Police can
secure items in
event of danger
Not enough police
officers in the field
European
case law
28
The Federal Ministry for Traffic, Innovation and Technology denied
that ASFINAG would refuse to cooperate in the securing of property
by the police without an order from the Public Prosecutor’s Office.
Pursuant to the Security Police Act, the police can, among other
things, secure items (therefore, also data and/or data carriers) in
order to avert offences against property. Furthermore, in accordance
with the Code of Criminal Procedure, securing of data for reasons of
providing proof in the event of imminent danger by the police itself is
possible without an order from the Public Prosecutor’s Office – even
in the event of cross-border circumstances. Thus ASFINAG would not
even have had to consent.
During the time of the investigation, only four police officers were in
the field on about 80 kilometres of motorway where the lorries could
potentially have been secured. The statement provided by the Federal Ministry of the Interior does not state in which direction the patrols were going (if they were moving at all). Thus it would be possible
that at the time in question, not one single police patrol was present
on a route that would have enabled access – despite the existing
bulletin. This small number of law enforcement officers for such a
large area to be monitored is not acceptable, even considering the
European Football Championship that was going on in Austria at the
time.
Article 6 of the Charter of Fundamental Rights of the European Union
states: “Every person has the right to liberty and security of person.”
The Supreme Court to a certain extent assumed a “right to security
of person” in its decisions relative to state liability. Case law of the
European Court of Justice for Human Rights with regard to Article 2,
European Convention on Human Rights (right to life) also assumes
certain duties to avert danger, to provide information and to investigate thoroughly on the part of the State in detecting and solving
crimes. Similar assumptions apply to recent case law of the European Court of Justice regarding Article 1 of the first additional protocol to the European Convention on Human Rights (right to property),
according to which, for example, inadequate enquiries in the course
of the investigation of property offences or an unreasonably long
duration of proceedings in lawsuits concerning property claims are
deemed a breach of the duty of care that is derived from the right
to property. Even if one nevertheless did not wish to assume legally
enforceable duties of care and/or duties to inform from the standards referred to above in the event of attacks by private parties, the
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