CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1992

.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. 15247/89                       by H.W.                       against Austria           The European Commission of Human Rights (First Chamber) sitting in private on 1 April 1992, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  G. SPERDUTI                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER              Mr.    M. de SALVIA, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 10 December 1986 by H.W. against Austria and registered on 20 July 1989 under file No. 15247/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS         The applicant is an Austrian citizen born in 1943 and living in Salzburg.   He is represented by Mr E. Greger, a lawyer practising in Oberndorf.         The applicant complains that he and his family have been aggressed, threatened and injured by public officials in his home.         It follows from his statements and the documents submitted that on 13 and 14 April 1982, two officials of the Telecommunications Authority accompanied by two police officers confiscated in the applicant's apartment a transmitter operated by the applicant, known to be a radio amateur, without authorisation.   A microphone and a roof aerial were likewise confiscated.         Subsequently the two police officers laid criminal charges against the applicant accusing him of having threatened the Telecommunications officials.         On 15 April 1982, several local newspapers reported the event stating that the applicant had threatened to kill the officials.         Thereupon the applicant likewise laid a criminal charge against the officials who had carried out the confiscation.   However, the public prosecutor, having examined the matter, saw no reason to institute criminal proceedings.         The applicant was acquitted of the charges of having threatened public officials and at his request this acquittal was reported on 8 and 9 February 1984 in the newspapers.         The applicant's request to open criminal proceedings against the public officials in question was rejected by the Salzburg Regional Court (Ratskammer des Landesgerichts) on 20 June 1984.         On 4 June 1985 the applicant lodged an action for damages against Austria alleging that during the events of 13 and 14 April 1982 the public officials had injured his daughter and that the criminal proceedings instituted by him had been wrongly discontinued.         On 30 December 1985 the Salzburg Regional Court (Landesgericht) dismissed the action.   It found that the visit effected by Telecommunications officials in the applicant's apartment was no search and seizure (Hausdurchsuchung) but an inspection by the Telecommunications Authority (fernmeldebehördliche Nachschau).   The Court further stated that on the occasion of a previous inspection in the home of another radio amateur in the presence of the applicant he had already stated that if a control would be carried out in his home he would be armed with a pistol.   Therefore the Telecommunications officials had requested to be assisted by policemen when carrying out their inspection in the applicant's home.   The Court found that the applicant had been very excited and aggressive when the inspection was carried out in his home.   It was also found that three days after the inspection, it was discovered at a sports instruction course that the applicant's daughter had pains and bruises on her right upper arm.   The instructor called the applicant's wife and advised her to see a doctor.   Before the doctor, mother and daughter declared the bruise had been caused by public officials.                                  - 3 -                        15247/89         The Regional Court considered however that there was no evidence of a causal link between the injury and the action of the public officials.   Furthermore the Court found that the inspection in the applicant's home and the confiscation of the radio equipment had been justified under the Radio Transmission Act (Fernmeldegesetz) and consequently the intervention of public officials on 13 and 14 April 1982 did not give rise to any compensation claims by the applicant.         The applicant's appeal (Berufung) against the Regional Court's decision was rejected by the Court of Appeal (Oberlandesgericht) in Linz on 21 May 1986.   Referring to the jurisprudence of the Constitutional Court (Verfassungsgerichtshof) according to which the essence of search and seizure was the search for a person or an object, where the whereabouts were unknown.   Such a search had not been necessary in the applicant's case as previous investigation had shown that he operated a transmitter in his apartment, therefore violating the Radio Transmission Act as he had not been granted an authorisation. Therefore the radio transmission authority had been entitled to put the applicant's transmitter station out of operation without prior warning; in a case of imminent danger (Gefahr im Verzug), which is always given when there is a danger of suppression of evidence, the authorities were entitled to proceed to a provisional seizure.   It was evident that the authorities would not have found the installation in operative condition had they informed the applicant of their intention to inspect his home.   This followed from the fact that although caught red-handed the applicant denied that his transmitter was operational.   In these particular circumstances the seizure effected on 13 April 1982 was justified (vertretbar) under the Radio Transmission Act and under the Penal Administrative Code (Verwaltungsstrafgesetz), and the applicant could not derive any claim for damages from this action.         Insofar as the costs for his defence in the criminal proceedings instituted at the request of the police officers were concerned as well as the costs resulting from the publication in newspapers of the applicant's acquittal were concerned, the Court found that the police officers had not violated professional duties by laying criminal charges against the applicant.   The fact that the applicant had been acquitted did not in itself prove that the charges had been laid against him in a reproachable manner.         To the extent that the Regional Court had denied the applicant's claim for damages relating to the denial of that Court to institute criminal proceedings against the police officers involved in the applicant's case, the Court of Appeal quashed the decision stating that this part of the action should have been decided by another court.     COMPLAINTS         The applicant complains that his action for damages was wrongly dismissed.   He submits that the injury caused by the public officers to his daughter was proven by medical certificate.   He alleges a violation   of Article 8 para. 1 of the Convention.   THE LAW   1.     The applicant complains of the dismissal of his action for damages against Austria.                                        - 4 -                        15247/89   With regard to the judicial decisions, of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its established case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         The Commission has examined this complaint under Article 6 para. 1 (Art. 6-1) of the Convention.         However, there is nothing to show that the applicant was denied a fair hearing or that the Austrian courts arbitrarily disregarded any elements that would have justified a decision in the applicant's favour.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further invokes Article 8 para. 1 (Art. 8-1) of the Convention which guarantees the right to respect of family and private life.         However, it cannot be found that the interference complained of was not justified under para. 2 of this provision.   In fact it follows from the reasons stated by the Austrian courts in regard to the applicant's alleged claims for damages that the inspection carried out by public officials in his apartment had been effected in accordance with the law.   It served the purpose of preventing disorder and protecting the rights of others.   The Commission cannot find, in the particular circumstances of the case, that the measure taken against the applicant was disproportionate to these aims.   In this respect it notes the findings of the courts that the applicant acted in an aggressive way during the inspection.   As far as the alleged injury caused to the daughter is concerned, the courts did not find it established that the public officials were responsible.         An examination of this complaint as it has been submitted does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber        President of the First Chamber               (M. de SALVIA)                         (J.A. FROWEIN)