CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 janvier 1996

.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. 22446/93                       by Waltraud SCHUSCHOU                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 16 January 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 5 August 1993 by Waltraud SCHUSCHOU against Austria and registered on 11 August 1993 under file No. 22446/93;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 23 January 1995 and the observations in reply submitted by the applicant on 4 April 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Austrian citizen born in 1960. She owns an inn in Meiningen.   Before the Commission, she is represented by Mr. W. L. Weh, a lawyer practising in Bregenz.        The facts, as they have been submitted by the parties, may be summarised as follows.        On 20 August 1991 the Feldkirch Administrative Authority (Bezirkshauptmannschaft) requested the Rankweil Police Office to check whether K., a Turkish citizen against whom a residence prohibition had been issued, had left the country.   The request reached the Police Office on 14 September 1991, and on 23 September 1991 two police officers went to the applicant's inn where, according to information by the municipality, K. had still rented a room.   They entered this inn through the main entrance.   The applicant was not present.   Having met nobody in the corridor, the police officers, who knew the premises, opened an unlocked door with the sign "no entrance" and saw two persons one of whom, being asked about the abode of K., identified himself as K.   The police officers asked K. for his passport.   K., who had only little command of German, answered that his passport was upstairs in his room and offered to show his passport.   The police officers accompanied K. to his room in the first floor where K. wanted to fetch his passport.   K. did not object to the presence of the police officers.   The applicant, having arrived in the meantime in K.'s room, then informed the police officers that K. had filed an application for political asylum and had also applied for a working permit.   Thereupon, the police officers requested K. to appear the following week at the police station with an interpreter in order to clarify his situation and left the inn.        On 24 September 1991 the applicant lodged a complaint with the Vorarlberg Independent Administrative Senate (Unabhängiger Verwaltungs- senat) about the events of 23 September 1991, claiming that the police officers had executed a search in her inn without a search warrant.        On 16 December 1991 the Independent Administrative Senate, after having inspected (Augenscheinsverhandlung) the applicant's inn and having heard the various police officers, the applicant and K., rejected her complaint.   The Senate found in particular that the fact that the police officers had entered the applicant's inn in order to verify K's abode did not constitute a search or inspection of her inn. Such a search or any other coercive measures had been unnecessary, as K. had immediately identified himself.   No exercise of coercive measures had even been alleged by the applicant.   Moreover, it followed from the statements of all witnesses and of the applicant, that no search had taken place in K.'s room.   The sign "no entrance" on the unlocked door accessible from the corridor was, like the signs on other doors in that corridor, merely an information for the guests in order to distinguish the room behind it from the bar; and all guests coming from the restaurant who wished to go to the toilets had to pass through this room.   The sign could not, therefore, be regarded as a prohibition to enter this room.   The Senate noted further that the police officers wanted to avoid disturbance by their presence in the restaurant.   The Senate concluded that there had been no interference with the applicant's rights under Article 8 of the Convention.        On 29 September 1992 the Constitutional Court declined to entertain the applicant's constitutional complaint, the decision being served on 22 February 1993.   On 16 February 1993 the Constitutional Court referred the case to the Administrative Court (Verwaltungs- gerichtshof).        On 3 May 1993 the Administrative Court rejected the applicant's complaint. The Administrative Court stated that it had no jurisdiction in the present case. The decision was served on 24 May 1993.   COMPLAINTS        The applicant complains under Article 8 of the Convention about an alleged search of her inn which infringed her right to respect of her home.   She further complains under Article 13 of the Convention about both the Constitutional Court's and the Administrative Court's refusal to deal with her complaint against the Independent Administrative Senate's decision of 16 December 1991.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 5 August 1993 and registered on 11 August 1993.        On 12 October 1994 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 23 January 1995.   The applicant replied on 4 April 1995.     THE LAW   1.    The applicant complains that the events on 23 September 1991 amounted to a violation of her right to respect for her home.   She relies on Article 8 (Art. 8) of the Convention which provides that "everyone has the right to respect for his private and family life, his home and his correspondence".        The Government submit that there was no interference with the applicant's right to respect for her home under Article 8 (Art. 8) of the Convention.   The protection of one's home under Article 8 (Art. 8) of the Convention extended only to premises in the private sphere of life of the person concerned.   This intimate sphere, however, did not include corridors in inns on which abut mainly rooms intended to be rented to guests as such corridors were typically not intended to be part of an individual's intimate personal sphere and were normally not used as such.   Thus, the corridor leading to the applicant's guest rooms was not part of her home within the meaning of Article 8 (Art. 8) of the Convention.   In this respect it was irrelevant that the door the police officers had used was marked "no entrance", as the actual use of the premises in question and not its designation was decisive for the protection afforded by Article 8 (Art. 8) of the Convention.   Even assuming that there was an interference with the applicant's right to respect of her home, such an interference was justified under paragraph 2 of Article 8 (Art. 8-2) for the prevention of disorder and crime.        The applicant submits that the Aliens Police Act, as in force at the relevant time, did not provide for house searches.   Thus, if the Independent Administrative Senate would have found that the conduct of the police officers on 23 September 1991 had amounted to a house search such a search would have been unlawful.   The fact that the two police officers had entered through a door marked "no entrance" instead of entering the restaurant and asking there for K. could only be understood as a house search.   This house search, however, was neither in accordance with the law nor necessary in a democratic society.   If the aim of the visit of the police officers was merely to question K., it would have been sufficient to ask for him in the restaurant.        The Commission recalls that it is consonant with the essential object and purpose of Article 8 (Art. 8) of the Convention, namely to protect the individual against arbitrary interference by the public authority, that the words "private life" and "home" are interpreted as including certain professional or business activities or premises (Eur. Court H.R., Niemietz judgment of 16 December 1992, Series A no. 251-B, p. 33, para. 31).   The applicant's complaint about the events on 23 September 1991 when two police officers entered her inn might, therefore, come within the ambit of Article 8 para. 1 (Art. 8-1) of the Convention.        The Commission notes that the two police officers had been instructed to check whether the Turkish citizen K. against whom a residence prohibition had been issued had left the country.   They had entered the applicant's inn in order verify K.'s abode, and, having found K. in one of the rooms, they checked his identity and told him to come at a later date to the police station to have his situation clarified.   The Austrian authorities, referring to the case-law of the Constitutional Court, found that the police officers' entering of the inn did not constitute a search of the applicant's home, noting that, throughout the visit, no coercive measure was taken.   In particular, according to the Independent Administrative Senate, which had inspected the premises and heard several witnesses, the police officers had not breached a prohibition to enter a particular room and they had only accompanied K. to his room, when he fetched his passport.   Any questioning by the police officers only concerned K. himself and not the applicant.        In these circumstances, the Commission, having regard to the purpose of the police visit in the applicant's inn and particularly the absence of any coercive measures with a view to enforce a search for K. or to arrest him, finds that the events complained of did not amount to an interference with her right to respect for her home or private life within the meaning of Article 8 para. 1 (Art. 8-1).        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 complains under Article 13 (Art. 13) of the Convention about both the Constitutional Court's and the Administrative Court's refusal to deal with her complaint.        The Commission recalls that Article 13 (Art. 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 (Eur. Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).        The Commission, referring to its above finding that the police officers' visit at the applicant's inn did not constitute an interference with her right to respect of her home, considers that the applicant has no "arguable claim" for the purposes of Article 13 (Art. 13).   Consequently, Article 13 (Art. 13) of the Convention does not apply in respect of the applicant's complaint under Article 8 (Art. 8) of the Convention.        It follows that this part of the application is likewise manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)