In the case of Friedl v. Austria (1),
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention") and the relevant provisions of Rules of
Court A (2), as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mr R. Pekkanen,
Mr A.B. Baka,
Mr L. Wildhaber,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 26 January 1995,
Delivers the following judgment, which was adopted on
that date:
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Notes by the Registrar
1. The case is numbered 28/1994/475/556. The first number is
the case's position on the list of cases referred to the Court
in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
2. Rules A apply to all cases referred to the Court before
the entry into force of Protocol No. 9 (P9) and thereafter
only to cases concerning States not bound by that Protocol
(P9). They correspond to the Rules that came into force on
1 January 1983, as amended several times sub-sequently.
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PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
9 September 1994, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 15225/89)
against the Republic of Austria lodged with the Commission
under Article 25 (art. 25) by an Austrian national,
Mr Ludwig Friedl, on 5 June 1989.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Austria
recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The object of the request was to
obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations
under Articles 8 and 13 (art. 8, art. 13) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated
that he wished to take part in the proceedings and designated
the lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr F. Matscher, the elected judge of Austrian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,
the President of the Court (Rule 21 para. 3 (b)). On
24 September 1994, in the presence of the Registrar, the
President drew by lot the names of the other seven members,
namely Mr B. Walsh, Mr C. Russo, Mr A. Spielmann,
Mr J. De Meyer, Mr R. Pekkanen, Mr A.B. Baka and
Mr L. Wildhaber (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5),
Mr Ryssdal, acting through the Registrar, consulted the Agent
of the Austrian Government ("the Government"), the applicant
and the Delegate of the Commission on the organisation of the
proceedings (Rules 37 para. 1 and 38).
5. On 23 December 1994 the Government communicated to the
Registrar the text of an agreement concluded with the
applicant on 21 December 1994. On 11 and 16 January 1995 the
applicant's lawyer confirmed this agreement.
The Delegate of the Commission was consulted and gave his
opinion on 18 January 1995.
AS TO THE FACTS
I. Circumstances of the case
6. Mr Ludwig Friedl, who lives in Vienna, was one of the
participants in a demonstration that he had organised with
other persons with a view to drawing public attention to the
plight of the homeless. The demonstration began on
12 February 1988 in an underground passage for pedestrians,
the Karlsplatz-Opera passage in Vienna. A round-the-clock
sit-in of some fifty persons was organised to coincide with
the demonstration, which was supposed to last until
24 February.
On 16 February another sit-in began at the same place,
organised by the Kurdistan-Komitee; it was due to continue
until 27 February.
During these demonstrations the authorities received
numerous complaints from pedestrians concerning the nuisance
caused by the demonstrators, who slept and did their cooking
on the spot.
7. On 19 February 1988, at around 1 a.m., officers of the
Vienna-centre police station (Bezirkspolizeikommissariat),
accompanied by municipal officials, instructed the homeless
persons to leave. They informed the persons concerned that
their demonstration required an authorisation under
section 82 (1) of the Road Traffic Act
(Straßenverkehrsordnung), which prohibited any obstruction to
pedestrian traffic. As the demonstrators did not immediately
comply, the identities of fifty-seven of them were taken down.
The demonstrators finally agreed to leave.
8. In the course of this operation, which ended at about
2.45 a.m., the police took photographs for use in the event of
prosecution. The whole proceedings were also recorded on
video-cassette.
The applicant claims that he was photographed
individually. According to the Government, however, the
police did not seek to establish the identities of the
demonstrators who had been photographed. Moreover, the
personal information recorded and the photographs were not
entered into a data-processing system. The administrative
files concerning the demonstration were, according to the
normal practice, to be destroyed, together with the
photographs, in the year 2001, ten years after they were
consulted for the last time.
9. On 21 March 1988 Mr Friedl complained to the
Constitutional Court (Verfassungsgerichtshof) that, in breach
of his rights under in particular Articles 8 and 11 (art. 8,
art. 11) of the Convention, police officers had, on 17 and
19 February 1988, photographed him, established his identity
using coercion, taken down his particulars and broken up the
meeting.
10. On 13 December 1988 the Constitutional Court ruled that
it lacked jurisdiction to entertain the applicant's complaints
concerning the photographs, the verification of his identity
and the taking down of his particulars. It noted that in this
instance the police had not had recourse to physical force or
coercion. According to its settled case-law concerning
Article 144 para. 1 of the Constitution
(Bundesverfassungsgesetz, see paragraph 11 below), its power
of review extended only to police action which constituted an
order (Befehl mit unverzüglichem Befolgungsanspruch) or which
entailed the use of physical force (Anwendung physischen
Zwangs), and which could accordingly be regarded as the
exercise by an administrative authority of a direct power to
give orders to and to use coercion against a particular
individual (Ausübung unmittelbarer verwaltungsbehördlicher
Befehls- und Zwangsgewalt gegen eine bestimmte Person). Even
if there had been an interference with the exercise of a right
guaranteed under Article 8 (art. 8) of the Convention, no
question arose under Article 13 (art. 13) of the Convention,
as that provision could not extend the scope of the
jurisdiction of the Constitutional Court.
Mr Friedl's other complaints were dismissed on the ground
that there was nothing to suggest that they disclosed a
violation of constitutional rights.
II. Relevant domestic law
11. Article 144 para. 1 of the Federal Constitution provides
that the Constitutional Court has jurisdiction to hear
complaints alleging the violation of constitutional rights and
directed against formal decisions of administrative
authorities or against the exercise by the authorities of a
direct power to give orders to and use coercion against a
particular individual.
12. On 1 May 1993 the Security Services Act
(Sicherheitspolizeigesetz) entered into force. It contains
provisions dealing, inter alia, with the interrogation, arrest
and detention of persons, the use of direct official coercion
and the gathering, use and storing of personal data, including
photographs and recordings.
By virtue of section 88 (1) of that Act, independent
administrative tribunals (Unabhängige Verwaltungssenate) have
jurisdiction to hear complaints from persons alleging a
violation of their rights resulting from the exercise by a
security service of a direct power to give orders and to use
coercion (Ausübung unmittelbarer sicherheitsbehördlicher
Befehls- und Zwangsgewalt). Section 88 (2) of the Act extends
the jurisdiction of the independent administrative tribunals
to all the other measures taken by such authorities, except
decisions (Bescheide).
Section 88 (4) provides that a member of the competent
administrative tribunal is to examine complaints lodged under
section 88 (2), applying in particular section 67 (c) of the
1991 General Administrative Procedure Act (Allgemeines
Verwaltungsverfahrensgesetz). Pursuant to the latter
provision, if the tribunal does not dismiss the complaint, it
must declare the impugned measure unlawful. If that measure
is still in force, the competent authority must without delay
take steps to bring the legal position into line with the
tribunal's decision.
PROCEEDINGS BEFORE THE COMMISSION
13. Mr Friedl applied to the Commission on 5 June 1989.
Relying on Article 8 (art. 8) of the Convention, he complained
that, during the demonstration, the police had photographed
him, checked his identity and taken down his particulars. He
maintained in addition that no effective remedy had been
available to him in this connection, as should have been the
case under Article 13 (art. 13). Finally he claimed that the
breaking up of the demonstration by the police had been
contrary to Article 11 (art. 11).
14. On 30 November 1992 the Commission declared the
application (no. 15225/89) admissible as regards the
complaints under Articles 8 and 13 (art. 8, art. 13) and
inadmissible for the rest. In its report of 19 May 1994
(Article 31) (art. 31), the Commission expressed the opinion
that there had been no breach of Article 8 (art. 8)
(unanimously). It further took the view that there had been a
breach of Article 13 (art. 13) as regards a remedy in respect
of the gathering and taking down of personal data (nineteen
votes to four), but not as regards a remedy in respect of the
taking of photographs and their storing (fourteen votes to
nine). The full text of the Commission's opinion and of the
two separate opinions contained in the report is reproduced as
an annex to this judgment (1).
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1. Note by the Registrar: for practical reasons this annex
will appear only with the printed version of the judgment
(volume 305-B of Series A of the Publications of the Court),
but a copy of the Commission's report is obtainable from the
registry.
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AS TO THE LAW
15. On 23 December 1994 the Court received from the Agent of
the Government a copy of the following text, signed on
21 December by himself and the applicant's lawyer.
"...
1. The Federal Government of the Republic of Austria
will pay to the applicant a sum amounting to altogether
AS 148,787.60 inclusive of all taxes as compensation in
respect of any possible claims relating to the present
application. This sum includes AS 98,787.60 in respect
of the counsel's fees and expenses incurred in the
domestic proceedings and before the Strasbourg organs.
This amount will be paid to the applicant's counsel,
Mr Thomas Prader in Vienna ...
2. All the photographs in question including the
negatives will be destroyed by the Austrian Government.
3. The applicant declares his application settled.
4. The applicant waives any further claims against the
Federal Republic of Austria relating to the present
application.
5. The Austrian Federal Government will take the
necessary steps to implement the terms of the friendly
settlement within one month after the Court has decided
to strike the case out of its list."
In the same letter the Agent of the Government requested
the Court to strike the case out of its list. He drew
attention to the fact that, since the entry into force of the
Security Services Act (see paragraph 12 above), the
independent administrative tribunals have had jurisdiction to
hear complaints such as those raised in this instance by
Mr Friedl before the Constitutional Court.
By letters of 2 and 9 January 1995 to the Registrar, the
applicant's lawyer confirmed the agreement concluded and
requested the Court to strike the case out of the list.
16. The Delegate of the Commission was consulted in
accordance with Rule 49 para. 2 of Rules of Court A and
expressed the view that the settlement was consistent with the
human rights defined in the Convention.
17. The Court takes formal note of the friendly settlement
reached between the Government and Mr Friedl. It discerns no
reason of public policy militating against striking the case
out of the list (Rule 49 paras. 2 and 4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing
under Rule 55 para. 2, second sub-paragraph, of Rules of
Court A on 31 January 1995.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy