CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 15220/89                       by S.                       against Austria         The European Commission of Human Rights sitting in private on 3 May 1993, the following members being present:   Present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI              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 5 June 1993 by S. against Austria and registered on 19 July 1989 under file No. 15220/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:                                                      THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant, born in 1950, is an Austrian national resident in Vienna.   Before the Commission he is represented by Mr. T. Prader, a lawyer practising in Vienna.     A.     Particular circumstances of the case         On 25 March 1983 the applicant unsuccessfully applied for the post of a librarian at the Federal Chancellery.         On 15 May 1988 the applicant received from an anonymous sender a copy of his personal file which had been established by the Federal Chancellery upon his job application in 1983.   It follows from this file inter alia that on 1 June 1983 the Federal Chancellery had ordered the internal police department of the Chancellery to conduct police investigations in respect of the applicant on the ground that his application concerned an administrative grade (höherer Dienst). The file contains the report of a police officer of the Vienna Federal Police Department (Bundespolizeidirektion) dated 28 June 1983 which relates first to the applicant's personal data such as date and place of birth, nationality, place of residence and previous places of residence (one of the addresses accompanied by the remark "as member of a commune" - "als Mitglied einer Kommune"), and then refers to the results of police investigations. The relevant part reads as follows:   <German>              "Dr. [S.] ... ist in der ha. Evidenz in       staatspolizeilicher Hinsicht folgend vorgemerkt:       1970 - Festnahme wegen unbefugten Plakatierens;       1975 - Kundgebungen in verschiedenen Bezirken Wiens;       1976 - Zusammenkünfte der KBÖ-AKW-Gruppen um radikale Maßnahmen              zu planen;       1977 - Teilnehmer einer Arbeitsbesprechung der AKW-Gegner;       1978 - Teilnehmer der WOGA-Konferenz (Wr. Organisation gegen              Atomkraftwerke);              Teilnehmer einer Veranstaltung der AKW-Gegner in              Zwentendorf;              Unterzeichner der Unterstützungserklärung für den              Kommunistischen Bund bei den Wr. Gemeinderatswahlen.       Im Strafregister der BPD-Wien scheint keine Verurteilung auf."     <translation>              "On Dr. [S.] ... the following has been recorded in the       official data base of this department:       1970 - arrest for unlawful posting;       1975 - demonstrations in various districts of Vienna;       1976 - meetings of groups of the "KBÖ-AKW" <Austrian Communist              Union - nuclear power plants> in order to plan extremist              activities;       1977 - participant in a discussion of activities of opponents to              "AKW";       1978 - participant in the "WOGA"-conference (Vienna Organisation              against Nuclear Power Plants);              participant in a meeting of the opponents to "AKW" in              Zwentendorf;              signer of the declaration of support for the Communist              Union on the occasion of the elections to the Vienna              Municipal Council.       There are no entries in the criminal record at the Vienna Federal       Police Department."         On 23 June 1988 the applicant, represented by his lawyer Mr. Prader, lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).   He submitted that the police surveillance during the period from 1970 until 1978 and the transfer of the data collected to the Federal Chancellery in 1983 violated his right under Article 8 para. 1 of the Convention.   As regards the competence of the Constitutional Court he argued that the Court, having regard to the Commission's report of October 1985 in the "Plattform Ärzte für das Leben" case, should change its case-law concerning challengeable acts of State organs.         On 13 July 1988 the Federal Chancellery, in observations upon the applicant's complaint stated that, according to various differences in entry stamps etc., the applicant's copy of his personal file had been made during the period from 11 July until 3 or 4 August 1983. However, it could no longer be established who had made this copy and how the applicant had received it.         On 27 February 1989 the Constitutional Court declared the applicant's complaint inadmissible. The Constitutional Court found in particular that the applicant could not complain about the alleged surveillance by police authorities, nor the compilation of the results of such investigations and the transfer of data to other authorities, on the ground that such police activities 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 gegen eine bestimmte Person) within the meaning of S. 144 para. 2, second sentence, of the Federal Constitution (Bundes- Verfassungsgesetz).   In this respect, the Constitutional Court referred to its latest decisions of 13 December 1988 where it quoted extensively legal doctrine opposed to the Constitutional Court's interpretation suggesting a wider understanding of the term "exercise of direct administrative power and compulsion against a particular person" and previous decisions of 1983, 1984, 1985.   In any event, the applicant had not sufficiently substantiated and proved his allegations.         Furthermore, on 16 May 1988 the applicant requested the Vienna Federal Police Department (Bundespolizeidirektion) to inform him what personal data about him had been compiled and recorded.   On 5 July 1988 the Police Department informed him that it had registered his name, birth date, nationality, his places of residence in the course of his life, the date and category of his driving licence, and that he had notified several demonstrations in different districts of Vienna in 1975.   Moreover, other police stations had registered a traffic offence as well as a case of unlawful posting on 14 May 1970.   Further entries, documents or data were not available. The registered data had not been transferred to any other authority.         On 13 December 1988 the Vienna Federal Police Department dismissed the applicant's request for access to all files upon which the report of 28 June 1983 had been based. The Department ruled that he was not party to any particular administrative proceedings and did not therefore have a right to consult administrative files.   The applicant's appeals were unsuccessful.         On 16 January 1991 the applicant lodged a complaint with the Data Protection Commission (Datenschutzkommission) under Section 1 para. 1 of the Data Protection Act (Datenschutzgesetz) about the transfer of his personal data to the Federal Chancellery.         On 7 November 1991 the Data Protection Commission found that the Vienna Federal Police Directorate had violated Section 1 para. 1 of the Data Protection Act by transferring several data to the Federal Chancellery.         The Data Protection Commission held that the collection of the data by the authorities did not violate the Data Protection Act as it took place before the Act had come into force on 1 January 1980.   It held further that the Federal Chancellery had been in principle entitled to ask the Federal Police Department for its assistance, but such assistance had to comply with the criteria of Section 1 para. 2 of the Data Protection Act.   Therefore, only such data as were necessary for the performing of the duties of the Federal Chancellery could lawfully be transferred.   However, data referring to such matters as places of previous residence, opposition to nuclear power plants or support for an organisation not prohibited by law were not relevant for the admission to the public service.         The Data Protection Commission further stated that in the applicant's case the information transmitted had no connection with the "personal qualifications" ("persönliche Eignung") of the applicant as a librarian.   From the information received it could also not be seen how, in the case of the applicant's recruitment, his political activities could endanger national security or the economic well-being of the country or any other interest protected by Article 8 para. 2 of the European Convention on Human Rights.   Moreover, the Act on Contractual Employment (Vertragsbedienstetengesetz) did not require a check of the "reliability" ("Verläßlichkeit") of an employee.   The Data Protection Commission concluded that for these reasons the transfer of the data by the Federal Police Department was unlawful.     B.     Relevant domestic law   1.     Legal basis for preventive activities by the police         At the time relevant to the facts of the present case preventive police activities were regulated by Section 43 para. 2 of the Imperial Decree of 1850 on the Organisation of the Police Authorities, Provincial Law Gazette of Lower Austria No. 39/1851 (Allerhöchste Entschließung über die Grundzüge der Organisation der Polizeibehörden, Landesgesetzblatt für Niederösterreich Nr. 39/1851) and Sections 1, 7 and 8 et seq. of the Ordinance of the Ministry of the Interior of 1850, Provincial Law Gazette for Lower Austria No. 39/1851 (Erlaß des Ministeriums des Inneren, Landesgesetzblatt für Niederösterreich 39/1851).         According to these provisions, it is "the task of the police authorities to ensure peace, order and security by means of observation, prevention, repression and detection" ("Aufgabe der Polizeibehörden, durch Beobachtung, Vorbeugung, Repression und Entdeckung für Ruhe, Ordnung und Sicherheit zu sorgen").   Moreover, "the police authorities shall prevent in the legally described ways the dangers threatening lawful order as well as, in general, the legal status and welfare of the State as well as of individuals and to maintain public peace and order in the area of their district" ("Die Polizeibehörden haben den Gefahren, womit die gesetzliche Ordnung sowie überhaupt der Rechtsbestand und die Wohlfahrt des Staates sowie der Einzelnen bedroht sind, auf den gesetzlichen Wegen vorzubeugen und zu begegnen sowie die öffentliche Ruhe und Ordnung in dem Bereich ihres Bezirkes zu erhalten").         Within this framework police authorities are responsible for "maintaining public safety and internal peace" ("Aufrechterhaltung der öffentlichen Sicherheit und der inneren Ruhe").         The Imperial Decree and the Ordinance of the Ministry of the Interior became part of the law of the Republic of Austria first by virtue of Section 2 of the Transition Act 1920 (Verfassungs- Übergangsgesetz 1920) and then by virtue of Article 2 Section 19 para. 1 of the Transition Act (Verfassungs-Übergangsgesetz 1929).         These provisions ceased to apply when the new Security Police Act (Sicherheitspolizeigesetz) entered into force on 1 May 1993.     2.     Data Protection Act, Federal Gazette 1978/565 (Datenschutzgesetz,       BGBl 1978/565)         Article 1 Section 1 of the Data Protection Act reads as follows:   <translation>         "Fundamental right to data protection.         (1)   Everyone has the right to secrecy of personal data            concerning his person, insofar as he has a legitimate            interest in such secrecy, in particular with regard to            respect for his private and family life.         (2)   Limitations of the right under para. 1 are only permissible            for safeguarding legitimate interests of others or on the            basis of laws which are necessary for the reasons set out            in Article 8 para. 2 of the European Convention for the            Protection of Human Rights and Fundamental Freedoms            (Federal Gazette Nr. 210/1958).   Even where such            limitations apply the confidential handling of individual            data must prevail.         (3)   To the extent that his data are automatically processed,            everyone has the right, subject to the conditions set out            by law, to be informed about who collects or processes data            relating to him, about the origin of such data, about the            nature and contents of these data and for which purpose            they are used.         (4)   To the extent that his data are automatically processed,            everyone has the right, subject to the conditions set out            by law, to rectification of incorrect data concerning him            and the right to deletion of unlawfully collected or            processed data concerning him.         (5)   Limitations of the rights under paras. 3 and 4 are only            permissible on the conditions set out in para. 2.         (6)   To the extent that bearers of rights act under private law,            the fundamental right to data protection has to be enforced            before the ordinary courts."         The Data Protection Commission consists of four members and the same number of substitute members, who are appointed by the President of the Republic for a term of office of five years (Section 38 of the Data Protection Act).   They should have experience in the field of data protection and one of them must be a judge.   In the exercise of their functions they are independent and not subject to instructions (Section 40 of the Data Protection Act).         Under Section 14 of the Data Protection Act, the Data Protection Commission is competent to examine complaints about alleged violations of the Data Protection Act and to decide whether such a violation has occurred, if the matter does not fall within the competence of the ordinary courts according to Section 1 para. 6 of the Data Protection Act.   The decisions of the Data Protection Commission are binding and administrative authorities are obliged, with the legal means at their disposal, promptly to restore the legal situation corresponding to the legal opinion expressed by the Data Protection Commission (Section 37 of the Data Protection Act).    Against a decision of the Data Protection Commission a complaint with the Administrative Court or the Constitutional Court may be lodged (Section 36 para. 3 of the Data Protection Act).     COMPLAINTS   1.     The applicant complains under Article 8 para. 1 of the Convention that there was police surveillance from 1970 until 1978 and that the storage of the data compiled during that period violated his right to respect for his private life.   2.     He further complains under the same Article that the transfer of these data to the Federal Chancellery on 28 June 1983 violated his right to respect for his private life.   3.     The applicant complains under Article 13 in conjunction with Article 8 para. 1 of the Convention that he did not have an effective remedy to complain about his police surveillance from 1970 to 1978 and the storage of the data compiled during that period.   4.     He also complains under Article 13 in conjunction with Article 8 para. 1 of the Convention that he did not have an effective remedy to complain about the transfer of these data to the Federal Chancellery on 28 June 1983.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 June 1989 and registered on 19 July 1989.         On 27 May 1991 the Commission decided to communicate the application to the respondent Government and to request them to submit their written observations on its admissibility and merits.         The Government's observations were submitted on 4 December 1991. On 8 January 1992 the applicant submitted his observations in reply.     THE LAW   1.     The applicant complains under Article 8 para. 1 (art. 8-1) of the Convention that there was police surveillance from 1970 until 1978 and that the storage of the data compiled during that period violated his right to respect for his private life.         Article 8 ((art. 8) of the Convention 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 in the interests of national security, public       safety or the economic well-being of the country, for the       protection of health or morals, or for the protection of       the rights and freedoms of others."   a)     The Government invoke non-compliance with the six month rule under Article 26 (art. 26) of the Convention.   As regards the police investigations from 1970 to 1978 the Government submit that the applicant's complaint to the Constitutional Court of 23 June 1988 was an ineffective remedy for the purposes of Article 26 (art. 26) of the Convention as it did not offer any prospect of success.   From the Constitutional Court's restrictive case-law it was clear that a purely investigative activity would not be regarded as the exercise of direct administrative coercion.   Only against the latter acts a complaint could be filed with the Constitutional Court.         The Commission recalls that for the purpose of complying with Article 26 (art. 26) of the Convention only such remedies are to be taken into account as offer the possibility of an effective redress of the alleged violation of the Convention.         The Commission notes that the Constitutional Court by its decision of 27 February 1989 rejected the applicant's complaint.   The Constitutional Court declined jurisdiction as it did not consider the measures complained of by the applicant as exercise of direct administrative power and compulsion against a particular individual (Article 144 para. 1, second sentence, of the Federal Constitution) because it neither involved an order nor the use of physical force. The Constitutional Court referred to its earlier case-law, in particular its decision of 13 December 1988, where it quoted extensively legal doctrine opposed to the Constitutional Court's interpretation and suggesting a wider understanding of the term "exercise of direct administrative power and compulsion against a particular person".   The Commission notes further that the applicant's complaint to the Constitutional Court concerned a controversial issue, i. e. secret surveillance by police and the storing of information so obtained and its disclosure so that a change in the Constitutional Court's case-law could not be excluded.   Lastly, the Commission notes that the Constitutional Court briefly examined also the merits of the applicant's complaint and found that the applicant had not sufficiently substantiated and proved his allegations.         Under these circumstances the Commission concludes that the applicant's complaint to the Constitutional Court could not be regarded as being without any prospect of success and thus an ineffective remedy.   Consequently, the Commission considers that the applicant has complied with the six month time-limit as provided for in Article 26 (art. 26) of the Convention.   b)     The Government deny that there has ever been any personal surveillance of the applicant.   Surveillance, if any, was always directed at specific events, such as certain meetings, in the course of which the applicant's presence was registered incidentally.   The Government submit further that the applicant's data concerned administrative acts falling within the Federal Police Department's competence.   The data were recorded on filing cards; the files to which these entries referred and other sources for the entries were destroyed after the relevant periods of preservation had expired.         The Government, invoking the Commission's reasoning in the Brüggemann and Scheuten case, submit that there has been no interference with the applicant's right to respect for his private life (Brüggemann and Scheuten v. Germany, Comm. Report 12.7.77, para. 56, D.R. 10 p. 100).   The data in question concerned events so closely connected with the public sphere that there was no interference with his right to respect for private life (see also No. 5877/72, Dec. 12.10.73, Yearbook 16 p. 328).   The participation in assemblies attract such a degree of publicity that the compilation and storage of information concerning such meetings cannot be regarded as an interference with a person's private sphere.   The same would apply to the information that the applicant declared his support for a specific election ticket.         The Government further submit that any interference would be justified under Article 8 para. 2 (art. 8-2) of the Convention.   As regards the information that the applicant had once been arrested for unlawful posting it was the practice of the authorities conducting administrative criminal proceedings to store information such as the applicant's arrest.   It was also the practice of the authorities dealing with assemblies to record on filing cards the names of organisers of assemblies.         As the legal basis for preventive activities by the police the Government refer to Section 43 para. 2 of the Imperial Decree of 1850 concerning the Organisation of the Police Authorities, Provincial Law Gazette of Lower Austria No. 39/1851 and Sections 1, 7 and 8 et seq. of the Ordinance of the Ministry of the Interior of 1850, Provincial Law Gazette for Lower Austria No. 39/1851.         The Government admit, however, that prior to the entry into force of the new Security Police Act no specific legal rules for the handling of personal data by the police authorities existed.   The Government question whether administrative activities which have taken place in the 1970s, when the problem of data protection was not yet fully appreciated, can be judged in the light of the subsequently changed legal understanding of that problem.         The applicant contests that the data stored concerned only public events or information accessible to the general public.   He also contests that he had notified as an organiser a number of assemblies to the authorities.   As regards the file entry on the applicant's support of a specific election ticket, he submits that such declarations of support are not made public and disclosure of the names of supporters by the authorities competent to deal with elections is prohibited by official secrecy.   Information such as his previous places of residence could be obtained from the registry authorities; this, however, did not entitle the state security police to investigate the corresponding additional information ("member of a commune").         The applicant considers it inappropriate that legal provisions dating from 1850 should form the basis of police action at the end of the twentieth century.         The Commission considers that the applicant's complaints under Article 8 (art. 8) of the Convention about police investigations between 1970 and 1978 and the storing of the information obtained raise serious questions of fact and law which require an examination as to their merits.   These complaints cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   No other grounds for declaring them inadmissible have been established.   2.     The applicant further complains under Article 8 (art. 8) of the Convention that the transfer of the data stored as a result of the police surveillance between 1970 and 1978 to the Federal Chancellery on 28 June 1983 violated his right to respect for his private life.         As regards the transfer of data by the Vienna Federal Police Department to the Federal Chancellery in 1983 the Government submit that the applicant, when introducing his application with the Commission, had not exhausted all domestic remedies within the meaning of Article 26 (art. 26) of the Convention because he had not filed a complaint with the Data Protection Commission.   In any event, the applicant can no longer claim to be a victim of an alleged violation of the Convention.         The applicant submits that the complaint to the Data Protection Commission could not be regarded as an effective remedy because the Data Protection Commission was only competent to find a violation of provisions of the Data Protection Act but not of Article 8 (art. 8) of the Convention.   He considers himself still a victim of a violation of Article 8 (art. 8) of the Convention in this respect.         The Commission notes that on 16 January 1991 the applicant introduced a complaint with the Data Protection Commission.   On 7 November 1991 the Data Protection Commission found that the transfer of the applicant's personal data to the Federal Chancellery violated Section 1 of the Data Protection Act.         The Commission, having regard to Section 1 of the Data Protection Act, finds that in respect of the applicant's complaint of the transfer of data this provision protects in substance the same interests as Article 8 (art. 8) of the Convention.         In these circumstances the Commission considers that the applicant's complaint under Article 8 (art. 8) of the Convention about the transfer of his data by the Federal Police Department has been resolved at domestic level.   Therefore, he can no longer claim to be a victim within the terms of Article 25 para. 1 (art. 25-1) of the Convention.         It follows that this part of the application is inadmissible within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.     3.     The applicant complains under Article 13, in conjunction with Article 8 para. 1 (art. 13+8-1) of the Convention, that he did not have an effective remedy to complain about the police surveillance from 1970 to 1978 and the storage of the data compiled during that period.         Article 13 (art. 13) of the Convention reads 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 Government submit that the applicant did not have an arguable claim under Article 13 (art. 13) of the Convention, as the measures complained of did not amount to an interference with his private life.           The Commission considers that this complaint raises serious questions of fact and law which can only be resolved by an examination as to its merits.   It cannot therefore reject this complaint as being manifestly ill-founded within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   4.     The applicant also complains under Article 13, in conjunction with Article 8 para. 1 (Art. 8-1) of the Convention, that he did not have an effective remedy to complain about the transfer of these data to the Federal Chancellery on 28 June 1983.         The Government submit that the possibility of a complaint to the Data Protection Commission must be considered an effective remedy within the meaning of Article 13 (Art. 13) of the Convention.         The Commission notes that the applicant introduced on 16 January 1991 a complaint to the Data Protection Commission which on 7 November 1991 found a violation of Section 1 of the Data Protection Act.         Having regard to its finding above on the applicant's complaint under Article 8 (Art. 8) of the Convention, the Commission considers that the possibility of a complaint to the Data Protection Commission is an effective remedy before a national authority within the meaning of Article 13 (Art. 13) of the Convention.         It follows that this part of 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, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits of the case,       the complaints under Article 8 (Art. 8) of the Convention       regarding   police surveillance of the applicant from 1970 to 1978       and the storing of the data so obtained, and to this extent also       the complaint under Article 13 (Art. 13) of the Convention; and         unanimously       DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                (C.A. NØRGAARD)