SUR LA RECEVABILITÉ
Application No. 22096/93
by Josef BUCHNER
Andrea HART
Manfred RUCKERBAUER
Johann SCHMITSBERGER
Rupert PACHLATKO
Irene SCHRAMM
Wilhelm SCHÖBERL
Gerald HATTMANNDORFER
Stefan BEIßMANN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 27 May 1993 by
Josef BUCHNER and others against Austria and registered on 21 June 1993
under file No. 22096/93;
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 applicants are all members of the community council of the
community of Steyregg. They are all members of the Action Group for
Environmental Protection (Bürgerinitiative für Umweltschutz).
Mr. Josef Buchner is the chairman of this parliamentary group and he
is also employed as a civil servant of the community of Steyregg.
All applicants are represented before the Commission by Mr. H.
Blum, a lawyer practising in Linz.
It follows from the applicants' statements and the documents
submitted, that on 15 December 1992 they participated in a community
council session. One item on the agenda was the discussion of and the
decision on the community budget project 1993.
The applicants submit that contrary to Section 76 para. 2 of the
Community Order 1990 (Gemeindeordnung) the budget project had
intentionally not been sent to them before the session although, in
view of a similar incident in the year before, they had insisted on
having it made available on time.
The applicants thereupon requested that the community council
session be adjourned or the budget item be dropped from the agenda.
These requests were rejected by a majority composed of other political
parties.
Thereupon the applicants declared that they were not prepared to
participate in the taking of an unlawful decision on the budget project
and retired to the visitors' bench.
When they intended to return to participate in the discussion on
the other items of the agenda the mayor did not admit them. Thereupon
all applicants except for Mr. Manfred Ruckerbauer left the session.
The latter was requested by the mayor to also leave the meeting room.
The applicants complained about the incident to the Regional
Government of upper Austria (Landesregierung). They also brought
criminal charges.
On 19 February 1993 the Public Prosecution in Linz informed the
regional government that they saw no reason to institute criminal
proceedings. A request made by applicant Joseph Buchner to the
Regional Court (Landesgericht) in Linz to institute criminal
proceedings against the mayor was rejected on 24 March 1993.
On 27 April 1993 the Regional Government wrote to the applicants
as follows:
It was true that under Section 76 para. 2 of the Upper Austrian
Community Order the budget project should have been sent to every
member of the Community Council. However, it followed from
observations submitted by the Steyregg community that it had been the
task of Mr. Josef Buchner, one of the applicants, in his capacity as
communal officer to prepare the community council session and send out
all necessary documents. According to the community Buchner had been
instructed by the mayor to take the necessary measures.
On the other hand, Mr Buchner had stated in a letter of
5 February 1993 that since 9 July 1992 he had been cut off by the mayor
from receiving the necessary information and that it had consequently
become impossible for him to comply with his communal tasks.
It was further stated that the mayor had laid charges against
Buchner for having allegedly neglected his communal obligations and the
proceedings relating to these charges were still pending.
Insofar as the applicants had been prevented by the mayor from
returning to their seats and continuing participation in the community
council session, it was stated in the letter of the Regional Government
that the Upper Austrian Community Order 1990 did not contain any
provision justifying this measure. The letter closed with the remark
that the community council would in the future have to take this into
account.
COMPLAINTS
The applicants consider that at the community council session of
15 December 1992 their rights as guaranteed under Articles 10 and 11
of the Convention have been violated. They further invoke Article 13
of the Convention.
THE LAW
1. The applicants complain that as members of a community council
they were prevented by the presiding mayor from returning to a session
of the community council which they had all deliberately left in
protest against the decision of the majority of the council rejecting
certain requests formulated by them except for one, who was excluded
from the session by the mayor.
They invoke the rights to freedom of expression (Article 10)
(Art. 10) and freedom of association (Article 11) (Art. 11).
The Commission notes that, the measure in question was taken in
the exercise of the powers of the chairman of a public meeting with a
view to ensuring the correct and proper course of the meeting. The
applicants have not alleged that before deliberately leaving the
meeting in question they had been arbitrarily prevented from expressing
their views on the agenda items at the community council meeting in
question. Nor have they alleged that at a subsequent meeting they were
prevented from expressing their political or other opinions. There is
no question either of the applicants having been prevented from
exercising their political activities vis-à-vis the public at large.
It cannot in these circumstances be found that the mayor's
decision not to re-admit the applicants to a particular meeting which
the applicants had chosen to leave and the mayor's further decision
to exclude Mr. Ruckerbauer from part of the meeting amounted to an
interference with the rights invoked by the applicants.
It follows that the application has to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants also complain that they did not dispose of an
effective remedy in the sense of Article 13 (Art. 13) of the
Convention.
However, it follows from the preceding findings that they did not
have an arguable claim to be the victim of a violation of Convention
rights (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A No. 131, p. 24 para. 55). To the extent that the present
complaint is related to the Public Prosecutor's refusal to institute
criminal proceedings it is observed that the Convention does not
guarantee a right to have criminal proceedings instituted against third
persons, in particular public officials (see No. 864/60, Dec. 10.3.62,
Collection 9 pp. 17-22).
This part of the application is therefore likewise manifestly
ill-founded.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
=
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy