WEBORA v. AUSTRIA
Inadmissible
The applicant, born in 1952, is an Austrian national residing in Vienna. In the proceedings before the Court he is represented by Mr. G. Grone, a lawyer practising in Vienna. A. On 23 March 1995 officers of the Vienna Federal Police Authority (Bundespolizeidirektion) searched the applicant’s home on the suspicion that he owned and distributed pornographic material involving minors. They informed the applicant that the investigating judge had issued a search warrant orally. A written copy of the search warrant was not served on the applicant until 16 November 1995. On 24 April 1995 the applicant lodged a complaint with the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat). He submitted that it was not clear in the circumstances whether a search warrant had been issued as claimed by the police officers. Thus, the search of his premises lacked a legal basis and violated his right to respect for his home. On 21 August 1995 the Vienna Independent Administrative Panel rejected the applicant’s complaint as being inadmissible. It found that the police had acted upon an oral search warrant from the investigating judge and the search of the applicant’s premises was, thus, attributable to the court. Consequently, the review of its lawfulness did not fall within the competence of the Independent Administrative Panel. On 9 October 1995 the applicant lodged a complaint with the Review Chamber (Ratskammer) of the Vienna Regional Criminal Court (Landesgericht für Strafsachen), claiming that the search of his premises violated his right to respect for his home. He submitted in particular that no written copy of the search warrant had been served on him within the statutory twenty-four hour time-limit. On 21 December 1995 the Review Chamber of the Regional Criminal Court dismissed the applicant’s complaint as being unfounded. It noted that the court had conducted criminal proceedings against a number of persons on suspicion of sexual abuse of minors. In the course of these proceedings a letter was seized which proved that a certain M. dealt with pornographic material involving minors. Subsequently, since the applicant was identified as the person using the cover name M. Thereupon, the investigating judge issued a search warrant for the applicant’s premises. At the time, a written copy of the search warrant was not issued and, thus, was not served on the applicant. The Review Chamber further noted that the search was carried out in the presence of the applicant who was first informed of the suspicion and was requested to hand over any pornographic material in his possession. As he refused to do so, the search was carried out and extensive pornographic material as well as business correspondence was seized. Having regard to its above findings, the Review Chamber concluded that there was a reasonable suspicion, as required by S. 139 of the Code of Criminal Procedure (Strafprozessordnung), that objects which were of importance for specific criminal proceedings were to be found on the applicant’s premises. Moreover, the search had, in accordance with S. 140 of the said Code, been ordered by a judicial search warrant. The failure to serve a written copy of the search warrant on the applicant, though contrary to the law, did not affect the lawfulness of the search itself. On 29 April 1996 this decision was served on the applicant’s counsel. B. Relevant domestic law 1862 Protection of the Home Act (Gesetz zum Schutz des Hausrechts 1862) S. 1 of the 1862 Act provides that a search of premises may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours. Code of Criminal Procedure (Strafprozessordnung) S. 139 § 1 of the Code of Criminal Procedure provides that a search of premises may only be carried out if there is a reasonable suspicion that a person suspected of having committed a criminal offence is hiding in the premises concerned, or that there are objects the possession or examination of which is relevant for a particular criminal investigation. According to S. 140 § 1 a search may, as a rule, only be carried out after the person concerned has been questioned, and if the objects sought are not voluntarily handed over. S. 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge. The search warrant has to be served on the person concerned either immediately or within twenty-four hours.