AS TO THE ADMISSIBILITY OF
Application No. 10392/83
by Z.
against Austria
The European Commission of Human Rights sitting in private
on 13 April 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. VANDENBERGHE
Mrs. G.H. THUNE
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 28 March 1983
by Z. against Austria and registered on 20 April 1983 under file No.
10392/83;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 4 March 1985 to invite the
respondent Government to submit specific information
in accordance with Rule 42 para. 2(a) of the Rules of Procedure
- the information submitted by the respondent Government on
6 May 1985 and the comments in reply submitted
by the applicant on 10 June 1985;
_ the Commission's decisions of 12 October 1985 and
11 October 1986 to adjourn the examination of the case
pending the outcome of the applicant's negotiations with
the competent Austrian authorities;
- the repeated reports of the applicant on the progress of his
negotiations, the latest information dated January 1988;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, which do not appear to be in dispute
between the parties, may be summarised as follows.
The applicant is an Austrian citizen born in 1936 who resides
in Salzburg. He is a practising lawyer and as such authorised to
represent clients in social security cases. His office is equipped
with a computer terminal. The applicant is also himself included in
the social security system under the General Social Security Act
(Allgemeines Sozialversicherungsgesetz).
The 32nd Amendment to the Act (Fed. Law Gazette No. 704/1976)
which came into force on 1 January 1977 provided for the introduction
of a computerised legal information system covering the area of social
security law. The relevant provisions have been modified by the 34th
Amendment to the Act (Fed. Law Gazette No. 530/1979), which came into
force on 1 January 1983. S. 31 para. 8 of the Act in the version of
these amendments provides that the information system will cover in
particular all relevant legal provisions and their amendments as well
as the case-law and doctrine relating to them. The documentation will
be prepared and kept up to date by the Head Office of the Social
Security Institutions (Hauptverband der Sozialversicherungsträger) in
co-operation with the Federal Ministry of Social Affairs (Bundes-
ministerium für Soziale Verwaltung) in such a way that the recorded
information can be used by the Ministry, the individual Social
Security institutions and the Head Office as well as the legislative
bodies of the Federation. Access must be granted to these bodies and
the courts dealing with social security disputes (Leistungssachen).
Acces must further be granted on payment of costs to professional
organisations of public law (gesetzliche berufliche Vertretungen),
provided that the technical and organisational possibilities so
permit, and under the same conditions it may also be granted to "other
entities and persons" (andere Stellen und Personen).
In 1980 the applicant lodged a motion to challenge this
legislation (Antrag auf Gesetzesaufhebung) with the Constitutional
Court (Verfassungsgerichtshof). He invoked in particular Article 10
(the right to receive information) read in conjunction with Article 14
of the Convention. He complained that the access to the computerised
legal information system was restricted and was not granted to
everybody as of right.
On 30 November 1982 the Constitutional Court declared the
applicant's motion inadmissible for lack of standing. The Court
considered that he was merely economically affected and had not shown
an immediate interference with his constitutional rights.
In June 1985 the applicant entered into negotiations with the
Head Office of the Social Security Institutions about a possible
access to the information system and in particular its financial
implications.
On 20 February 1986 S. 31 para. 8 of the Social Security Act
was amended to the effect that it provides, within the limits of
technical and operational possibilities and on payment of costs, for a
general right of access to this information system (41st Amendment -
Fed. Law Gazette No. 111/86, 5 March 1986).
In July 1987 the Head Office of the Social Secuirty
Institutions informed the applilcant that it estimated the necessary
investment for technical installations enabling his access to the
information system at about 50.000 AS and the costs of use per hour at
AS 2000. Considerations to use the existing, allegedly cheaper cable
distribution system (Bildschirmtext) run by the postal administration
have apparently not been pursued.
COMPLAINTS
The applicant has originally complained under Article 10 read
alone and in conjunction with Article 14 of the Convention that under
the terms of the Social Security Act as amended in 1979 and 1983 he
had no right of access to the legal information system. Having regard
to the legal situation following the 41st Amendment in 1986, he now
complains in particular that the envisaged costs for technical
installations and use of this information system are prohibitive. He
considers that the State is obliged under Article 10 of the Convention
to contribute to an effective right of access to an existing
information system and, therefore, to provide for the technical
facilities of access to this system at reasonable prices.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced 28 March 1983 and registered on
20 April 1983.
On 4 March 1985 the Commission decided to request the
respondent Government to submit specific information in accordance
with Rule 42 para. 2(a) of its Rules of Procedure as regards the
regulations concerning access to the information system. The
information by the Government dated 6 March 1985 was received on
7 March 1985. The applicant's comments of 10 June 1985 arrived on
13 June 1985.
On 12 October 1985 and 11 October 1986 the Commission, upon
the applicant's respective requests dated 3 September 1985 and 17 July
1986, decided to adjourn the examination of the case pending his
negotiations with the competent Social Security bodies.
THE LAW
The applicant complains under Article 10 (Art. 10) of the
Convention that he has no effective right of access to the
computerised legal information system on social security law set up by
the Austrian Social authorities.
It is true that Article 10 para. 1 (Art. 10-1) of the
Convention provides, inter alia, that everyone has the right to
freedom of expression, including freedom to receive information
without interference by public authority.
The Commission recalls that the freedom to receive information
guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention is
primarily a freedom of access to general sources of information which
may not be restricted by positive action of the authorities (cf. No.
8383/78, Dec. 3.10.79, D.R. 17 p. 227).
In the present case, the Commission notes the applicant does
not claim information concerning his own personal data, but a right of
access to general information, i.e. documents, jurisprudence etc, on
Austrian social law. Under S. 31 para. 8 of the Social Security Act
as amended in 1986 there is a right of access to the information
system also for private persons. The applicant's claim concerning a
statutory right of access to the information system, having been
satisfied, is not pursued.
It thus remains to be examined whether the necessary
investment for technical installations enabling the access to the
information system and the estimated costs of use raise issues under
Article 10 read alone or in conjunction with Article 14 (Art. 10+14)
of the Convention.
The Commission finds that the applicant has a statutory right
of access to the legal information system as it is set up by the
Austrian authorities primarily for their internal administrative
purposes. When he avails himself of that right he is in principle
subject to the technical facilities of the information system. The
applicant's submissions do not disclose any indication that the
Austrian authorities when setting up the information system
arbitrarily restricted the access of other users or that the estimated
costs for special technical requirements and actual use are
prohibitive and therefore interfere with the applicant's rights under
Articles 10 and 14 (Art. 10+14) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) 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)