Application No. 13308/87
Otmar CHORHERR
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 21 May 1992)
TABLE OF CONTENTS
page
I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2
(paras. 1-14)
A. The application (paras. 2-3). . . . . . . . . . . . . . . 1
B. The proceedings (paras. 4-10) . . . . . . . . . . . . . 1-2
C. The present Report (paras. 11-14) . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-23). . . . . . . . . . . . . . . . . . . . . . . 3-9
A. Particular circumstances of the case
(paras. 15-22). . . . . . . . . . . . . . . . . . . . . . . 3-7
B. Relevant domestic law
(para. 23). . . . . . . . . . . . . . . . . . . . . . . . . 8-9
III. OPINION OF THE COMMISSION
(paras. 24-52). . . . . . . . . . . . . . . . . . . . . . 10-16
A. Complaints declared admissible (para. 24) . . . . . . . .10
B. Points at issue (para. 25). . . . . . . . . . . . . . . .10
C. Article 5 of the Convention
(paras. 26-36). . . . . . . . . . . . . . . . . . . . . . 10-13
a. Compliance with Article 5 of the Convention
(paras. 26-35) . . . . . . . . . . . . . . . . . . . 10-13
b. Conclusion (para. 36). . . . . . . . . . . . . . . .13
D. Article 10 of the Convention (paras. 37-50) . . . . . 13-16
a. Compliance with Article 10 of the Convention
(paras. 37-49) . . . . . . . . . . . . . . . . . . . 13-16
b. Conclusion (para. 50). . . . . . . . . . . . . . . .16
E. Recapitulation (paras. 51-52) . . . . . . . . . . . . . .16
SEPARATE OPINION of Mrs. Liddy and Mr. Pellonpää. . . . . . . . . .17
DISSENTING OPINION of Mr. Danelius joined by
MM. Jörundsson, Soyer, Weitzel,
Sir Basil Hall, MM. Martinez and Geus . . . .18
DISSENTING OPINION of Mr. Loucaides, joined by
Mr. Busuttil. . . . . . . . . . . . . . . 19-20
APPENDIX I History of the proceedings. . . . . . . . . . . . . . .21
APPENDIX II Decision on the admissibility
of the application. . . . . . . . . . . . . . . . . 22-26
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, Otmar Chorherr, is an Austrian citizen born in
1961. He lives in Vienna and was represented before the Commission by
Mr. T. Höhne, lawyer, of Vienna.
The application is directed against Austria whose Government were
represented by their Agent, Ambassador Helmut Türk, Head of the
International Law Department of the Federal Department of Foreign
Affairs.
3. The case concerns the applicant's arrest and detention in
connection with a military parade which took place on 26 October 1985.
It raises issues under Articles 5 and 10 of the Convention.
B. The proceedings
4. The application was introduced on 14 July 1987 and registered on
17 September 1987.
6. On 4 September 1989, the Commission decided, pursuant to Rule 42
para. 2 (b) of its Rules of Procedure (former version), that notice of
the application should be given to the respondent Government and that
they should be invited to present their written observations on the
admissibility and merits of the application.
The Government sent their written observations on
15 December 1989. The applicant submitted written observations in
reply on 26 February 1990. Further submissions were submitted on
3 August 1990.
7. The President of the Commission granted the applicant legal aid
on 16 February 1990.
On 3 December 1990, the Commission decided, pursuant to
Rule 50 (b) of its Rules of Procedure, to invite the parties to make
further submissions at a hearing on the admissibility and merits of the
application.
At the hearing, which was held on 1 March 1991, the applicant was
represented by Mr. Höhne and Mrs. M. Langtaler, adviser. The
Government were represented by Ambassador Türk and by Mr. S Rosenmayr,
adviser.
8. On 1 March 1991, the Commission declared the application partly
admissible and partly inadmissible.
9. The parties were then invited to submit any additional
observations on the merits of the application and to furnish specified
factual information. The applicant submitted factual information on
5 April 1991, and the respondent Government submitted factual
information and additional observations on 24 April 1991. The
applicant replied to the Government's additional observations on
14 June 1991.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. In the light of the parties' reactions, the
Commission now finds that there is no basis on which a friendly
settlement can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes in plenary session, the following members being present:
MM. S. TRECHSEL, Acting President
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J. C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
M. PELLONPÄÄ
The text of the Report was adopted by the Commission on
21 May 1992 and is now transmitted to the Committee of Ministers in
accordance with Article 31 para. 2 of the Convention.
12. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
13. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission's
decision on the admissibility of the application as APPENDIX II.
14. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case
15. On 26 October 1985 a swearing-in ceremony and military parade
were held on the Rathausplatz in Vienna to celebrate thirty years of
Austrian neutrality and the passage of forty years since the end of the
second World War. The swearing-in ceremony, which took place from
11.00 hours until approximately 11.25 hours, involved some twelve
hundred conscripts of the Austrian army. The subsequent military
parade, which began at 11.35 hours, involved the passing by of
103 tracked vehicles, 259 other vehicles and 2,600 soldiers. A large
number of civilian and military dignitaries was present on the official
dais. Some 50,000 spectators were gathered on the Rathausplatz. The
military parade ended at about 13.00 hours.
16. The applicant and a friend had been distributing leaflets in
other areas of the centre of Vienna. The leaflets contained details
of a campaign to call for a referendum against the purchase of
interceptor fighter jets ("Volksbegehren für eine Volksabstimmung gegen
Abfangjäger"). Both men wore rucksacks to which were attached posters,
enlargements of the leaflets, bearing the motto "Austria needs no
interceptor fighter jets" ("Österreich braucht keine Abfangjäger").
The posters measured about 50 x 70cm and were some 50cm taller than the
men. At 11.15 hours, after two police officers had come to the place
where the applicant was distributing his leaflets, the applicant and
his friend were arrested (festgenommen).
17. According to the findings of the Constitutional Court
(Verfassungsgerichtshof) in its decision of 28 November 1986:
(Translation)
"Due to the actions of the two men the crowd became
agitated, one of the reasons being that they felt their
view was impaired. The officers asked the men to finish
their demonstration, which was disturbing the peace.
However, the men refused to do this and referred to the
right to freedom of expression, to which, in their opinion,
they were entitled. A debate, which became more and more
heated, then ensued between the two men and the crowd.
When the appellant and his companion did not cease their
actions in spite of being cautioned once more, at
11.15 hours Inspector Singer told the appellant and his
companion that they were under arrest. The two men were
taken to the Central District Police Inspectorate. ...
These observations are based on the information laid by the
security police and the reliable statements made by the
officers Singer and Chlad. The claim made by the appellant
that no one had become annoyed at his conduct and that he
had not been cautioned by the officers is, under the
circumstances, unlikely. Most of those present had, after
all, come along to watch the military parade and they were
partly impeded in this endeavour."
18. The Attorney General's Department (Finanzprokuratur),
representing the police, had submitted a statement to the
Constitutional Court summarising the facts as follows:
(Translation)
"[The applicant and his friend] referred to their rights as
citizens entitled to free speech and asked the officers to
give reasons for their action. This led to a debate
between the two men, the two inspectors and a number of
spectators, which gradually began to become emotionally
charged.
While this was still taking place, members of the special
police task force, which had in the meantime been alerted,
arrived on the scene. Officer Schadwasser explained to the
men that the nature of their conduct was that of a
demonstration and that they were accordingly holding an
assembly that had not been registered with the police.
They therefore asked them to take down the posters from the
rucksacks and to leave the Rathausplatz. Strong protests
were already being made from within the crowd against them;
some 'hot-heads' even threatened to hit them.
The two men were obviously less concerned with collecting
signatures for the referendum on the interceptor jets than
taking a public stand against the army at a large-scale
ceremony."
19. The applicant states, as he submitted throughout the domestic
proceedings, that there was at no time an objection to his behaviour
from other spectators.
20. The applicant produced proof of his identity on arrival at the
police station. He was formally arrested (in den Arrest abgegeben) at
11.35 hours.
At 14.15 hours, that is, after the military parade had ended and
after a search had been made to see whether the applicant had a
criminal record, the applicant was questioned about allegations of
making noise and causing disturbance. He denied either offence,
maintaining that if he had been told that he was committing
administrative offences, he would have stopped distributing leaflets
and taken down his poster. He was released at 14.40 hours.
21. The Constitutional Court, in its decision of 28 November 1986,
rejected the applicant's constitutional complaint (Beschwerde) in which
he invoked inter alia his rights under Articles 5 and 10 of the
Convention. The Constitutional Court accepted that both the
applicant's arrest and the order to remove the poster and to stop
distributing leaflets amounted to the exercise of direct administrative
authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher
Befehls- und Zwangsgewalt) which could be challenged before the
Constitutional Court. However, the Court continued:
(Translation)
"Section 4 of the Law for the Protection of Personal
Freedom (Reich Law Gazette 87/1862), which Article 8 of the
Basic Constitutional Act declares to be part of that Act
and which under Article 149 para. 1 of the Federal
Constitutional Law has the status of a constitutional law,
lays down that the organs upholding public order and
entitled to apprehend a person (and this includes the
security police) may take a person into custody in those
specific cases determined by the law.
Article 35 of the Code of Administrative Offences 1950 is
such a law, but in all the cases mentioned in which this
legal rule can be applied (paragraphs a to c) a
pre-requisite for the arrest of a person by an officer of
the public security service (for example an officer of the
security police) is that that person is caught 'in the
act', i.e. that they commit a criminal offence which is
punishable under administrative law and are caught
committing that offence, whereby the first of these two
pre-requisites is met when the officer has good reason to
presume that an administrative offence will be committed.
However, under Article 35 (c) of the Code of Administrative
Offences 1950, an arrest under the conditions described
above, for the purposes of bringing before the authorities
the person who has been caught in the act, is only allowed
when that person, in spite of being cautioned, continues to
commit the punishable offence or attempts to repeat it.
Under Section IX subsection 1 (1) of the Administrative
Procedure Acts a person commits an administrative offence
who behaves in a way liable to cause annoyance and disturbs
the peace in public places.
In the light of the facts described above the security
police had good reason to assume that the (cautioned)
appellant had committed an administrative offence under the
legal provision just cited. Since it was justified to
consider the appellant's conduct to be an administrative
offence and since as a result of the fact that he was
caught in the act and continued to commit the punishable
offence, in spite of being cautioned, there were grounds
for arresting him under Article 35 (c) of the Code of
Administrative Offences, the reason given for the arrest,
whose legality is being challenged - and this arrest was
pertinently described in the information laid - did
correspond to the law (cf., for example, Official
Collection of Constitutional Court Decisions 10.246/1984).
The detention of the appellant following his (lawful)
arrest because he continued to commit the punishable
offence was also legal: under Section 36 para. 1 (first
sentence) of the Code of Administrative Offences the person
arrested in order to be brought before the authorities
shall be released if the ground for his arrest no longer
applies. However, if the arrest itself has the effect of
rendering the ground invalid, i.e. if the person arrested
while continuing to commit a punishable offence ceases his
action as a result of the arrest, this rule of law shall
not be applied literally. Rather, the person arrested
shall - in conformity with the spirit of the law - only be
released early if, due to special circumstances, it becomes
apparent that he will not resume his criminal behaviour in
the event of being released (cf. Official Collection of
Constitutional Court Decisions 9368/1982 and previous court
decisions cited there).
No grounds have been found for believing that such special
circumstances obtain in this case.
As the above remarks show, the pre-requisites existed for
the arrest and subsequent detention of the appellant under
Article 35 (c) of the Code of Administrative Offences. The
appellant's right to personal freedom guaranteed under the
constitution has accordingly not been violated.
[..] With respect to the orders given to remove the
posters and cease distributing leaflets:
The police actions which are being challenged did not
violate the right to freedom of expression guaranteed under
the constitution, because their intention was not to
restrict this right but - within the framework of the law
(Section IX Subsection 1 (1) of the Introductory Provisions
to the Administrative Procedure Acts 1950) - to put an end
to the behaviour, which was disturbing public order (cf.,
for example, the decision of the Constitutional Court of
19 June 1986 under B 81,86,89,90/85). It was not a
question of preventing the appellant from expressing his
opinion but of putting an end to his demonstration, which
was causing a disturbance."
(German)
"Das Gesetz zum Schutz der persönlichen Freiheit, RGB1.
87/1862, das gemäß Art. 8 StGG zum Bestandteil dieses
Gesetzes erklärt ist und gemäß Art. 149 Abs. 1 B-VG als
Verfassungsgesetz gilt, legt in seinem § 4 fest, daß die
zur Anhaltung berechtigten Organe der öffentlichen Gewalt
(dazu zählen die SWB) in den vom Gesetz bestimmten Fällen
eine Person in Verwahrung nehmen dürfen.
§ 35 VStG 1950 ist ein solches Gesetz, doch setzt die
Festnahme durch ein Organ des öffentlichen
Sicherheitsdienstes (etwa durch einen SWB) in allen in
dieser Gesetzesvorschrift angeführten (Anwendungs-) Fällen
(lit. a bis c) voraus, daß die festzunehmende Person 'auf
frischer Tat' betreten wird: daß die sich also eine als
Vewaltungsübertretung strafbaren Handlung zuschulden kommen
lassen und bei Begehung dieser Tat angetroffen werden,
wobei die erste dieser beiden Voraussetzungen bereits dann
erfüllt ist, wenn das Organ die Verübung einer
Verwaltungsübertretung mit gutem Grund annehmen konnte.
Gemäß § 35 lit. c VStG 1950 ist eine Festnahme unter den
soeben umschriebenen Bedingungen zum Zwecke der Vorführung
vor die Behörde aber nur dann gestattet, wenn der Betretene
trotz Abmahnung in der Fortsetzung der strafbaren Handlung
verharrt oder sie zu wiederholen sucht.
Nach Art. IX Abs. 1 Z 1 EGVG 1950 begeht eine
Verwaltungsübertretung, wer durch ein Verhalten, das
Ärgernis zu erregen geeignet ist, die Ordnung an
öffentlichen Orten stört.
Im Hinblick auf die [oben] geschilderte Sachlage durften
die SWB durchaus mit gutem Grund annehmen, daß der
(abgemahnte) Beschwerdeführer eine Verwaltungsübertretung
nach der soeben zitierten Gesetzesbestimmung begangen habe.
War aber die Beurteilung des Verhaltens des
Beschwerdeführers als Verwaltungsdelikt vertretbar und lag
- wie hier - infolge Betretens auf frischer Tat und
Verharrens in der strafbaren Handlung trotz Abmahnung der -
in der Anzeige der Sache nach zutreffend umschriebene -
Festnehmungsgrund des § 35 lit. c VStG 1950 vor, so
entsprach die bekämpfte Festnehmung dem Gesetz (vgl. zB
VfSlg. 10.246/1984).
Die im Anschluß an die - im Gesetz gedeckte - wegen
Verharrens in der strafbaren Handlung ausgesprochene -
Festnahme des Beschwerdeführers erfolgte Anhaltung war
ebenfalls rechtmäßig: Gemäß § 36 Abs 1 erster Satz VStG
1950 ist der zum Zweck der Vorführung vor die zuständige
Behörde Festgenommene freizulassen, wenn der Grund zur
Festnahme schon vorher entfällt. Wenn aber bereits die
Festnahme selbst bewirkt, daß der Grund der Festnahme
entfällt, wenn also die wegen Verharrens im strafbaren
Verhalten festgenommene Person dieses Verhalten gerade
infolge der Festnahme einstellt, ist diese Rechtsregel
nicht wörtlich anzuwenden. Vielmehr ist - dem Sinn des
Gesetzes entsprechend - der Festgenommene nur dann
vorzeitig zu enthaften, wenn aufgrund besonderer Umstände
augenfällig wird, daß er im Fall der Freilassung sein
strafbares Verhalten nicht wieder aufnehmen wird (vgl.
VfSlg. 9368/1982 und die dort zitierte weitere
Vorjudikatur).
Anhaltspunkte dafür, daß derartige besondere Umstände in
diesem Fall vorliegen, haben sich nicht ergeben.
Wie sich aus den vorstehenden Ausführungen ergibt, waren
die Voraussetzungen für die Festnahme und die nachfolgende
Anhaltung des Beschwerdeführers nach § 35 lit. c VStG 1950
gegeben. Der Beschwerdeführer ist demnach durch diese
Maßnahmen im verfassungsgesetzlich gewährleisteten Recht
auf persönliche Freiheit nicht verletzt worden.
[..] Zu den Befehlen, Plakate zu entfernen und das
Flugzettelverteilen einzustellen:
In das verfassungsgesetzlich gewährleistete Recht auf
Meinungsfreiheit wurde durch diese bekämpften
Amtshandlungen überhaupt nicht eingegriffen, weil diese
intentional nicht auf eine Einschränkung dieses Rechtes,
sondern - im Rahmen des Gesetzes (Art. IX Abs. I Z 1 EGVG)
-, darauf gerichtet waren, das ordnungsstörende Verhalten
des Beschwerdeführers zu beenden (vgl. zB VfGH 19.6.1986
B 81,86,89,90/85). Es ging hier nicht darum, den
Beschwerdeführer zu hindern, seine Meinung zu äußern,
sondern darum, seine störenden Demonstrationsaktionen
abzustellen."
22. In subsequent administrative criminal proceedings the applicant
was finally fined 700 AS for causing a disturbance by blocking
spectators' view of the proceedings, contrary to Section IX of the
Introductory Provisions (see Annex II).
B. Relevant domestic law
23. (Translation)
Publication of 23 May 1950 by the Federal Government of the
Re-statement of Legal Provisions concerning Administrative Proceedings
(Federal Gazette No. 172/1950).
Introductory Provisions to the Administrative Procedure Acts
Section VIII
"Anyone who ... offends public decency or causes excessive
noise which disturbs others commits an administrative
offence."
Section IX
"Anyone whose ... behaviour is likely to cause annoyance and
who disturbs the peace in public places ... commits an
administrative offence."
Code of Administrative Offences
Part II: Administrative Criminal Proceedings
...
Detention and Arrest
Article 35.
"The organs of the public security service may, apart
from those cases regulated by special legal provisions,
arrest persons caught in the act of committing an offence
for the purpose of bringing them before the authorities when
...
c) the person caught continues to commit the punishable
offence, in spite of being cautioned, or attempts to repeat
it."
Article 36.
"Every detained person shall be brought without delay to the
relevant competent authority or, if the reason for the detention
falls away earlier, shall be released."
(German)
Kundmachung der Bundesregierung vom 23. Mai 1950 über die
Wiederverlautbarung von Rechtsvorschriften auf dem Gebiet des
Verwaltungsverfahrens.
Einführungsgesetz zu den Verwaltungsverfahrensgesetzen
Artikel VIII
"Wer ... den öffentlichen Anstand verletzt oder
ungebührlicherweise störenden Lärm erregt, begeht eine
Verwaltungsübertretung ..."
Artikel IX
"Wer ... durch ein Verhalten, das Ärgernis zu erregen geeignet
ist, die Ordnung an öffentlichen Orten stört, ... begeht eine
Verwaltungübertretung."
Teil II: Verwaltungsstrafverfahren
...
Festnehmung
§ 35.
"Die Organe des öffentlichen Sicherheitsdienstes dürfen außer den
gesetzlich besonders geregelten Fällen Personen, die auf frischer
Tat betreten werden, zum Zweck ihrer Vorführung vor die Behörde
festnehmen, wenn
...
c) der Betretene trotz Abmahnung in der Fortsetzung der
strafbaren Handlung verharrt oder sie zu wiederholen sucht."
§36.
"(1) Jeder Festgenommene ist unverzüglich der nächsten sachlich
zuständigen Behörde zu übergeben, oder aber, wenn der Grund der
Festnehmung schon vorher wegfällt, freizulassen ..."
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
24. The Commission has declared admissible the applicant's complaints
that his arrest and detention on 26 November 1985 were in violation of
his rights to freedom and security of person and constituted an
unjustified interference with his freedom of expression.
B. Points at issue
25. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 5 (Art. 5) of the
Convention by virtue of the applicant's arrest and detention;
- whether there has been a violation of Article 10 (Art. 10) of the
Convention in respect of the order to stop distributing leaflets and
to put away the poster, and the subsequent detention.
C. Article 5 (Art. 5) of the Convention
a. Compliance with Article 5 (Art. 5) of the Convention
26. The applicant complains that there was no genuine reason for his
detention, and that Article 5 (Art. 5) of the Convention was violated.
The Government consider that the Austrian reservation to Article 5
(Art. 5) of the Convention covers the applicant's detention, and that,
in any event, the detention was justified under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention.
Article 5 (Art. 5) of the Convention provides, so far as
relevant, as follows:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
...
c. the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
..."
The Austrian reservation to Article 5 (Art. 5) of the Convention
provides as follows:
"The provisions of Article 5 (Art. 5) of the Convention
shall be so applied that there shall be no interference
with measures for the deprivation of liberty prescribed in
the laws on administrative procedure, BGBl. No. 172/1950,
subject to review by the Administrative Court or the
Constitutional Court as provided for in the Austrian
Federal Constitution."
The applicant considers that the aim of the reservation is to
substitute the Austrian system of judicial review for that which would
otherwise be required by the Convention, but that the core of Article 5
(Art. 5) remains unaffected.
27. The Commission must first assess the validity and applicability
of the Austrian reservation in the present case by reference to
Article 64 (Art. 64) of the Convention (cf. Eur. Court H.R., Belilos
judgment of 29 April 1988, Series A no. 132, p. 24, para. 50).
Article 64 (Art. 64) of the Convention provides as follows:
"1. Any State may, when signing this Convention or when
depositing its instrument of ratification, make a
reservation in respect of any particular provision of the
Convention to the extent that any law then in force in its
territory is not in conformity with the provision.
Reservations of a general character shall not be permitted
under this Article.
2. Any reservation made under this Article shall contain
a brief statement of the law concerned."
If the reservation is to apply to the applicant's detention in the
present case, it must satisfy each limb of Article 64 (Art. 64) of the
Convention.
28. i) "in respect of any particular provision of the
Convention"
Only Article 5 (Art. 5) of the Convention is at issue in the
present case, and the Austrian reservation refers expressly to that
provision. This requirement of Article 64 (Art. 64) has accordingly
been satisfied.
29. ii) "to the extent that any law then in force
in its territory is not in conformity
with the provision"
The applicant's detention was effected by reference to
Articles 35(c) and 36 of the Code of Administrative Offences
(Verwaltungsstrafgesetz) in conjunction with Sections VIII and IX of
the Introductory Provisions to the Administrative Procedure Acts
(Einführungsgesetz zu den Verwaltungsverfahrensgesetzen). Each of
these provisions was in force on 3 September 1958, the date of the
Austrian reservation to Article 5 (Art. 5) of the Convention.
Accordingly, this requirement of Article 64 (Art. 64) of the
Convention has also been complied with.
30. iii) "reservations of a general character shall
not be permitted"
The Commission recalls that by excluding any "reservation of a
general character" Article 64 (Art. 64) aims at the prohibition of
reservations "couched in terms that are too vague or broad for it to
be possible to determine their exact meaning and scope" (cf. Belilos
judgment loc. cit., p. 26, para. 55).
31. The Commission has considered the Austrian reservation to
Article 5 (Art. 5) on a number of occasions (cf. No. 8998/80, Dec.
3.3.83, D.R. 32, p. 150 with further references; No. 13816/88,
Dec. 16.10.91). The earlier case-law, however, must now be reviewed
in the light of the finding of the European Court of Human Rights as
to the validity of the Swiss interpretative declaration in the case of
Belilos (cf. above-mentioned Belilos judgment).
The Commission recalls that the laws on administrative procedure
referred to in the Federal Gazette No. 172/1950 created a comprehensive
system of administrative law. Within this system the Introductory
Provisions create certain offences, the proceedings for which are
governed by the Code of Administrative Procedure (Allgemeines
Verwaltungsverfahrensgesetz) and the Code of Administrative Offences
(Verwaltungsstrafgesetz).
The system created by the laws on administrative procedure also
provided for certain types of "measures for the deprivation of
liberty". These are, apart from the "preventive measures" in
Article 35 of the Code of Administrative Offences, the penalties of
principal arrest (Primärstrafe, Primärarrest) and substitute penalties
(Ersatzstrafe, Ersatzarrest).
32. The Commission finds that the wording of the Austrian reservation
provides for the exclusion from the operation of Article 5 (Art. 5) of
the Convention of a clearly defined set of cases which cannot be said
to amount to a reservation "of a general character". This requirement
of Article 64 (Art. 64) of the Convention has accordingly also been
complied with.
iv) "shall contain a brief statement of the
law concerned"
33. The European Court of Human Rights in the Belilos case, agreeing
with the Commission that the purpose of Article 64 para. 2 (Art. 64-2)
was to enable all concerned to acquaint themselves with legislation
excluded from the scope of the Convention, added that the purpose of
the " brief statement of the law" constituted an evidential factor and
contributed to legal certainty (Belilos judgment loc. cit., p. 27,
paras. 58 and 59).
34. If the Austrian reservation to Article 5 (Art. 5) of the
Convention is to provide a guarantee that it "does not go beyond the
provisions expressly excluded by the State concerned" (cf. Eur. Court
H.R., Weber judgment of 22 May 1990, Series A no. 177, p. 19, para. 38,
with reference to the Belilos judgment), the brief statement of the law
supplied must be sufficient to enable the Convention organs to
determine whether the provision at issue falls within the scope of the
reservation. The applicant was detained under Article 35(c) of the
Code of Administrative Offences, which was found applicable because he
had been caught in the act of committing two administrative offences
under the Introductory Provisions to the Administrative Procedure Acts.
The Commission is satisfied that a "brief statement" of the law
concerned - Article 35(c) of the Code of Administrative Offences
together with Sections VIII and IX of the Introductory Provisions to
the Administrative Procedure Acts - was supplied by the phrase
"measures for the deprivation of liberty prescribed in the laws on
administrative procedure, BGBl. No. 172/1950", such that this limb of
Article 64 (Art. 64) of the Convention has also been complied with in
the present case.
35. It follows, as each of the requirements of Article 64 (Art. 64)
of the Convention has been complied with, that the Austrian reservation
to Article 5 (Art. 5) of the Convention is valid and applies in the
present case, and that therefore the applicant's detention does not
fall to be examined under that provision.
b. Conclusion
36. The Commission concludes, by 12 votes to 2, that there has been
no breach of Article 5 (Art. 5) of the Convention.
D. Article 10 (Art. 10) of the Convention
a. Compliance with Article 10 (Art. 10) of the Convention
37. The applicant complains that the order to stop distributing
leaflets, to put away his poster and his subsequent detention violated
Article 10 (Art. 10) of the Convention. The Government consider that
any interference with the applicant's freedom of expression pursued the
legitimate aim of maintaining public order and was proportionate to
that aim as the applicant would have maintained his behaviour had he
not been arrested, and the solemn swearing-in of soldiers and
subsequent military parade would have been further disrupted. They
emphasise that the applicant chose to go to a place where a military
celebration and ceremony were taking place and he was therefore
courting attention.
The Commission notes that the applicant was not merely penalised
after the event for expressing himself by means of his poster and his
leaflets, but he was forcibly and physically prevented from so doing
by being removed from the Rathausplatz and detained for some three
hours, even after the military ceremony had terminated. The Commission
finds that the behaviour of the authorities amounted to a clear
interference with his freedom of expression.
The applicant did not contend that the interference with his
freedom of expression was not "prescribed by law". Notwithstanding the
somewhat general nature of the offences under Sections VIII and IX of
the Introductory Provisions, the Commission finds that the interference
was "prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention (cf. Eur. Court H.R. Ezelin judgment of
26 April 1991, Series A no. 202, p. 21, para. 45).
38. The Commission accepts that the aim of the interference was to
prevent disorder at the swearing-in ceremony and subsequent parade.
39. The key question in the present case is whether the interference
complained of can be regarded as "necessary in a democratic society".
With regard to this issue, the European Court of Human Rights has set
out the following major principles:
"(a) Freedom of expression constitutes one of the
essential foundations of a democratic society; subject to
paragraph 2 of Article 10 (Art. 10-2), it is applicable not
only to 'information' or 'ideas' that are favourably
received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or
disturb. Freedom of expression, as enshrined in Article 10
(Art. 10), is subject to a number of exceptions which,
however, must be narrowly interpreted and the necessity for
any restrictions must be convincingly established.
...
(c) The adjective 'necessary', within the meaning of
Article 10 para. 2 (Art. 10-2), implies the existence of a
'pressing social need'. The Contracting States have a
certain margin of appreciation in assessing whether such a
need exists, but it goes hand in hand with a European
supervision, embracing both the law and the decisions
applying it, even those given by independent courts. The
Court is therefore empowered to give the final ruling on
whether a 'restriction' is reconcilable with freedom of
expression as protected by Article 10 (Art. 10)." (Eur.
Court H.R., Observer and Guardian judgment of
26 November 1991, Series A no. 216, para. 59).
40. The task of the Convention organs, in exercising their
supervisory jurisdiction, is not to take the place of the competent
national authorities but is rather to review under Article 10 (Art. 10)
the decisions they delivered pursuant to their power of appreciation.
This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably,
carefully and in good faith; what the Convention organs have to do is
to look at the interference complained of in the light of the case as
a whole and determine whether it was "proportionate to the legitimate
aim pursued" and whether the reasons adduced by the national
authorities to justify it are "relevant and sufficient". (Observer and
Guardian judgment loc. cit.)
41. The applicant considers that the interference was not "necessary
in a democratic society". He points out that the referendum he was
supporting is an institution of the Austrian constitution, and that he
and his friend were merely distributing leaflets in a public place on
a matter of legitimate public concern. As to the poster he was
carrying, the applicant points out that it extended no higher than had
he had a child on his shoulders, and that in the context of a large-
scale display by the military, it is impossible to justify the
extensive interference with his Article 10 (Art. 10) rights by
reference to his blocking the view. He refers to a judgment of the
German Federal Administrative Court (Bundesverwaltungsgericht) of
12 January 1990 (Entscheidungen des Bundesverwaltungsgerichts Vol. 84
p. 297) in which the Federal Administrative Court found that a
plaintiff who distributed leaflets and held up posters should not have
been refused access to the Rathausmarkt in Lübeck where a military
ceremony was taking place. The Court considered that if the army uses
a public place to obtain maximum publicity for itself, it must accept
that critics of the army use the event as an opportunity to express
their criticism.
42. The Government submit that the interference was necessary in a
democratic society. The applicant was told to refrain from
distributing leaflets and he refused, and there were cogent reasons to
consider that he would have continued if not arrested. If the
applicant had not been arrested, the disturbance might have escalated.
It is reasonable to assume that, as the applicant had had to be
arrested, he would have been likely to return to his disruptive
activities if released before the end of the ceremony.
43. The Commission recalls that the applicant, with a friend, was
prevented from distributing leaflets and bearing a poster which
referred to a campaign to stop the purchase of fighter jets. He was
arrested at 11.15 hours and detained at a police station from
11.35 hours until 14.40 hours.
44. The Commission is only required to consider the question of the
interference occasioned by the arrest and detention, questions of the
subsequent penalty for blocking spectators' view having been declared
inadmissible for non-exhaustion of domestic remedies (see para. 22 and
Annex II). The arrest and detention amounted to physical constraint
during the course of the exercise of the freedom.
45. As regards the circumstances in which the applicant was
expressing his opinion, the Commission notes that the ceremony and
parade were manifestations of a military character, that they were held
on a public square on the Austrian national holiday, and that the
proceedings were open to the public. The Attorney General's Department
(Finanzprokuratur), in its pleadings before the Constitutional Court
said that the applicants' intention was less to collect signatures than
to take a hostile stand to the army. Such a "stand", however, falls
within the range of behaviour which must be tolerated by the
authorities in a democratic society.
46. As to the way in which the applicant expressed his opinion, it
appears from the pleadings of the Attorney General's Department that
the discussion between the applicant and, principally, the policeman
who had intervened, only became "gradually more heated" after the
policemen's intervention. The Constitutional Court referred only to
disquiet amongst spectators because their view was blocked.
47. The Commission notes that, if the problem had been that the
applicant was blocking spectators' view, the mere removal of his poster
would have remedied the position without the need for the applicant's
arrest.
48. As to the question whether the national authorities gave
"sufficient and relevant reasons for the interference", the Commission
recalls that the Constitutional Court considered that freedom of
expression did not arise in the present case. It did not, therefore,
give reasons for the interference. In particular, it did not weigh the
interests of the freedom of expression against those of avoiding any
disturbance to the ceremony and parade. However, the policemen
arresting the applicant intimated that he was being arrested for
alleged public order offences, and in indicating that the intention of
the policemen was to prevent disorder, the Constitutional Court also,
in effect, gave a reason for the interference. The Commission notes
that the applicant's detention continued after the military ceremony
had ended, as planned, at 13.00 hours. The applicant was released at
14.40 hours.
The Commission notes that the first sentence of Article 36
para. 1 (Art. 36-1) of the Code of Administrative Offences provides for
release of an arrested person if the reason for the arrest falls away
before he has been brought before the competent authorities. The
applicant was released only some one and half hours after the end of
the ceremony.
49. Given the extent of the interference with the applicant's rights
under Article 10 (Art. 10) of the Convention, and the fact that the
interference continued even after its alleged justification had fallen
away, the Commission finds that it has not been established in the
present case that the interference with the applicant's rights was
proportionate to the legitimate aim pursued (cf. above-mentioned Ezelin
judgment, p. 23 para. 52; above-mentioned Observer and Guardian
judgment, paras. 61-70). Accordingly, the interference with the
applicant's rights was not "necessary in a democratic society".
b. Conclusion
50. The Commission concludes, by seven votes to seven (1), with the
casting vote of the Acting President being decisive, that there has
been a violation of Article 10 (Art. 10) of the Convention.
E. Recapitulation
51. The Commission concludes, by 12 votes to 2, that there has been
no breach of Article 5 (Art. 5) of the Convention (para. 36 above).
52. The Commission concludes, by seven votes to seven (1), with the
casting vote of the Acting President being decisive, that there has
been a violation of Article 10 (Art. 10) of the Convention (para. 50
above).
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (S. TRECHSEL)
-----------
(1) The votes were cast pursuant to Rule 18 paras. 1 and 2 of the
Rules of Procedure.
-----------------
Separate (concurring) opinion of Mrs. J. Liddy
and Mr. M. Pellonpää
We do not find it necessary in the present case to come to a
conclusion as to whether the Austrian reservation meets the
requirements of Article 64 because in any event, even if that
reservation is invalid in the light of the Belilos Case (judgment of
29 April 1988, Series A No. 132), there has been no violation of
Article 5.
The applicant's arrest and detention were provided for by
Austrian law. He was arrested because the police reasonably suspected
him of an offence under Section IX of the Introductory Provisions. He
was brought before the competent authority and, three hours after his
initial arrest, questioned about allegations of making noise and
causing a disturbance. After this attempt to establish the facts at
the police station he was released and in subsequent administrative
criminal proceedings he was fined for causing a disturbance contrary
to Section IX of the Introductory Provisions. The reasonableness of
the police suspicions were thereby confirmed.
We see no reason to doubt that the police officers reasonably
considered the applicant's arrest and detention necessary for the
purpose of bringing him before the competent authorities. In
particular, we do not consider that the period of three hours between
the initial arrest and the questioning at the police station was so
lengthy as to cast doubt on the purpose of the arrest. Furthermore,
we do not see any reason to challenge the finding of the Austrian
Constitutional Court that Austrian law was correctly applied in the
case. It follows that the deprivation of his liberty was permissible
under Article 5 para. 1(c) of the Convention.
Concerning Article 10, we agree that there has been a violation.
The interference with the applicant's liberty, although not in conflict
with Austrian law or Article 5 of the Convention, cannot be regarded
as necessary in a democratic society within the meaning of para. 2 of
Article 10.
Dissenting opinion of Mr. H. Danelius, joined by
MM. G. Jörundsson, J. C. Soyer, A. Weitzel,
Sir Basil Hall, MM. Martinez and J.-C. Geus
I have voted against the finding of a violation of Article 10 of
the Convention for the following reasons.
Like the majority of the Commission, I consider that there was
in the present case an interference with the applicant's right to
freedom of expression, that the interference was prescribed by law and
that it was effected for the purpose of preventing disorder.
As regards the question whether the interference was necessary
in a democratic society for the said purpose, I note that the reason
for the police action was that the applicant was considered to disturb
a solemn military ceremony and parade in a public place, not only by
distributing leaflets directed against the purchase of certain military
aircraft, but also by carrying a poster which protruded some
50 centimetres above his head. In these circumstances, it would not
seem to have been unreasonable for the police to regard him as a threat
to public order during the ceremony and parade and to prevent him from
pursuing his demonstration.
There may have been different ways in which the police could have
acted, but the measures which were actually chosen and which included
the arrest and the questioning of the applicant would not seem to have
been a disproportionate way of dealing with the situation. Nor does
the fact that the applicant was not released until one hour and forty
minutes after the military ceremony and parade had ended mean that the
Austrian authorities went beyond the margin of appreciation which they
enjoyed in this area.
It follows that the interference with the applicant's right to
freedom of expression could reasonably be considered to have been
necessary in a democratic society within the meaning of
Article 10 para. 2 of the Convention.
Dissenting opinion of Mr. L. Loucaides,joined by
Mr. E. Busuttil
I am unable to agree with the majority that there has been no
breach of Article 5 in this case.
I think that the Austrian reservation to Article 5 of the
Convention lacks the precision and clarity required in order to qualify
as a valid reservation under Article 64 of the Convention (Eur. Court
H.R. Belilos judgment of 29 April 1988, Series A no. 132, p. 26).
The reservation is expressed as follows: "The provisions of
Article 5 of the Convention shall be so applied that there shall be no
interference with measures for the deprivation of liberty prescribed
in the laws on administrative procedure, BGBl No. 172/1950 subject to
review by the Administrative Court or the Constitutional Court as
provided for in the Austrian Federal Constitution" (emphasis added).
I consider that the meaning of the reservation is to leave to the
Convention organs the complex interpretative process of "applying"
Article 5 of the Convention in such a way as to ensure that there is
"no interference with measures for the deprivation of liberty" which
are prescribed in the national legislation. The result of this process
of interpretation is to a great extent unpredictable. This, coupled
with the fact that the relevant "measures for the deprivation of
liberty" are not clearly specified in the reservation, deprives the
reservation of the legal certainty required by Article 64 of the
Convention. I note in this respect that the Federal Gazette BGBl.
No. 172/1950 comprises four lengthy statutes. The net result of the
reservation is that the Convention organs and those concerned cannot
by looking at it understand clearly and precisely what it covers.
Therefore the reservation in question should be held to be invalid.
This being so, the question arises of whether the facts of the
case disclose a breach of Article 5 of the Convention. I consider that
they do. It is sufficient here to refer to the undisputed fact that
the applicant's detention continued almost two hours after the reason
for which he was arrested ceased to exist. He was taken into custody
at 11.15 hours; the ceremony in connection with he was arrested for the
offence of disturbing the order ended as planned at 13.00 hours, but
the applicant was released only at 14.40 hours. No reasons were given
by the Government for the necessity of the extended detention.
It is useful to state here that, according to Article 36 of the
Austrian Code of Administrative Offences:
"Every detained person shall be brought, without delay, to the
relevant competent authority or, if the reason for the detention
falls away earlier, he shall be released" (emphasis added).
Accordingly, the applicant's detention was not "in accordance
with a procedure prescribed by law" as required by Article 5 para. 1
of the Convention, at least for the period from 13.00 hours to
14.40 hours because Austrian law itself required him to be released
once there was no longer any possibility of him continuing to disturb
the peace. Furthermore, I consider that Article 5 para. 1(c) implies
that persons detained for one of the purposes set out there may be held
in detention only for as long as is absolutely necessary. From the
above it appears that the applicant's detention was unnecessarily
prolonged after the ceremony and parade in question had ended.
For all the above reasons, I find that the applicant's detention
was in breach of Article 5 of the Convention.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
14 July 1987 Introduction of the application
17 September 1987 Registration of the application
Examination of Admissibility
4 September 1987 Commission's decision to invite
the Government to submit
observations on the admissibility
and merits of the application
15 December 1987 Government's observations
16 February 1990 Decision to grant the applicant legal
aid
26 February 1990 Applicant's observations in reply
3 August 1990 Applicant's further observations
3 December 1990 Commission's decision to
hold an oral hearing
1 March 1991 Oral hearing on admissibility and
merits, Commission's decision to
declare the application in part
admissible and in part inadmissible
Examination of the merits
11 March 1991 Decision on admissibility transmitted
to the parties
5 April 1991 Applicant's further factual
submissions
24 April 1991 Government's observations on the
merits
4 June 1991 Applicant's reply to Government
observations on the merits
6 September 1991 Commission's consideration of the
state of proceedings
11 January 1992 Commission's consideration of the
state of proceedings
12 May 1992 Commission's deliberations on the
merits and final vote
21 May 1992 Adoption of the Report
Full & Egal Universal Law Academy