THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

application no. 33726/96

by Attila BEDÖ

against Austria

The European Court of Human Rights ( Third Section ) sitting on 31 August 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J.-P. Costa,

Mr L. Loucaides ,

Mrs F. Tulkens ,

Mr K. Jungwiert ,

Mrs H. Greve ,

Mr K. Traja , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 September 1996 by Attila Bedö against Austria and registered on 8 November 1996 under file no. 33726/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a n Austrian national, born in 1934 and living in Vienna.

He is represented before the Court by Mr H. Bauer, a lawyer practising in Innsbruck.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1991 criminal proceedings were instituted against T, formerly director of the A limited company, and others on suspicion of, inter alia , fraud and fraudulent conversion in connection with important public road construction works. On 13 July 1992 an investigating judge at the Innsbruck Regional Court ( Landesgericht ), pursuant to section 149a of the Code of Criminal Procedure ( Strafprozessordnung ), ordered that inter alia conversations from T’s telephones be monitored during a period of one month. The investigating judge considered that the monitored telephone conversations could disclose fraudulent business connections. On 22 July 1992 the Review Chamber ( Ratskammer ) at the Innsbruck Regional Court authorised the telephone interception.

On 5 November 1992 counsel for the A company, having joined the criminal proceedings as a private party, obtained the reports on the interception of telephone conversations between T and the applicant, then employed by the A company. On the same day, the A company decided to terminate - without notice - the applicant’s employment, on account of a breach of trust and untrustworthiness. Subsequently, the A company, having obtained the approval of the works council ( Betriebsrat ), sent him a further dismissal letter, taking effect on 31 March 1993.

On 20 November 1992 the applicant, represented by counsel, lodged with the Innsbruck Regional Court, sitting as the labour and social court ( Arbeits - und Sozialgericht ), an action for compensation and a declaratory judgment. The first claim concerned specific compensation claims regarding the period between 6 November 1992 and 31 March 1993, the second any further loss of earnings or pension rights.

The Regional Court held hearings on 26 February, 13 May and 25 June 1993. In the course of these hearings, the court heard evidence from witnesses and the reports on the interception of the telephone conversations between T and the applicant, which were read out. Moreover, the parties filed several pleadings.

Meanwhile, in the context of the criminal proceedings against T, the Innsbruck Regional Court, in a decision of 5 May 1993 upon an appeal lodged by T, had ordered the investigating judge to sort out the recordings of the monitored telephone communications and only to keep material relevant to the proceedings against T or any future investigation procedure. In further appeal proceedings brought by T, the Regional Court renewed this instruction.

On 9 September 1993 a preliminary investigation was opened against the applicant, and on 16 September 1993 he was questioned by an investigating judge of the Innsbruck Regional Court on suspicion of having acted as an accomplice to fraudulent conversion regarding a particular product delivered by the F limited company.

On 4 October 1993 the Innsbruck Regional Court decided to adjourn the labour proceedings pending the outcome of the criminal proceedings against the applicant. The court considered that the investigations in the criminal proceedings could disclose indications as to when the A company had known about the applicant’s possible implication in the fraudulent transactions regarding the product delivered by the F company.

On 16 November 1993 the Innsbruck Court of Appeal ( Oberlandesgericht ), upon the applicant’s appeal, quashed the Regional Court’s decision and ordered it to resume the proceedings. The Court of Appeal found that the applicant could not be expected to await the outcome of possibly lengthy criminal proceedings.

In the resumed proceedings, the parties filed further memorials. A hearing was held on 28 April 1994. The parties provisionally agreed on a settlement, which was subsequently revoked by the applicant. Further hearings were held on 27 June and 17 November 1994 and on 9 January 1995.

On 9 January 1995 the Innsbruck Regional Court dismissed the applicant’s action. Having regard to numerous documents, part of the criminal file against the applicant and the statements made by witnesses, as well as the director of the defendant company and the applicant, the court found that the applicant’s dismissal had been justified.

In its judgment, the court noted in particular that the applicant had occupied a leading position in the defendant company. Following the opening of preliminary investigations against T and his dismissal, the new director of the company had partly restructured the services, including the applicant’s functions. The applicant, who had been known as T’s personal friend, had expressly assured his loyalty and reliability. Having been informed by the investigating authorities about a possible leak in the company, the director had issued a circular letter, dated 15 October 1991, requesting all staff not to pass on internal information to external persons, including T, and warning about disciplinary consequences. The applicant had acknowledged receipt in writing. In a further circular letter of 31 August 1992, staff had been reminded of this request for secrecy. The applicant had again signed an acknowledgment of receipt. The company’s working order also set out a duty of secrecy, and warned about the possibility of dismissal without notice in case of contravention.

The court, having regard to the reports of the telephone interceptions obtained in the context of the criminal proceedings against T, found that the applicant had held three conversations with T from his business phone and during working time. The judgment contained a transcript of these conversations.  The court further noted that the defendant company's counsel in the criminal proceedings against T had become aware of the reports on the telecommunications between the applicant and T, and had passed copies on to the company director on the morning of 5 November 1992. The latter had concluded that the reports revealed a serious breach of trust, account being taken of the instruction to secrecy in the circular letters. That afternoon, the director had informed the applicant about his dismissal for breach of trust, on account of his proven contacts with T. The dismissal had been subsequently approved by the works council.

As regards the criminal proceedings, the court also noted that in February 1994 the prosecutor’s office had preferred the indictment against, inter alia , both T and the applicant. The applicant had been charged with having acted as an accomplice to fraud, namely in having manipulated the placement of important orders for road (tunnel) construction works.

In assessing the evidence before it, the court found that the functions previously exercised by the applicant in the defendant company had not been in dispute. The director’s statements as regards the considerations which led to the circular letters and to the applicant’s dismissal had been credible and conclusive.

The events and circumstances, which were the subject of the conversations between the applicant and T, were confirmed by documents and the statements of the applicant, the company director and T. As regards the reports on the telephone interceptions, the court noted that the recordings had been partly incomprehensible and the reports accordingly incomplete as regards matters which did not form part of the facts underlying its findings. The additional submissions and evidence offered were therefore irrelevant. With regard to the applicant’s objections to the use of the reports, the court observed that the telephone interceptions had been lawfully ordered in the context of the criminal proceedings against T. Moreover, the reports of the telephone conversations between the applicant and T had been correctly kept in the files as they were of obvious importance for any later criminal proceedings against the applicant. These lawfully obtained reports could be used as evidence in any subsequent criminal proceedings against third persons and they also constituted lawful means of evidence under the Code of Civil Procedure ( Zivilprozessordnung ). According to the court, the reports on the telephone interceptions proved that, contrary to the director’s clear instructions, the applicant had held three telephone conversations with T. Referring to case-law on breach of trust within the meaning of the Employees Act ( Angestelltengesetz ), the court considered that in the context of lengthy criminal proceedings and labour court proceedings against its  former director T, the defendant company had a reasonable interest in issuing instructions with a view to preventing any internal information being passed on to T. Contrary to these instructions, the applicant had informed T about internal investigations in respect of various matters. Such conduct disclosed untrustworthiness and the defendant company could not be expected to continue the applicant’s employment. The court dismissed the applicant’s explanations that these conversations had not contained any relevant information or that he had contacted T in order to obtain relevant information for the exercise of his professional functions.

On 30 May 1995, following a hearing, the Innsbruck Court of Appeal dismissed the applicant’s appeal. As regards the applicant’s objections regarding various factual findings, the Court of Appeal considered that these findings concerning the applicant’s professional performance were irrelevant, as the first instance decision was correct in the light of the undisputed facts. With regard to the applicant’s legal arguments, the Court of Appeal stated that, due to the circular letters issued by the director of the defendant company, the applicant had been aware that his contacts with T were prohibited and that their conversations about internal matters ran counter to the company’s interests. The Court of Appeal, having regard to several points of discussion between the applicant and T, also confirmed that the applicant’s conduct constituted a breach of trust.

On 25 January 1996 the Austrian Supreme Court ( Oberster Gerichtshof ) dismissed the applicant’s appeal on points of law. The Supreme Court confirmed that the lower courts had correctly applied the relevant law and referred to the Court of Appeal’s reasoning. As regards the applicant’s objections against the use of the reports concerning the telephone interceptions, the Supreme Court, having regard to legal writings on the use in evidence of material derived from unauthorised telephone tapping and to case-law, found that the monitoring of T’s telephone conversations had been lawfully ordered in the context of the criminal proceedings against him. Its justification under Article 8 § 2 of the Convention had not been in dispute. However, the lawful order of telephone interceptions did not only justify the interference with the private life of the suspected person, but extended necessarily to the interlocutor even if this person was not yet under strong suspicion of having committed a criminal offence. Thus the evidence had also been lawfully obtained with regard to the interlocutor. Accordingly, the contents of conversations publicly used in evidence in criminal proceedings could be generally used in evidence. The lower courts could therefore rely on the contents of the reports on the telephone interceptions which had been established for the purposes of the criminal proceedings. In this respect, the Supreme Court noted that the applicant had not contested the correctness of the reports.

The decision was served on 4 March 1996.

In the criminal proceedings against the applicant, the trial opened on 6 November 1995; beforehand, the presiding judge had ordered the destruction of the reports on the telephone interceptions as they were irrelevant for the criminal proceedings. On 26 January 1996 the applicant was acquitted.

B. Relevant domestic law

According to section 47 of the Code of Criminal Procedure, a victim of a criminal offence may join the criminal proceedings with regard to his or her civil claims as a private party ( Privatbeteiligter ). The private party is, inter alia , entitled to have access to the files as of the pre-trial stage if there are no particular objections (section 47(2)(2)).

The provisions concerning secret surveillance of telephone conversations are set out in sections 149a and 149b of the Code of Criminal Procedure, in the version in force at the relevant time.

Section 149a(1) provides that the interception and recording of telephone communications are only admissible if they can be expected to lead to the clearing up of a criminal offence committed with intent and liable to a penalty of more than one year’s imprisonment, and if

- the person in possession of the telecommunication installation is himself strongly suspected of that offence; or

- there are reasons to assume that the person strongly suspected of the offence resides at the address of the person in possession of the telecommunication installation or will contact him through the use of that installation, unless the latter is one of the persons referred to in section 152(1)(2); or

- the person in possession of the installation declares his express consent.

Section 149b(2) provides that after termination of the telephone interception the investigating judge shall inform the person in possession of the monitored telecommunication installation and the person suspected of the offence (the accused) of the fact that surveillance has taken place. At the same time the person in possession of the telecommunication installation shall be given the opportunity to inspect the records taken. At this inspection the person in possession of the telecommunication installation or the suspected offender (the accused) may request the preservation of the inspected records. If there is no such request, the investigating judge shall only keep those records on the file which could be relevant in any pending or imminent criminal proceedings. The judge shall order the destruction of all records not kept on the file.

Section 152(1)(2), to which section 149a refers, states that the obligation to give evidence shall not apply, inter alia , to counsel as regards confidential information received from their clients.

COMPLAINTS

The applicant complains that the investigating judge at the Innsbruck Regional Court failed to select the relevant parts of the reports on the intercepted telephone communications between the applicant and T and unlawfully made copies available to the A company’s representative. According to the applicant, this conduct rendered unfair the labour court proceedings which he had lodged. In this context, he also considers that the labour courts and the Supreme Court should have refrained from using these reports in evidence. In his view they failed to consider whether the defendant company had lawfully obtained copies of the reports concerned. He invokes Articles 6, 8 and 10 of the Convention.

THE LAW

1. To the extent that the applicant must be understood as complaining under Article 8 of the Convention (right to respect for private life and correspondence) and Article 10 (freedom of expression) about the conduct of the investigating judge as such, the Court is not required to decide whether or not the relevant facts disclose any appearance of a violation of the Convention.

In accordance with Article 35 § 1 of the Convention, the Court, even assuming that the applicant may be said to have exhausted domestic remedies, finds that the events of which complaint is made date back to November 1992, which is more than six months before the date on which the application was submitted.

It follows that this aspect of the application must be rejected under Article 35 § 4 of the Convention.

2. The applicant complains that he did not have a fair hearing in the labour court proceedings brought by him. He relies on Article 6 which, as far as relevant, provides:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing … by [a] … tribunal … .”

The Court recalls that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, among many other authorities, the Pérez de Rada Cavanilles v. Spain judgment of 25 September 1998, Reports of Judgments and Decisions 1998-VIII, p. 3255, § 43). Moreover, as a general rule, the assessment of the facts is within the province of the national courts (see the Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, pp. 19-20, § 60). Article 6 § 1 places the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision (see the above-mentioned Van de Hurk judgment, p. 19, § 59).

The Court further reiterates that the admissibility of evidence, as well as the taking of evidence, are governed primarily by the rules of domestic law and that it is, in principle, for the national courts to assess the evidence before them (see the Sidiropoulos and Others v. Greece judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV, p. 1617, § 45; the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43, as well as the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, § 43, and the Schenk v. Switzerland judgment of 12 July 1988, p. 29, § 46).

In the instant case, the Court considers that the applicant, represented by counsel, could duly present his claims against the A company.

The applicant’s complaint relates to the use in evidence of reports on intercepted telephone communications which had been obtained in criminal proceedings against T, who was prosecuted for offences to the detriment of the A company. In the applicant’s submission, the investigating judge should have destroyed the reports in question as being irrelevant to any pending or imminent criminal proceedings, instead of keeping them on the criminal file where they were accessible to the A company in its position as a private party to the criminal proceedings against T.

The Court observes at the outset that there is nothing to show that the decisions ordering the telephone interceptions were unlawful under Austrian law (see, a contrario , the above-mentioned Schenk judgment, p. 29, § 46). In fact, the lawfulness of the telephone interceptions was not in dispute during the labour court proceedings.

The Court finds that the applicant had the opportunity of challenging the authenticity of the reports on the recorded telephone communications and of opposing their use. While he did not deny having held the recorded conversations or contest the contents of the reports, the applicant presented legal arguments against their use in evidence. The Innsbruck Regional Court and, upon appeal, the Supreme Court carefully considered these arguments. The fact that these courts rejected his arguments does not affect the fairness of the proceedings (see, mutatis mutandis , the above-mentioned Schenk judgment, p. 29, § 47).

Moreover, the Innsbruck Regional Court and the Innsbruck Court of Appeal made a detailed examination of the contents of the reports and, to the extent that issues were in dispute, also relied on other evidence. Thus they found that the business transactions and other matters addressed in the intercepted communications between the applicant and T were confirmed by documentary evidence, as well as by statements made by the applicant, the director of the defendant company and T. The courts also duly considered the applicant’s explanations for his contacts with T. There is nothing to show that the assessment of the material before the courts was arbitrary.

In sum, the Court finds that the applicant’s submissions do not disclose any appearance of unfairness in the proceedings as a whole, contrary to Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President