OGH: Violation of fundamental rights in criminal proceedings

Jan 21, 2022 Benn-Ibler Rechtsanwälte

In the course of an investigation by the Central Public Prosecutor's Office for the Prosecution of Economic Crimes and Corruption on suspicion of the crime of aggravated fraud, the business premises of one of the defendants - a limited liability company (Gesellschaft mit beschränkter Haftung, GmbH) - were searched. An external data storage device was seized, which was believed to contain a back-up of the electronic activities of a law firm.

Neither the Vienna Regional Court for Criminal Matters (Landesgericht für Strafsachen Wien, LGS) nor the Vienna Higher Regional Court (Oberlandesgericht Wien, OLG) followed up on the objections and complaints filed by the defendants against the seizure.

The accused described the decision of the OLG as violating fundamental rights and applied for a renewal of the proceedings pursuant to Section 363a of the Code of Criminal Procedure (Strafprozessordnung, StPO), since, among other things, the right to a fair trial pursuant to Article 6 of the European Convention on Human Rights (ECHR), the right to respect for private and family life pursuant to Art. 8 of the ECHR, the domiciliary rights pursuant to Art. 9 of the Organic Law (Staatsgrundgesetz, StGG) as well as the fundamental right to data protection pursuant to Sec. 1 of the Data Protection Act (Datenschutzgesetz, DSG) were allegedly violated. The defendants argued that the seizure violated the prohibition of circumvention under Sec. 157 para 2 of the StPO with regard to the right to attorney-client privilege, which also applied to data carriers not in the custody of the professional secrecy holder.

The Supreme Court (Oberster Gerichtshof, OGH) stated that the investigation of an application renewal was limited to the examination of the alleged violation of a right under the ECHR or one of its additional protocols. The application required a substantiated statement of the violation of fundamental rights and a substantive examination of the decision that was said to be in violation of fundamental rights, which had not been done in this case. According to the OGH, an application for a renewal of proceedings was not to be understood as an additional complaint to a higher instance and thus did not grant the applicant a right to a review of other violations of rights or of the actions of the previous instance, the public prosecutor's office or the Criminal Investigation Department.

The OGH consequently rejected the applications.

OGH 14 Os 78/21h, OGH 14 Os 79/21f (12. October 2021)