WEBORA proti Rakousku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 33763/96

by Emmerich WEBORA

against Austria

The European Court of Human Rights (Third Section) sitting on 19 January 1999 as a Chamber composed of

Mr N. Bratza, President,

Mr. J.-P. Costa,

Mr L. Loucaides,

Mr P. Kūris,

Mr W. Fuhrmann,

Mrs H.S. Greve, 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 29 October 1996 by Emmerich WEBORA against Austria and registered on 13 November 1996 under file no. 33763/96;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1952, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. G. Grone, a lawyer practising in Vienna.

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

A. The particular circumstances of the case

On 23 March 1995 officers of the Vienna Federal Police Authority (Bundespolizeidirektion) searched the applicant’s home on the suspicion that he owned and distributed pornographic material involving minors. They informed the applicant that the investigating judge had issued a search warrant orally. A written copy of the search warrant was not served on the applicant until 16 November 1995.

On 24 April 1995 the applicant lodged a complaint with the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat). He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers. Thus, the search of his premises lacked a legal basis and violated his right to respect for his home.

On 21 August 1995 the Vienna Independent Administrative Panel rejected the applicant’s complaint as being inadmissible. It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant’s premises was, thus, attributable to the court. Consequently, the review of its lawfulness did not fall within the competence of the Independent Administrative Panel.

On 9 October 1995 the applicant lodged a complaint with the Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen), claiming that the search of his premises violated his right to respect for his home. He submitted in particular that no written copy of the search warrant had been served on him within the statutory twenty-four hour time-limit.

On 21 December 1995 the Review Chamber of the Regional Criminal Court dismissed the applicant’s complaint as being unfounded. It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors. In the course of these proceedings a letter was seized which proved that a certain M. dealt with pornographic material involving minors. Subsequently, since the applicant was identified as the person using the cover name M. Thereupon, the investigating judge issued a search warrant for the applicant’s premises. At the time, a written copy of the search warrant was not issued and, thus, was not served on the applicant. The Review Chamber further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession. As he refused to do so, the search was carried out and extensive pornographic material as well as business correspondence was seized.

Having regard to its above findings, the Review Chamber concluded that there was a reasonable suspicion, as required by S. 139 of the Code of Criminal Procedure (Strafprozessordnung), that objects which were of importance for specific criminal proceedings were to be found on the applicant’s premises. Moreover, the search had, in accordance with S. 140 of the said Code, been ordered by a judicial search warrant. The failure to serve a written copy of the search warrant on the applicant, though contrary to the law, did not affect the lawfulness of the search itself.

On 29 April 1996 this decision was served on the applicant’s counsel.

B. Relevant domestic law

1862 Protection of the Home Act (Gesetz zum Schutz des Hausrechts 1862)

S. 1 of the 1862 Act provides that a search of premises may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.

Code of Criminal Procedure (Strafprozessordnung)

S. 139 § 1 of the Code of Criminal Procedure provides that a search of premises may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the premises concerned, or that there are objects the possession or examination of which is relevant for a particular criminal investigation.

According to S. 140 § 1 a search may, as a rule, only be carried out after the person concerned has been questioned, and if the objects sought are not voluntarily handed over.

S. 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the search of his premises was unlawful. He submits that the judicial search warrant was not served on him within the twenty-four hour time-limit provided for by S. 1 of the 1862 Act or S. 140 § 3 of the Code of Criminal Procedure, respectively.

2. The applicant further complains under Article 13 of the Convention that the decision of the Review Chamber violated his right to an effective remedy.

THE LAW

The applicant complains under Article 8 of the Convention that the search of his premises was unlawful.

Article 8 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 Court finds that the search of the applicant’s premises constituted an interference with his right to respect for his home, which breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in Article 8 § 2 and is, in addition, “necessary in a democratic society” in order to achieve the aim or aims in question (see as a recent authority, Eur. Court HR, McLeod v. the United Kingdom judgment of 23 September 1998, § 37, to be published in Reports of Judgments and Decisions 1998; see also Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 20, § 26).

The applicant alleges that the search of his premises was unlawful and submits that the search warrant was not served on him within the twenty-four hour time-limit provided for by S. 1 of the 1862 Law and S. 140 § 3 of the Code of Criminal Procedure, respectively.

The Court recalls that the expression “in accordance with the law” within the meaning of Article 8 § 2 requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring that it should be accessible to the person concerned who must be able to foresee its consequences, and compatible with the rule of law (Kruslin v. France judgment, op. cit., p. 20, § 27).

In the present case, the Review Chamber of the Vienna Regional Criminal Court found that the search of the applicant’s premises was based on S. 139 of the Code of Criminal Procedure. This is not contested by the applicant. Nor does he challenge the accessibility or foreseeability of the law. He only submits that no written copy of the search warrant was served on him within the statutory time-limit. Admittedly, the Review Chamber found that the failure to serve a written copy of the search warrant was contrary to the law. However, it considered that this failure did not make the search in itself unlawful. The Court, recalling that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, finds no reason to question the Review Chamber’s finding (McLeod v. the United Kingdom judgment, op. cit., 44; Kruslin v. France judgment, op. cit., p. 21, § 29). The Court concludes, therefore, that the interference was “in accordance with the law”.

The search was conducted in order to find evidence relevant for criminal proceedings relating to the sexual abuse of minors. The interference, thus, served a legitimate aim, namely the prevention of crime.

As to the necessity of the interference, the Court recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (McLeod v. the United Kingdom judgment, op. cit., § 52; Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 35‑36, § 37).

The Court notes that the search was ordered in the course of criminal proceedings relating to serious offences. The objects sought, namely pornographic material involving minors, were described in the judicial search warrant in precise terms. Moreover, the Austrian Code of Criminal Procedure provides for procedural safeguards as regards the execution of searches. S. 140 § 1 states that the person concerned has to be questioned before the search, which is only to be carried out if the objects sought are not voluntarily handed over. According to the Review Chamber’s decision, the search was in fact only carried out after the applicant had been duly informed and had refused to hand over the relevant material. In these circumstances, the Court finds that the search was proportionate to the legitimate aim pursued.

In conclusion, the Court finds that there is no appearance of a violation of the applicant’s right to respect for his home. 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 further complains that the decision of the Review Chamber violated his right to an effective remedy as guaranteed by Article 13, which reads as follows.

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court recalls that Article 13 of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention. In this context the Court found that it is “difficult to conceive how a claim that is ‘manifestly ill-founded’ can nevertheless be ‘arguable’ and vice versa” (Eur. Court HR, Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 14-15, §§ 31-33). The Court, having regard to its above findings as regards the alleged violation of Article 8 of the Convention, considers that the applicant’s submissions in this respect cannot be considered as an arguable claim in terms of the Convention. Consequently, there is no appearance of a violation of Article 13, without it being necessary to examine whether or not the proceedings before the Review Chamber constituted an effective remedy within the meaning of this Article.

It follows that this part of the application is also 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