CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 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. 17679/91                     by Karlheinz DEMEL                     against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 7 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, 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 24 October 1990 by Karlheinz Demel against Austria and registered on 17 January 1991 under file No. 17679/91;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 19 February 1993 and the observations in reply submitted by the applicant on 15 April 1993;        Having deliberated;        Decides as follows: THE FACTS        The facts, as they have been submitted by the parties, may be summarised as follows:        The applicant, an Austrian citizen born in 1937, resides in Vienna.   Before the Commission, he is represented by Mr. W. Strigl, a lawyer practising in Vienna.        In May 1989 criminal proceedings were instituted against the applicant, a judge, on the suspicion of in particular being an accessory after the fact (Begünstigung).        On 25 July 1989 the Investigating Judge at the Vienna Regional Court, in the context of the above charges ordered the tapping of the applicant's telephone conversations for a period of four weeks, as it was assumed that the applicant might remove and destroy pieces of evidence.        The Judges' Chamber (Ratskammer) at the Vienna Regional Court subsequently approved the surveillance order. During the relevant period a number of conversations of the applicant were recorded on tapes and subsequently transcribed.        On 20 November and 28 November 1989 the Investigating Judge at the Vienna Regional Court, in the context of further charges brought against the applicant for having given false testimony as a witness at a trial in January 1989, again ordered the secret surveillance of the applicant's telephone conversations for a period of four weeks which was later prolonged until 31 January 1990. The surveillance order was subsequently approved by the Judges' Chamber.        On 19 April 1990 the applicant's counsel was informed about the tapping of the applicant's telephone conversations.        On 8 May 1990 the applicant complained to the Vienna Court of Appeal (Oberlandesgericht) that the secret surveillance of his telephone conversations during the above periods had been unlawful and unjustified.   He also requested the destruction of all tapes and records. On 26 July 1990 the Vienna Court of Appeal dismissed the applicant's complaints.        Following a decision of the Austrian Supreme Court (Oberster Gerichtshof) of 23 April 1991 upon a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) and further decisions of the Vienna Regional Court dated 4 June and 16 December 1991 as well as 3 June 1992, all records of the applicant's telephone conversations were destroyed.        On 28 September 1993 the Supreme Court, upon a further plea of nullity for the preservation of the law, declared that the decisions of the Investigating Judge of 25 July 1989, 20 November and 28 November 1989 ordering the surveillance of the applicant's telephone conversations were unlawful. The Supreme Court considered in particular that the Investigating Judge had failed to submit promptly its decision for approval to the Judges' Chamber, as required by Section 149a of the Code of Criminal Procedure.         COMPLAINTS        The applicant complains under Articles 6, 8 and 10 of the Convention about the secret surveillance of his telephone and the recording of his telephone conversations as well as the refusal to destroy the relevant records.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 October 1990 and registered on 17 January 1991.        On 14 October 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.        On 19 February 1993 the Government submitted their observations.   The observations in reply by the applicant were submitted on 15 April 1993.        By letter of 20 December and 21 December 1993, respectively, the applicant and the Government informed the Commission about the judgment of the Supreme Court of 28 September 1993. The applicant wishes to pursue his application on the ground that the Supreme Court did not consider all his arguments.     THE LAW        The applicant's complaints under Article 6, 8 and 10 (Art. 6, 8, 10) of the Convention relate to the secret surveillance of his telephone conversations ordered on 25 July, 20 November and 28 November 1989.        The Commission notes that, following a decision of the Supreme Court of 23 April 1991 and further decisions of the Vienna Regional Court dated 4 June and 16 December 1991 as well as 3 June 1992, all records of the applicant's telephone conversations were destroyed. Moreover, on 28 September 1993, in proceedings following a plea of nullity for the preservation of the law, the Austrian Supreme Court declared the secret surveillance measures retrospectively unlawful.        The Commission considers that these decisions taken together constitute appropriate redress for the alleged violations of Articles 6, 8 and 10 (Art. 6, 8, 10) of the Convention.        In these circumstances, the Commission finds that the applicant can no longer claim to be a victim of the alleged violations of the Convention.        His complaint is, therefore, 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.F. BUQUICCHIO)                    (A. WEITZEL)