AS TO THE ADMISSIBILITY OF
Application No. 11921/86
by Verein "Kontakt-Information-Therapie" (KIT)
and Siegfried HAGEN
against Austria
The European Commission of Human Rights sitting in private
on 12 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 August 1985
by Verein "Kontakt-Information-Therapie" (KIT) and Siegfried Hagen
against Austria and registered on 16 January 1986 under file
No. 11921/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a private association (Verein) engaged
in the operation of rehabilitation centres for young drug abusers. It
was established in Innsbruck in 1974.
The second applicant, an Austrian citizen born in 1953, who
resides in Innsbruck, is a drug rehabilitation therapist employed by
the first applicant.
Both applicants are represented by Mr. Ivo Greiter, a lawyer
practising in Innsbruck.
Originally, the application was introduced on behalf of
the first applicant, which alleged violations of the rights of its
employees and clients ("Der Verein ... fühlt sich in den Menschen-
rechten seiner Mitarbeiter und der betreuten Jugendlichen verletzt").
It was therefore asked to indicate whether the employees concerned by
the domestic proceedings were also applicants, and if so, to give
their particulars. In reply, the applicants' lawyer on 6 February 1987
submitted a power of attorney showing that he represented the second
applicant.
Notwithstanding its status as a private non-profitmaking
organisation, the first applicant was granted State recognition by a
decree of the Federal Minister for Health and Environmental Protection
(Bundesminister für Gesundheit und Umweltschutz), Fed. Law Gazette
No. 435/1981. Under its statutes (Satzung), the association performs
the following tasks in the Province of Tyrol:
- the establishment and management of drug rehabilitation
centres for young drug abusers;
- the promotion and training of skilled personnel and
counsellors;
- the information of the public concerning the problems
facing young drug abusers.
For these purposes, the association employs an average of
about fifteen workers who counsel about thirty to forty young persons.
The association views its work as being grounded on a
relationship of trust between the therapists and their patients. On
admission to one of the rehabilitation centres, the young people are
given an assurance by the employees that any information provided by
them pursuant to their treatment will be held in strictest confidence.
One former patient of the rehabilitation centre of Schwaz, who
had been released on 22 March 1984, subsequently became involved in
criminal proceedings for drug abuse (Suchtgiftmissbrauch), an offence
punishable under Section 16 para. 1 (2) of the Narcotic Drugs Act
(Suchtgiftgesetz). The suspicion was based on information contained
in a letter from the centre of 27 April 1984 that the patient had been
discharged because of a relapse. The letter was typed by a secretary
of the centre, and dictated by either the second applicant or the
other rehabilitation therapist employed at that centre.
The proceedings in question were conducted by the District
Court (Bezirksgericht) of Schwaz which, on 4 October 1984, summoned
the above two therapists to appear as witnesses.
In response to the District Court summons, the first
applicant's board of directors, in its session of 16 October 1984,
announced that neither therapist would be released from his duty not
to disclose confidential information.
The matter was referred to the Regional Court (Landesgericht)
of Innsbruck which, in a decision of 5 February 1985, held that the
two witnesses had no right under the relevant provisions of the Code
of Criminal Procedure (Strafprozessordnung, Sections 151, 152) to
refuse giving evidence. Their evidence was of such importance for
the establishment of the facts of the case that it could not be
dispensed with. For this reason, the Regional Court directed the
District Court to impose penalties (Beugestrafen) should the
therapists maintain their refusal to give evidence. This decision was
served on the second applicant on 3 May 1985.
Notwithstanding this decision, the second applicant and the
other therapist persisted in their refusal to give evidence before the
District Court. On 20 May 1985, the District Court therefore imposed
a fine in the amount of AS 5000.- on each of them, pursuant to Section
160 of the Code of Criminal Procedure.
Against this decision both the second applicant and the other
therapist lodged an appeal (Beschwerde) with the Regional Court. They
submitted, in particular, that their refusal to give evidence was
justified under Section 153 of the Code of Criminal Procedure which
reads as follows:
"If the fact of giving evidence or the answer
to a particular question would bring the witness or one
of his close relatives ... into disgrace (Schande) or
if it would expose them to the risk of criminal prosecution
or to the risk of an immediate and important financial
disadvantage (unmittelbarer und bedeutender vermögens-
rechtlicher Nachteil), and if, for this reason, the
witness refuses to give evidence, he shall be obliged
to give evidence only if this is indispensable because
of the particular importance of his evidence."
It was argued that in the circumstances the fact of giving
evidence would bring the therapists into disgrace because the breach
of confidentiality expressly assured to the accused would be regarded
by the public and in particular by the patients of the rehabilitation
centres as a morally deplorable conduct. The therapists would further
incur a risk of financial disadvantages as it was likely that they
would be dismissed by the first applicant if they breached the rule of
confidentiality which was an essential condition of their employment
and the observance of which had been the subject of specific
instructions by the board of directors in this case. It was
further submitted that there were no indications that the evidence of
the two therapists in the present case was of such importance that it
could not be dispensed with, having regard to the important general
interests at stake. In this connection reference was also made to the
principle of proportionality (Interessenabwägung) and the fact that
the public functions recognised in the Minister's decree would be
undermined if the witnesses were actually compelled to give evidence.
However, the Regional Court rejected the appeal by a decision
of 18 June 1985. It first referred to its earlier decision of
5 February 1985 on which the District Court's decision to impose fines
had been based. In the Regional Court's view the witnesses would not
expose themselves to disgrace if they made true depositions in the
criminal proceedings in question. Their esteem in the general public
would not be reduced if they disclosed information on observations
which they had made in their functions as social workers, but which
did not constitute a breach of trust vis-à-vis the former patient of
the rehabilitation centre who had been discharged a long time ago
allegedly because of a relapse. Even less could there be a question
of breach of trust vis-à-vis the unknown person who had provided this
patient with heroine. Nor could it be assumed that a law-abiding
conduct, namely the giving of evidence which was considered as
indispensable by the competent criminal court, would lead to a
dismissal of the therapists. Only an immediate and important
financial disadvantage was legally relevant, but not any possible and
hypothetical disadvantage. Finally the Court observed that the
conflicting interests had already been weighed against each other in
its earlier decision of 5 February 1985. In conclusion, it had been
found justified in the absence of any other sufficient evidence to
require the witnesses to give evidence. In view of this decision by
which it was bound the District Court had not been obliged to give
detailed reasons. No further remedy was available against this
decision.
On 21 June 1985 the District Court invited the two therapists
to pay the fines within two weeks. However, on 1 July they made an
application to suspend the collection of the fines until a decision of
the Federal President was taken to relieve them by an act of grace of
the obligation to pay the fines. The District Court rejected this
application by a decision of 30 July 1985, finding that it was
inadmissible as the Federal President's right to make acts of grace
did not extend to this type of fines (cf. Section 409a of the Code of
Criminal Procedure).
Thereupon the therapists made a new application for suspension
in view of their request to the Attorney General (Generalprokuratur)
to file a plea of nullity for safeguarding the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes) under Section 33 of the Code of
Criminal Procedure which they had made on 18 July 1985. However, on
14 October 1985, the Attorney General informed the applicants' lawyer
that he saw no reason to lodge a plea of nullity.
The fines plus costs of procedure were subsequently collected
by the Republic of Austria by way of an attachment of earnings of the
two therapists. The first applicant therefore had to pay these sums,
being liable to deduct them from the salaries of its employees.
The therapists persisted in their refusal to give evidence
even after the imposition of the fines. However, no further measures
were subsequently taken against them.
Of the two therapists involved, only the second applicant is
still employed by the first applicant.
COMPLAINTS AND LEGAL SUBMISSIONS
The first applicant, on behalf of its employees and patients,
and the second applicant in his own name allege violations of the
following provisions:
Article 3 of the Convention, and Article 13 read
in conjunction with Article 3
It is submitted that forcing the therapists to give evidence
and thereby to disregard their promise of confidentiality amounts to
degrading treatment or punishment within the meaning of Article 3.
The applicants further claim that, contrary to Article 13, no
effective domestic remedy was provided to them on this particular
point. The issue was raised in the domestic proceedings by arguing
that giving effect to the District Court's summons would bring the
applicants into disgrace. However, the Regional Court generally ruled
out any possibility of disgrace and thus failed to address the
question of whether or not the particular facts involved degrading
treatment or punishment.
Article 9 of the Convention (freedom of conscience)
The case involves a confrontation between demands of the State
and the dictates of individual conscience. The activities of the
first applicant, whose positive function has been recognised by a
Minister's Decree, require a free flow of information between
therapists and clients. An untenable conflict of interests must arise
in any case of disclosure of confidential information given by former
or present clients. The therapists therefore could not, in good
faith, comply with the court's order. By enforcing the order, the
State interfered with the freedom of conscience, as guaranteed by
Article 9 para. 1 of the Convention.
The applicants claim that this interference must be justified
under the criteria of Article 9 para. 2. They do not dispute that the
interference was lawful and had a legitimate purpose. However, they
submit that it was not proportionate to the legitimate aim pursued
and thus was not necessary in a democratic society.
The applicants admit that an unlimited recognition on the part
of the State of the individual's freedom to act in accordance with the
dictates of conscience would be unworkable in a democratic society.
They also admit that there is a "pressing social need" to combat drug
abuse through criminal prosecution of users and dealers. However, the
treatment of young drug addicts in the early stages of their drug
dependence also constitutes a legitimate aim and serves a "pressing
social need", and for this reason the first applicant was granted
State recognition and support as a drug treatment centre.
Treatment in a drug rehabilitation centre can only be
successful in an atmosphere where the young persons have been given
the guarantee that their statements about past drug abuse, made in
confidence during treatment, will, under no circumstances, subsequent
thereto, form the basis of a criminal indictment. The destructive
repercussions inherent in such an eventuality are out of proportion to
the legitimate social goal which might be realised through prosecution
of putative drug recidivists. This bond, based on the promise given
to young drug abusers that their statements relative to treatment
will be kept confidential, is not broken on conclusion of the
treatment, or even when a client is requested to leave the centre, as
was the situation in the present case. For such a bond to arise at
all between social workers and client, the young drug abusers must be
aware that the promise of confidentiality at issue is limited neither
in time nor to the judicial exigencies of the moment. It is this that
the courts failed to grasp. Therefore, it was out of proportion to
the legitimate aim pursued by the court to call the two therapists as
witnesses in the criminal proceedings against their former client, and
to order coercive penalties when they refused to give evidence.
Article 11 of the Convention (freedom of association)
The applicants claim that the court order restricted the
ability of the drug rehabilitation centre's employees to meaningfully
or effectively associate with the young clients. It thus also
constituted an interference with the freedom of association as
guaranteed by Article 11. As regards the lack of justification of
this interference, the applicants repeat the arguments used under
Article 9 para. 2.
Article 14 of the Convention (in conjunction
with Articles 9 and 11)
The applicants invoke the Court's case law, according to which
there may be discrimination contrary to Article 14 of the Convention
even where a State goes beyond its Convention-based obligations (Eur.
Court H.R., judgment of 23 July 1968 in the Belgian Linguistic case,
Series A no. 6, p 24; Rasmussen judgment of 28 November 1984, Series A
no. 87, p. 13 para. 35; Abdulaziz, Cabales and Balkandali judgment of
28 May 1985, Series A no. 94, p. 39 para. 82). They claim that in the
present case there is a difference of treatment as regards the right to
refuse giving evidence which is recognised in the Austrian Code of
Criminal Procedure for members of certain professional groups in
respect of information which has become known to them through
consultation with their clients. It is submitted that the therapists
of the drug rehabilitation centres perform a hybrid service comparable
in many respects to that provided by medical practitioners (the
physiological aspect of the treatment), by priests and psychiatrists
(spiritual and psychological aspects) and by attorneys (discussion of
legal aspects arising from the clients' drug addiction). In view of
the analogous situation it is allegedly unjustified and discriminatory
to treat the therapists less favourably than members of these
professional groups. In the applicants' view the reasonable
relationship of proportionality required by Article 14 has not been
respected in the present case, having regard in particular to the
disruptive consequences of the different treatment for the legitimate
functions of the drug rehabilitation centres and the chilling effect
on the social worker-client relationship.
Article 1 of Protocol No. 1 to the Convention
The applicants finally claim a violation of their right to the
peaceful enjoyment of their possessions.
THE LAW
1. The applicants, a private association which runs a drug
rehabilitation centre - the first applicant - and one of the social
workers employed at this rehabilitation centre - the second applicant
- complain in substance that the second applicant and another social
worker were required to give evidence in criminal proceedings against
a former client of the rehabilitation centre in question. They
consider that this requirement involved breaches of Articles 3, 9, 11,
13 and 14 (Art. 3, 9, 11, 13, 14) of the Convention and Article 1 of
Protocol No. 1 (P1-1).
The Commission notes, however, that only the second applicant
was a party to the domestic proceedings while the first applicant was
but indirectly concerned by those proceedings. The Commission further
notes in this context that the first applicant only alleges violations
of the rights of its employees and clients ("der Verein ... fühlt sich
in den Menschenrechten seiner Mitarbeiter und der betreuten
Jugendlichen verletzt"). The question therefore arises whether the
first applicant can be regarded as a proper applicant for the purposes
of Article 25 (Art. 25) of the Convention.
According to this provision the Commission may receive
petitions "from any person, non-governmental organisation or group of
individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in [the] Convention".
As a private association, the first applicant is a
"non-governmental organisation" within the meaning of this provision
notwithstanding the recognition by a ministerial decree that it
fulfils functions of public interest. However, the association does
not claim to be a victim of a violation of its own Convention rights.
Moreover, the rights primarily invoked, i.e. the right to freedom of
conscience under Article 9 (Art. 9) of the Convention and the right
not to be subjected to degrading treatment or punishment (Article 3)
(Art. 3), are by their very nature not susceptible of being exercised
by a legal person such as a private association. Insofar as Article 9
(Art. 9) is concerned, the Commission considers that a distinction
must be made in this respect between the freedom of conscience and the
freedom of religion, which can also be exercised by a church as such
(cf. No. 7805/77, X and Church of Scientology v. Sweden, Dec.
5.5.79, D.R. 16 p. 68). The Commission concludes that the first
applicant would be debarred from bringing an application invoking
Articles 3 or 9 (Art. 3, 9) of the Convention in its own name.
In these circumstances the Commission considers that the first
applicant does not fulfil the conditions of Article 25 (Art. 25). The
application must accordingly be rejected under Article 27 para. 2
(Art. 27-2) of the Convention as being incompatible, ratione personae,
with the provisions of the Convention, insofar as it has been brought
by the first applicant.
2. The second applicant, a "person" in the sense of Article 25,
(Art. 25) was directly concerned by the domestic proceedings and
alleges a violation of his own Convention rights. The Commission
finds that he is a proper applicant within the meaning of Article 25
(Art. 25).
a) The second applicant first complains that his obligation to
give evidence regarding a former patient of the rehabilitation centre,
to whom an assurance of confidentiality had been given, amounted to
inhuman or degrading treatment within the meaning of Article 3 (Art.3)
of the Convention. He further alleges that, contrary to Article 13
(Art. 13) of the Convention, he did not have an effective domestic
remedy at his disposal by which he could raise this issue.
With regard to the complaint under Article 13 (Art. 13) the
Commission notes that the second applicant challenged the court order,
claiming that giving the required evidence would bring him into
disgrace. The Commission is satisfied that in this way he raised, in
substance, the issue of degrading treatment although he did not
expressly refer to Article 3 (Art. 3) of the Convention. As this
provision is part of the constitutional law of Austria, the second
applicant could have invoked it and the criminal courts would have
been obliged to deal with an argument based on this Article. In these
circumstances there is no appearance of a violation of the second
applicant's right under Article 13 (Art. 13) , and his complaint in
this respect must be rejected as being manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The Commission further finds that the second applicant has, as
required by Article 26 (Art. 26) of the Convention, exhausted the
domestic remedies in respect of his complaint under Article 3 (Art. 3)
of the Convention. It recalls its consistent case-law according to
which domestic remedies must be considered as having been exhausted if
the applicant, even without quoting the relevant provision of the
Convention, has submitted, in substance, to the domestic authorities
the claim he is bringing before the Commission (cf. e.g. No. 9228/80,
Dec. 16.12.82, D.R. 30 p. 132). As already stated, the present
applicant, in substance, raised the argument of degrading treatment by
alleging that compliance with the court orders complained of would
bring him into disgrace. His complaint under Article 3 (Art. 3) of
the Convention accordingly cannot be rejected under Article 27 para. 3
(Art. 27-3) for failure to exhaust domestic remedies.
However, the Commission does not find that the court order to
give evidence constituted inhuman or degrading treatment within the
meaning of Article 3 (Art. 3) of the Convention. The obligation to
give the required evidence did not attain the level of severity which
is required by this provision. This part of the application therefore
is also manifestly ill-founded.
b) The second applicant further complains that the court order to
give evidence violated his freedom of conscience as guaranteed by
Article 9 (Art. 9) of the Convention and his freedom of association as
guaranteed by Article 11 (Art. 11) of the Convention. He also
complains that in respect of these rights he has been discriminated
against, contrary to Article 14 (Art. 14) of the Convention, in that
as a social worker he was treated differently from other professional
groups with similar functions. The applicant finally complains that
the fine imposed on him constituted an unjustified interference with
his right to the peaceful enjoyment of his possessions as guaranteed
by Article 1 of Protocol No. 1 (P1-1) to the Convention.
It is true that Article 9 (Art. 9) of the Convention applies,
inter alia, to manifestations based on an individual's personal
conscience (cf., mutatis mutandis, No. 7050/75, Arrowsmith v. United
Kingdom, Comm. Rep. 12.10.78, D.R. 19 p. 5, paras. 69 et seq.).
Article 11 (Art. 11) of the Convention guarantees, inter alia, the
freedom of association. Article 14 (Art. 14) of the Convention secures
the principle of non- discrimination in respect of the rights and
freedoms set forth in the Convention, including the aforementioned
freedoms guaranteed by Article 9 and 11 (Art. 9, 11). Article 1 of
Protocol No. 1 (P1-1) finally secures everyone the right to the
peaceful enjoyment of his possessions.
However, the Commission is not required to decide whether or
not the facts alleged by the second applicant disclose any appearance
of violations of the above provisions as, under Article 26 (Art. 26)
of the Convention, it may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised
rules of international law. The mere fact that the second applicant
has submitted his case to the competent courts does not in itself
constitute compliance with this rule. It is also required that the
substance of any complaint made before the Commission should have been
raised during the proceedings concerned. In this respect the
Commission refers to its established case-law (see e.g. No. 1103/61,
Yearbook 5, pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3, pp. 10,
15; No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120).
In the present case the second applicant did not raise, either
in form or substance, in the proceedings before the District Court of
Schwaz and the Regional Court of Innsbruck, the complaints which he now
makes before the Commission. He did not invoke any of the Convention
Articles referred to above, although they form part of the constitutional
law of Austria and must thus be taken into account by the courts when
interpreting and applying provisions of the ordinary law such as
Section 153 of the Code of Criminal Procedure. The Commission notes,
in particular, that the applicant neither expressly nor implicitly
invoked his constitutional right to freedom of conscience. The fact
that he referred to the possibility that giving evidence might
bring him into disgrace cannot be seen as an invocation of this
constitutional right. Nor did the applicant raise the problem of
discrimination in comparison with other professional groups by
invoking, for example, his constitutional right to equality before the
law.
Moreover, an examination of the case does not disclose the
existence of any special circumstances which might have absolved the
second applicant, according to the generally recognised rules of
international law, from raising his complaints in the proceedings
referred to.
It follows that the second applicant has not complied with the
conditions as to the exhaustion of domestic remedies in this respect
and his above complaints must accordingly be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)