FRIEDL_v._AUSTRIA[1] Page. I. INTRODUCTION (paras. 1-14) A. The application (paras. 2-4) B. The proceedings (paras. 5-9)...

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1 EUROPEAN COMMISSION OF HUMAN RIGHTS Application No /89 Ludwig Friedl against Austria REPORT OF THE COMMISSION (adopted on 19 May 1994) TABLE OF CONTENTS Page I. INTRODUCTION (paras. 1-14) A. The application (paras. 2-4) B. The proceedings (paras. 5-9) C. The present Report (paras ) II. ESTABLISHMENT OF THE FACTS (paras ) A. The particular circumstances of the case (paras ) B. Relevant domestic law (paras ) III. OPINION OF THE COMMISSION (paras ) A. Complaints declared admissible (para. 41) B. Points at issue (para. 42) C. Article 8 of the Convention (paras ) CONCLUSION (para. 67) D. Article 13 of the Convention (the taking of photographs and their retention) (paras ) CONCLUSION (para. 72) E. Article 13 of the Convention (the questioning and recording of personal data) (paras ) Seite 1

2 CONCLUSION (para. 80) F. Recapitulation (paras ) CONCURRING OPINION BY Mr. H. DANELIUS (in regard to Article 13 of the Convention) 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 APPENDIX I : HISTORY OF THE PROCEEDINGS APPENDIX II : DECISION ON THE ADMISSIBILITY OF THE APPLICATION 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 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 The applicant's observations in reply were submitted, also after an extension of the time-limit, on 7 January 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 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 Seite 2

3 can be effected. FRIEDL_v._AUSTRIA[1] 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. MM. C.A. NØRGAARD, President S. TRECHSEL A. WEITZEL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK J.-C. SOYER H.G. SCHERMERS H. DANELIUS 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. Seite 3

4 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 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 Seite 4

5 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 Furthermore, the Constitutional Court found no reason Seite 5

6 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 (Straßenverkehrsordnung) 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 (Verwaltungsstrafgesetz) 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. Seite 6

7 37. According to internal administrative rules (Skartierungsvorschriften), 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 (Bundesverfassungsgesetz), 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 (Befehlsund 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 Seite 7

8 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 , Coll. 34 p. 10; No. 6825/75, , D.R. 5 p. 86; Brüggemann and Scheuten v. Germany, Comm. Report , paras , 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 , D.R. 30 p. 239; No. 9804/82, Dec , 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 , 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 Seite 8

9 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 , 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 /91, Dec , 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 Seite 9

10 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). Seite 10

11 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 , 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 ). 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 , paras. 31, 33). Seite 11

12 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 ). 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 ). 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 Seite 12

13 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 (H.C. KRÜGER) President of the Commission (C.A. NØRGAARD) Application No /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 , 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 Seite 13

14 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 /91, Dec ), 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 Seite 14

15 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 Seite 15