Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12592/86

by S.

against Austria

The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 14 July 1986

by S. against Austria and registered

on 4 December 1986 under file No. 12592/86;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a bank established as a co-operative

(Genossenschaft) in Salzburg. It is represented by Rechtsanwalt Dr.

Herwig Liebscher of Salzburg.

The facts submitted by the applicant bank may be summarised as

follows:

A German client of the applicant bank, who had taken out a

loan and deposited certain securities, was suspected of tax evasion in

the Federal Republic of Germany. In connection with the relevant

criminal proceedings the competent German District Court (Amtsgericht)

of Hof on 4 September 1985 issued an order for the search and seizure

of certain documents and objects relating to the above transaction in

the applicant bank's offices. At the request of the public prosecutor

of Hof to grant judicial assistance (Rechtshilfe), the competent

Austrian District Court (Bezirksgericht) of Salzburg on 31 October

1985 issued an order against the applicant bank in essentially the

same terms, authorising the tax and revenue office of Salzburg-City

(Finanzamt Salzburg Stadt) to carry out the search. The order stated

that judicial assistance concerning this tax matter was granted under

the 1972 treaty between Austria and the Federal Republic of Germany

supplementing the European Convention on Mutual Assistance in Criminal

Matters (Austrian Federal Law Gazette No. 36/1977).

Officers of the tax and revenue office presented themselves at

the applicant bank's offices on 9 December 1985 in order to carry out

the search. The applicant bank protested, claiming that the search

infringed the Constitution and other legal provisions, in particular

that it unlawfully interfered with the banking secrecy

(Bankgeheimnis), violated Article 6 of the Convention and the

constitutional right to respect for private premises (Hausrecht), and

that officers of the tax and revenue office were not competent to

carry out such an act. However, the applicant bank handed out nine

sealed envelopes to them, requesting at the same time a judicial

decision under Section 143 of the Austrian Code of Criminal Procedure

(Strafprozessordnung) as to whether it was admissible to open these

envelopes.

The applicant bank's complaint against the above search order was

rejected by the Regional Court (Landesgericht) of Salzburg on

15 January 1986. It confirmed that under the 1972 treaty judicial

assistance was admissible also in respect of a tax offence. In such a

case the court was only required to examine whether the act requested

was admissible under Austrian law, but not whether it was necessary,

appropriate or proportionate (geboten, zweckmässig oder angemessen).

In the present case a search was admissible under Section 139 of the

Austrian Code of Criminal Procedure, and the seizure of the objects

found under Section 143 of the same Code. As a rule the person

concerned by a search was to be heard before it was carried out

(Section 140 of the Code of Criminal Procedure), but this only meant

that the person concerned must be given an opportunity to voluntarily

surrender the searched objects. This had been the case and the

applicant bank had also had the possibility to request a decision of

the Review Chamber (Ratskammer) on the admissibility of the search

under Section 145 para. 2 of the Code of Criminal Procedure.

The applicant bank also lodged a constitutional complaint, claiming

that the search on 9 December 1985 constituted an act of direct

administrative compulsion (Ausübung unmittelbarer verwaltungs-

behördlicher Befehls- und Zwangsgewalt) by the officers of the tax and

revenue office, and that this act infringed its constitutional rights,

in particular its right to respect of its private premises. However,

on 26 September 1986 the Constitutional Court (Verfassungsgerichtshof)

rejected this complaint as inadmissible, the search having been

effected on the basis of a judicial search order.

COMPLAINTS

The applicant bank now complains that the search and seizure

were not in the public interest of Austria and therefore interfered

with its rights to respect for its private premises and to the

peaceful enjoyment of its posessions as guaranteed by Article 1 of

Protocol No. 1 to the Convention.

The applicant bank further invokes Article 8 of the Convention

and alleges violations of Articles 6 and 13 of the Convention.

Under Article 6 it claims that its right to a fair hearing was

disregarded.

Under Article 13 the applicant bank observes that while it was

possible to challenge the search order of the District Court of

Salzburg at least after it had been executed, there nevertheless was

no possibility of challenging the underlying order of the German

Court.

THE LAW

1. The applicant bank complains of a search for and seizure of

certain objects deposited by one of its clients, ordered by the

Austrian courts at the request of the competent German authorities

conducting criminal proceedings for tax evasion against the applicant

bank's client. The applicant bank essentially claims that these

measures were not in the public interest of Austria, and thus violated

Article 1 of Protocol No. 1 (P1-1) to the Convention. It also invokes

Article 8 (Art. 8) of the Convention.

Article 1 of Protocol No. 1 (P1-1) reads as follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way

impair the right of a State to enforce such laws as it deems

necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other

contributions or penalties."

Article 8 (art. 8) of the Convention 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."

The Commission has first examined the case under Article 8 (Art. 8) of

the Convention, being the more specific provision applicable to searches. Even

assuming that, by guaranteeing "everyone's" right to respect for his "home" (in

French: "domicile"), this provision sets up a safeguard against searches also

for premises of legal persons such as the applicant bank in the present case,

the applicant bank's complaint must be rejected on the following grounds.

The search was based on provisions of the Austrian Code of

Criminal Procedure. The Commission does not find that the relevant

decisions were unreasonable or arbitrary. It therefore finds that the

search was "in accordance with the law" as required by Article 8

para. 2 (Art. 8-2).

As regards the further requirement of "necessity in a

democratic society" for one of the purposes enumerated in Article 8

para. 2 (Art. 8-2), the Commission notes that the aim pursued by the search was

to find evidence which could be used in criminal proceedings against the

applicant bank's client in the Federal Republic of Germany. The Commission

observes that Article 8 para. 2 (Art. 8-2) authorises interferences with the

rights guaranteed by paragraph 1 of the same Article, inter alia, "for

the prevention of crime" and in this respect it does not distinguish

between measures taken in connection with criminal proceedings in the

State concerned or a foreign State.

It is true that the Austrian courts considered that they were

not competent to control whether the particular search was "necessary,

appropriate or proportionate", this question being left to the

appreciation of the competent German authorities. However, this does

not mean that the search actually lacked these requirements. There is

no indication that it was objectively unjustified or disproportionate.

The search was thus covered by Article 8 para. 2 (Art. 8-2), and the

applicant bank's complaint in this respect must accordingly be

rejected as being manifestly ill-founded within the meaning of Article

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

2. Insofar as the applicant bank invokes Article 1 of Protocol

No. 1 (P1-1), it has not shown that the objects seized - nine sealed

envelopes containing documents relating to banking transactions - were

its property, that it had other rights assimilable to property rights,

or that these objects represented a financial value for it. In any

event, for the reasons stated above the measure complained of

was "necessary to control the use of property in accordance with the

general interest". It was thus covered by the second paragraph of

Article 1 of Protocol No. 1 (P1-1), and the applicant bank's complaint in

this respect must also be rejected as being manifestly ill-founded.

3. The applicant bank further complains under Article 6 (Art. 6) of the

Convention of the relevant court proceedings in Austria. Article 6

para. 1 (Art. 6-1), first sentence, provides that "in the determination of his

civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law."

The Commission observes that the criminal proceedings in

relation to which the search was ordered were directed against the

applicant bank's client and thus did not determine a criminal charge

against the applicant bank. Nor did they determine the applicant

bank's civil rights and obligations. It follows that these

proceedings do not come within the scope of Article 6 para. 1 (Art. 6-1) of the

Convention, as regards the applicant bank. Insofar as the applicant

bank invokes this provision, the application is therefore incompatible

with the provisions of the Convention ratione materiae within the

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

4. In respect of the alleged violations of Article 8 (Art. 8) of the

Convention and Article 1 of Protocol No. 1 (P1-1), the applicant bank also

invokes Article 13 (Art. 13) of the Convention which provides that everyone

whose Convention rights are violated shall have an effective remedy before a

national authority. However, the Commission, referring to its above findings

concerning Article 8 (Art. 8) of the Convention and Article 1 of Protocol No. 1

(P1-1), does not find that the applicant bank can arguably claim that its

rights under these Articles were violated (cf. Eur. Court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, pp. 23-24, paras. 52-58;

Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A no. 139, p.

11, paras. 25 et seq.). The Commission therefore concludes that the applicant

bank's complaint under Article 13 (Art. 13) of the Convention is manifestly

ill-founded.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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