AS TO THE ADMISSIBILITY OF

                      Application No. 15220/89

                      by S.

                      against Austria

      The European Commission of Human Rights sitting in private on

3 May 1993, the following members being present:

Present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 M.A. NOWICKI

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 5 June 1993 by S.

against Austria and registered on 19 July 1989 under file No. 15220/89;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the parties, may be

summarised as follows.

      The applicant, born in 1950, is an Austrian national resident in

Vienna.  Before the Commission he is represented by Mr. T. Prader, a

lawyer practising in Vienna.

A.    Particular circumstances of the case

      On 25 March 1983 the applicant unsuccessfully applied for the

post of a librarian at the Federal Chancellery.

      On 15 May 1988 the applicant received from an anonymous sender

a copy of his personal file which had been established by the Federal

Chancellery upon his job application in 1983.  It follows from this

file inter alia that on 1 June 1983 the Federal Chancellery had ordered

the internal police department of the Chancellery to conduct police

investigations in respect of the applicant on the ground that his

application concerned an administrative grade (höherer Dienst). The

file contains the report of a police officer of the Vienna Federal

Police Department (Bundespolizeidirektion) dated 28 June 1983 which

relates first to the applicant's personal data such as date and place

of birth, nationality, place of residence and previous places of

residence (one of the addresses accompanied by the remark "as member

of a commune" - "als Mitglied einer Kommune"), and then refers to the

results of police investigations. The relevant part reads as follows:

           "Dr. [S.] ... ist in der ha. Evidenz in

      staatspolizeilicher Hinsicht folgend vorgemerkt:

      1970 - Festnahme wegen unbefugten Plakatierens;

      1975 - Kundgebungen in verschiedenen Bezirken Wiens;

      1976 - Zusammenkünfte der KBÖ-AKW-Gruppen um radikale Maßnahmen

             zu planen;

      1977 - Teilnehmer einer Arbeitsbesprechung der AKW-Gegner;

      1978 - Teilnehmer der WOGA-Konferenz (Wr. Organisation gegen

             Atomkraftwerke);

             Teilnehmer einer Veranstaltung der AKW-Gegner in

             Zwentendorf;

             Unterzeichner der Unterstützungserklärung für den

             Kommunistischen Bund bei den Wr. Gemeinderatswahlen.

      Im Strafregister der BPD-Wien scheint keine Verurteilung auf."

           "On Dr. [S.] ... the following has been recorded in the

      official data base of this department:

      1970 - arrest for unlawful posting;

      1975 - demonstrations in various districts of Vienna;

      1976 - meetings of groups of the "KBÖ-AKW"

             Union - nuclear power plants> in order to plan extremist

             activities;

      1977 - participant in a discussion of activities of opponents to

             "AKW";

      1978 - participant in the "WOGA"-conference (Vienna Organisation

             against Nuclear Power Plants);

             participant in a meeting of the opponents to "AKW" in

             Zwentendorf;

             signer of the declaration of support for the Communist

             Union on the occasion of the elections to the Vienna

             Municipal Council.

      There are no entries in the criminal record at the Vienna Federal

      Police Department."

      On 23 June 1988 the applicant, represented by his lawyer Mr.

Prader, lodged a complaint with the Constitutional Court

(Verfassungsgerichtshof).  He submitted that the police surveillance

during the period from 1970 until 1978 and the transfer of the data

collected to the Federal Chancellery in 1983 violated his right under

Article 8 para. 1 of the Convention.  As regards the competence of the

Constitutional Court he argued that the Court, having regard to the

Commission's report of October 1985 in the "Plattform Ärzte für das

Leben" case, should change its case-law concerning challengeable acts

of State organs.

      On 13 July 1988 the Federal Chancellery, in observations upon the

applicant's complaint stated that, according to various differences in

entry stamps etc., the applicant's copy of his personal file had been

made during the period from 11 July until 3 or 4 August 1983. However,

it could no longer be established who had made this copy and how the

applicant had received it.

      On 27 February 1989 the Constitutional Court declared the

applicant's complaint inadmissible. The Constitutional Court found in

particular that the applicant could not complain about the alleged

surveillance by police authorities, nor the compilation of the results

of such investigations and the transfer of data to other authorities,

on the ground that such police activities did not constitute an order

(Befehl mit unverzüglichem Befolgungsanspruch) or the use of physical

force (Anwendung physischen Zwangs), and thus no administrative

coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- oder

Zwangsgewalt gegen eine bestimmte Person) within the meaning of S. 144

para. 2, second sentence, of the Federal Constitution (Bundes-

Verfassungsgesetz).  In this respect, the Constitutional Court referred

to its latest decisions of 13 December 1988 where it quoted extensively

legal doctrine opposed to the Constitutional Court's interpretation

suggesting a wider understanding of the term "exercise of direct

administrative power and compulsion against a particular person" and

previous decisions of 1983, 1984, 1985.  In any event, the applicant

had not sufficiently substantiated and proved his allegations.

      Furthermore, on 16 May 1988 the applicant requested the Vienna

Federal Police Department (Bundespolizeidirektion) to inform him what

personal data about him had been compiled and recorded.  On 5 July 1988

the Police Department informed him that it had registered his name,

birth date, nationality, his places of residence in the course of his

life, the date and category of his driving licence, and that he had

notified several demonstrations in different districts of Vienna in

1975.  Moreover, other police stations had registered a traffic offence

as well as a case of unlawful posting on 14 May 1970.  Further entries,

documents or data were not available. The registered data had not been

transferred to any other authority.

      On 13 December 1988 the Vienna Federal Police Department

dismissed the applicant's request for access to all files upon which

the report of 28 June 1983 had been based. The Department ruled that

he was not party to any particular administrative proceedings and did

not therefore have a right to consult administrative files.  The

applicant's appeals were unsuccessful.

      On 16 January 1991 the applicant lodged a complaint with the Data

Protection Commission (Datenschutzkommission) under Section 1 para. 1

of the Data Protection Act (Datenschutzgesetz) about the transfer of

his personal data to the Federal Chancellery.

      On 7 November 1991 the Data Protection Commission found that the

Vienna Federal Police Directorate had violated Section 1 para. 1 of the

Data Protection Act by transferring several data to the Federal

Chancellery.

      The Data Protection Commission held that the collection of the

data by the authorities did not violate the Data Protection Act as it

took place before the Act had come into force on 1 January 1980.  It

held further that the Federal Chancellery had been in principle

entitled to ask the Federal Police Department for its assistance, but

such assistance had to comply with the criteria of Section 1 para. 2

of the Data Protection Act.  Therefore, only such data as were

necessary for the performing of the duties of the Federal Chancellery

could lawfully be transferred.  However, data referring to such matters

as places of previous residence, opposition to nuclear power plants or

support for an organisation not prohibited by law were not relevant for

the admission to the public service.

      The Data Protection Commission further stated that in the

applicant's case the information transmitted had no connection with the

"personal qualifications" ("persönliche Eignung") of the applicant as

a librarian.  From the information received it could also not be seen

how, in the case of the applicant's recruitment, his political

activities could endanger national security or the economic well-being

of the country or any other interest protected by Article 8 para. 2 of

the European Convention on Human Rights.  Moreover, the Act on

Contractual Employment (Vertragsbedienstetengesetz) did not require a

check of the "reliability" ("Verläßlichkeit") of an employee.  The Data

Protection Commission concluded that for these reasons the transfer of

the data by the Federal Police Department was unlawful.

B.    Relevant domestic law

1.    Legal basis for preventive activities by the police

      At the time relevant to the facts of the present case preventive

police activities were regulated by Section 43 para. 2 of the Imperial

Decree of 1850 on the Organisation of the Police Authorities,

Provincial Law Gazette of Lower Austria No. 39/1851 (Allerhöchste

Entschließung über die Grundzüge der Organisation der Polizeibehörden,

Landesgesetzblatt für Niederösterreich Nr. 39/1851) and Sections 1, 7

and 8 et seq. of the Ordinance of the Ministry of the Interior of 1850,

Provincial Law Gazette for Lower Austria No. 39/1851 (Erlaß des

Ministeriums des Inneren, Landesgesetzblatt für Niederösterreich

39/1851).

      According to these provisions, it is "the task of the police

authorities to ensure peace, order and security by means of

observation, prevention, repression and detection" ("Aufgabe der

Polizeibehörden, durch Beobachtung, Vorbeugung, Repression und

Entdeckung für Ruhe, Ordnung und Sicherheit zu sorgen").  Moreover,

"the police authorities shall prevent in the legally described ways the

dangers threatening lawful order as well as, in general, the legal

status and welfare of the State as well as of individuals and to

maintain public peace and order in the area of their district" ("Die

Polizeibehörden haben den Gefahren, womit die gesetzliche Ordnung sowie

überhaupt der Rechtsbestand und die Wohlfahrt des Staates sowie der

Einzelnen bedroht sind, auf den gesetzlichen Wegen vorzubeugen und zu

begegnen sowie die öffentliche Ruhe und Ordnung in dem Bereich ihres

Bezirkes zu erhalten").

      Within this framework police authorities are responsible for

"maintaining public safety and internal peace" ("Aufrechterhaltung der

öffentlichen Sicherheit und der inneren Ruhe").

      The Imperial Decree and the Ordinance of the Ministry of the

Interior became part of the law of the Republic of Austria first by

virtue of Section 2 of the Transition Act 1920 (Verfassungs-

Ãœbergangsgesetz 1920) and then by virtue of Article 2 Section 19 para.

1 of the Transition Act (Verfassungs-Ãœbergangsgesetz 1929).

      These provisions ceased to apply when the new Security Police Act

(Sicherheitspolizeigesetz) entered into force on 1 May 1993.

2.    Data Protection Act, Federal Gazette 1978/565 (Datenschutzgesetz,

      BGBl 1978/565)

      Article 1 Section 1 of the Data Protection Act reads as follows:

      "Fundamental right to data protection.

      (1)  Everyone has the right to secrecy of personal data

           concerning his person, insofar as he has a legitimate

           interest in such secrecy, in particular with regard to

           respect for his private and family life.

      (2)  Limitations of the right under para. 1 are only permissible

           for safeguarding legitimate interests of others or on the

           basis of laws which are necessary for the reasons set out

           in Article 8 para. 2 of the European Convention for the

           Protection of Human Rights and Fundamental Freedoms

           (Federal Gazette Nr. 210/1958).  Even where such

           limitations apply the confidential handling of individual

           data must prevail.

      (3)  To the extent that his data are automatically processed,

           everyone has the right, subject to the conditions set out

           by law, to be informed about who collects or processes data

           relating to him, about the origin of such data, about the

           nature and contents of these data and for which purpose

           they are used.

      (4)  To the extent that his data are automatically processed,

           everyone has the right, subject to the conditions set out

           by law, to rectification of incorrect data concerning him

           and the right to deletion of unlawfully collected or

           processed data concerning him.

      (5)  Limitations of the rights under paras. 3 and 4 are only

           permissible on the conditions set out in para. 2.

      (6)  To the extent that bearers of rights act under private law,

           the fundamental right to data protection has to be enforced

           before the ordinary courts."

      The Data Protection Commission consists of four members and the

same number of substitute members, who are appointed by the President

of the Republic for a term of office of five years (Section 38 of the

Data Protection Act).  They should have experience in the field of data

protection and one of them must be a judge.  In the exercise of their

functions they are independent and not subject to instructions (Section

40 of the Data Protection Act).

      Under Section 14 of the Data Protection Act, the Data Protection

Commission is competent to examine complaints about alleged violations

of the Data Protection Act and to decide whether such a violation has

occurred, if the matter does not fall within the competence of the

ordinary courts according to Section 1 para. 6 of the Data Protection

Act.  The decisions of the Data Protection Commission are binding and

administrative authorities are obliged, with the legal means at their

disposal, promptly to restore the legal situation corresponding to the

legal opinion expressed by the Data Protection Commission (Section 37

of the Data Protection Act).   Against a decision of the Data

Protection Commission a complaint with the Administrative Court or the

Constitutional Court may be lodged (Section 36 para. 3 of the Data

Protection Act).

COMPLAINTS

1.    The applicant complains under Article 8 para. 1 of the Convention

that there was police surveillance from 1970 until 1978 and that the

storage of the data compiled during that period violated his right to

respect for his private life.

2.    He further complains under the same Article that the transfer of

these data to the Federal Chancellery on 28 June 1983 violated his

right to respect for his private life.

3.    The applicant complains under Article 13 in conjunction with

Article 8 para. 1 of the Convention that he did not have an effective

remedy to complain about his police surveillance from 1970 to 1978 and

the storage of the data compiled during that period.

4.    He also complains under Article 13 in conjunction with Article

8 para. 1 of the Convention that he did not have an effective remedy

to complain about the transfer of these data to the Federal Chancellery

on 28 June 1983.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 5 June 1989 and registered on

19 July 1989.

      On 27 May 1991 the Commission decided to communicate the

application to the respondent Government and to request them to submit

their written observations on its admissibility and merits.

      The Government's observations were submitted on 4 December 1991.

On 8 January 1992 the applicant submitted his observations in reply.

THE LAW

1.    The applicant complains under Article 8 para. 1 (art. 8-1) of the

Convention that there was police surveillance from 1970 until 1978 and

that the storage of the data compiled during that period violated his

right to respect for his private life.

      Article 8 ((art. 8) of the Convention provides as follows:

      "1.  Everyone has the right to respect for his private and

      family life, his home and his correspondence.

      2.   There shall be no interference by a public authority

      with the exercise of this right except such as is in

      accordance with the law and is necessary in a democratic

      society in the interests of national security, public

      safety or the economic well-being of the country, for the

      protection of health or morals, or for the protection of

      the rights and freedoms of others."

a)    The Government invoke non-compliance with the six month rule

under Article 26 (art. 26) of the Convention.  As regards the police

investigations from 1970 to 1978 the Government submit that the

applicant's complaint to the Constitutional Court of 23 June 1988 was

an ineffective remedy for the purposes of Article 26 (art. 26) of the

Convention as it did not offer any prospect of success.  From the

Constitutional Court's restrictive case-law it was clear that a purely

investigative activity would not be regarded as the exercise of direct

administrative coercion.  Only against the latter acts a complaint

could be filed with the Constitutional Court.

      The Commission recalls that for the purpose of complying with

Article 26 (art. 26) of the Convention only such remedies are to be

taken into account as offer the possibility of an effective redress of

the alleged violation of the Convention.

      The Commission notes that the Constitutional Court by its

decision of 27 February 1989 rejected the applicant's complaint.  The

Constitutional Court declined jurisdiction as it did not consider the

measures complained of by the applicant as exercise of direct

administrative power and compulsion against a particular individual

(Article 144 para. 1, second sentence, of the Federal Constitution)

because it neither involved an order nor the use of physical force. The

Constitutional Court referred to its earlier case-law, in particular

its decision of 13 December 1988, where it quoted extensively legal

doctrine opposed to the Constitutional Court's interpretation and

suggesting a wider understanding of the term "exercise of direct

administrative power and compulsion against a particular person".  The

Commission notes further that the applicant's complaint to the

Constitutional Court concerned a controversial issue, i. e. secret

surveillance by police and the storing of information so obtained and

its disclosure so that a change in the Constitutional Court's case-law

could not be excluded.  Lastly, the Commission notes that the

Constitutional Court briefly examined also the merits of the

applicant's complaint and found that the applicant had not sufficiently

substantiated and proved his allegations.

      Under these circumstances the Commission concludes that the

applicant's complaint to the Constitutional Court could not be regarded

as being without any prospect of success and thus an ineffective

remedy.  Consequently, the Commission considers that the applicant has

complied with the six month time-limit as provided for in Article 26

(art. 26) of the Convention.

b)    The Government deny that there has ever been any personal

surveillance of the applicant.  Surveillance, if any, was always

directed at specific events, such as certain meetings, in the course

of which the applicant's presence was registered incidentally.  The

Government submit further that the applicant's data concerned

administrative acts falling within the Federal Police Department's

competence.  The data were recorded on filing cards; the files to which

these entries referred and other sources for the entries were destroyed

after the relevant periods of preservation had expired.

      The Government, invoking the Commission's reasoning in the

Brüggemann and Scheuten case, submit that there has been no

interference with the applicant's right to respect for his private life

(Brüggemann and Scheuten v. Germany, Comm. Report 12.7.77, para. 56,

D.R. 10 p. 100).  The data in question concerned events so closely

connected with the public sphere that there was no interference with

his right to respect for private life (see also No. 5877/72, Dec.

12.10.73, Yearbook 16 p. 328).  The participation in assemblies attract

such a degree of publicity that the compilation and storage of

information concerning such meetings cannot be regarded as an

interference with a person's private sphere.  The same would apply to

the information that the applicant declared his support for a specific

election ticket.

      The Government further submit that any interference would be

justified under Article 8 para. 2 (art. 8-2) of the Convention.  As

regards the information that the applicant had once been arrested for

unlawful posting it was the practice of the authorities conducting

administrative criminal proceedings to store information such as the

applicant's arrest.  It was also the practice of the authorities

dealing with assemblies to record on filing cards the names of

organisers of assemblies.

      As the legal basis for preventive activities by the police the

Government refer to Section 43 para. 2 of the Imperial Decree of 1850

concerning the Organisation of the Police Authorities, Provincial Law

Gazette of Lower Austria No. 39/1851 and Sections 1, 7 and 8 et seq.

of the Ordinance of the Ministry of the Interior of 1850, Provincial

Law Gazette for Lower Austria No. 39/1851.

      The Government admit, however, that prior to the entry into force

of the new Security Police Act no specific legal rules for the handling

of personal data by the police authorities existed.  The Government

question whether administrative activities which have taken place in

the 1970s, when the problem of data protection was not yet fully

appreciated, can be judged in the light of the subsequently changed

legal understanding of that problem.

      The applicant contests that the data stored concerned only public

events or information accessible to the general public.  He also

contests that he had notified as an organiser a number of assemblies

to the authorities.  As regards the file entry on the applicant's

support of a specific election ticket, he submits that such

declarations of support are not made public and disclosure of the names

of supporters by the authorities competent to deal with elections is

prohibited by official secrecy.  Information such as his previous

places of residence could be obtained from the registry authorities;

this, however, did not entitle the state security police to investigate

the corresponding additional information ("member of a commune").

      The applicant considers it inappropriate that legal provisions

dating from 1850 should form the basis of police action at the end of

the twentieth century.

      The Commission considers that the applicant's complaints under

Article 8 (art. 8) of the Convention about police investigations

between 1970 and 1978 and the storing of the information obtained raise

serious questions of fact and law which require an examination as to

their merits.  These complaints cannot therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.  No other grounds for declaring them

inadmissible have been established.

2.    The applicant further complains under Article 8 (art. 8) of the

Convention that the transfer of the data stored as a result of the

police surveillance between 1970 and 1978 to the Federal Chancellery

on 28 June 1983 violated his right to respect for his private life.

      As regards the transfer of data by the Vienna Federal Police

Department to the Federal Chancellery in 1983 the Government submit

that the applicant, when introducing his application with the

Commission, had not exhausted all domestic remedies within the meaning

of Article 26 (art. 26) of the Convention because he had not filed a

complaint with the Data Protection Commission.  In any event, the

applicant can no longer claim to be a victim of an alleged violation

of the Convention.

      The applicant submits that the complaint to the Data Protection

Commission could not be regarded as an effective remedy because the

Data Protection Commission was only competent to find a violation of

provisions of the Data Protection Act but not of Article 8 (art. 8) of

the Convention.  He considers himself still a victim of a violation of

Article 8 (art. 8) of the Convention in this respect.

      The Commission notes that on 16 January 1991 the applicant

introduced a complaint with the Data Protection Commission.  On 7

November 1991 the Data Protection Commission found that the transfer

of the applicant's personal data to the Federal Chancellery violated

Section 1 of the Data Protection Act.

      The Commission, having regard to Section 1 of the Data Protection

Act, finds that in respect of the applicant's complaint of the transfer

of data this provision protects in substance the same interests as

Article 8 (art. 8) of the Convention.

      In these circumstances the Commission considers that the

applicant's complaint under Article 8 (art. 8) of the Convention about

the transfer of his data by the Federal Police Department has been

resolved at domestic level.  Therefore, he can no longer claim to be

a victim within the terms of Article 25 para. 1 (art. 25-1) of the

Convention.

      It follows that this part of the application is inadmissible

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

3.    The applicant complains under Article 13, in conjunction with

Article 8 para. 1 (art. 13+8-1) of the Convention, that he did not have

an effective remedy to complain about the police surveillance from 1970

to 1978 and the storage of the data compiled during that period.

      Article 13 (art. 13) of the Convention reads as follows:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy

      before a national authority notwithstanding that the

      violation has been committed by persons acting in an

      official capacity."

      The Government submit that the applicant did not have an arguable

claim under Article 13 (art. 13) of the Convention, as the measures

complained of did not amount to an interference with his private life.

      The Commission considers that this complaint raises serious

questions of fact and law which can only be resolved by an examination

as to its merits.  It cannot therefore reject this complaint as being

manifestly ill-founded within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.  No other ground for declaring it

inadmissible has been established.

4.    The applicant also complains under Article 13, in conjunction

with Article 8 para. 1 (Art. 8-1) of the Convention, that he did not

have an effective remedy to complain about the transfer of these data

to the Federal Chancellery on 28 June 1983.

      The Government submit that the possibility of a complaint to the

Data Protection Commission must be considered an effective remedy

within the meaning of Article 13 (Art. 13) of the Convention.

      The Commission notes that the applicant introduced on 16 January

1991 a complaint to the Data Protection Commission which on 7 November

1991 found a violation of Section 1 of the Data Protection Act.

      Having regard to its finding above on the applicant's complaint

under Article 8 (Art. 8) of the Convention, the Commission considers

that the possibility of a complaint to the Data Protection Commission

is an effective remedy before a national authority within the meaning

of Article 13 (Art. 13) of the Convention.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, by a majority,

      DECLARES ADMISSIBLE, without prejudging the merits of the case,

      the complaints under Article 8 (Art. 8) of the Convention

      regarding  police surveillance of the applicant from 1970 to 1978

      and the storing of the data so obtained, and to this extent also

      the complaint under Article 13 (Art. 13) of the Convention; and

      unanimously

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission                 President of the Commission

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