative of the Salzburg Notaries' Association on

the occasion of the search.  The fact that, upon Mr. Brunner's

objections, the search was not carried out, and he himself deposited

the documents concerned at the Notaries' Association, where they were

kept sealed until termination of the judicial review, excluded any risk

of excess.  The Commission also notes that one of the documents which

continued to be retained, namely the copy of a contract on a holding

company, had been sent by the applicant. However, there is no

indication that any material concerning the applicant, which was not

related to the criminal proceedings against him, had been affected.

      In these circumstances, the Commission, balancing the applicant's

interests and the public interest in the prevention of crime, considers

that there is nothing to show that the measure complained of was

disproportionate.  The Austrian authorities did not go beyond the

margin of appreciation left to the national authorities under

paragraph 2 of Article 8 (Art. 8-2) of the Convention.

      It follows that the applicant's complaint under Article 8

(Art. 8) is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2.    The applicant has further invoked Article 6 para. 3 (c)

(Art. 6-3-c) of the Convention and Article 1 of Protocol No. 1 (P1-1)

in respect of his above complaint. Article 6 para. 3 (c) (Art. 6-3-c)

of the Convention guarantees a right to adequate legal representation,

to be seen in the general context of Article 6 para. 1 (Art. 6-1) and

the fairness of the criminal proceedings as a whole. Article 1 of

Protocol No. 1 (P1-1) ensures the right to the peaceful enjoyment of

possessions.

      The Commission finds that the warrant of 23 August 1989 formed

part of the criminal proceedings against the applicant and did not, as

such, constitute a separate procedure for the purposes of Article 6

(Art. 6) of the Convention.  The Commission cannot find that this

aspect rendered the proceedings as a whole unfair.

      Furthermore, the applicant's submissions do not disclose any

appearance of a violation of his property rights under Article 1 of

Protocol No. 1 (P1-1).

      Consequently, 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, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission          President of the Commission

    (M. de Salvia)                                (C.A. Nørgaard)