AS TO THE ADMISSIBILITY OF
Application No. 26633/95
by Erwin BADER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 February 1995
by Erwin BADER against Austria and registered on 3 March 1995 under
file No. 26633/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, an Austrian citizen born in 1943, is a University
Professor residing in Vienna. Before the Commission he is represented
by Mr. K.A. Schachtschneider, a University Professor residing in
Nürnberg, Germany.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 5 May 1994 the National Assembly (Nationalrat), the first
chamber of the Austrian Parliament, adopted the "Federal Constitutional
Act on the Accession of Austria to the European Union"
(Bundesverfassungsgesetz über den Beitritt Österreichs zur Europäischen
Union). This Constitutional Act enabled the competent Austrian
authorities to conclude the treaty on Austria's accession to the
European Union.
On 7 May also the Federal Assembly (Bundesrat), the second
chamber of Parliament, adopted the above Constitutional Act.
Thereupon the President of the Republic (Bundespräsident),
pursuant to Article 44 para. 3 of the Federal Constitution (Bundes-
Verfassungsgesetz) and the Federal Act on Referenda
(Volksabstimmungsgesetz), ordered that a referendum on the above
Constitutional Act be held. The question for the referendum was
whether the Constitutional Act should acquire the force of law ("ob der
Gesetzesbeschluss Gesetzeskraft erlangen sollte").
On 12 June 1994 the referendum took place. According to the
official result of the referendum, published on 23 June 1994 in the
"Wiener Zeitung", 3.145,981 of the votes were "yes", while 1.578,850
of the votes were "no".
On 22 July 1994 the applicant introduced a request under Article
141 para. 3 of the Federal Constitution with the Constitutional Court
(Verfassungsgerichtshof) in which he challenged the referendum as
unlawful and requested the Constitutional Court to annul it. He also
submitted the necessary number of declarations by other voters in
support of his application.
The applicant submitted in particular that the text of the
Constitutional Act adopted by the National Assembly on 5 May 1994 was
unconstitutional as being contrary to the basic principles of the
Austrian Federal Constitution. Furthermore the procedure prescribed
by Federal Act on Referenda was unconstitutional or, in the
alternative, not complied with by the Austrian authorities. He also
submitted that the Austrian Broadcasting Corporation (Österreichischer
Rundfunk - ORF), several members of the Federal Government, members of
Regional Governments, the Chamber of Commerce, the President of the
Republic and the Church had given biased information and made biased
statements in favour of Austria's accession to the European Union and
thus had unduly influenced the voters.
On 30 August 1994 the Constitutional Court dismissed the
applicant's application for annulment of the referendum. It found that
in the context of an application for annulment of a referendum it could
not examine the applicant's arguments concerning the
unconstitutionality of the Constitutional Act which had been subject
to the referendum, but only the referendum itself.
As regards the applicant's complaint that the ORF had
disseminated biased information incompatible with its obligation of
objectivity under the Broadcasting Act (Rundfunkgesetz), the
Constitutional Court found that these allegations were not sufficiently
substantiated. In any event journalists of the ORF were independent
and any alleged violation of their obligation to respect objectivity
had to be raised first with the Broadcasting Supervisory Board
(Kommission zur Wahrung des Rundfunkgesetzes).
As regards the applicant's allegation that propaganda by organs
of the State had unduly influenced the voters in favour of a positive
vote in the referendum, the Constitutional Court observed that in the
context of elections and referenda the State must, in general, not
interfere with advertising in favour of a certain manner of voting.
However, it also had the obligation to prevent that oral or written
agitation in the course an election campaign overstepped the limits set
in the interest of freedom of elections. Thus, the State had the
obligation to prevent a virulent campaign of disinformation originating
from public authorities. However, the applicant had failed to show
that the advertisement for a positive decision by members of the
Federal Government and other public institutions amounted to such an
inadmissible campaign. What the applicant regarded as inadmissible
propaganda was merely neutral information of the public on the issues
of the referendum.
Insofar the statements made by politicians in the public had a
tendency in favour of an accession of Austria to the European Union
also the politicians making these statements could rely on their right
to freedom of opinion. Members of the Government, which were
politically responsible to Parliament, had the right to make statements
in favour of the policy adopted by the Government. In this respect the
Constitutional Court found that there was a fundamental difference
between elections and referenda. While in elections the voter had the
possibility to choose between competing political parties, no such
choice exists under the law in respect of referenda. Rather, the voter
had to give his opinion on an issue which had already been determined
by the legislator. The voter did not have to decide on parties and
personalities but on the question whether a decision by the legislator
should acquire the force of law or not.
The Constitutional Court also found that the procedural
requirements of the Federal Act on Referenda had been complied with.
COMPLAINTS
The applicant complains that in preparing the referendum the
competent Austrian authorities did not comply with their obligations
under Article 10 of the Convention to inform the public. The citizens
did not have sufficient time at their disposal to form an opinion on
all the far reaching implications the issue of Austria's accession to
the European Union had and they were not provided with comprehensive,
detailed and neutral information on the underlying issues. Rather the
Austrian authorities disseminated incomplete and biased information for
the purpose of unduly influencing the voters in favour of a positive
vote at the referendum. Furthermore, opponents to Austria's accession
to the European Union had not been given the possibility to participate
in the counting of the votes. The applicant also relies on Article 9
of the Convention and Article 3 of Protocol No. 1.
THE LAW
1. The applicant complains under Article 10 (Art. 10) of the
Convention that in the context of the referendum on Austria's accession
to the European Union the Austrian authorities did not comply with
their obligation to inform fully and correctly the general public.
Article 10 (Art. 10) of the Convention reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
However, the Commission recalls that under Article 25 of the
Convention it may only receive petitions from a "person, non-
governmental organisation or group of individuals claiming to be the
victim of a violation ...". It follows from this provision that the
applicant cannot complain as a representative for people in general,
because the Convention does not permit such an "actio popularis". The
Commission is only required to examine the applicant's complaints that
he was himself a victim of a violation. The Commission finds therefore
that the applicant can only claim to be a victim of a violation of
Article 10 (Art. 10) of the Convention insofar he may be understood to
complain that the Austrian authorities did not inform the applicant
sufficiently on the above issues (see No. 7045/75, Dec. 10.12.76, D.R.
7 p. 87; No. 9297/81, Dec. 1.3.82, D.R. 28 p. 204; No. 10039/82, Dec.
11.5.84, D.R. 38 p. 74).
It follows that this part of the application is incompatible
ratione personae within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The Commission has next examined the applicant's complaint that
the Austrian authorities did not inform him sufficiently on the issues
underlying the referendum of 12 June 1994 and that this failure
violated Article 10 (Art. 10) of the Convention.
The Commission recalls that the right to freedom to receive
information basically prohibits a Government from restricting a person
from receiving information that others wish or may be willing to impart
to him. Article 10 (Art. 10) does not, in general, confer on the
individual a right of access to a register containing information on
his personal position, nor does it embody an obligation on Governments
to impart such information to the individual (Eur. Court H.R., Leander
judgment of 26 March 1987, Series A no. 116, p.29, para. 74; Gaskin
judgment of 7 July 1989, Series A no. 160, p. 21, para. 52).
Therefore, the Commission cannot find that Article 10 (Art. 10)
guarantees, in circumstances such as in the present case, an unfettered
individual right to be informed by State authorities on issues of
general interest in a specific way. Moreover, the Commission observes
that the applicant does not allege that he was prevented by the
Austrian authorities to obtain information he deemed necessary in order
to form his opinion for the purpose of voting in the above referendum.
In these circumstances the Commission does not find any
appearance of a violation of Article 10 (Art. 10) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further relies on Article 9 (Art. 9) of the
Convention, which guarantees to everyone "the right to freedom of
thought, conscience and religion".
However, to the extent the applicant may be understood to
complain that he is personally affected in the exercise of this right,
the Commission cannot find that any alleged insufficiency of
information provided by the Austrian authorities in relation to the
above referendum prevented the applicant from the effective exercise
of his rights under Article 9 (Art. 9) of the Convention.
It follows that also this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Lastly the applicant relies on Article 3 of Protocol No. 1 (P1-3)
which provides that the "High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of the
people in the choice of the legislature."
However, the Commission recalls that the obligation of the High
Contracting Parties under this provision are limited to the field of
elections concerning the choice of the legislature and do not extend
to referenda (see No. 7096/75, Dec. 3.10.75, D.R. 3 p. 165).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy