CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1997

.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. 28630/95                       by RAIFFEISENBANK Kötschach-Mauthen                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 3 December 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 22 August 1995 by RAIFFEISENBANK Kötschach-Mauthen against Austria and registered on 21 September 1995 under file No. 28630/95;        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 a bank, registered as a co-operative society with limited liability (Genossenschaft mit beschränkter Haftung) and having its place of business in Kötschach-Mauthen. Before the Commission the applicant bank is represented by Mr. Unterasinger, a lawyer practising in Graz.        The facts, as submitted by the applicant bank, may be summarised as follows.   A.    The particular circumstances of the case        On 17 November 1994 the applicant bank dismissed its employee A.S. due to several irregularities in respect of customer accounts. Subsequently, the Carinthia Regional Constabulary (Landesgendarmerie- kommando) started investigations against A.S. on the suspicion of embezzlement (Untreue).        On 8 June 1995 the applicant bank, upon the Regional Constabulary's request, filed a written statement of the facts. It stated that A.S. had misappropriated clients' money in ten cases which it listed in detail. However, A.S. had in the meantime made good the entire damage. As this was the case the applicant bank had abstained from filing a criminal information (Strafanzeige).        On 12 July 1995 the investigating judge at the Klagenfurt Regional Court (Landesgericht) ordered that banker's duty of confidentiality (Bankgeheimnis) be lifted in respect of the customer accounts at issue.   Furthermore, he ordered the applicant bank to grant the investigating police officers access to the relevant bank files, to make the necessary copies and to hand over a copy of the report of the internal audit to the police officers. In his reasoning, the investigating judge stated that the Regional Court conducted preliminary inquiries (Vorerhebungen) against A.S. on the suspicion of having embezzled clients' money in at least ten cases with a total damage of about ATS 3,7 million and of having falsified documents.        On 26 July 1995 the applicant bank filed a complaint with the Review Chamber (Ratskammer) of the Klagenfurt Regional Court. It submitted, in particular, that the order to lift the banker's duty of confidentiality was disproportionate, as it had already submitted a detailed statement of the facts and further questions could have been put to a representative. Moreover, A.S. had made good the entire damage.        On 8 August 1995 the Review Chamber at the Klagenfurt Regional Court dismissed the applicant bank's complaint. It held, in particular, that the decision was based on Section 38 para. 2 (1) of the Banking Act (Bankwesengesetz). According to this provision the bank was not under a duty to respect banker's duty of confidentiality vis-a-vis the criminal courts, if criminal proceedings had been instituted. As preliminary inquiries were being conducted against A.S. the lifting of banker's duty of confidentiality in respect of the ten accounts at issue was in accordance with the law.        On 2 October 1995 the investigating judge, referring to S. 139 of the Code of Criminal Procedure (Strafprozeßordnung), issued a warrant ordering the search inter alia of the business premises of the applicant bank for documents relating to the customer accounts concerned and to seize these documents. The investigating judge stated that the managing director of the bank had obstructed the police officers in their investigations and finally handed over an incomplete file of documents, where the numbers of the accounts had been oblitterated. Moreover, an employee of the bank had failed to answer the police officers' questions.        The search was carried out on 3 October 1995 by officers of the Regional Constabulary. A number of documents were inspected by the officers and then handed over to them by the bank's manager in a sealed envelope.        On 10 October 1995 the applicant bank filed a complaint concerning the issue of the search warrant with the Review Chamber of the Klagenfurt Regional Court. The applicant bank submitted that the issuing of the search warrant had been disproportionate, since the competent employee had not been heard. The applicant bank referred to S. 140 of the Code of Criminal Procedure providing that the search had to take place after the questioning of the person concerned and was only admissible if this questioning had not resulted in the voluntary handing over of the objects sought, or in the search becoming otherwise unnecessary.        On 30 October 1995 the Review Chamber at the Klagenfurt Regional Court dismissed the applicant bank's complaint. It noted that the investigating judge had issued the search warrant only after the applicant bank had failed to hand over all documents which were necessary for the clarification of the case. Moreover, S. 140 of the Code of Criminal Procedure was only a regulatory provision serving as a guideline. It could be disregarded if the circumstances of the case so required. Since the applicant bank had not voluntarily handed over the complete files, the questioning of the managing director or an employee of the applicant bank had not been necessary.        On 13 November 1995 the applicant company filed a request under S. 145 of the Code of Criminal Procedure with the Review Chamber of the Klagenfurt Regional Court. It asked that the documents which were handed over in a sealed envelope during the search remain unopened or be opened in the presence of a representative of the applicant bank.        On 21 November 1995 the Review Chamber of the Klagenfurt Regional Court gave its decision. It noted that on 3 October 1995, on the occasion of the search, the managing director of the applicant bank had voluntarily handed over the relevant documents to officers of the Regional Constabulary. The documents had been checked in the presence of two representatives of the bank and every single document had been discussed.   Thereafter, the documents had been sealed upon the request of the managing director. While the search and seizure had been in accordance with the law, the removal of the seal ordered by the investigating judge was contrary to S. 145 para. 3 of the Code of Criminal Procedure, as the investigating judge had failed to invite a representative of the bank to attend the removal of the seal.        On 30 July 1996 the Klagenfurt District Court returned the applicant bank's documents on the ground that the criminal proceedings against A.S. had been discontinued.   B.    Relevant domestic law        SS. 139 to 149 of the Code of Criminal Procedure concern the search of premises and persons and the seizure of objects and documents.        S. 139 para. 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that in the premises concerned a person suspected of having committed a criminal offence is hiding, or that there are objects the possession or examination of which is relevant for a particular criminal investigation.   According to S. 140 para. 1, a search should in general only be carried out after the person concerned has been questioned, and if the objects searched are not voluntarily handed over, provided the reasons justifying the search have not ceased to exist. S. 140 para. 3 provided that, as a rule, a search may only be carried out on the basis of a reasoned search warrant issued by a judge.        S. 143 para. 1 provides that, if objects are found which may be relevant for the investigations, they are to be seized.        S. 145 of the Code of Criminal Procedure contains special provisions for the search and seizure of documents. Paragraph 1 states that measures are to be taken to ensure that the contents of documents are not laid open to unauthorized persons. Paragraph 3 provides that documents which are seized and deposited at the court must be put in a sealed envelope unless an inventory is immediately drawn up. The party concerned has to be invited to attend the removal of the seal.     COMPLAINTS   1.    The applicant bank complains under Article 8 of the Convention about the lifting of banker's duty of confidentiality. It submits that the court's order was likely to interfere with the private life of its customers and to affect its reputation. The applicant bank further submits that it was unlawful to lift its duty of confidentiality in the course of preliminary inquiries, since in its view, they do not constitute criminal proceedings.   2.    The applicant bank also complains under Article 8 of the Convention about the search of its premises and the seizure of documents. It submits, in particular, that the search warrant was disproportionate as the court could have obtained the necessary information by questioning a representative of the bank. Moreover, the investigating judge ordered the unsealing of the documents seized without a representative of the applicant bank being present and failed to make an inventory of these documents.   3.    Further, the applicant bank complains under Article 6 of the Convention that the proceedings, both, as regards the lifting of banker's duty of confidentiality and the issuing of the search warrant, were unfair.     THE LAW   1.    The applicant bank complains under Article 8 (Art. 8) of the Convention about the lifting of banker's duty of confidentiality. It submits that the court's order was likely to interfere with the private life of its customers and to affect its reputation. Further it considers that the lifting of banker's duty of confidentiality was unlawful.   a.    As to the applicant bank's complaint that the lifting of banker's duty of confidentiality interfered with the private life of its customers, the Commission   recalls that, under Article 25 (Art. 25) of the Convention, an applicant cannot claim to be the victim of a breach of the rights or freedoms protected by the Convention unless there is a sufficiently direct connection between the applicant and the injury he maintains he suffered as a result of the alleged breach (cf. No. 11724/85, Dec. 5.2.90, D.R. 64, p. 72).        The Commission notes that banker's duty of confidentiality was lifted as regards a certain number of customer accounts which were the subject of the preliminary inquiries directed against A.S., a former employee of the applicant bank, on the suspicion of embezzlement. In this respect only the holders of the accounts, but not the applicant bank, can claim to be a victim of the alleged violation.        Therefore, the Commission considers that this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b.    The applicant bank further complains that the lifting of banker's duty of confidentiality affected its good reputation. The Commission, finds that, even if the right to a good reputation can be considered as forming part of the notion of "private life", the applicant bank's complaint about the lifting of banker's duty of confidentiality as regards customer accounts concerns the rights of its clients. In any event, the applicant bank itself has not made out a case that it had any private life which fell within the protection of Article 8 (Art. 8) of the Convention or with which there had been any interference (see mutatis mutandis, Open Door and Dublin Well Woman v. Ireland, Comm. Report 7.3.91, para. 64, Eur. Court HR, Series A no. 246-A, p. 61).        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 bank also complains under Article 8 (Art. 8) of the Convention about the search of its premises and the seizure of documents.        Article 8 (Art. 8) of the Convention provides as follows:        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Commission does not have to examine in the present case, whether Article 8 (Art. 8), sets up a safeguard against a search and seizure concerning a legal person, such as the applicant bank (cf. No. 12592/86, Dec. 6.3.89, D.R. 60, p. 201 at p. 203 where the question whether the search of a bank's premises affected its "home" within the meaning of Article 8 (Art. 8) was also left open), since the complaint is in any case inadmissible for the following reasons.        The search warrant, issued by an investigating judge at the Klagenfurt Regional Court, was based upon Section 139 of the Code of Criminal Procedure. This is not contested by the applicant bank. Nor has it been alleged that the seizure of documents was unlawful. The applicant bank only complains that following the seizure, the investigating judge failed to invite its representative to attend the removal of the seal from the envelope containing the documents seized. Admittedly, the Review Chamber at the Klagenfurt Regional Court, in its decision of 21 November 1995, found that the removal of the seal was contrary to S. 145 para. 3 of the Code of Criminal Procedure. However, it also found that the lawfulness of the search and seizure as such were not affected by this procedural irregularity. The Commission, recalling that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, finds no reason to depart from the Review Chamber's finding (Eur. Court HR, Kruslin v. France judgment of 24 April 1990, Series A no. 176-A, p. 21, para. 29).        The search was conducted in order to find evidence relevant for the criminal proceedings against the former employee of the applicant bank. Thus, the interference served a legitimate aim, namely the prevention of crime.        It determining whether the measures complained of were "necessary in a democratic society", the Commission will consider whether in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aim pursued (see Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 35-36, para. 37). In the present case, the investigating judge first only lifted banker's duty of confidentiality in respect of ten accounts. In the search warrant of 2 October 1995, the investigating judge, stating that the applicant bank had failed to hand over the complete files and had refused to answer questions, ordered the search for and seizure of documents relating to these accounts. The Review Chamber by decision of 30 October 1995 dismissed the applicant bank's argument that the search could have been avoided by questioning one of its employees. In these circumstances, the Commission finds that the reasons given by the domestic authorities were relevant and sufficient and that the search was proportionate to the legitimate aim pursued.        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.   3.    The applicant bank complains further under Article 6 (Art. 6) of the Convention about the unfairness of the proceedings in respect of the lifting of banker's duty of confidentiality and the search warrant.        The Commission notes that the criminal proceedings in the course of which banker's duty of confidentiality was lifted and the search was ordered were not directed against the applicant bank, but against its former employee and thus did not determine a criminal charge against the applicant bank. Nor did they determine the applicant bank's civil rights and obligations.   It follows that these proceedings do not come within the scope of Article 6 para. 1 (Art. 6-1) of the Convention as regards the applicant bank (No. 12592/86, Dec. 6.3.89, loc. cit.).         This part of the application is, therefore, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber