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. 20494/92                     by G. and G. Ltd.                     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 21 April 1992 by G. and G. Ltd. against Austria and registered on 13 August 1992 under file No. 20494/92;        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 first applicant is an Austrian citizen, residing in Luxembourg. Between 1985 and 1986, he was employed by the second applicant, a real estate administration company registered in Salzburg. Before the Commission, both are represented by Mr. K. Vavrovsky, a lawyer practising in Salzburg.        The facts, as submitted by the applicants, may be summarised as follows.        In June 1989, the Investigating Judge (Untersuchungsrichter) of the Salzburg Regional Court (Landesgericht), Judge C., instituted preliminary investigations (Voruntersuchung) against the first applicant and several other persons inter alia on the suspicion of aggravated fraud and fraudulent conversion.        In May 1990 Judge H. was appointed Investigating Judge in the first applicant's case, replacing Judge C. who had fallen ill. Judge H. had been, during her preparatory service for judges, working as a trainee (Richteramtsanwärter) with the Presiding Judge of the Judges' Chamber (Vorsitzender der Ratskammer) of the Salzburg Regional Court, which, inter alia, supervises Investigating Judges.        On 3 July 1991 Judge H., referring to Sections 139 and 140 of the Code of Criminal Procedure, ordered a search of the premises of the second applicant. The warrant stated that all co- suspects were presumed to have committed the criminal offences inter alia as owners or as managers of the second applicant. The search was conducted under the supervision of several court- appointed experts.        On 16 October 1991 the Judges' Chamber of the Salzburg Regional Court dismissed the applicants' appeal against the search and the seizure of various documents. The Judges' Chamber considered that none of the alleged procedural flaws had an impact on the lawfulness of the search. In particular, Judge H. had been correctly appointed. Moreover, no objection could be made under Austrian law against a search being supervised by court-appointed experts, once it had been ordered by a judge. The decision was served on 28 October 1991.        At the time of the introduction of the application the criminal proceedings were still pending. The applicants' did not supply further information about the state of the proceedings.   COMPLAINTS   1.    The applicants complain under Article 8 of the Convention that the search to which the second applicant was subjected was unlawful on the ground that it was not carried out under the personal direction of the Investigating Judge.   2.    They further complain under Article 6 para. 1 of the Convention that the former Investigating Judge in the proceedings against the first applicant had been discharged and replaced by Judge H. They also complain about the bias of two of the experts carrying out the search, as these experts were employees of an accountant who might possibly get involved in compensation proceedings against the second applicant.   THE LAW   1.    Both applicants complain that the search carried out in the second applicant's premises violated Article 8 (Art. 8) of the Convention.        As regards the first applicant, the Commission considers that this applicant was not directly affected by this measure. The fact that the search was carried out in the context of criminal proceedings against the first applicant does not constitute a sufficient relation to the measure complained of. Consequently, the first applicant cannot claim to be a victim of a violation of Article 8 (Art. 8) of the Convention.        Furthermore, the Commission, assuming that the search of the professional premises complained of raises an issue under Article 8 para. 1 (Art. 8-1), as far as the second applicant is concerned (Eur. Court H.R., Niemietz judgment of 16 December 1992, Series A no. 251-B, paras. 27-33, considers that such interference would be justified under paragraph 2 of that provision.        The Commission notes that search was based on Section 139 of the Code of Criminal Procedure and that the Judges' Chamber, in its decision of 16 October 1991, found that the search had been carried out in accordance with the Austrian law, which does not require for a search to be supervised by an Investigating Judge. The Commission considers that the reasoning of the Judges' Chamber cannot be regarded as arbitrary or unreasonable. Thus, the interference complained of was in accordance with the law.        Moreover, in view of the reasons given in the search warrant of 3 July 1991 and the applicants' submissions, there is no indication that the search could not be regarded 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 applicants further complain under Article 6 para. 1 (Art. 6-1) of the Convention about the appointment of the Investigating Judge H. in the criminal proceedings against the first applicant, and about the alleged bias of two of the experts participating in the above-mentioned search.        The Commission, even assuming that the second applicant can reasonably claim to be a victim within the meaning of Article 25 (Art. 25) of the Convention of the alleged violation of Article 6 (Art. 6), finds that the circumstances referred to, which relate to the pre-trial stage, do not appear decisive to such an extent that they could, as such, affect the fairness of the proceedings against the first applicant as a whole. The Commission notes in particular that the applicant's complaint about the appointment of the Investigating Judge H. was rejected by the Judges' Chamber at the Salzburg Regional Court, which confirmed the lawfulness of the search of the premises.        This part of the application is therefore 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.F. BUQUICCHIO)                         (A. WEITZEL)