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FIFTH SECTION
DECISION
Application no. 2309/10
Marie RINGLER
against Austria
The European Court of Human Rights (Fifth Section), sitting on 12 May 2020 as a Committee
composed of:
Mārtiņš Mits, President,
Gabriele Kucsko-Stadlmayer,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,
Having regard to the above application lodged on 12 January 2010,
Having regard to the observations submitted by the respondent Government and the
observations in reply submitted by the applicant,
Having regard to the comments submitted by Privacy International, which had been given leave
to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules
of Court),
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Marie Ringler, is an Austrian national who was born in 1975 and lives in
Vienna. She was represented before the Court by Ms M. Windhager, a lawyer practising in Vienna.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador
H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration
and Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 January 2008 Federal Law no. 114/2007 containing an amendment to the Security
Police Act (Sicherheitspolizeigesetz; hereinafter: “SPA”) entered into force. Among other
measures, its section 53(3a) and (3b) extended the powers of the police authorities to request
personal data of telephone/mobile phone and internet users from telecommunications providers
(see paragraphs 20-21 below).
5. The applicant was a member of the Vienna Regional Parliament and lodged a complaint
under Article 140 of the Federal Constitution (Bundesverfassungsgesetz) with the Constitutional
Court requesting it to review the constitutionality of section 53(3a) and (3b) of the SPA.
6. She did not allege that any of these measures had in fact been ordered or implemented
against her, nor that she had been affected by measures directed against other persons. However,
she contended that she hosted a website and was as such considered a provider of
telecommunications services and might therefore be required to give information under 53(3a) of
the SPA Moreover as an internet and mobile phone user she might be subjected to measures
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the SPA. Moreover, as an internet and mobile phone user, she might be subjected to measures
under section 53(3a) and (3b) at any point in time and without having any effective remedy at her
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7. On 1 July 2009 the Constitutional Court rejected the applicant’s complaint as inadmissible. It
noted that only persons with whose rights a law interfered directly, without being applied through a
decision of a court or an administrative authority, had the right to lodge a complaint under
Article 140 of the Federal Constitution.
8. In so far as the applicant alleged that she was required to give certain information as a
telecommunications provider, the Constitutional Court held that, although section 53(3a) of the
SPA did not contain any new obligations to retain data, it contained an obligation to provide certain
types of information. It accepted that in so far as section 53(3a) obliged the applicant, as a provider
of telecommunications services, to give information, it interfered with her rights. However, if such
information were actually requested she had a remedy, namely a complaint to the Independent
Administrative Panel under section 88 of the SPA at her disposal. She was therefore not directly
affected.
9. In so far as she had asserted that she was a mobile phone and internet user and was
therefore likely to be affected by section 53(3a) and (3b) of the SPA, the Constitutional Court
referred to its decision of 1 July 2009 (G 147,148/08-14) in a similar case.
10. In that case also, the applicants had not alleged that the police authorities had requested
any information about them or taken any measures against them under the contested provisions.
They had merely asserted that they were likely to be affected by these provisions as they were
mobile phone and internet users and exercised certain professions. In the Constitutional Court’s
view this was not sufficient to show that they were directly affected by the said provisions.
11. Referring to the case-law of the European Court of Human Rights (Klass and Others v.
Germany, 6 September 1978, Series A no. 28, and Weber and Saravia v. Germany (dec.),
no. 54934/00, ECHR 2006‑XI), the Constitutional Court observed that section 53(3a) and (3b) of
the SPA did not regulate secret surveillance of communications but merely empowered the police
authorities to obtain specific information about telephone or internet users from providers of
telecommunications services. Since the circumstances at issue were therefore distinct from those
in the Court’s case-law, the applicants’ complaint in respect of these provisions was inadmissible
on that ground alone.
12. If the applicants had reason to believe that their data had been requested or processed by
the police authorities on the basis of the contested provisions, they had remedies under the Data
Protection Act 2000 at their disposal, in particular the right to obtain information and the right to
request the destruction of data under sections 26 and 27 of that Act.
13. Finally, the Constitutional Court observed, inter alia, that a system of safeguards was in
place: pursuant to section 91c of the SPA the police authorities had to inform the Legal Protection
Commissioner (Rechtsschutzbeauftragter) of requests for information about telephone or internet
users under section 53(3a) and (3b); in cases in which the Legal Protection Commissioner
considered that an individual’s right had been violated by the use of personal data he was entitled
to inform the person concerned or, where that was not possible pursuant to section 26(2) of the
Data Protection Act 2000, he or she was entitled to lodge a complaint with the Data Protection
Commission.
(iv) Notification
32. The SPA and the Data Protection Act 2000/new Data Protection Act contain rules on
notification.
33. Pursuant to section 24 of the Data Protection Act 2000, as in force on 1 July 2009, anyone
who requested the processing of personal data, including the police authorities, had the duty to
provide information for the data subject (Betroffener). The new Data Protection Act introduced, in
particular, the duty for the police authorities to notify the data subject additionally on data protection
rights and remedies (section 43 of the Data Protection Act).
34. However, like section 24 of the Data Protection Act 2000, section 43 of the new Data
Protection Act does not require a notification if data is obtained by transmission from another entity
and the processing is provided for by law. Notifications may also be delayed, restricted or omitted
to the extent necessary, and as long as it proves necessary and proportionate, to avoid prejudicing
the prevention and combating of crime; to protect public and national security; to protect the
institutions of the Republic; to protect the military facilities and to protect the rights and freedoms of
others.
35. Pursuant to section 91c of the SPA, the police authorities must notify the Legal Protection
Commissioner, inter alia, on requests made under section 53(3a) of the SPA, which concerned IP-
addresses (see paragraph 20 above) and about requests made under section 53(3b) of the SPA
(see paragraph 21 above).
36. If the Legal Protection Commissioner perceives that a right of a data subject, who has no
knowledge of the data collection, has been violated by the use of personal data, he must notify him
or her. If a notification is not possible pursuant to the exceptions of the Data Protection Act (see
paragraph 34 above), he must lodge a complaint with the Data Protection Authority (section 91d of
the SPA). The obligation was introduced on 1 April 2012 by an amendment to the SPA and
replaced the initial wording that the Legal Protection Commissioner was ‘entitled’ to notify and
lodge a complaint.
37. On 1 April 2012 an obligation was also introduced for the police authorities to notify the data
subject if retained data (Vorratsdaten) were required to answer a request under section 53(3a) and
(3b) of the SPA (section 53(3c) of the SPA)
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(3b) of the SPA (section 53(3c) of the SPA).
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(v) Information rights
38. Pursuant to section 26 of the Data Protection Act 2000, as in force on 1 July 2009,
everyone had the right to obtain information (nature of the data, its source, transmission to third
persons, the purpose and legal basis of the processing) from anyone who requested the
processing of personal data, including the police authorities. The new Data Protection Act
introduced, in particular, a duty for the police authorities to inform the data subject also on the
period of retention, on the rights for rectification, restrictions or deletion and on the data protection
rights and remedies (section 44 of the Data Protection Act).
39. However, like section 26 of the Data Protection Act 2000, section 44 of the new Data
Protection Act restricts the information rights by referring to section 43 of the Data Protection Act
(see paragraph 34 above). In the event of such restrictions, the authorities have to inform the data
subject about the restriction and to provide him or her with the reasons for it. If no data exists or if
the disclosure of the restriction would jeopardise the measure, the police authorities can respond
with a standard reply (“no data, which is subject to the duty of disclosure and concerning the
person requesting the information, is used” [“Keine der Auskunftspflicht unterliegenden Daten über
den Auskunftswerber werden verwendet”]). The reasons for the restrictions must be documented
and made available to the Data Protection Authority.
(vii) Remedies
41. Like sections 30 and 31 of the Data Protection Act 2000, the new Data Protection Act gives
everyone who considers that the processing of personal data has infringed his data protection
rights the right to lodge a complaint with the Data Protection Authority (sections 32(1 no. 4), 34(5)
and 24 of the Data Protection Act).
42. The right to complain applies also to restrictions on notifications (see paragraph 34 above)
and to applicants who did not receive the requested information (see paragraph 39 above) or
whose request for rectification, restriction or deletion was refused (sections 32(1) and 42(8) of the
Data Protection Act).
43. If a data subject has no knowledge of a violation of his rights, the Legal Protection
Commissioner is obliged to lodge such a complaint (see paragraph 36 above).
44. Pursuant to section 40 (2) of the Data Protection Act 2000 a data subject had a right to
appeal against a decision of the Data Protection Commission to the Administrative Court
(Verwaltungsgerichtshof). The new Data Protection Act contains the right to complain to the
Federal Administrative Court (Bundesverwaltungsgericht) against a decision of the Data Protection
Authority or its failure to act in time (sections 34 (5), 27 and 42 (9) of the Data Protection Act).
45. Under Article 140 § 1 of the Austrian Federal Constitution, every person can challenge the
constitutionality of a law if he/she alleges that the law has infringed his/her rights and become
immediately effective for him/her without a court´s or administrative authority´s decision. In its
well‑established case-law, the Constitutional Court requires “direct interference” by the contested
law with the person´s rights and the unavailability of remedies against its application.
COMPLAINTS
46. The applicant complained under Article 8 of the Convention that the powers provided to the
police authorities under section 53(3a) and (3b) of the Security Police Act (“SPA”) entailed by their
very existence an interference with her right to respect for her private life.
47. The applicant further complained under Article 13 of the Convention that she did not have
any effective remedy in respect of the alleged violation of Article 8 of the Convention.
THE LAW
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A. Complaint under Article 8 of the Convention
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48. The applicant relied on Article 8 of the Convention, which reads 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 prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
(β) Notification
69. The Court agrees with the applicant that the notification obligations under section 24 of the
former Data Protection Act 2000 as well as under section 43 of the new Data Protection Act (see
paragraph 33 above), lack practical significance. As the Government has admitted (see
paragraph 52 above), the statutory exceptions from notification (see paragraph 34) apply foremost
to the contested measures.
70. Nevertheless, the police authorities are obliged to notify the Legal Protection Commissioner
of all requests made under section 53(3a) and (3b) of the SPA which concerned IP-addresses or
location data (see paragraph 35 above). Vested with independence and the necessary powers
(see paragraphs 26‑28 above), the commissioner is obliged either to inform the data subject of any
unlawful measures or to lodge a complaint with the independent Data Protection Commission (see
paragraph 36 above).
71. However, an enforceable right to such a notification or complaint exists only in the event of
a violation of the data subject’s privacy rights. It does not result in a general notification obligation.
The relevant provision, as in force at the time of the Constitutional Court’s decision, did also not
explicitly stipulate an obligation for the commissioner to notify the data subject or to complain to the
Data Protection Commission. Even though the Government submitted (see paragraph 52 above)
that the subsequent law amendment (see paragraph 36 above) was solely a clarification, there
remains lack of clarity, as to whether there had always been such an obligation.
(δ) Remedies
74. A complaint by any person who suspected an infringement of his data protection right, to
the Data Protection Commission/Data Protection Authority triggered an examination of the legality
of a measure (see paragraphs 41, 43 and 54 above) or a review of the police authorities’
compliance with their notification and information obligations (see paragraph 42 above).
75. Further, everybody was and is able to request a rectification, restriction or deletion of data
which is no longer needed or was unlawfully processed (see paragraph 40 above). The decision of
the police authorities on such a request could and can be challenged before the Data Protection
Commission/ Data Protection Authority (see paragraph 42 above).
76. Moreover, the decisions of the Data Protection Commission/Data Protection Authority were
and are further subject to judicial control (see paragraph 44 above).
77 The remedy system was further complemented by the Legal Protection Commissioner8/10
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77. The remedy system was further complemented by the Legal Protection Commissioner,
whose access and review rights (see My paragraphs
Research26‑28 above) ensured that the data protection
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provisions were observed and applied correctly. Ultimately, this review could result in a notification
of the data subject or in a complaint to the Data Protection Commission/Data Protection Authority
(see paragraph 36 above).
78. The Court finds therefore that the Legal Protection Commissioner and the Data Protection
Authority provide a supervisory system which was accessible for the applicant for any claim
against abuse. This system of effective remedies was already in place at the time of the decision of
the Constitutional Court in 2009 and the Constitutional Court found therefore that the applicant had
to exhaust these remedies before challenging the allegedly unconstitutional law before it (see
paragraphs 8‑13 above).
(ε) Conclusion
79. The Court finds that, although the notification obligations lacked practical significance, a
system of effective remedies with access to judicial control existed. The applicant in the present
case did not demonstrate that she had tried to seek any information under section 26 of the Data
Protection Act 2000 or had lodged a complaint with the Data Protection Commission under
sections 30 and 31 of the Data Protection Act 2000. In such a situation, a widespread suspicion of
abuse and thus a review of legislation in abstracto is more difficult to justify (see, mutatis mutandis,
Kennedy, cited above, § 124).
80. The applicant alleged neither at the domestic level nor in her application to the Court that
her personal or professional situation was of the kind that might normally attract the application of
measures under section 53(3a) and (3b) of the SPA. She had only asserted in her constitutional
complaint (see paragraph 6 above) that she was likely to be affected by such measures, as a
mobile phone and internet user. She did not, therefore, demonstrate that, due to her personal
situation, she was potentially at risk of being subjected to those measures (see Roman Zakharov,
cited above, § 171). The Constitutional Court therefore rejected this complaint as inadmissible.
81. Accordingly, the facts of the present case were never such as to permit the applicant to
claim to be a victim of a violation of her rights under Article 8 of the Convention. Accordingly, this
complaint is incompatible ratione personae with the provisions of the Convention within the
meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
82. The applicant relied on Article 13 of the Convention which, insofar as relevant, reads as
follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective
remedy before a national authority ...”
83. Having declared the complaint under Article 8 of the Convention inadmissible, the Court
concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention
(see, for the same approach, Valeriy Fuklev v. Ukraine, no. 6318/03, § 98, 16 January 2014, and
Lolova and Popova (dec.), no. 68053/10, § 52, 20 January 2015).
84. It follows that this complaint must be rejected as being incompatible ratione materiae with
the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
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