EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15225/89
Ludwig Friedl
against
Austria
REPORT OF THE COMMISSION
(adopted on 19 May 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-14). . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-9) . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 10-14) . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-40) . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 15-31) . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 32-40) . . . . . . . . . . . . . . . . . . 6
III. OPINION OF THE COMMISSION
(paras. 41-83) . . . . . . . . . . . . . . . . . . . . . 8
A. Complaints declared admissible
(para. 41) . . . . . . . . . . . . . . . . . . . 8
B. Points at issue
(para. 42) . . . . . . . . . . . . . . . . . . . . 8
C. Article 8 of the Convention
(paras. 43-66) . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 67) . . . . . . . . . . . . . . . . . . . .12
D. Article 13 of the Convention
(the taking of photographs and their retention)
(paras. 68-71) . . . . . . . . . . . . . . . . . .13
CONCLUSION
(para. 72) . . . . . . . . . . . . . . . . . . . .13
E. Article 13 of the Convention
(the questioning and recording of personal data)
(paras. 73-79) . . . . . . . . . . . . . . . . . .13
CONCLUSION
(para. 80) . . . . . . . . . . . . . . . . . . . .14
F. Recapitulation
(paras. 81-83) . . . . . . . . . . . . . . . . . .14
CONCURRING OPINION BY Mr. H. DANELIUS
(in regard to Article 13 of the Convention) . . . . . . . . . . . .15
PARTLY DISSENTING OPINION OF MM. C.A. NØRGAARD,
H.G. SCHERMERS, C.L. ROZAKIS, Mrs. J. LIDDY,
MM. L. LOUCAIDES, M.P. PELLONPÄÄ, N. BRATZA,
E. KONSTANTINOV, D. SVÁBY . . . . . . . . . . . . . . . . . . . . .17
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18
APPENDIX II : DECISION ON THE ADMISSIBILITY
OF THE APPLICATION . . . . . . . . . . . . . . .19
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2. The applicant, born in 1953, is an Austrian national and resident
in Vienna. Before the Commission he is represented by Mr. T. Prader,
a lawyer practising in Vienna.
3. The application is directed against Austria. The respondent
Government are represented by their Agent, Mr. F. Cede, Ambassador,
Head of the International Law Department at the Federal Ministry of
Foreign Affairs.
4. The applicant complains under Article 8 of the Convention that,
on the occasion of a manifestation, police officials took photographs
of him, established his identity and recorded his personal data as well
as stored this information. He also complains under Article 13 of the
Convention about the lack of an effective remedy in this respect.
B. The proceedings
5. The application was introduced on 5 June and registered on
20 July 1989.
6. On 27 May 1991 the Commission decided that notice should be given
to the respondent Government of the application and that they should
be invited to submit written observations on the admissibility and
merits of the application.
7. The Government's observations were submitted after an extension
of the time-limit on 21 October 1991. The applicant's observations in
reply were submitted, also after an extension of the time-limit, on
7 January 1992.
8. On 30 November 1992 the Commission declared admissible the
applicant's complaints under Article 8 and 13 of the Convention. The
complaint under Article 11 of the Convention (freedom of assembly) was
declared inadmissible. The Commission received supplementary
observations submitted by the Government on 3 February 1993.
9. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1(b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
11. The text of this Report was adopted on 19 May 1994 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
15. On 10 February 1988 the applicant notified the Vienna Federal
Police Department (Bundespolizeidirektion) that the Institute for
Psychology at the Vienna University, working group "Strafvollzug"
("execution of sentences"), intended to organise a gathering, hereafter
referred to as a "manifestation," and "sit-in" in the Vienna
Karlsplatz-Opera-Passage (Kärntnertorpassage) in the period from
11 until 24 February 1988 in order to provide information about the
problems of homeless persons. The organiser of the manifestation would
use three tables for information material, two photo-stands and
megaphones. Fifty persons at least were expected to participate.
Furthermore, on 24 February 1988 a demonstration of homeless persons
would take place.
16. In the afternoon of the same day, an official of the Police
Department informed the applicant by telephone that the notified
"sit-in" could not be considered an assembly within the meaning of the
Assembly Act 1953 (Versammlungsgesetz). It rather constituted a use of
public streets for purposes other than traffic and, therefore, required
authorisation by the Vienna Municipality under the Road Traffic
Regulations 1960 (Straßenverkehrsordnung).
17. On 12 February 1988 the "Kurdistan-Komitee", Vienna, informed the
Vienna Federal Police Department about its intention to organise a
sit-in and hunger-strike of about twenty participants at the
Karlsplatz-Opera-Passage in the period from 16 until 27 February 1988.
18. The manifestation of the working group "Strafvollzug" started on
12 February 1988, and continued without interruption day and night. In
the course of the manifestation pamphlets with the heading "homeless
persons can sleep peacefully until 24 February" were distributed,
which, on two pages, provided information about the manifestation and
the problems of homeless persons, in particular in Vienna, and asked
for charitable donations.
19. In a report of 16 February 1988 the guard-room (Wachzimmer) at
the Karlsplatz-Opera-Passage described the situation at that place
arising from the manifestation of the homeless persons and the
manifestation organised by the "Kurdistan-Komitee".
20. It stated in particular that the area concerned had already in
the past been a meeting place for shady characters; however, since the
start of the manifestation of the homeless persons the complaints about
the participants and the excesses in the course of that manifestation
had increased. The participants in that manifestation not only loitered
about and consumed alcohol like in the past, but had established
themselves as if at a camp site. They were cooking on the spot; food,
left-overs and other dust were scattered about, and in between they
were sleeping. Those "camping" were essentially the same homeless
persons as normally gathered at this place, but ohter persons had also
been attracted to the place. Since the start of the second
manifestation the pedestrian traffic in the passage had been seriously
obstructed. The manifestations required an area of 8 x 12 m each. There
were serious complaints, especially by parents of schoolchildren, who
feared the manifestation area. There had also been a dispute between
drunken homeless persons and the "Kurdistan-Komitee".
21. On 17 February 1988 the Vienna Federal Police Department informed
the Vienna Municipality that it did not consider the two manifestations
as assemblies within the meaning of the Assembly Act, and that the
authorisation of both manifestations fell within the competence of the
Municipality.
22. Furthermore, on 17 February 1988 the Vienna authorities took
photographs of the manifestation of homeless persons in order to
support their opinion as to the character of the manifestation and to
record the actual situation at the place in question, e.g. the sanitary
conditions.
22. On 18 February 1988 the Vienna Municipality arranged for traffic
signs to be put up at the Karlsplatz-Opera-Passage identifying the area
as reserved for pedestrian traffic.
23. In the early morning of 19 February 1988 police officers of the
Vienna Inner City Police Office (Bezirkspolizeikommissariat), in the
presence of officials of the Vienna Municipality, requested the
homeless persons to leave the place. The participants were informed
that their manifestation required an authorisation under S. 82 para. 1
of the Road Traffic Regulations, and that obstructing the pedestrian
traffic would amount to an offence under the Road Traffic Regulations.
As those present did not immediately agree to leave, their identity was
established. The participants in the manifestation subsequently left.
24. In the course of this police action, photographs were taken in
order to record the conduct of the participants in the manifestation
for the purposes of ensuing investigation proceedings for offences
against the Road Traffic Regulations.
25. According to the applicant, individual photographs were taken of
him. The Government affirm that the individual persons on these
photographs remained anonymous in that no names were recorded.
Moreover, the personal data recorded and photographs taken were not
entered into a data processing system, and no action was taken to
identify the persons photographed on that occasion by means of data
processing. The administrative files concerning the manifestation,
including the photographs, will, according to the normal practice, be
destroyed in 2001, namely ten years after the file had been used for
the last time.
26. The Vienna Inner City Police Office, in its report of
19 February 1988 about the further developments in the Karlsplatz-
Opera-Passage, stated inter alia that in the evening of the preceding
day the number of participants in the manifestation had slightly
increased to over fifty persons, and persons belonging to radical
circles had joined. Social workers who had come to inform the
participants had been hindered in their work. The participants had
known about the unlawfulness of their activities hours before the
police action. At the beginning of the police action, on
19 February 1988 about 1 a.m., the participants were informed about the
legal position, and they were requested to leave the passage area, i.e.
a pedestrians way within the meaning of the Road Traffic Regulations.
At the same time they were told that there was an opportunity of free
transport and overnight accommodation for homeless persons.
Nevertheless the applicant had invited his close friends to stay,
because he thought that the sit-in had been properly notified. The
applicant was subsequently informed that one of the police officers had
had a telephone conversation with the Head of the President's Office
(Präsidialabteilung) at the Vienna Federal Police Department, and that
he had knowingly made a false statement about the legal position. The
applicant then gave in and the participants began to prepare themselves
for their transport. The police action terminated at 2.45 a.m. The
identity of fifty-seven persons was established. Furthermore the police
action was, as far as the radius of the monitor in the Police Office
reached, recorded on a videotape. A police photographer was also
present.
27. On 21 March 1988 the applicant, represented by Mr. Prader, lodged
a complaint with the Constitutional Court (Verfassungsgerichtshof). He
alleged violations of his rights under Articles 8 and 11 of the
Convention in that, on 17 and 19 February 1988, officials of the Vienna
Federal Police Department had taken pictures of him, had established
his identity by force and recorded his personal data as well as stored
this information, and in that the assembly had been dissolved.
Furthermore, the applicant, referring to the Commission's Report of
October 1985 in the Plattform "Ärzte für das Leben" case, argued that
the Constitutional Court should change its case-law concerning
challengeable acts of State organs.
28. On 13 December 1988 the Constitutional Court declared the
applicant's complaint concerning the taking of photographs, the
establishment of his identity and registering of his personal data as
well as the storing of this material inadmissible. The remainder of the
complaint was dismissed on the ground that there was no indication of
a violation of the applicant's constitutional rights.
29. The Constitutional Court established the facts on the basis of
the parties' submissions and the administrative files. It proceeded in
particular from the two above-mentioned police reports of 16 and
19 February 1988. Furthermore, the Constitutional Court found no reason
to doubt that police officers had photographed the applicant on the
occasion of his participation in the manifestation, that his identity
had been established and that these data were stored by the Vienna
Federal Police Department.
30. As regards the first part of the applicant's complaint, the
Constitutional Court found in particular that, according to its
constant case-law, the applicant could not complain about a police
activity which did not constitute an order (Befehl mit unverzüglichem
Befolgungsanspruch) or the use of physical force (Anwendung physischen
Zwangs), and thus no administrative coercion (Ausübung unmittelbarer
verwaltungsbehördlicher Befehls- oder Zwangsgewalt) against a specific
person within the meaning of Art. 144 para. 1 of the Constitution
(Bundesverfassungsgesetz). In the present case, the police authorities
had not used any physical force or coercion. Even assuming an
interference with Article 8 of the Convention, no issue could arise
under Article 13 of the Convention, because this provision could not
extend the competence of the Constitutional Court.
31. With regard to the applicant's complaint that he had been
hindered from participating in an assembly, the Constitutional Court
found that the event concerned, considering its length and
circumstances, namely essentially the establishment of a camp in the
Karlsplatz-Opera-Passage, did not constitute an assembly within the
meaning of Article 11 of the Convention. According to its constant
case-law, a meeting of several persons only constituted an assembly if
it was organised with the intention of inducing the participants to a
common action, and if it resulted in a particular association of the
participants.
B. Relevant domestic law and practice
32. S. 2 para. 1 of the Road Traffic Regulations 1960 (Straßen-
verkehrsordnung) defines as road any area destined for public
pedestrian or vehicular traffic.
33. S. 78 (c) prohibits the obstruction of the pedestrian traffic on
pavements in built-up areas. Such obstruction of the traffic is an
administrative offence (Verwaltungsübertretung) under SS. 78 (c),
99 para. 3 (d). Pursuant to S. 82 of the Road Traffic Regulations, the
use of public roads for purposes other than traffic is required to be
authorised. The unauthorised use of a road for such other purposes
constitutes an administrative offence under SS. 82, 99 para. 3 (d).
34. S. 32 para. 1 of the Administrative Offences Act (Verwaltungs-
strafgesetz) states that a person charged with an administrative
offence (Beschuldigter) is any person suspected of having committed an
administrative offence from the moment of the first prosecution measure
(Verfolgungsmaßnahme) until the termination of the proceedings.
According to S. 32 para. 2 a prosecution measure is any official act
by a public authority against a particular person charged with an
administrative offence, such as a summons (Ladung), a warrant to appear
(Vorführungsbefehl), a request for questioning (Ersuchen um
Vernehmung), an order to investigate the facts and the unknown offender
(Auftrag zur Ausforschung), a penal order (Strafverfügung) etc.
35. S. 33 para. 1 of the Administrative Offences Act provides in
particular that, at the time of his first questioning, any person
charged with an administrative offence has to be asked about his
christian and family name, the time and place of his birth, his
nationality and family status, his profession and place of residence
as well as his income and family situation.
36. S. 35 (c) of the Administrative Offences Act authorises organs
of the public security to arrest a person caught in the act of
committing an administrative offence in order to bring him before the
authorities, when the person concerned continues the punishable act,
in spite of being cautioned, or attempts to repeat it.
37. According to internal administrative rules (Skartierungsvor-
schriften), administrative files are generally to be destroyed ten
years after they were used for the last time.
38. On 1 May 1993 the Security Police Act (Sicherheitspolizeigesetz),
regulating the powers of police authorities, entered into force. It
contains, inter alia, regulations concerning the questioning of
persons, the arrest and detention of persons, the exercise of direct
administrative coercion, the collection and use of personal data,
including those obtained by photographing or recording, and the
retention of such data.
39. The competence of the Constitutional Court to receive complaints
about the violation of constitutionally guaranteed rights is laid down
in Art. 144 para. 1 of the Federal Constitution (Bundesverfassungs-
gesetz), and relates to complaints against formal decisions of
administrative authorities or complaints concerning the exercise of
direct administrative authority and coercion against a particular
individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und
Zwangsgewalt gegen eine bestimmte Person).
40. Under Art. 130 of the Federal Constitution, the Administrative
Court rules on applications alleging the unlawfulness of an
administrative decision (Bescheid) or authority and coercion (Befehls-
und Zwangsgewalt) against a particular individual or the breach by a
competent authority of its duty to take a decision.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
41. The Commission has declared admissible:
- the applicant's complaint that the measures taken by officials
of the Vienna Federal Police Department on 17 and
19 February 1988, in the course of his participation in an
assembly, namely the taking of photographs of him, the
establishing of his identity and the recording of his personal
data as well as the storing of this material, violated his right
to respect for his private life;
- the applicant's complaint that he did not have an effective
remedy to complain about the taking of photographs and their
retention;
- the applicant's complaint that he did not have an effective
remedy to complain about the questioning and recording of his
personal data.
B. Points at issue
42. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 8 (Art. 8) of the
Convention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention as regards the applicant's complaint about the absence
of an effective remedy against the taking of photographs and
their retention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention as regards the applicant's complaint about the absence
of an effective remedy against the questioning and the recording
of his personal data.
C. Article 8 (Art. 8) of the Convention
43. The applicant invokes Article 8 (Art. 8) of the Convention which
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 ... for the
prevention of disorder or crime, ... or for the protection of the
rights and freedoms of others."
The applicant submits that police officials took photographs of
him in the course of a manifestation, that they established his
identity and recorded his personal data, and stored this material.
The Government maintain that, if the measures complained of
amounted to an interference with the applicant's right to private life
under Article 8 para. 1 (Art. 8-1), such interference was justified
under paragraph 2 of Article 8 (Art. 8-2).
1. Was there an interference?
44. The Commission recalls that the notion of "private life" is not
limited to an "inner circle" in which the individual may live his own
personal life as he chooses and to exclude therefrom entirely the
outside world not encompassed within this circle. Respect for private
life must also comprise to a certain degree the right to establish and
develop relationships with other human beings and the outside world
(Eur. Court H.R., Niemietz judgment of 16 December 1992, Series A
No. 251-B, p. 33, para. 29; see also No. 3868/68, Dec. 25.5.70,
Coll. 34 p. 10; No. 6825/75, 18.5.76, D.R. 5 p. 86; Brüggemann and
Scheuten v. Germany, Comm. Report 12.7.77, paras. 55-58, D.R. 10
p. 100).
45. In the present case, the Vienna police authorities took
photographs in the course of a demonstration in which the applicant
participated, and upon its dissolution. Furthermore, upon the
dissolution of the manifestation, they established the identity of,
inter alia, the applicant, recorded these personal data and stored the
material thus obtained in an administrative file relating to these
events. The Constitutional Court, in its decision of 13 December 1988,
established these facts on the basis of the police reports and the
applicant's submissions in the course of the proceedings before it.
46. In the case-law of the Convention organs, both the storing and
release of information relating to an individual's private life in a
secret police register have been found to constitute an interference
with the person's right to respect for his private life (Eur. Court
H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 22,
para. 48). Furthermore, a compulsory public census, including questions
relating to personal details of the inhabitants of a particular
household, or the requirement, pursuant to the relevant tax
legislation, to produce a list of one's private expenditure amount to
such an interference (cf. No. 9702/82, Dec. 6.10.82, D.R. 30 p. 239;
No. 9804/82, Dec. 7.12.82, D.R. 31 p. 231). The examination of a person
in the course of his detention, including measures such as his search,
questioning about his private life, taking of fingerprints and
photographs, and the retention of the records of this examination, was
also regarded as interference with the person's right to respect for
his private life (cf. McVeigh, O'Neill, Evans v. United Kingdom, Comm.
Report 18.3.81, D.R. 25 p. 15, para. 224).
47. The Commission will consider successively the actions complained
of by the applicant.
a. Taking of photographs and their retention
48. For the purpose of delimiting the scope of the protection
afforded by Article 8 (Art. 8) of the Convention against arbitrary
interference by public authorities, the Commission has attached
importance to the questions whether the taking of photographs amounted
to an intrusion into the individual's privacy, whether it related to
private matters or public incidents, and whether the material thus
obtained was envisaged for a limited use or was likely to be made
available to the general public (No. 5877/72, Dec. 12.10.72,
Yearbook 16 p. 328). Furthermore, the Commission did not regard the use
of individual photographs in the course of a criminal investigation as
such an interference, where the photographs concerned had either been
previously provided voluntarily in connection with applications for
official documents, or had been obtained on the occasion of a previous
arrest, and were not made available to the general public nor used for
any purpose other than the criminal proceedings in question
(No. 18395/91, Dec. 7.12.92, not published).
49. In the present case, the Commission has noted the following
elements: first, there was no intrusion into the "inner circle" of the
applicant's private life in the sense that the authorities entered his
home and took the photographs there; secondly, the photographs related
to a public incident, namely a manifestation of several persons in a
public place, in which the applicant was voluntarily taking part; and
thirdly, they were solely taken for the purposes, on 17 February 1988,
of recording the character of the manifestation and the actual
situation at the place in question, e.g. the sanitary conditions, and,
on 19 February 1988, of recording the conduct of the participants in
the manifestation in view of ensuing investigation proceedings for
offences against the Road Traffic Regulations.
50. In this context, the Commission attaches weight to the assurances
given by the respondent Government according to which the individual
persons on the photographs taken remained anonymous in that no names
were noted down, the personal data recorded and photographs taken were
not entered into a data processing system, and no action was taken to
identify the persons photographed on that occasion by means of data
processing.
51. Bearing these factors in mind, the Commission finds that the
taking of photographs of the applicant and their retention do not
amount to an interference with his right to respect for his private
life within the meaning of Article 8 para. 1 (Art. 8-1) of the
Convention.
b. Establishment of the applicant's identity and recording of
personal data
52. The questioning of the applicant on 19 February 1988 in order to
establish his identity, and the recording of these personal data,
though taking place in the course of the above public incident, was
closely related to his private affairs and constituted, therefore, an
interference with the right guaranteed by Article 8 para. 1 (Art. 8-1)
of the Convention.
53. Such interference is in breach of Article 8 (Art. 8) of the
Convention, unless it is justified under paragraph 2 of Article 8
(Art. 8-2) as being prescribed by law and necessary in a democratic
society to achieve one of the aims mentioned therein.
2. Was the interference complained of "in accordance with the law"?
54. The applicant, noting the absence of any ensuing prosecution
measures, submits that the police authorities did not act for the
purposes of bringing charges against him and the other participants in
the manifestation.
55. The Government submit that the measures complained of were in
accordance with Austrian law, in particular SS. 32, 33 of the
Administrative Offences Act. The applicant and the other participants
in the manifestation concerned had committed administrative offences,
and the questioning served the purpose of bringing charges against them
before the competent authorities. Such proceedings were finally not
instituted because of the trivial nature of the offences.
56. The Commission notes that S. 33 para. 1, in conjunction with
S. 32 para. 1, of the Austrian Administrative Offences Act, authorises
the questioning of any person, suspected of having committed an
administrative offence, to establish his identity. It considers that
this provision also constitutes a sufficient legal basis for the
subsequent retention of any information and material obtained.
Moreover, under the relevant provisions of the Road Traffic
Regulations, both the obstruction of pedestrian traffic on pavements
in built-up areas, as well as the unauthorised use of public roads for
purposes other than traffic, constitute administrative offences.
57. The Commission further observes that its power to review
compliance with the relevant domestic legislation is limited under the
Convention. It is in the first place for the national authorities,
notably the courts, to interpret and to apply the domestic law (cf.
Eur. Court H.R., Chorherr judgment of 25 August 1993, Series A
no. 266-B, p. 36, para. 25). In the present case, the Austrian
authorities had informed the participants in the manifestation about
the unlawfulness of their activities under the Road Traffic
Regulations. There is no indication that, at that time, the authorities
did not act for the purpose of prosecuting the participants in this
manifestation, though prosecution measures were not pursued against,
among others, the applicant. The Commission notes that there was no
finding of a domestic court on the question of lawfulness of the
questioning and retention of the material obtained. Nevertheless, in
the circumstances of the present case, there is no indication that the
relevant provisions of the Austrian Administrative Offences Act and the
Road Traffic Regulations were not observed.
58. The Commission is therefore satisfied that the interference was
prescribed by Austrian law within the meaning of Article 8 para. 2
(Art. 8-2).
3. Did the interference have a legitimate aim?
59. The applicant raises doubts as to whether the interferences
complained of pursued a legitimate aim within the meaning of Article 8
para. 2 (Art. 8-2).
60. The Government submit that the questioning of the applicant in
order to establish his identity, and the retention of this information
were in the interest of "the prevention of crime".
61. The Commission considers that the interference pursued the
legitimate aim of "prevention of disorder and crime".
4. Was the interference "necessary in a democratic society"?
62. The applicant, referring to the Government's submissions as to
the trivial nature of the administrative offences in question,
considers that the police measures were disproportionate.
63. The Government affirm that the interference in question was
"necessary in a democratic society" in order to achieve the aforesaid
aim.
64. The Commission recalls that the Contracting States have a certain
margin of appreciation in assessing the need for an interference, but
it goes hand in hand with European supervision (Eur. Court H.R., Funke
judgment of 23 February 1993, Series A no. 256-A, p. 24, para. 55).
65. The Commission notes that officials of the police authorities
questioned the applicant as to his identity on the occasion of his
participation in a manifestation, considering that his conduct as well
as the conduct of the other participants was unlawful under the
relevant provisions of the Road Traffic Regulations. The Commission,
proceeding from the basis that the authorities acted for the purposes
of possibly bringing charges against the applicant and other
participants in the manifestation, finds no element to show that this
questioning went beyond what was necessary to establish the applicant's
identity.
66. As regards the retention of the information thus obtained in the
administrative file on the manifestation, the Commission recalls that
the keeping of records relating to criminal cases of the past can be
regarded as necessary in a modern democratic society for the prevention
of crime (cf. No. 1307/61, Dec. 4.10.62, Collection 9 p. 53), and that
even if no criminal proceedings are subsequently brought and there is
no reasonable suspicion against the individual concerned in relation
to any specific offence, special considerations, such as combating
organised terrorism, can justify the retention of the material
concerned (McVeigh, O'Neill and Evans v. United Kingdom, Comm. Report,
loc. cit., paras. 229-231). In the present case, the competent
authorities established the applicant's and other participants'
identity for the purposes of an ensuing prosecution for road traffic
offences. This prosecution was not pursued in view of the trivial
nature of the offences. However, the information obtained was only kept
in a general administrative file recording the events in question.
Moreover, this information was not entered into a data processing
system. For these reasons, taking into account the margin of
appreciation afforded to the Contracting Parties in such matters, the
Commission finds that the relatively slight interference with the
applicant's right to respect for his private life can reasonably be
considered as necessary in a democratic society for the prevention of
disorder and crime (cf. para. 60).
CONCLUSION
67. The Commission concludes unanimously that there has been no
violation of Article 8 (Art. 8) of the Convention.
D. Article 13 (Art. 13) of the Convention
(the taking of photographs and their retention)
68. The applicant further relies on Article 13 (Art. 13) of the
Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The applicant submits that no effective remedy, within the
meaning of Article 13 (Art. 13), was available to him under Austrian
law to complain about the taking of photographs and their retention.
The Government limit their submissions on this point to the
contention that the first applicant has no arguable claim to complain
about a violation of Article 8 (Art. 8), and that Article 13 (Art. 13)
was, therefore not applicable.
69. The Commission recalls that Article 13 (Art. 13) requires a
remedy in domestic law in respect of grievances which can be regarded
as "arguable" in terms of the Convention (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52;
Powell and Rayner judgment of 21 February 1990, Series A no. 172,
pp. 14-15, paras. 31, 33).
70. The Commission refers to its above finding that the taking of
photographs and their retention did not amount to an interference with
the applicant's right to respect for his private life (see above
paras. 48-51). In these circumstances, the Commission finds that the
applicant's claim that the taking of photographs and their retention
amounted to a violation of his right to respect for his private life
cannot be regarded as "arguable" for the purposes of Article 13
(Art. 13).
71. Article 13 (Art. 13) therefore does not apply.
CONCLUSION
72. The Commission concludes, by 14 votes to 9, that there has been
no violation of Article 13 (Art. 13) of the Convention as regards the
complaint about the absence of an effective remedy against the taking
of photographs and their retention.
E. Article 13 (Art. 13) of the Convention
(the questioning and storing of personal data)
73. The applicant further submits that no effective remedy, within
the meaning of Article 13 (Art. 13), was available to him under
Austrian law to complain about the questioning and storing of personal
data, which he regarded as violation of his right to respect for his
private life, as guaranteed by Article 8 (Art. 8).
74. The Government maintain that the first applicant has no arguable
claim to complain about a violation of Article 8 (Art. 8), and that
Article 13 (Art. 13) is, therefore, not applicable.
75. The Commission refers to its above finding that the questioning
of the applicant and the recording of his personal data as well as
their storing amounted to an interference with his right to respect for
his private life which could, taking into account the margin of
appreciation falling to the Contracting Parties in such matters,
reasonably be considered as necessary in a democratic society for the
prevention of disorder and crime (see above paras. 52-66). In these
circumstances, the Commission finds that the applicant's claim that the
questioning and the recording as well as the storing of his personal
data amounted to a violation of his right to respect for his private
life is "arguable" for the purposes of Article 13 (Art. 13).
76. Article 13 (Art. 13) does, therefore, apply.
77. The Commission further notes that the applicant, in his complaint
to the Austrian Constitutional Court dated 21 March 1988, raised these
issues. The Constitutional Court, in its decision of 13 December 1988,
declared these aspects of the applicant's complaint inadmissible on the
ground that they related to police activities which, in accordance with
its constant case-law, did not constitute an order or the use of
physical force, and thus no administrative coercion against a specific
person within the meaning of Art. 144 para. 1, second sentence, of the
Constitution. Consequently, the constitutional complaint did not
constitute an effective remedy.
78. The Government have not suggested any other remedy available to
the applicant to complain about the questioning, the recording and the
storing of his personal data by the police authorities.
79. In these circumstances, the Commission finds that there was no
effective remedy as regards the applicant's complaint under Article 8
para. 1 (Art. 8-1).
CONCLUSION
80. The Commission concludes, by 19 votes to 4, that there has been
a violation of Article 13 (Art. 13) of the Convention as regards the
applicant's complaint about the absence of an effective remedy against
the questioning and recording of his personal data.
F. Recapitulation
81. The Commission concludes unanimously that there has been no
violation of Article 8 (Art. 8) of the Convention (para. 67).
82. The Commission concludes, by 14 votes to 9, that there has been
no violation of Article 13 (Art. 13) of the Convention as regards the
applicant's complaint about the absence of an effective remedy against
the taking of photographs and their retention (para. 72).
83. The Commission concludes, by 19 votes to 4, that there has been
a violation of Article 13 (Art. 13) of the Convention as regards the
applicant's complaint about the absence of an effective remedy against
the questioning and recording of his personal data (para. 80).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Application No. 15225/89
FRIEDL v. Austria
Concurring opinion by Mr. H. Danelius
(in regard to Article 13 of the Convention)
As regards the absence of a legal remedy against the taking of
photographs of the applicant and the retention of the photographs, I
voted with the majority of the Commission in finding that Article 13
of the Convention had not been violated (para. 72 of the Report). My
opinion on this point is based on the following considerations.
According to the case-law of the European Court of Human Rights,
the right to a legal remedy in Article 13 applies only where a person
has an "arguable claim" of a violation of the Convention. The Court has
explained further that it is difficult to consider a claim which is
"manifestly ill-founded" under Article 27 of the Convention to be
"arguable" for the purposes of Article 13 and vice versa (Eur. Court
H.R., Powell and Rayner judgment of 21 February 1990, p. 14-15,
para. 33). It is even more difficult to consider a claim which is
"incompatible" with the Convention within the meaning of Article 27 of
the Convention to be nevertheless "arguable" insofar as Article 13 is
concerned.
The right to respect for a person's private life, which is
protected by Article 8 of the Convention, is a vague concept which can
be subject to different interpretations. Many different matters could
be said to affect, in one way or another, a person's private life, and
it is the task of the Convention organs to set reasonable limits to the
area within which Article 8 is applicable or, in other words, to
determine which acts are interferences with the right to respect for
private life and which acts are not to be regarded as such
interferences.
In the present case, the Commission has made a distinction
between, on the one hand, the taking of photographs of the applicant
and the retention of the photographs taken and, on the other hand, the
questioning of the applicant in order to establish his identity and the
recording of his personal data. The Commission considered that the
former measures did not, in the circumstances, constitute an
interference with the applicant's right to respect for his private
life, whereas the latter measures did constitute such interference,
although they were justified because the conditions in paragraph 2 of
Article 8 were satisfied.
The reason why the taking of photographs and the retention of the
photographs were not regarded as an interference could be said to be
mainly that, when the photographs were taken, the applicant was in a
public place where anyone is in principle free to take photographs and
where the taking of photographs can, in most circumstances, be
considered a trivial act which must be tolerated by others, although
some persons may indeed consider it unpleasant that someone else should
take their photograph.
In a previous case referred to in para. 48 of the Report
(No. 18395/91, Dec. 7.12.92), the Commission, on somewhat similar
grounds, found that where photographs which happened to be available
to the authorities were used for the purpose of identifying offenders,
this did not amount to an interference with the private life of the
persons who appeared on the photographs. The complaint in that case,
which was based on Article 8 of the Convention, was even considered to
be manifestly ill-founded.
In my opinion, it would be to require too much, if Article 13
were to be interpreted so as to give a right to a legal remedy in
regard to various trivial acts, such as the taking of a photograph in
a public place, where the acts at issue are in the end found not even
to constitute an interference with the right protected under
Article 8 and are thus considered to fall outside the limits within
which that Article provides protection.
For these reasons, I voted with the majority of the Commission
on the question as to whether the absence of a remedy in regard to the
taking of photographs of the applicant and the retention of the
photographs constituted a violation of Article 13 of the Convention.
I should add, for the sake of clarity, that I also agreed with
the majority in finding that Article 13 had been violated as regards
the absence of a remedy against those acts which the Commission had
considered to constitute interferences with the applicant's right to
respect for his private life, i.e. the questioning in order to
establish the applicant's identity and the recording of his personal
data (para. 80 of the Report).
(Or. English)
PARTLY DISSENTING OPINION OF MM. C.A. NØRGAARD, H.G. SCHERMERS,
C.L. ROZAKIS, Mrs. J. LIDDY, MM. L. LOUCAIDES, M.P. PELLONPÄÄ,
N. BRATZA, E. KONSTANTINOV, D. SVÁBY
We cannot share the view of the majority of the Commission that
there has been no violation of Article 13 of the Convention regarding
the applicant's complaint about the taking of photographs in the course
of the manifestation, and their retention.
We find that in the light of the facts of the present case and
the nature of the legal issues raised, the applicant's claim that the
taking of the photographs and their retention amounted to a violation
of his right to respect for his private life is "arguable" for the
purposes of Article 13. In this respect, we note that the Commission
declared this complaint admissible on the ground that it raised serious
questions of fact and law which could only be resolved by an
examination as to its merits, and that the Commission reached its
finding that the taking of photographs in question did not constitute
an interference with the applicant's right to respect for his private
life only after detailed consideration.
In our opinion, when a claim has been declared admissible and,
only after detailed consideration, the Commission has found that there
was no violation, it cannot be said that such a claim was not
"arguable".
Article 13 should, therefore, apply. In the circumstances of the
present case, there was no effective remedy as regards the applicant's
complaint under Article 8 para. 1.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
5 June 1989 Introduction of the application
20 July 1989 Registration of the application
Examination of Admissibility
27 May 1991 Commission's decision to invite
the Government to submit observations on
the admissibility and merits of the
application
21 October 1991 Government's observations
7 January 1992 Applicants' observations in reply
30 November 1992 Commission's decision to declare the
applicant's complaints under Article 8 and
under Article 13 in conjunction with
Article 8 of the Convention admissible,
and to declare the applicant's complaint
under Article 11 of the Convention
inadmissible.
3 February 1993 Government's supplementary observations
Examination of the merits
4 September 1993) Commission's consideration of the state of
15 January 1994 ) proceedings
9 May 1994 Commission's deliberations on the
merits and final vote
19 May 1994 Adoption of the Report
Full & Egal Universal Law Academy