AS TO THE ADMISSIBILITY OF

                      Application No. 11921/86

                      by Verein "Kontakt-Information-Therapie" (KIT)

                        and Siegfried HAGEN

                      against Austria

        The European Commission of Human Rights sitting in private

on 12 October 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 13 August 1985

by Verein "Kontakt-Information-Therapie" (KIT) and Siegfried Hagen

against Austria and registered on 16 January 1986 under file

No. 11921/86;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The first applicant is a private association (Verein) engaged

in the operation of rehabilitation centres for young drug abusers.  It

was established in Innsbruck in 1974.

        The second applicant, an Austrian citizen born in 1953, who

resides in Innsbruck, is a drug rehabilitation therapist employed by

the first applicant.

        Both applicants are represented by Mr.  Ivo Greiter, a lawyer

practising in Innsbruck.

        Originally, the application was introduced on behalf of

the first applicant, which alleged violations of the rights of its

employees and clients ("Der Verein ... fühlt sich in den Menschen-

rechten seiner Mitarbeiter und der betreuten Jugendlichen verletzt").

It was therefore asked to indicate whether the employees concerned by

the domestic proceedings were also applicants, and if so, to give

their particulars.  In reply, the applicants' lawyer on 6 February 1987

submitted a power of attorney showing that he represented the second

applicant.

        Notwithstanding its status as a private non-profitmaking

organisation, the first applicant was granted State recognition by a

decree of the Federal Minister for Health and Environmental Protection

(Bundesminister für Gesundheit und Umweltschutz), Fed.  Law Gazette

No. 435/1981.  Under its statutes (Satzung), the association performs

the following tasks in the Province of Tyrol:

        - the establishment and management of drug rehabilitation

          centres for young drug abusers;

        - the promotion and training of skilled personnel and

          counsellors;

        - the information of the public concerning the problems

          facing young drug abusers.

        For these purposes, the association employs an average of

about fifteen workers who counsel about thirty to forty young persons.

        The association views its work as being grounded on a

relationship of trust between the therapists and their patients.  On

admission to one of the rehabilitation centres, the young people are

given an assurance by the employees that any information provided by

them pursuant to their treatment will be held in strictest confidence.

        One former patient of the rehabilitation centre of Schwaz, who

had been released on 22 March 1984, subsequently became involved in

criminal proceedings for drug abuse (Suchtgiftmissbrauch), an offence

punishable under Section 16 para. 1 (2) of the Narcotic Drugs Act

(Suchtgiftgesetz).  The suspicion was based on information contained

in a letter from the centre of 27 April 1984 that the patient had been

discharged because of a relapse.  The letter was typed by a secretary

of the centre, and dictated by either the second applicant or the

other rehabilitation therapist employed at that centre.

        The proceedings in question were conducted by the District

Court (Bezirksgericht) of Schwaz which, on 4 October 1984, summoned

the above two therapists to appear as witnesses.

        In response to the District Court summons, the first

applicant's board of directors, in its session of 16 October 1984,

announced that neither therapist would be released from his duty not

to disclose confidential information.

        The matter was referred to the Regional Court (Landesgericht)

of Innsbruck which, in a decision of 5 February 1985, held that the

two witnesses had no right under the relevant provisions of the Code

of Criminal Procedure (Strafprozessordnung, Sections 151, 152) to

refuse giving evidence.  Their evidence was of such importance for

the establishment of the facts of the case that it could not be

dispensed with.  For this reason, the Regional Court directed the

District Court to impose penalties (Beugestrafen) should the

therapists maintain their refusal to give evidence.  This decision was

served on the second applicant on 3 May 1985.

        Notwithstanding this decision, the second applicant and the

other therapist persisted in their refusal to give evidence before the

District Court.  On 20 May 1985, the District Court therefore imposed

a fine in the amount of AS 5000.- on each of them, pursuant to Section

160 of the Code of Criminal Procedure.

        Against this decision both the second applicant and the other

therapist lodged an appeal (Beschwerde) with the Regional Court.  They

submitted, in particular, that their refusal to give evidence was

justified under Section 153 of the Code of Criminal Procedure which

reads as follows:

        "If the fact of giving evidence or the answer

to a particular question would bring the witness or one

of his close relatives ... into disgrace (Schande) or

if it would expose them to the risk of criminal prosecution

or to the risk of an immediate and important financial

disadvantage (unmittelbarer und bedeutender vermögens-

rechtlicher Nachteil), and if, for this reason, the

witness refuses to give evidence, he shall be obliged

to give evidence only if this is indispensable because

of the particular importance of his evidence."

        It was argued that in the circumstances the fact of giving

evidence would bring the therapists into disgrace because the breach

of confidentiality expressly assured to the accused would be regarded

by the public and in particular by the patients of the rehabilitation

centres as a morally deplorable conduct.  The therapists would further

incur a risk of financial disadvantages as it was likely that they

would be dismissed by the first applicant if they breached the rule of

confidentiality which was an essential condition of their employment

and the observance of which had been the subject of specific

instructions by the board of directors in this case.  It was

further submitted that there were no indications that the evidence of

the two therapists in the present case was of such importance that it

could not be dispensed with, having regard to the important general

interests at stake.  In this connection reference was also made to the

principle of proportionality (Interessenabwägung) and the fact that

the public functions recognised in the Minister's decree would be

undermined if the witnesses were actually compelled to give evidence.

        However, the Regional Court rejected the appeal by a decision

of 18 June 1985.  It first referred to its earlier decision of

5 February 1985 on which the District Court's decision to impose fines

had been based.  In the Regional Court's view the witnesses would not

expose themselves to disgrace if they made true depositions in the

criminal proceedings in question.  Their esteem in the general public

would not be reduced if they disclosed information on observations

which they had made in their functions as social workers, but which

did not constitute a breach of trust vis-à-vis the former patient of

the rehabilitation centre who had been discharged a long time ago

allegedly because of a relapse.  Even less could there be a question

of breach of trust vis-à-vis the unknown person who had provided this

patient with heroine.  Nor could it be assumed that a law-abiding

conduct, namely the giving of evidence which was considered as

indispensable by the competent criminal court, would lead to a

dismissal of the therapists.  Only an immediate and important

financial disadvantage was legally relevant, but not any possible and

hypothetical disadvantage.  Finally the Court observed that the

conflicting interests had already been weighed against each other in

its earlier decision of 5 February 1985.  In conclusion, it had been

found justified in the absence of any other sufficient evidence to

require the witnesses to give evidence.  In view of this decision by

which it was bound the District Court had not been obliged to give

detailed reasons.  No further remedy was available against this

decision.

        On 21 June 1985 the District Court invited the two therapists

to pay the fines within two weeks.  However, on 1 July they made an

application to suspend the collection of the fines until a decision of

the Federal President was taken to relieve them by an act of grace of

the obligation to pay the fines.  The District Court rejected this

application by a decision of 30 July 1985, finding that it was

inadmissible as the Federal President's right to make acts of grace

did not extend to this type of fines (cf.  Section 409a of the Code of

Criminal Procedure).

        Thereupon the therapists made a new application for suspension

in view of their request to the Attorney General (Generalprokuratur)

to file a plea of nullity for safeguarding the law (Nichtigkeits-

beschwerde zur Wahrung des Gesetzes) under Section 33 of the Code of

Criminal Procedure which they had made on 18 July 1985.  However, on

14 October 1985, the Attorney General informed the applicants' lawyer

that he saw no reason to lodge a plea of nullity.

        The fines plus costs of procedure were subsequently collected

by the Republic of Austria by way of an attachment of earnings of the

two therapists.  The first applicant therefore had to pay these sums,

being liable to deduct them from the salaries of its employees.

        The therapists persisted in their refusal to give evidence

even after the imposition of the fines.  However, no further measures

were subsequently taken against them.

        Of the two therapists involved, only the second applicant is

still employed by the first applicant.

COMPLAINTS AND LEGAL SUBMISSIONS

        The first applicant, on behalf of its employees and patients,

and the second applicant in his own name allege violations of the

following provisions:

        Article 3 of the Convention, and Article 13 read

        in conjunction with Article 3

        It is submitted that forcing the therapists to give evidence

and thereby to disregard their promise of confidentiality amounts to

degrading treatment or punishment within the meaning of Article 3.

        The applicants further claim that, contrary to Article 13, no

effective domestic remedy was provided to them on this particular

point.  The issue was raised in the domestic proceedings by arguing

that giving effect to the District Court's summons would bring the

applicants into disgrace.  However, the Regional Court generally ruled

out any possibility of disgrace and thus failed to address the

question of whether or not the particular facts involved degrading

treatment or punishment.

        Article 9 of the Convention (freedom of conscience)

        The case involves a confrontation between demands of the State

and the dictates of individual conscience.  The activities of the

first applicant, whose positive function has been recognised by a

Minister's Decree, require a free flow of information between

therapists and clients.  An untenable conflict of interests must arise

in any case of disclosure of confidential information given by former

or present clients.  The therapists therefore could not, in good

faith, comply with the court's order.  By enforcing the order, the

State interfered with the freedom of conscience, as guaranteed by

Article 9 para. 1 of the Convention.

        The applicants claim that this interference must be justified

under the criteria of Article 9 para. 2.  They do not dispute that the

interference was lawful and had a legitimate purpose.  However, they

submit that it was not proportionate to the legitimate aim pursued

and thus was not necessary in a democratic society.

        The applicants admit that an unlimited recognition on the part

of the State of the individual's freedom to act in accordance with the

dictates of conscience would be unworkable in a democratic society.

They also admit that there is a "pressing social need" to combat drug

abuse through criminal prosecution of users and dealers.  However, the

treatment of young drug addicts in the early stages of their drug

dependence also constitutes a legitimate aim and serves a "pressing

social need", and for this reason the first applicant was granted

State recognition and support as a drug treatment centre.

        Treatment in a drug rehabilitation centre can only be

successful in an atmosphere where the young persons have been given

the guarantee that their statements about past drug abuse, made in

confidence during treatment, will, under no circumstances, subsequent

thereto, form the basis of a criminal indictment.  The destructive

repercussions inherent in such an eventuality are out of proportion to

the legitimate social goal which might be realised through prosecution

of putative drug recidivists.  This bond, based on the promise given

to young drug abusers that their statements relative to treatment

will be kept confidential, is not broken on conclusion of the

treatment, or even when a client is requested to leave the centre, as

was the situation in the present case.  For such a bond to arise at

all between social workers and client, the young drug abusers must be

aware that the promise of confidentiality at issue is limited neither

in time nor to the judicial exigencies of the moment.  It is this that

the courts failed to grasp.  Therefore, it was out of proportion to

the legitimate aim pursued by the court to call the two therapists as

witnesses in the criminal proceedings against their former client, and

to order coercive penalties when they refused to give evidence.

        Article 11 of the Convention (freedom of association)

        The applicants claim that the court order restricted the

ability of the drug rehabilitation centre's employees to meaningfully

or effectively associate with the young clients.  It thus also

constituted an interference with the freedom of association as

guaranteed by Article 11.  As regards the lack of justification of

this interference, the applicants repeat the arguments used under

Article 9 para. 2.

        Article 14 of the Convention (in conjunction

        with Articles 9 and 11)

        The applicants invoke the Court's case law, according to which

there may be discrimination contrary to Article 14 of the Convention

even where a State goes beyond its Convention-based obligations (Eur.

Court H.R., judgment of 23 July 1968 in the Belgian Linguistic case,

Series A no. 6, p 24; Rasmussen judgment of 28 November 1984, Series A

no. 87, p. 13 para. 35; Abdulaziz, Cabales and Balkandali judgment of

28 May 1985, Series A no. 94, p. 39 para. 82).  They claim that in the

present case there is a difference of treatment as regards the right to

refuse giving evidence which is recognised in the Austrian Code of

Criminal Procedure for members of certain professional groups in

respect of information which has become known to them through

consultation with their clients.  It is submitted that the therapists

of the drug rehabilitation centres perform a hybrid service comparable

in many respects to that provided by medical practitioners (the

physiological aspect of the treatment), by priests and psychiatrists

(spiritual and psychological aspects) and by attorneys (discussion of

legal aspects arising from the clients' drug addiction).  In view of

the analogous situation it is allegedly unjustified and discriminatory

to treat the therapists less favourably than members of these

professional groups.  In the applicants' view the reasonable

relationship of proportionality required by Article 14 has not been

respected in the present case, having regard in particular to the

disruptive consequences of the different treatment for the legitimate

functions of the drug rehabilitation centres and the chilling effect

on the social worker-client relationship.

        Article 1 of Protocol No. 1 to the Convention

        The applicants finally claim a violation of their right to the

peaceful enjoyment of their possessions.

THE LAW

1.      The applicants, a private association which runs a drug

rehabilitation centre - the first applicant - and one of the social

workers employed at this rehabilitation centre - the second applicant

- complain in substance that the second applicant and another social

worker were required to give evidence in criminal proceedings against

a former client of the rehabilitation centre in question.  They

consider that this requirement involved breaches of Articles 3, 9, 11,

13 and 14 (Art. 3, 9, 11, 13, 14) of the Convention and Article 1 of

Protocol No. 1 (P1-1).

        The Commission notes, however, that only the second applicant

was a party to the domestic proceedings while the first applicant was

but indirectly concerned by those proceedings.  The Commission further

notes in this context that the first applicant only alleges violations

of the rights of its employees and clients ("der Verein ... fühlt sich

in den Menschenrechten seiner Mitarbeiter und der betreuten

Jugendlichen verletzt").  The question therefore arises whether the

first applicant can be regarded as a proper applicant for the purposes

of Article 25 (Art. 25) of the Convention.

        According to this provision the Commission may receive

petitions "from any person, non-governmental organisation or group of

individuals claiming to be the victim of a violation by one of the

High Contracting Parties of the rights set forth in [the] Convention".

        As a private association, the first applicant is a

"non-governmental organisation" within the meaning of this provision

notwithstanding the recognition by a ministerial decree that it

fulfils functions of public interest.  However, the association does

not claim to be a victim of a violation of its own Convention rights.

Moreover, the rights primarily invoked, i.e. the right to freedom of

conscience under Article 9 (Art. 9) of the Convention and the right

not to be subjected to degrading treatment or punishment (Article 3)

(Art. 3), are by their very nature not susceptible of being exercised

by a legal person such as a private association.  Insofar as Article 9

(Art. 9) is concerned, the Commission considers that a distinction

must be made in this respect between the freedom of conscience and the

freedom of religion, which can also be exercised by a church as such

(cf.  No. 7805/77, X and Church of Scientology v.  Sweden, Dec.

5.5.79, D.R. 16 p. 68).  The Commission concludes that the first

applicant would be debarred from bringing an application invoking

Articles 3 or 9 (Art. 3, 9) of the Convention in its own name.

        In these circumstances the Commission considers that the first

applicant does not fulfil the conditions of Article 25 (Art. 25). The

application must accordingly be rejected under Article 27 para. 2

(Art. 27-2) of the Convention as being incompatible, ratione personae,

with the provisions of the Convention, insofar as it has been brought

by the first applicant.

2.      The second applicant, a "person" in the sense of Article 25,

(Art. 25) was directly concerned by the domestic proceedings and

alleges a violation of his own Convention rights.  The Commission

finds that he is a proper applicant within the meaning of Article 25

(Art. 25).

a)      The second applicant first complains that his obligation to

give evidence regarding a former patient of the rehabilitation centre,

to whom an assurance of confidentiality had been given, amounted to

inhuman or degrading treatment within the meaning of Article 3 (Art.3)

of the Convention.  He further alleges that, contrary to Article 13

(Art. 13) of the Convention, he did not have an effective domestic

remedy at his disposal by which he could raise this issue.

        With regard to the complaint under Article 13 (Art. 13) the

Commission notes that the second applicant challenged the court order,

claiming that giving the required evidence would bring him into

disgrace.  The Commission is satisfied that in this way he raised, in

substance, the issue of degrading treatment although he did not

expressly refer to Article 3 (Art. 3) of the Convention.  As this

provision is part of the constitutional law of Austria, the second

applicant could have invoked it and the criminal courts would have

been obliged to deal with an argument based on this Article.  In these

circumstances there is no appearance of a violation of the second

applicant's right under Article 13 (Art. 13) , and his complaint in

this respect must be rejected as being manifestly ill-founded within

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

        The Commission further finds that the second applicant has, as

required by Article 26 (Art. 26) of the Convention, exhausted the

domestic remedies in respect of his complaint under Article 3 (Art. 3)

of the Convention.  It recalls its consistent case-law according to

which domestic remedies must be considered as having been exhausted if

the applicant, even without quoting the relevant provision of the

Convention, has submitted, in substance, to the domestic authorities

the claim he is bringing before the Commission (cf. e.g.  No. 9228/80,

Dec. 16.12.82, D.R. 30 p. 132).  As already stated, the present

applicant, in substance, raised the argument of degrading treatment by

alleging that compliance with the court orders complained of would

bring him into disgrace.  His complaint under Article 3 (Art. 3) of

the Convention accordingly cannot be rejected under Article 27 para. 3

(Art. 27-3) for failure to exhaust domestic remedies.

        However, the Commission does not find that the court order to

give evidence constituted inhuman or degrading treatment within the

meaning of Article 3 (Art. 3) of the Convention.  The obligation to

give the required evidence did not attain the level of severity which

is required by this provision.  This part of the application therefore

is also manifestly ill-founded.

b)      The second applicant further complains that the court order to

give evidence violated his freedom of conscience as guaranteed by

Article 9 (Art. 9) of the Convention and his freedom of association as

guaranteed by Article 11 (Art. 11) of the Convention.  He also

complains that in respect of these rights he has been discriminated

against, contrary to Article 14 (Art. 14) of the Convention, in that

as a social worker he was treated differently from other professional

groups with similar functions.  The applicant finally complains that

the fine imposed on him constituted an unjustified interference with

his right to the peaceful enjoyment of his possessions as guaranteed

by Article 1 of Protocol No. 1 (P1-1) to the Convention.

        It is true that Article 9 (Art. 9) of the Convention applies,

inter alia, to manifestations based on an individual's personal

conscience (cf., mutatis mutandis, No. 7050/75, Arrowsmith v.  United

Kingdom, Comm.  Rep. 12.10.78, D.R. 19 p. 5, paras. 69 et seq.).

Article 11 (Art. 11) of the Convention guarantees, inter alia, the

freedom of association. Article 14 (Art. 14) of the Convention secures

the principle of non- discrimination in respect of the rights and

freedoms set forth in the Convention, including the aforementioned

freedoms guaranteed by Article 9 and 11 (Art. 9, 11).  Article 1 of

Protocol No. 1 (P1-1) finally secures everyone the right to the

peaceful enjoyment of his possessions.

        However, the Commission is not required to decide whether or

not the facts alleged by the second applicant disclose any appearance

of violations of the above provisions as, under Article 26 (Art. 26)

of the Convention, it may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law.  The mere fact that the second applicant

has submitted his case to the competent courts does not in itself

constitute compliance with this rule.  It is also required that the

substance of any complaint made before the Commission should have been

raised during the proceedings concerned.  In this respect the

Commission refers to its established case-law (see e.g.  No. 1103/61,

Yearbook 5, pp. 168, 186; No. 5574/72, Dec. 21.3.75, D.R. 3, pp. 10,

15; No. 10307/83, Dec. 6.3.84, D.R. 37, pp. 113, 120).

        In the present case the second applicant did not raise, either

in form or substance, in the proceedings before the District Court of

Schwaz and the Regional Court of Innsbruck, the complaints which he now

makes before the Commission.  He did not invoke any of the Convention

Articles referred to above, although they form part of the constitutional

law of Austria and must thus be taken into account by the courts when

interpreting and applying provisions of the ordinary law such as

Section 153 of the Code of Criminal Procedure.  The Commission notes,

in particular, that the applicant neither expressly nor implicitly

invoked his constitutional right to freedom of conscience.  The fact

that he referred to the possibility that giving evidence might

bring him into disgrace cannot be seen as an invocation of this

constitutional right.  Nor did the applicant raise the problem of

discrimination in comparison with other professional groups by

invoking, for example, his constitutional right to equality before the

law.

        Moreover, an examination of the case does not disclose the

existence of any special circumstances which might have absolved the

second applicant, according to the generally recognised rules of

international law, from raising his complaints in the proceedings

referred to.

        It follows that the second applicant has not complied with the

conditions as to the exhaustion of domestic remedies in this respect

and his above complaints must accordingly be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission            President of the Commission

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