CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         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)