Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15247/89

by H.W.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 10 December 1986

by H.W. against Austria and registered on 20 July 1989 under file No.

15247/89;

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 is an Austrian citizen born in 1943 and living in

Salzburg. He is represented by Mr E. Greger, a lawyer practising in

Oberndorf.

The applicant complains that he and his family have been

aggressed, threatened and injured by public officials in his home.

It follows from his statements and the documents submitted that

on 13 and 14 April 1982, two officials of the Telecommunications

Authority accompanied by two police officers confiscated in the

applicant's apartment a transmitter operated by the applicant, known

to be a radio amateur, without authorisation. A microphone and a roof

aerial were likewise confiscated.

Subsequently the two police officers laid criminal charges

against the applicant accusing him of having threatened the

Telecommunications officials.

On 15 April 1982, several local newspapers reported the event

stating that the applicant had threatened to kill the officials.

Thereupon the applicant likewise laid a criminal charge against

the officials who had carried out the confiscation. However, the

public prosecutor, having examined the matter, saw no reason to

institute criminal proceedings.

The applicant was acquitted of the charges of having threatened

public officials and at his request this acquittal was reported on 8

and 9 February 1984 in the newspapers.

The applicant's request to open criminal proceedings against the

public officials in question was rejected by the Salzburg Regional

Court (Ratskammer des Landesgerichts) on 20 June 1984.

On 4 June 1985 the applicant lodged an action for damages against

Austria alleging that during the events of 13 and 14 April 1982 the

public officials had injured his daughter and that the criminal

proceedings instituted by him had been wrongly discontinued.

On 30 December 1985 the Salzburg Regional Court (Landesgericht)

dismissed the action. It found that the visit effected by

Telecommunications officials in the applicant's apartment was no search

and seizure (Hausdurchsuchung) but an inspection by the

Telecommunications Authority (fernmeldebehördliche Nachschau). The

Court further stated that on the occasion of a previous inspection in

the home of another radio amateur in the presence of the applicant he

had already stated that if a control would be carried out in his home

he would be armed with a pistol. Therefore the Telecommunications

officials had requested to be assisted by policemen when carrying out

their inspection in the applicant's home. The Court found that the

applicant had been very excited and aggressive when the inspection was

carried out in his home. It was also found that three days after the

inspection, it was discovered at a sports instruction course that the

applicant's daughter had pains and bruises on her right upper arm. The

instructor called the applicant's wife and advised her to see a

doctor. Before the doctor, mother and daughter declared the bruise had

been caused by public officials.

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The Regional Court considered however that there was no evidence

of a causal link between the injury and the action of the public

officials. Furthermore the Court found that the inspection in the

applicant's home and the confiscation of the radio equipment had been

justified under the Radio Transmission Act (Fernmeldegesetz) and

consequently the intervention of public officials on 13 and

14 April 1982 did not give rise to any compensation claims by the

applicant.

The applicant's appeal (Berufung) against the Regional Court's

decision was rejected by the Court of Appeal (Oberlandesgericht) in

Linz on 21 May 1986. Referring to the jurisprudence of the

Constitutional Court (Verfassungsgerichtshof) according to which the

essence of search and seizure was the search for a person or an object,

where the whereabouts were unknown. Such a search had not been

necessary in the applicant's case as previous investigation had shown

that he operated a transmitter in his apartment, therefore violating

the Radio Transmission Act as he had not been granted an authorisation.

Therefore the radio transmission authority had been entitled to put the

applicant's transmitter station out of operation without prior warning;

in a case of imminent danger (Gefahr im Verzug), which is always given

when there is a danger of suppression of evidence, the authorities were

entitled to proceed to a provisional seizure. It was evident that the

authorities would not have found the installation in operative

condition had they informed the applicant of their intention to inspect

his home. This followed from the fact that although caught red-handed

the applicant denied that his transmitter was operational. In these

particular circumstances the seizure effected on 13 April 1982 was

justified (vertretbar) under the Radio Transmission Act and under the

Penal Administrative Code (Verwaltungsstrafgesetz), and the applicant

could not derive any claim for damages from this action.

Insofar as the costs for his defence in the criminal proceedings

instituted at the request of the police officers were concerned as well

as the costs resulting from the publication in newspapers of the

applicant's acquittal were concerned, the Court found that the police

officers had not violated professional duties by laying criminal

charges against the applicant. The fact that the applicant had been

acquitted did not in itself prove that the charges had been laid

against him in a reproachable manner.

To the extent that the Regional Court had denied the applicant's

claim for damages relating to the denial of that Court to institute

criminal proceedings against the police officers involved in the

applicant's case, the Court of Appeal quashed the decision stating that

this part of the action should have been decided by another court.

COMPLAINTS

The applicant complains that his action for damages was wrongly

dismissed. He submits that the injury caused by the public officers

to his daughter was proven by medical certificate. He alleges a

violation of Article 8 para. 1 of the Convention.

THE LAW

1. The applicant complains of the dismissal of his action for

damages against Austria.

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With regard to the judicial decisions, of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its established

case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

The Commission has examined this complaint under Article 6

para. 1 (Art. 6-1) of the Convention.

However, there is nothing to show that the applicant was denied

a fair hearing or that the Austrian courts arbitrarily disregarded any

elements that would have justified a decision in the applicant's

favour.

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 further invokes Article 8 para. 1 (Art. 8-1) of the

Convention which guarantees the right to respect of family and private

life.

However, it cannot be found that the interference complained of

was not justified under para. 2 of this provision. In fact it follows

from the reasons stated by the Austrian courts in regard to the

applicant's alleged claims for damages that the inspection carried out

by public officials in his apartment had been effected in accordance

with the law. It served the purpose of preventing disorder and

protecting the rights of others. The Commission cannot find, in the

particular circumstances of the case, that the measure taken against

the applicant was disproportionate to these aims. In this respect it

notes the findings of the courts that the applicant acted in an

aggressive way during the inspection. As far as the alleged injury

caused to the daughter is concerned, the courts did not find it

established that the public officials were responsible.

An examination of this complaint as it has been submitted does

not therefore disclose any appearance of a violation of the rights and

freedoms set out in the Convention and in particular in the above

Article.

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 First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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W. v. AUSTRIA

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