AS TO THE ADMISSIBILITY OF
Application No. 14923/89
by G.S.
against Austria
The European Commission of Human Rights sitting in private on
30 November 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 January 1989
by G.S. against Austria and registered on 21 April 1992 under file No.
14923/89 ;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1947, is an Austrian national and resident
in Vienna. Before the Commission he is represented by Mr. T. Prader,
a lawyer practising in Vienna.
A. The particular circumstances of the case
The application concerns two sets of administrative proceedings
related to political activities of the applicant on public roads.
I. The events on 2 December 1986
On 27 November 1986 the applicant notified the Vienna Federal
Police Department (Bundespolizeidirektion) under S. 2 of the Austrian
Assembly Act (Versammlungsgesetz) that on 2 December 1986, from 10 a.m.
until 6 p.m., he would organise a demonstration at the
Stephansplatz/Stock-im-Eisen-Platz, a pedestrian area in Vienna. He
intended to inform the public about the misuse of the provisions of the
Assembly Act by the administrative authorities, and about the political
culture, environmental problems, as well as general issues of democracy
and peace.
The event took place on 2 December 1986.
On 31 December 1986 the Vienna Municipality (Magistrat) fined the
applicant AS 200 for violation of S. 82 para. 1 in conjunction with
S. 99 para. 3 (d) of the Road Traffic Regulations. The Vienna
Municipality found that on 2 December 1986 at 10 a.m., at the Stock-im-
Eisen-Platz 1 and opposite it, he had installed nineteen tables of 0.6
x 3 m each, and two further tables of 0.7 x 1 m each in the street and
thereby used it for purposes other than traffic.
On 13 November 1987 the Office of the Vienna Provincial
Government (Amt der Landesregierung) dismissed the applicant's appeal
(Berufung). The Provincial Government considered that the applicant
had not used the public road for economic purposes although books,
newspapers, coffee, stickers and pins could be obtained in exchange for
a financial contribution. However, referring to the case-law of the
Austrian Constitutional Court (Verfassungsgerichtshof), it further
found that activities aiming at the information of passers-by and mere
political publicity activities did not amount to an assembly within the
meaning of the Austrian Assembly Act. The altogether 21 tables used
by the applicant had considerably obstructed the pedestrian traffic,
as there was only a narrow path left for the pedestrians. Having
regard to the localities, the free flow of pedestrian traffic was
thereby considerably impaired.
On 21 June 1988 the Constitutional Court dismissed the
applicant's complaint alleging violations of his rights to freedom of
assembly and freedom of expression. It transferred the case to the
Administrative Court (Verwaltungsgerichtshof).
The Constitutional Court, referring to its constant case-law,
held that a meeting of several persons only constituted an assembly
within the meaning of the Assembly Act if it was organised with the
intention of inducing the participants to a common action (debate,
discussion, demonstration), and if it resulted in a particular
association of the participants. Thus an assembly was a meeting of
persons for the common purpose of discussing opinions or of imparting
opinions to others. A meeting of persons by coincidence did not amount
to an assembly. The question whether a meeting constituted an assembly
had to be assessed on the basis of its purpose as well as its outward
appearance (its modalities, its length, the number of participants).
The Constitutional Court stated that an assembly within the
meaning of the Assembly Act would not require an authorisation under
S. 82 of the Road Traffic Regulations. However, the event in question
which had been scheduled for one day from 10 a.m. until 6 p.m., did not
have the characteristics of such an assembly. Its purpose was not to
induce pedestrians passing by to a common action, but to inform them
about a particular concern and to distribute pamphlets and books.
There was no demonstration, but only those who happened to pass by were
informed.
Furthermore, the Constitutional Court, referring to its decision
of 14 March 1988 relating to the second event set out below, considered
that the applicant's right to freedom of expression had not been
violated.
The decision was served on 26 August 1988.
Subsequently, the applicant withdrew his appeal to the
Administrative Court.
II. The events on 17 February 1987
On 16 February 1987 the applicant notified the Vienna Federal
Police Department that on the following day he would organise a
demonstration at the Kärntnertorpassage. He intended to collect
signatures in view of a referendum as regards the preservation of the
Danube and the construction of river dams.
The event took place on 17 February 1987.
On 26 March 1987 the Vienna Municipality fined the applicant
AS 350 for violation of S. 82 para. 1 in conjunction with S. 99
para. 3 (d) of the Road Traffic Regulations in respect of the event on
17 February 1987. The Vienna Municipality found that on that date, at
11.55 a.m., he had installed a table of 0.6 X 3.5 m at the
Kärntnertorpassage opposite stairs to underground stations. He had
thereby used the road for purposes other than traffic.
On 9 September 1987 the Office of the Vienna Provincial
Government dismissed the applicant's appeal relating to the above
decision. The Provincial Government considered in particular that,
having regard to the nature of the place, the pedestrian traffic had
been obstructed. The free flow of pedestrian traffic had been
impaired. The applicant had not used the public road for economic
purposes although books, newspapers, coffee, stickers and pins could
be obtained in exchange for a financial contribution. However,
referring to the case-law of the Constitutional Court
(Verfassungsgerichtshof), it further found that activities aiming at
the information of passers-by and mere political publicity activities
did not constitute an assembly within the meaning of the Assembly Act.
The table used by the applicant had considerably obstructed the
pedestrian traffic, as there was only a narrow path left for the
pedestrians. Having regard to the localities, the free flow of the
pedestrian traffic was thereby considerably impaired.
On 14 March 1988 the Constitutional Court dismissed the
applicant's complaint alleging violations of his rights to freedom of
assembly and freedom of expression. It transferred the case to the
Administrative Court (Verwaltungsgerichtshof).
The Constitutional Court, referring to its constant case-law,
considered that the event in question did not constitute an assembly.
Furthermore, the Constitutional Court found that the applicant's
right to freedom of expression had not been violated. In particular,
S. 82 paras. 1 and 5 as well as S. 99 para. 3 (d) of the Road Traffic
Regulations were in the interests of public safety and aimed at the
prevention of disorder. The restriction of the freedom of expression
for the purposes of the safety and free flow of traffic did not
generally appear disproportionate, and there was no appearance of
delays in the authorisation procedures or considerable costs. In the
present case, the applicant had failed to request the authorisation
under S. 82 para. 1 of the Road Traffic Regulations and there was no
indication that the guarantees of Article 10 of the Convention had been
disregarded.
On 8 July 1988 the Austrian Administrative Court dismissed the
applicant's appeal. The decision was served on 27 July 1988.
B. Relevant domestic law
S. 82 para. 1 of the Austrian Road Traffic Regulations of 1960
(Straßenverkehrsordnung) provides that for the use of public roads for
purposes other than road traffic, in particular for commercial purposes
or for advertising, an authorisation is required under these
Regulations, irrespective of other legal provisions. The same applies
for activities capable of causing gatherings of persons on a road or
of obstructing the attention of the drivers of motor vehicles.
According to S. 82 para. 5, first sentence, of the Road Traffic
Regulations, an authorisation under the first paragraph of this
provision has to be granted if the use of the road concerned does not
considerably impair the security, facility and fluidity of the traffic
and no excessive noise is to be expected.
S. 86 of the Road Traffic Regulations inter alia provides that
open-air meetings have to be notified three days in advance.
S. 99 para. 3 (d) of the Road Traffic Regulations makes it
punishable to use, without authorisation, a road for purposes other
than traffic, in particular for activities within the meaning of S. 82.
COMPLAINTS
The applicant complains under Articles 10 and 11 of the
Convention that he was punished for having participated in an assembly
and imparted information at the Stephansplatz on 2 December 1986, and
at the Kärntnertorpassage on 17 February 1987.
THE LAW
1. The applicant complains that he was punished for having
participated in an assembly and for having imparted information at the
Stephansplatz on 2 December 1986. He invokes Articles 10 and 11
(Art. 10, 11) of the Convention.
The Commission has had regard to the circumstances of the
applicant's activities at the information tables in question. It has
considered whether there was an interference with his right to peaceful
assembly within the meaning of Article 11 (Art. 11) of the Convention.
However, the Commission finds that there is no need to resolve this
problem. The applicant's punishment for not having obtained an
authorisation in respect of his activities at the Stephansplatz/Stock-
im-Eisen-Platz constituted an interference with his right to freedom
of expression under Article 10 para. 1 (Art. 10-1). The Commission,
therefore, deems it sufficient to examine the issues of the present
case under the more general guarantee of Article 10 (Art. 10).
An interference with the right to freedom of expression is in
breach of Article 10 (Art. 10), if it is not prescribed by domestic law
and not necessary in a democratic society for one of the purposes set
out in Article 10 para. 2 (Art. 10-2).
The Commission, considering the domestic decisions and
particularly the Constitutional Court's judgment of 21 June 1988, finds
that the measure complained of was based on S. 82 para. 1 in
conjunction with S. 99 para. 3 (d) of the Road Traffic Regulations.
It was thus prescribed by Austrian law.
Further, the requirement of prior authorisation under S. 82
para. 1 of the Road Traffic Regulations serves the purpose of ensuring
the security and free flow of traffic, i.e. the aim of the prevention
of disorder within the meaning of Article 10 para. 2 (Art. 10-2).
As regards the question of the necessity of the interference, the
Commission recalls that the phrase "necessary in a democratic society"
implies the existence of a "pressing social need". The Contracting
States enjoy a margin of appreciation whether such a need exists, but
this goes hand in hand with a European supervision which is more or
less extensive depending upon the circumstances. Thus the Commission's
review is confined to the question whether the measures taken on the
national level are justifiable in principle and proportionate (cf.,
mutatis mutandis, Eur. Court H.R., Markt Intern Verlag GmbH and Klaus
Beermann judgment of 20 November 1989, Series A no. 165, pp. 19-20,
para. 33, with further reference).
The Commission notes that the applicant intended to inform the
public about the administrative practice in the application of the
Assembly Act and also about more general issues of policy. To this
end, he set up altogether 21 information desks in a pedestrian area,
and distributed pamphlets, books and other material.
The Austrian authorities imposed upon the applicant a fine of
AS 200 for violation of S. 82 para. 1 of the Road Traffic Regulations.
The Office of the Vienna Provincial Government, in its appeal decision
of 13 November 1987, referred in particular to the obstruction of
pedestrian traffic resulting from the installation of the numerous
desks and the distribution of pamphlets and other material to
passers-by.
The Commission, balancing the interest of prevention of disorder,
in particular of an unhindered and safe traffic in public streets, and
the interest of the applicant in the exercise of his right to freedom
of expression, finds that in the present circumstances the requirement
of prior authorisation of his activities under S. 82 para. 1 of the
Road Traffic Regulations could be regarded as justified. The
application of the Regulations by the Austrian authorities, and the
fine for violation of S. 82 para. 1 do not appear disproportionate to
the legitimate aim pursued.
In the light of these considerations, the measure complained of
can reasonably be considered as necessary in a democratic society for
the prevention of disorder.
Consequently, this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains next about the fine imposed upon him on
26 March 1987 in respect of his activities at the Kärntnertorpassage
on 17 February 1987.
The Commission, referring to its above findings as regards the
applicant's complaint about the fine imposed upon him on 31 December
1986 and the ensuing proceedings, considers that this further
interference with the applicant's right to freedom of expression under
Article 10 (Art. 10) of the Convention is also justified under
paragraph 2 of Article 10 (Art. 10-2). In particular, in view of the
circumstances of the applicant's activities and the balancing of the
public and individual interests in the domestic decisions, there is no
indication that the interference was disproportionate.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy