Austria - Administrative Court (VwGH), 16 May 2013, 2011/21/0185

Facts:

The second Applicant is a freelance journalist. On 07.02.2010, (within visiting times) he intended to visit the first Applicant, who was at that time held in detention in the Police Detention Centre in Vienna, to hold a discussion with him for research purposes for an article. He was refused the visit and was informed that visits to people in detention pending deportation were, in principle, not possible. The first and second Applicants lodged an appeal against this to the Vienna Independent Administrative Senate. The appeals challenged the exercise of direct authority and coersion (preventing contact at visiting times as well as preventing the sharing or receiving of information). There was no legal basis for the refusal to allow visits. In addition, both Applicants asserted a violation of their rights in accordance with Article 10 of the ECHR because preventing the transmission of information or preventing research activities without a basis in law represents a disproportionate interference in the “active freedom of information” of the first Applicant and “passive freedom of information” of the second Applicant which are elements of “press freedom” . In addition, both Applicants asserted a violation of their rights to make contact with each other during visiting times and to exchange information as protected by Art 8 of the ECHR;  this interference lacked a basis in law and was disproportionate.

The Vienna Independent Administrative Senaterejected the appeals as inadmissible. As grounds, the Vienna Independent Administrative Chamber stated that the first Applicant should have lodged an appeal to the Commander of the detention centre because a visiting right was a right under the house rules. This path was available only to the first Applicant; there was no legal entitlement for journalists or other outside persons (except at the most for family members) to have contact with a certain person despite their lawful detention.

In addition, the appeal on the basis of the exercise of direct authority and coersion was inadmissible because the enforced interruption of social contact was a result of the legitimate deprivation of liberty through the decision to detain pending deportation. Simply making contact through visits impossible should not be considered as a measure of direct authority and coersion. Similarly, orders by the Ministry for Internal Affairs (whose press office also prohibited visit contact pro futuro), which refer to the enforcement of the detention order should not be considered as exercising direct authority but as instructions.

The Applicants lodged an appeal against this decision to the Administrative Court.

Decision & reasoning:

According to the Administrative Penal Act, detainees are permitted to receive visits during office hours, insofar as this is possible taking account the required supervision without endangering security and order as well as without having an adverse effect on operating duties. 

The refusal of the appeal by the Vienna Independent Administrative Senate concerning the sole possibility of an appeal to the Commander of the detention centre was unlawful because it failed to consider that the detention order expressly leaves unaffected any legal protection that otherwise exists in the legal system. Also, the view of the Respondent authority failed insofar as it found that simply not making the receipt of visits possible on 07.02.2010 did not represent a measure of direct authority and coersion. This is because the circumstances of the enforcement of the detention pending deportation (procedures of detention) or the events and omissions during deportation detention can be challenged by means of an appeal according to the established jurisprudence of the Administrative Court. The Independent Administrative Chamber should therefore have dealt with the appeal of the first Applicant on the merits, insofar as it refers to the prevention of visitor contact with the second Applicant on 07.02.2010.

The refusal of the second Applicant’s appeal had, however, taken place correctly because of the  lack of a right of complaint. This is because only rights for detainees arise from the detention order (such as the first Applicant). Also, no right of complaint arises from Art 8 of the ECHR. There was a similar lack of a violation of Art 10 of the ECHR because simply preventing the creation and provision of publicly accessible information by (active) interference by government bodies is included Art 10 of the ECHR. The information available from detainees is, however, not public, which is why there is no government obligation to make contact possible.

The legal violation in this respect could be asserted only by the person in detention.

Outcome:

The challenged decision was revoked as unlawful insofar as it rejected the appeal by the first Applicant regarding preventing contact with the journalist and preventingthe sharing of information with the latter during visiting hours.

As for the rest, the appeals by the first and second Applicant were refused as unfounded.

Subsequent proceedings:

Regarding the first Applicant (person in detention pending deportation):

In a decision of 13.12.2013 under number UVS-02/V/13/10024/2011 the Vienna Independent Administrative Senate declared the prevention of contact with the journalist to be unlawful.

Regarding the second Applicant (journalist):

According to information from the journalist’s lawyer of 01.02.2014, the latter has lodged an appeal with the ECHR.

Observations/comments:

Contested decisions by the Vienna Independent Administrative Senate:

Vienna Independent Administrative Senate 20.05.2010, UVS- 02/13/1620/2010 and UVS-02/13/1621/2010.

Other sources:

Walter/Thienel, Verwaltungsverfahrensgesetze (Administrative procedural laws) II2