EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 15225/89

                             Ludwig Friedl

                                against

                                Austria

                       REPORT OF THE COMMISSION

                       (adopted on 19 May 1994)

                           TABLE OF CONTENTS

                                                                 Page

I.         INTRODUCTION

           (paras. 1-14). . . . . . . . . . . . . . . . . . . . . . 1

           A.    The application

                 (paras. 2-4) . . . . . . . . . . . . . . . . . . . 1

           B.    The proceedings

                 (paras. 5-9) . . . . . . . . . . . . . . . . . . . 1

           C.    The present Report

                 (paras. 10-14) . . . . . . . . . . . . . . . . . . 2

II.        ESTABLISHMENT OF THE FACTS

           (paras. 15-40) . . . . . . . . . . . . . . . . . . . . . 3

           A.    The particular circumstances of the case

                 (paras. 15-31) . . . . . . . . . . . . . . . . . . 3

           B.    Relevant domestic law

                 (paras. 32-40) . . . . . . . . . . . . . . . . . . 6

III.       OPINION OF THE COMMISSION

           (paras. 41-83) . . . . . . . . . . . . . . . . . . . . . 8

           A.    Complaints declared admissible

                 (para. 41) . . . . . . . . . . . . . . . . . . .   8

           B.    Points at issue

                 (para. 42) . . . . . . . . . . . . . . . . . . . . 8

           C.    Article 8 of the Convention

                 (paras. 43-66) . . . . . . . . . . . . . . . . . . 8

                 CONCLUSION

                 (para. 67) . . . . . . . . . . . . . . . . . . . .12

           D.    Article 13 of the Convention

                 (the taking of photographs and their retention)

                 (paras. 68-71) . . . . . . . . . . . . . . . . . .13

                 CONCLUSION

                 (para. 72) . . . . . . . . . . . . . . . . . . . .13

           E.    Article 13 of the Convention

                 (the questioning and recording of personal data)

                 (paras. 73-79) . . . . . . . . . . . . . . . . . .13

                 CONCLUSION

                 (para. 80) . . . . . . . . . . . . . . . . . . . .14

           F.    Recapitulation

                 (paras. 81-83) . . . . . . . . . . . . . . . . . .14

CONCURRING OPINION BY Mr. H. DANELIUS

(in regard to Article 13 of the Convention) . . . . . . . . . . . .15

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 . . . . . . . . . . . . . . . . . . . . .17

APPENDIX I       : HISTORY OF THE PROCEEDINGS . . . . . . . . . . .18

APPENDIX II      : DECISION ON THE ADMISSIBILITY

                   OF THE APPLICATION . . . . . . . . . . . . . . .19

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 1989.

6.    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 1991. The applicant's observations in

reply were submitted, also after an extension of the time-limit, on

7 January 1992.

8.    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 1993.

9.    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

can be effected.

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.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           MM.   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.

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 1988.

18.   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

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 1988. Furthermore, the Constitutional Court found no reason

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 (Straßen-

verkehrsordnung) 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 (Verwaltungs-

strafgesetz) 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.

37.   According to internal administrative rules (Skartierungsvor-

schriften), 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 (Bundesverfassungs-

gesetz), 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 (Befehls-

und 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

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. 25.5.70,

Coll. 34 p. 10; No. 6825/75, 18.5.76, D.R. 5 p. 86; Brüggemann and

Scheuten v. Germany, Comm. Report 12.7.77, paras. 55-58, 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. 6.10.82, D.R. 30 p. 239;

No. 9804/82, Dec. 7.12.82, 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 18.3.81, 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

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. 12.10.72,

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. 18395/91, Dec. 7.12.92, 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

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).

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. 4.10.62, 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. 229-231). 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. 14-15, paras. 31, 33).

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. 48-51).  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. 52-66). 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

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            President of the Commission

      (H.C. KRÜGER)                     (C.A. NØRGAARD)

Application No. 15225/89

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. 14-15,

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

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. 18395/91, Dec. 7.12.92), 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

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