THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32549/96

by Verein Netzwerk

against Austria

The European Court of Human Rights ( Third Section) sitting on 29 June 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J-P. Costa,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mrs H.S. 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 23 May 1999 by Verein Netzwerk   against Austria and registered on 7 August 1996 under file no. 32549/96;

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 non-profit-making association with its seat in Hirtenberg .

It is represented before the Court by Mr. Herbert Pochieser , a lawyer practising in Vienna.

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

The applicant association has the aims of, inter alia , creating accommodation for socially disadvantaged persons, of speaking out for the concerns of socially disadvantaged persons, refugees and foreign workers, and of creating possibilities of encounter and exchange with these persons.  In order to achieve these objectives it runs a house in Hirtenberg , which offers accommodation for socially disadvantaged persons in particular for young people and foreigners. The chairman of the applicant association is also living there.

On 7 October 1992, in the late evening, police officers carried out a control in this house.

On 16 November 1992 the applicant association lodged a complaint with the Lower Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) alleging violations of Articles 8, 9 and 11 of the Convention and of the Protection of the Home Act ( Gesetz zum Schutz des Hausrechts ).

The Independent Administrative Panel held hearings on 25 June and 17 November 1993. It heard the chairman of the applicant association, the police officers who had carried out the control and the mayor of Hirtenberg as witnesses.

On 10 May 1994 the Independent Administrative Panel partly rejected the applicant association’s complaint as being inadmissible and party dismissed it as being unfounded.

Having regard to the evidence taken, it found the following facts established. Following a number of complaints from neighbours about illegally resident foreigners, the mayor of Hirtenberg requested the District Administrative Authority ( Bezirkshaupt-mannschaft ) to carry out a control under the Residence (Registration) Act ( Meldegesetz ). The control was carried out in the late evening of 7 October 1992. The police officers were let into the house by some of the inhabitants. The chairman of the applicant association criticised the late hour of the control but did not otherwise object. He contributed to the smooth carrying out of the control in that he went around with the police officers, gave general information about the inhabitants (e.g. about their country of origin), acted as a translator and helped to produce the required documents. The rooms within the house were opened upon request. The police examined whether the foreigners were legally resident by controlling their identity documents and residence permits, or by checking the status of their asylum proceedings. A search of the rooms was not carried out. The control was terminated within three quarters of an hour.

The Independent Administrative Panel found that the applicant association, being a legal person, did not have a private and family life. Thus it could not rely on Article 8 of the Convention. Moreover, it had not claimed, and there was no indication, of any interference with its right to respect for its correspondence. Accordingly this complaint had to be rejected as being inadmissible.

As regards the control, the Independent Administrative Panel noted that also a legal person could rely on the Protection of the Home Act. However, the said Act only applied where a search had been carried out. As the police officers were voluntarily granted access to the house as well as to each of the rooms within the house and, assisted by the applicant association’s chairman, only controlled the documents of the inhabitants, the contested action could not be qualified as a search. The Independent Administrative Panel added that the protection afforded by Article 8 of the Convention went further, in that it covered not only a search of premises but any interference with the right to respect for one’s home. In the present case the control was in conformity with Article 8 § 2 of the Convention, in particular it had its legal basis in the Residence (Registration Act) and the Aliens Police Act ( Fremdenpolizeigesetz ). Consequently, the complaint had to be dismissed as being unfounded.

Further, the Independent Administrative Panel found that the applicant association, as a legal person, could not rely on Article 9 of the Convention and, therefore, rejected this complaint as being inadmissible.

Finally, as to the complaint under Article 11 of the Convention, the Independent Administrative Panel found that the control at issue was not aimed at the applicant association but at the inhabitants of the housing project, who were not even necessarily members of the applicant association. Moreover, the control did not prevent the applicant association from pursuing its objectives. Even assuming that there had been an interference with the applicant association’s freedom of association, it had to be regarded as necessary in the interests of public safety. Having regard to the short duration of the control, it was also proportionate. Thus, this complaint was also unfounded.

On 27 June 1994 the applicant association lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ). It relied on Article 8 of the Convention and on the Protection of the Home Act. It argued that the control carried out in its premises had to be qualified as a search and that it lacked a legal basis. Further, it relied on Article 11 of the Convention, claiming that the search prevented it from pursuing its objectives.

On 28 November 1994 the Constitutional Court refused to deal with the applicant association’s complaint for lack of prospects of success. It noted that the case was not excluded from the jurisdiction of the Administrative Court ( Verwaltungsgerichtshof ). Subsequently the Constitutional Court, upon the applicant association’s request, referred the case to the Administrative Court.

On 4 September 1995 the applicant association, upon the Administrative Court’s request, supplemented its complaint. It repeated its argument that the control had to be qualified as a search which lacked a legal basis, and added that there had not been any reasonable suspicion that foreigners were illegally resident on the premises.

On 10 October 1995 the Administrative Court rejected the applicant association’s complaint  as being inadmissible. It noted that the association relied on the right to respect for its home. This was a constitutionally guaranteed right which the Administrative Court was not called upon to review. The decision was served on 23 November 1995.

COMPLAINTS

1. The applicant association complains under Article 8 of the Convention that the control carried out at its premises violated its right to respect for its home. It argues in particular that, given its aim of creating accommodation for socially disadvantaged persons, the Hirtenberg house has to be considered as a “home” within the meaning of this Article. It submits that the control amounted to a search of its premises which was disproportionate as there was no specific suspicion against any of the inhabitants.

2. The applicant association also complains under Article 9 of the Convention that the control violated its right to freedom of thought, conscience and religion. It submits that its activities are based on humanitarian principles, such as equality between nationals and non-nationals and the peaceful coexistence of all human beings.

3. Further, the applicant association complains under Article 11 of the Convention that the control violated its right to freedom of association in that it might intimidate members, as well as the persons accommodated in the house, and therefore risked jeopardising the achievement of its objectives.

4. Finally, the applicant association complains under Article 14 of the Convention that the control discriminated against foreigners.

THE LAW

1. The applicant association complains that the control carried out at its premises violated its right to respect for its home. It relies on Article 8 of the Convention which reads 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Assuming that the applicant association has exhausted domestic remedies, the question nevertheless arises whether the applicant association can claim to be a victim of the alleged violation of its right to respect for its “home” within the meaning of Article 34 of the Convention. The Court recalls that to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8, namely to protect the individual against arbitrary interference by the public authorities (Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, p. 34, § 31). It may therefore be arguable that a legal person may rely on the right to respect for its “home” where the premises, on which it carries out its business activities or - in  the case of the applicant association - its activities with an idealistic goal, are subject to interference. Moreover, the Court notes that the premises of the applicant association served a number of private individuals as a “home”. However, the Court is not called upon to resolve this question in the present case, as the complaint is anyway inadmissible for the following reasons:

First, the Court has doubts as to whether the contested measure constituted an interference. It notes in particular that the police officers carrying out the control at issue were voluntarily granted access to the premises by some of the inhabitants. They were led around by the chairman of the association and any rooms or apartments were opened by their inhabitants upon request. No search of any of the rooms or belongings of the inhabitants was carried out, nor were any items belonging to the applicant association searched. The control was strictly limited to establishing whether the inhabitants were legally resident in Austria, by checking their residence permits or comparable documents.             

Secondly, even if there was an interference, the Court considers that the control was justified under the second paragraph of Article 8. It notes that the Independent Administrative Panel found that it had a legal basis in the Residence (Registration) Act and the Aliens Police Act. It also served legitimate aims, namely the interests of public safety and the prevention of disorder. The applicant association contests the necessity of the interference. However, the Court recalls that the entitlement to “interfere” might well be more far-reaching where professional or business activities or premises are involved than would otherwise be the case ( Niemietz judgment, loc. cit.). The Court notes that the Independent Administrative Panel thoroughly examined the applicant association’s allegations. Having regard to the Panel’s findings as to the reasons which gave rise to the control, the way in which it was carried out and its short duration, the Court finds that it can reasonably be considered to be proportionate.

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

2. The applicant association also complains under Article 9 of the Convention that the control violated its right to freedom of thought, conscience and religion.

Again assuming exhaustion of domestic remedies, the Court recalls that an association with religious or philosophical objectives is capable of exercising the rights contained in Article 9 (cf. no. 12587/86, Dec. 14.7.87, D.R. 53, p. 241 with further references).  However, the Court does not have to examine whether the applicant, a non-profit making association which pursues humanitarian and charitable objectives, falls within this category because the mere fact that the inhabitants of its premises were subject to a control, in accordance with domestic law, did not constitute an interference with any of the applicant association’s rights guaranteed under Article 9.

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

3. Further, the applicant association complains under Article 11 of the Convention that the control violated its right to freedom of association in that it might intimidate members, as well as the persons accommodated at the house, and therefore risked jeopardising the achievement of its objectives.

The Court finds that the contested control was not aimed at the applicant association but at the inhabitants of its premises. There is no indication in the file that the control, a single incident of short duration, prevented the applicant association from performing its functions or from pursuing its objectives. Thus, there was no interference with the applicant association’s right to freedom of association.

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

4. Finally, the applicant complains under Article 14 of the Convention that the control at issue discriminated against foreigners.

The Court notes that the applicant association has not relied on Article 14 either explicitly or in substance before the domestic authorities. It has therefore failed to exhaust domestic remedies as required by  Article 35 § 1 of the Convention.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza

Registrar President