G.L. AND L.G.P. v. AUSTRIA

FOURTH SECTION

DECISION

Application no. 51235/19
G.L. and L.G.P.
against Austria

The European Court of Human Rights (Fourth Section), sitting on 7 November 2023 as a Committee composed of:

 Tim Eicke, President,
 Branko Lubarda,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 51235/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 September 2019 by an Austrian national, Mr G.L., who was born in 1955 and lives in Vienna (“the first applicant”), and L.G.P., an Austrian limited liability company (“the second applicant”), both represented by Ms T.A. Urdaneta Wittek, a lawyer practising in Vienna;

the decision not to have the applicants’ names disclosed;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The first applicant is a lawyer and runs a law firm, the second applicant. On 20 April 2018 the Austrian National Assembly set up a parliamentary investigative committee (parlamentarischer Untersuchungsausschuss, hereinafter “the investigative committee”) to examine political influence on the Federal Office for the Protection of the Constitution and Counterterrorism (Bundesamt für Verfassungsschutz und Terrorismusbekämpfung). Among other things, the investigative committee examined the allegedly unlawful handling of data by the Federal Office, including the applicants’ data.The applicants’ first complaint and request for interim measure

2.  On 1 September 2018 the applicants lodged a complaint with the Constitutional Court pursuant to Article 138b of the Federal Constitution (see paragraph 3 below) in combination with section 56i of the Constitutional Court Act submitting that their personal rights had been violated by the investigative committee which had unlawfully requested that the Federal Ministry for the Constitution, Reforms, Deregulation and Justice (hereinafter “the minister”) transmit the applicants’ confidential data from a criminal investigation file (see G.L. and L.G.P. v. Austria, no. 31702/18, examined separately by the Court). The minister had transmitted the requested data at classification level 1 (“restricted”) pursuant to section 4 of the Federal Act on the Information Rules of the National Assembly and the Federal Assembly (Bundesgesetz über die Informationsordnung des Nationalrates und des Bundesrates (Informationsordnungsgesetz), hereinafter “the Information Rules Act”) although they were, according to the applicants, protected by professional secrecy and not the subject of the investigation carried out by the investigative committee.

3.  Article 138b of the Federal Constitution provides that the Constitutional Court decides on complaints of persons who claim that their personal rights have been infringed due to the conduct of an investigative committee of the National Assembly, of a member of such a committee in exercising his or her profession as a member of the National Assembly or of persons exercising their function within the proceedings before the investigative committee. Article 56i of the Constitutional Court Act provides certain procedural requirements for a constitutional complaint under Article 138b of the Federal Constitution, including a time-limit of six weeks from gaining knowledge of the impugned conduct.

4.  In their complaint, the applicants requested that the Constitutional Court declare unlawful a) the request for the applicants’ data by the investigative committee, b) the insistence on their transmission and c) the continuous possession (fortlaufende Besitznahme), storage and use of the data by the investigative committee as well as their having been made accessible to the members of the committee. Furthermore, the applicants asked to have declared unlawful the failure to reply d) to their request to return the data and e) to their request to have the investigative committee make a proposal for the reclassification of the data pursuant to section 6 of the Information Rules Act from level 1 (“restricted”, see paragraph 2 above) to level 4 (“top secret”) according to the classification levels in section 4 of that act (ibid.).

5.  On 2 October 2018 the applicants lodged a corresponding request for an interim measure under section 20a of the Constitutional Court Act.The applicants’ second complaint and request for interim measure

6.  On 6 November 2018 the applicants lodged another complaint with the Constitutional Court under Article 138b of the Federal Constitution (see paragraph 3 above) in combination with section 56i of the Constitutional Court Act. They argued that, in a letter dated 26 September 2018 to the investigative committee, the minister had retroactively and with immediate effect raised the classification of the data from level 1 to level 3 (“secret”) according to the classification levels in section 4 of the Information Rules Act (see paragraph 2 above).

7.  As far as relevant for the application at issue, the applicants requested that the Constitutional Court declare unlawful the alleged refusal of the investigative committee, its officials and the president of the National Assembly to comply with the minister’s reclassification of the data, including their refusal to delete electronic data and to restrict access. They also asked to have declared unlawful the continued treatment of the data under level 1. The higher classification level would have led to more thorough protection of the data. Thus, the failure to comply with the reclassification infringed the applicants’ personal rights.

8.  With their complaint dated 6 November 2018 (see paragraph 6 above), the applicants also lodged a request for an interim measure, requesting that the Constitutional Court order the investigative committee, the National Assembly and its president to comply with the reclassification of the data.The Constitutional Court’s decision on the applicants’ first complaint and both requests for interim measures

9.  On 11 December 2018 the Constitutional Court rejected the applicants’ complaint dated 1 September 2018 (see paragraph 2 above) in its decision no. UA 2/2018-17. It held that, as regards points a) to c) of the complaint (see paragraph 4 above), it had been lodged belatedly, that is more than seven weeks after the applicants had gained knowledge of the impugned conduct (see paragraph 3 above). As to point d) of the complaint (ibid.), it found that there had been no legal basis to request the return of the data.

10.  As regards point e) of the complaint (ibid.) the Constitutional Court held that the Information Rules Act did not grant the applicants a right to challenge the classification of information in the sphere of the National Assembly which had been made pursuant to the classification levels of section 4 of that act, be it in a complaint under Article 138b of the Constitution (see paragraph 3 above) or otherwise. An appeal to the Constitutional Court on the grounds of alleged unlawfulness of the classification level was available only to the authority that had been obliged to transmit the information. An appeal by an affected person was ruled out even if he or she alleged an infringement of personal rights. The complaint was therefore inadmissible. In the light of its decision on the inadmissibility of the main complaint, the Constitutional Court did not find it necessary to rule on the corresponding request for an interim measure of 2 October 2018. The decision was served on the applicants on 20 December 2018.

11.  On the same day, in its decision no. UA 4/2018-13, the Constitutional Court did not grant the applicants’ second request for an interim measure dated 6 November 2018 (see paragraph 8 above). Referring to its decision no. UA 2/2018-17 (see paragraph 9 above), it reiterated that Article 138b of the Federal Constitution did not provide for an appeal to the Constitutional Court by a person affected by information which had been transmitted to the National Assembly (see paragraph 10 above). Since it was therefore evident that the main complaint dated 6 November 2018 (see paragraph 6 above) was inadmissible, there was no basis for an interim measure. The decision was served on 20 December 2018.The Constitutional Court’s decision on the applicants’ second complaint

12.  On 13 March 2019 the Constitutional Court rejected the applicants’ complaint dated 6 November 2018 (see paragraph 6 above) for being inadmissible. It held that it had already ruled in its decision no. UA 2/2018‑17 dated 11 December 2018 (see paragraphs 9-10 above) that the applicants could not appeal to the Constitutional Court pursuant to Article 138b of the Federal Constitution to challenge the classification of information under the Information Rules Act. It saw no reason to depart from that decision. Reference was also made to the decision on the interim measure, no. UA 4/2018-13 (see paragraph 11 above). The decision was served on 26 March 2019.

THE COURT’S ASSESSMENT

13.  The applicants complained that the failure to comply with the minister’s reclassification of their data from level 1 to level 3 (see paragraph 6 above) and the transmission and use of their data contrary to professional secrecy (see paragraph 2 above) constituted unlawful interferences with their rights under Article 8 of the Convention. Relying upon Article 13, in combination with Article 8 of the Convention, they also complained that the Constitutional Court’s interpretation of the law, to the effect that the applicants could not lodge a complaint under Article 138b of the Federal Constitution, deprived them of their right to an effective remedy.

14.  The six-month period provided for in Article 35 § 1 of the Convention, as in force at the time of the applicants’ application to the Court, runs from the date of the final decision in the process of exhaustion of domestic remedies. If an applicant has recourse to a remedy which is doomed to fail from the outset, the decision on that appeal cannot be taken into account for the calculation of the six-month period (see Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018, with further references). Where it is not clear from the outset that a remedy is ineffective, but there are doubts as to its effectiveness, the remedy should be tried and the applicant cannot be reproached for having done so (Červenka v. the Czech Republic, no. 62507/12, § 121, 13 October 2016). However, where an applicant becomes aware, or should have become aware, of the circumstances which make that remedy ineffective, the six-month period may be deemed to run from that moment (Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).

15.  The applicants argued that the final decision with regard to their complaints was the Constitutional Court’s second decision dated 13 March 2019 which was served on them on 26 March 2019 (see paragraph 12 above). According to the applicants’ argument, their application lodged with the Court on 26 September 2019 thus complied with the six-month time-limit.

16.  The Court does not agree with the applicants’ view. Rather, the final decision on the applicants’ first complaint relating to the use of their data in the investigative committee and their classification level pursuant to the Information Rules Act had been taken by the Constitutional Court on 11 December 2018 (see paragraphs 9-10 above). In that decision the Constitutional Court ruled that those parts of the applicants’ complaint which related to the investigative committee’s request for transmission of the data at issue and their use had been lodged belatedly (see paragraphs 3 and 9 above). Furthermore, the Constitutional Court found that they did not have a right to lodge a complaint under Article 138b of the Federal Constitution to challenge the classification level of the data (see paragraph 10 above).

17.  The Court notes that the applicants lodged a further complaint (accompanied by a request for interim measures) with the Constitutional Court under Article 138b of the Federal Constitution on a closely related matter (see paragraphs 6-8 above) on 6 November 2018, that is shortly before the Constitutional Court’s above-mentioned decision of 11 December 2018 on their first complaint. While it cannot be said that recourse to this remedy was doomed from the outset, its ineffectiveness must have been evident to the applicants at the latest from the Constitutional Court’s above-mentioned decision (UA 2/2018-17) on this first complaint relating to the classification level of their data under the Information Rules Act and its decision (UA 4/2018-13) on their request for an interim measure, also taken on 11 December 2018, in which it considered the main complaint to be inadmissible. Both decisions were served on the applicants on 20 December 2018 (see paragraphs 10-11 above). The applicants themselves acknowledged in their application to the Court that the Constitutional Court had already stated in its decision no. UA 2/2018-17 dated 11 December 2018 (see paragraph 9 above) that persons affected by the classification level of data could not lodge an appeal pursuant to Article 138b of the Federal Constitution (see paragraph 10 above). Consequently, once that decision had been served on the applicants on 20 December 2018, they were aware that their second complaint pursuant to Article 138b of the Federal Constitution was not effective.

18.  Given that the decision of the Constitutional Court served on 20 December 2018 was final and that the application to the Court was submitted on 26 September 2019, it must be rejected in accordance with Articles 35 §§ 1 and 4 of the Convention for non-compliance with the six‑month time-limit.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

 Ilse Freiwirth Tim Eicke
 Deputy Registrar President

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