Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 10392/83

by Z.

against Austria

The European Commission of Human Rights sitting in private

on 13 April 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. VANDENBERGHE

Mrs. G.H. THUNE

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 28 March 1983

by Z. against Austria and registered on 20 April 1983 under file No.

10392/83;

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

Rules of Procedure of the Commission;

- the Commission's decision of 4 March 1985 to invite the

respondent Government to submit specific information

in accordance with Rule 42 para. 2(a) of the Rules of Procedure

- the information submitted by the respondent Government on

6 May 1985 and the comments in reply submitted

by the applicant on 10 June 1985;

_ the Commission's decisions of 12 October 1985 and

11 October 1986 to adjourn the examination of the case

pending the outcome of the applicant's negotiations with

the competent Austrian authorities;

- the repeated reports of the applicant on the progress of his

negotiations, the latest information dated January 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, which do not appear to be in dispute

between the parties, may be summarised as follows.

The applicant is an Austrian citizen born in 1936 who resides

in Salzburg. He is a practising lawyer and as such authorised to

represent clients in social security cases. His office is equipped

with a computer terminal. The applicant is also himself included in

the social security system under the General Social Security Act

(Allgemeines Sozialversicherungsgesetz).

The 32nd Amendment to the Act (Fed. Law Gazette No. 704/1976)

which came into force on 1 January 1977 provided for the introduction

of a computerised legal information system covering the area of social

security law. The relevant provisions have been modified by the 34th

Amendment to the Act (Fed. Law Gazette No. 530/1979), which came into

force on 1 January 1983. S. 31 para. 8 of the Act in the version of

these amendments provides that the information system will cover in

particular all relevant legal provisions and their amendments as well

as the case-law and doctrine relating to them. The documentation will

be prepared and kept up to date by the Head Office of the Social

Security Institutions (Hauptverband der Sozialversicherungsträger) in

co-operation with the Federal Ministry of Social Affairs (Bundes-

ministerium für Soziale Verwaltung) in such a way that the recorded

information can be used by the Ministry, the individual Social

Security institutions and the Head Office as well as the legislative

bodies of the Federation. Access must be granted to these bodies and

the courts dealing with social security disputes (Leistungssachen).

Acces must further be granted on payment of costs to professional

organisations of public law (gesetzliche berufliche Vertretungen),

provided that the technical and organisational possibilities so

permit, and under the same conditions it may also be granted to "other

entities and persons" (andere Stellen und Personen).

In 1980 the applicant lodged a motion to challenge this

legislation (Antrag auf Gesetzesaufhebung) with the Constitutional

Court (Verfassungsgerichtshof). He invoked in particular Article 10

(the right to receive information) read in conjunction with Article 14

of the Convention. He complained that the access to the computerised

legal information system was restricted and was not granted to

everybody as of right.

On 30 November 1982 the Constitutional Court declared the

applicant's motion inadmissible for lack of standing. The Court

considered that he was merely economically affected and had not shown

an immediate interference with his constitutional rights.

In June 1985 the applicant entered into negotiations with the

Head Office of the Social Security Institutions about a possible

access to the information system and in particular its financial

implications.

On 20 February 1986 S. 31 para. 8 of the Social Security Act

was amended to the effect that it provides, within the limits of

technical and operational possibilities and on payment of costs, for a

general right of access to this information system (41st Amendment -

Fed. Law Gazette No. 111/86, 5 March 1986).

In July 1987 the Head Office of the Social Secuirty

Institutions informed the applilcant that it estimated the necessary

investment for technical installations enabling his access to the

information system at about 50.000 AS and the costs of use per hour at

AS 2000. Considerations to use the existing, allegedly cheaper cable

distribution system (Bildschirmtext) run by the postal administration

have apparently not been pursued.

COMPLAINTS

The applicant has originally complained under Article 10 read

alone and in conjunction with Article 14 of the Convention that under

the terms of the Social Security Act as amended in 1979 and 1983 he

had no right of access to the legal information system. Having regard

to the legal situation following the 41st Amendment in 1986, he now

complains in particular that the envisaged costs for technical

installations and use of this information system are prohibitive. He

considers that the State is obliged under Article 10 of the Convention

to contribute to an effective right of access to an existing

information system and, therefore, to provide for the technical

facilities of access to this system at reasonable prices.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced 28 March 1983 and registered on

20 April 1983.

On 4 March 1985 the Commission decided to request the

respondent Government to submit specific information in accordance

with Rule 42 para. 2(a) of its Rules of Procedure as regards the

regulations concerning access to the information system. The

information by the Government dated 6 March 1985 was received on

7 March 1985. The applicant's comments of 10 June 1985 arrived on

13 June 1985.

On 12 October 1985 and 11 October 1986 the Commission, upon

the applicant's respective requests dated 3 September 1985 and 17 July

1986, decided to adjourn the examination of the case pending his

negotiations with the competent Social Security bodies.

THE LAW

The applicant complains under Article 10 (Art. 10) of the

Convention that he has no effective right of access to the

computerised legal information system on social security law set up by

the Austrian Social authorities.

It is true that Article 10 para. 1 (Art. 10-1) of the

Convention provides, inter alia, that everyone has the right to

freedom of expression, including freedom to receive information

without interference by public authority.

The Commission recalls that the freedom to receive information

guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention is

primarily a freedom of access to general sources of information which

may not be restricted by positive action of the authorities (cf. No.

8383/78, Dec. 3.10.79, D.R. 17 p. 227).

In the present case, the Commission notes the applicant does

not claim information concerning his own personal data, but a right of

access to general information, i.e. documents, jurisprudence etc, on

Austrian social law. Under S. 31 para. 8 of the Social Security Act

as amended in 1986 there is a right of access to the information

system also for private persons. The applicant's claim concerning a

statutory right of access to the information system, having been

satisfied, is not pursued.

It thus remains to be examined whether the necessary

investment for technical installations enabling the access to the

information system and the estimated costs of use raise issues under

Article 10 read alone or in conjunction with Article 14 (Art. 10+14)

of the Convention.

The Commission finds that the applicant has a statutory right

of access to the legal information system as it is set up by the

Austrian authorities primarily for their internal administrative

purposes. When he avails himself of that right he is in principle

subject to the technical facilities of the information system. The

applicant's submissions do not disclose any indication that the

Austrian authorities when setting up the information system

arbitrarily restricted the access of other users or that the estimated

costs for special technical requirements and actual use are

prohibitive and therefore interfere with the applicant's rights under

Articles 10 and 14 (Art. 10+14) of the Convention.

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER ) (C. A. NØRGAARD)

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Z. v. AUSTRIA

Z. v. AUSTRIA

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