Lexploria

In the case of Friedl v. Austria (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of

Court A (2), as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr J. De Meyer,

Mr R. Pekkanen,

Mr A.B. Baka,

Mr L. Wildhaber,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 26 January 1995,

Delivers the following judgment, which was adopted on

that date:

_______________

Notes by the Registrar

1. The case is numbered 28/1994/475/556. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to

the Court since its creation and on the list of the

corresponding originating applications to the Commission.

2. Rules A apply to all cases referred to the Court before

the entry into force of Protocol No. 9 (P9) and thereafter

only to cases concerning States not bound by that Protocol

(P9). They correspond to the Rules that came into force on

1 January 1983, as amended several times sub-sequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on

9 September 1994, within the three-month period laid down by

Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the

Convention. It originated in an application (no. 15225/89)

against the Republic of Austria lodged with the Commission

under Article 25 (art. 25) by an Austrian national,

Mr Ludwig Friedl, on 5 June 1989.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Austria

recognised the compulsory jurisdiction of the Court

(Article 46) (art. 46). The object of the request was to

obtain a decision as to whether the facts of the case

disclosed a breach by the respondent State of its obligations

under Articles 8 and 13 (art. 8, art. 13) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated

that he wished to take part in the proceedings and designated

the lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr F. Matscher, the elected judge of Austrian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal,

the President of the Court (Rule 21 para. 3 (b)). On

24 September 1994, in the presence of the Registrar, the

President drew by lot the names of the other seven members,

namely Mr B. Walsh, Mr C. Russo, Mr A. Spielmann,

Mr J. De Meyer, Mr R. Pekkanen, Mr A.B. Baka and

Mr L. Wildhaber (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent

of the Austrian Government ("the Government"), the applicant

and the Delegate of the Commission on the organisation of the

proceedings (Rules 37 para. 1 and 38).

5. On 23 December 1994 the Government communicated to the

Registrar the text of an agreement concluded with the

applicant on 21 December 1994. On 11 and 16 January 1995 the

applicant's lawyer confirmed this agreement.

The Delegate of the Commission was consulted and gave his

opinion on 18 January 1995.

AS TO THE FACTS

I. Circumstances of the case

6. Mr Ludwig Friedl, who lives in Vienna, was one of the

participants in a demonstration that he had organised with

other persons with a view to drawing public attention to the

plight of the homeless. The demonstration began on

12 February 1988 in an underground passage for pedestrians,

the Karlsplatz-Opera passage in Vienna. A round-the-clock

sit-in of some fifty persons was organised to coincide with

the demonstration, which was supposed to last until

24 February.

On 16 February another sit-in began at the same place,

organised by the Kurdistan-Komitee; it was due to continue

until 27 February.

During these demonstrations the authorities received

numerous complaints from pedestrians concerning the nuisance

caused by the demonstrators, who slept and did their cooking

on the spot.

7. On 19 February 1988, at around 1 a.m., officers of the

Vienna-centre police station (Bezirkspolizeikommissariat),

accompanied by municipal officials, instructed the homeless

persons to leave. They informed the persons concerned that

their demonstration required an authorisation under

section 82 (1) of the Road Traffic Act

(Straßenverkehrsordnung), which prohibited any obstruction to

pedestrian traffic. As the demonstrators did not immediately

comply, the identities of fifty-seven of them were taken down.

The demonstrators finally agreed to leave.

8. In the course of this operation, which ended at about

2.45 a.m., the police took photographs for use in the event of

prosecution. The whole proceedings were also recorded on

video-cassette.

The applicant claims that he was photographed

individually. According to the Government, however, the

police did not seek to establish the identities of the

demonstrators who had been photographed. Moreover, the

personal information recorded and the photographs were not

entered into a data-processing system. The administrative

files concerning the demonstration were, according to the

normal practice, to be destroyed, together with the

photographs, in the year 2001, ten years after they were

consulted for the last time.

9. On 21 March 1988 Mr Friedl complained to the

Constitutional Court (Verfassungsgerichtshof) that, in breach

of his rights under in particular Articles 8 and 11 (art. 8,

art. 11) of the Convention, police officers had, on 17 and

19 February 1988, photographed him, established his identity

using coercion, taken down his particulars and broken up the

meeting.

10. On 13 December 1988 the Constitutional Court ruled that

it lacked jurisdiction to entertain the applicant's complaints

concerning the photographs, the verification of his identity

and the taking down of his particulars. It noted that in this

instance the police had not had recourse to physical force or

coercion. According to its settled case-law concerning

Article 144 para. 1 of the Constitution

(Bundesverfassungsgesetz, see paragraph 11 below), its power

of review extended only to police action which constituted an

order (Befehl mit unverzüglichem Befolgungsanspruch) or which

entailed the use of physical force (Anwendung physischen

Zwangs), and which could accordingly be regarded as the

exercise by an administrative authority of a direct power to

give orders to and to use coercion against a particular

individual (Ausübung unmittelbarer verwaltungsbehördlicher

Befehls- und Zwangsgewalt gegen eine bestimmte Person). Even

if there had been an interference with the exercise of a right

guaranteed under Article 8 (art. 8) of the Convention, no

question arose under Article 13 (art. 13) of the Convention,

as that provision could not extend the scope of the

jurisdiction of the Constitutional Court.

Mr Friedl's other complaints were dismissed on the ground

that there was nothing to suggest that they disclosed a

violation of constitutional rights.

II. Relevant domestic law

11. Article 144 para. 1 of the Federal Constitution provides

that the Constitutional Court has jurisdiction to hear

complaints alleging the violation of constitutional rights and

directed against formal decisions of administrative

authorities or against the exercise by the authorities of a

direct power to give orders to and use coercion against a

particular individual.

12. On 1 May 1993 the Security Services Act

(Sicherheitspolizeigesetz) entered into force. It contains

provisions dealing, inter alia, with the interrogation, arrest

and detention of persons, the use of direct official coercion

and the gathering, use and storing of personal data, including

photographs and recordings.

By virtue of section 88 (1) of that Act, independent

administrative tribunals (Unabhängige Verwaltungssenate) have

jurisdiction to hear complaints from persons alleging a

violation of their rights resulting from the exercise by a

security service of a direct power to give orders and to use

coercion (Ausübung unmittelbarer sicherheitsbehördlicher

Befehls- und Zwangsgewalt). Section 88 (2) of the Act extends

the jurisdiction of the independent administrative tribunals

to all the other measures taken by such authorities, except

decisions (Bescheide).

Section 88 (4) provides that a member of the competent

administrative tribunal is to examine complaints lodged under

section 88 (2), applying in particular section 67 (c) of the

1991 General Administrative Procedure Act (Allgemeines

Verwaltungsverfahrensgesetz). Pursuant to the latter

provision, if the tribunal does not dismiss the complaint, it

must declare the impugned measure unlawful. If that measure

is still in force, the competent authority must without delay

take steps to bring the legal position into line with the

tribunal's decision.

PROCEEDINGS BEFORE THE COMMISSION

13. Mr Friedl applied to the Commission on 5 June 1989.

Relying on Article 8 (art. 8) of the Convention, he complained

that, during the demonstration, the police had photographed

him, checked his identity and taken down his particulars. He

maintained in addition that no effective remedy had been

available to him in this connection, as should have been the

case under Article 13 (art. 13). Finally he claimed that the

breaking up of the demonstration by the police had been

contrary to Article 11 (art. 11).

14. On 30 November 1992 the Commission declared the

application (no. 15225/89) admissible as regards the

complaints under Articles 8 and 13 (art. 8, art. 13) and

inadmissible for the rest. In its report of 19 May 1994

(Article 31) (art. 31), the Commission expressed the opinion

that there had been no breach of Article 8 (art. 8)

(unanimously). It further took the view that there had been a

breach of Article 13 (art. 13) as regards a remedy in respect

of the gathering and taking down of personal data (nineteen

votes to four), but not as regards a remedy in respect of the

taking of photographs and their storing (fourteen votes to

nine). The full text of the Commission's opinion and of the

two separate opinions contained in the report is reproduced as

an annex to this judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex

will appear only with the printed version of the judgment

(volume 305-B of Series A of the Publications of the Court),

but a copy of the Commission's report is obtainable from the

registry.

_______________

AS TO THE LAW

15. On 23 December 1994 the Court received from the Agent of

the Government a copy of the following text, signed on

21 December by himself and the applicant's lawyer.

"...

1. The Federal Government of the Republic of Austria

will pay to the applicant a sum amounting to altogether

AS 148,787.60 inclusive of all taxes as compensation in

respect of any possible claims relating to the present

application. This sum includes AS 98,787.60 in respect

of the counsel's fees and expenses incurred in the

domestic proceedings and before the Strasbourg organs.

This amount will be paid to the applicant's counsel,

Mr Thomas Prader in Vienna ...

2. All the photographs in question including the

negatives will be destroyed by the Austrian Government.

3. The applicant declares his application settled.

4. The applicant waives any further claims against the

Federal Republic of Austria relating to the present

application.

5. The Austrian Federal Government will take the

necessary steps to implement the terms of the friendly

settlement within one month after the Court has decided

to strike the case out of its list."

In the same letter the Agent of the Government requested

the Court to strike the case out of its list. He drew

attention to the fact that, since the entry into force of the

Security Services Act (see paragraph 12 above), the

independent administrative tribunals have had jurisdiction to

hear complaints such as those raised in this instance by

Mr Friedl before the Constitutional Court.

By letters of 2 and 9 January 1995 to the Registrar, the

applicant's lawyer confirmed the agreement concluded and

requested the Court to strike the case out of the list.

16. The Delegate of the Commission was consulted in

accordance with Rule 49 para. 2 of Rules of Court A and

expressed the view that the settlement was consistent with the

human rights defined in the Convention.

17. The Court takes formal note of the friendly settlement

reached between the Government and Mr Friedl. It discerns no

reason of public policy militating against striking the case

out of the list (Rule 49 paras. 2 and 4).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing

under Rule 55 para. 2, second sub-paragraph, of Rules of

Court A on 31 January 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

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CASE OF FRIEDL v. AUSTRIA

CASE OF FRIEDL v. AUSTRIA