CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1994

.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. 21837/93                       by Heinz TALIRZ                       against Austria         The European Commission of Human Rights sitting in private on 2 March 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the 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 23 February 1993 by Heinz TALIRZ against Austria and registered on 12 May 1993 under file No. 21837/93;         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, born in 1939, is an Austrian citizen and resident in Innsbruck. He formerly was a manager of a limited company involved in the road construction business.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows:   A.     Particular circumstances of the case         In April 1991 the Innsbruck Regional Court (Landesgericht) opened a preliminary investigation (Voruntersuchung) against the applicant and several other persons on the suspicion of having committed grave fraud and breach of trust. On the occasion of a search carried out on the premises of a company involved in the case, further evidence was found indicating that the applicant had deliberately ordered partial expert opinions (Gefälligkeitsgutachten) to the detriment of his company.         On 13 July 1992 the Investigating Judge ordered, pursuant to Section 149a of the Code of Criminal Procedure (Strafprozeßordnung), the tapping of the applicant's telephone for a period of one month. The Judge found this measure necessary on the ground of the danger of the applicant's collusion with his co-suspects and a danger in delay. The Judge, in particular having regard to new evidence, found on the occasion of the above search, considered that conspiracy to pervert the course of the investigations was reasonably to be expected. Moreover, the tapping of the applicant's telephone could clarify the relations between the co-suspects and the background to the case.         On 22 July 1992 the Judges' Chamber (Ratskammer) of the Innsbruck Regional Court approved the decision. The Judges' Chamber confirmed in detail the Investigating Judge's considerations.         On 19 August 1992 the Judges' Chamber formally terminated the tapping of the applicant's telephone. On 27 August 1992 this decision was served and the applicant informed that his telephone had been tapped.         On 1 December 1992 the Innsbruck Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal against the tapping of his telephone. It noted that the applicant had not denied the existence of a reasonable suspicion of his having committed an offence punishable with more than one year's imprisonment. The tapping of the applicant's telephone had been important to clarify the interconnections, regarding the charges at issue, between the applicant and various companies involved in the case.         On 23 December 1992 the Innsbruck Regional Court restricted the applicant's access to parts of the case-file as there still existed a danger of collusion. The Regional Court inter alia stated that there was collusion between the suspects and the witnesses and that the telephone tapping had shown that there had been several contacts between the applicant, his co-suspects and several witnesses.         On 20 January 1993 the Judges' Chamber of the Innsbruck Regional Court, upon appeal of the applicant, granted him full access to these files.   B.     Relevant domestic law         Section 149a of the Code of Criminal Procedure (Strafprozeß- ordnung), so far as relevant, provides that the telephone of a person against whom there are serious suspicions of having deliberately committed a criminal offence punishable with more than one year's imprisonment might be tapped in order to further the investigation of the case. The decision is to be taken upon request of the Investigating Judge by the Judges' Chamber of the Regional Court. In cases of danger in delay, the Investigating Judge may take such decisions himself; such decisions must subsequently be approved by the Judges' Chamber.         According to Section 149b, the Judges' Chamber declares the tapping terminated, as soon as the legal requirements are no longer complied with. The Investigating Judge then informs the suspected person that his telephone has been tapped, and permits inspection of the records of the tapped conversations. Retrospectively, an appeal may be filed with the Court of Appeal, which, if granted, entails the destruction of the records concerned.   COMPLAINTS   1.     The applicant complains under Article 8 of the Convention about a violation of his right to respect for his private life due to the telephone tapping. He contends that the mere suspicion against him did not justify such a measure.   2.     He also complains under Article 6 para. 3 (b) of the Convention about the restriction on his access to parts of the case-file.   THE LAW   1.     The applicant complains under Article 8 (Art. 8) of the Convention about the decision of the Investigating Judge of the Innsbruck Regional Court to order the tapping of his telephone.         The Commission considers that the tapping of the applicant's telephone was an interference by a public authority with his right to respect for his "private life". Such interference is in breach of Article 8 (Art. 8) of the Convention, unless it is "in accordance with the law" and is "necessary in a democratic society" for one of the aims referred to in paragraph 2 (Art. 8-2) of this provision.         The legal basis for the tapping of the applicant's telephone was Section 149a of the Austrian Code of Criminal Procedure. As regards the necessary "quality" of the law (Eur. Court H.R., Kruslin judgment of 24 April 1990, Series A no. 176-A, pp. 20-25, paras. 27-36), the Commission considers that Section 149a and Section 149b of the Austrian Code of Criminal Procedure define the category of serious offences and the suspicion necessary to order the tapping of a suspect's telephone. These provisions also lay down the judicial procedure in such cases, including the termination of the tapping by the Judges' Chamber as soon as the legal requirements are no longer complied with, the subsequent information of the person concerned, his right to appeal, and, in case of a successful appeal, the destruction of the records concerned.         In these circumstances, the Commission is satisfied that the law in question offers adequate safeguards against arbitrary interferences and does meet the criteria of accessibility and foreseeability. The interference complained of was thus "in accordance with the law".         Moreover, the applicant's telephone was tapped in the course of preliminary investigations against him and others and aimed at "the prevention of crime", which is a legitimate aim under Article 8 para. 2 (Art. 8-2).         As regards the question whether the interference complained of was "necessary in a democratic society", the Commission recalls that this phrase implies the existence of a pressing social need. The Contracting States enjoy a certain margin of appreciation in assessing whether such a need for an interference exists, but it goes hand in hand with European supervision (see, Eur. Court H.R., Funke judgment of 25 February 1993, para. 55, to be published in Series A no. 256 A)         In the present case, the impugned measure was taken in the context of preliminary proceedings against the applicant and others on the suspicion of grave fraud and breach of trust. At the relevant time, the suspicion against the applicant had been further confirmed by the results of a search carried out in the premises of a company involved in the case. The measure complained of was ordered to prevent collusion between the applicant, co-suspects and witnesses and did not last longer than one month. Moreover, the records of the tapping showed several attempts of collusion between the applicant, his co-suspects and some witnesses.         In the particular circumstances of the case, the Commission finds that the measure complained of can reasonably be considered as necessary in a democratic society for the prevention of crime.         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 also complains under Article 6 para. 3 (b) (Art. 6-3-b) of the Convention about the restriction on his access to documents contained in the case-files.         The Commission recalls that alleged violations of Article 6 (Art. 6) are to be examined having regard to the proceedings as a whole once concluded, although it is not impossible that a particular procedural element could be so decisive that the conduct of proceedings can be assessed at an earlier stage (No. 9938/82, Dec. 15.7.86, D.R. 48 p. 31). The applicant's access to the files was restricted for one month in the course of preliminary investigations. There is no indication that this circumstance was so decisive as to amount in itself to a breach of Article 6 (Art. 6).         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 Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)