AS TO THE ADMISSIBILITY OF
Application No. 15509/89
by W.G.
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
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
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.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 31 August 1989 by
W.G. against Austria and registered on 15 September 1989 under file No.
15509/89 ;
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
parties, may be summarised as follows.
The applicant, born in 1963, is an Austrian national and resident
in Vienna. Before the Commission he is represented by Mr. H. Vana, a
lawyer practising in Vienna.
On 18 April 1986 the applicant notified the Vienna Federal Police
Department (Bundespolizeidirektion) under S. 2 of the Austrian Assembly
Act (Versammlungsgesetz) that on 22 and 29 April, and 6 and 13 May
1986, from 10 a.m. until 6 p.m., respectively, about ten members of
various environmental groups intended to hold meetings at the
Schottentorpassage in Vienna in order to inform the public about some
aspects of Austrian and international energy policy. He also announced
that pamphlets would be distributed from time to time, and that the
traffic would not be obstructed.
On 29 April 1986 a police officer of the Vienna Federal Police
Department laid information against the applicant for having unlawfully
used a public road (vorschriftswidrige Benutzung öffentlichen
Straßengrundes) under S. 82 para. 1 of the Road Traffic Regulations
(Straßenverkehrsordnung). In his report, the police officer stated
that on that day at 5 p.m. he had noticed that in the
Schottentorpassage an information table was set up and pamphlets were
distributed. The applicant could only present a notification to the
Federal Police Department, not however an authorisation of the Vienna
Municipality (Magistrat). The police officer added that the
demonstration was organised by opponents to nuclear power who
distributed pamphlets, brochures, posters and labels, and used an
information stand.
On 7 October 1986 the Vienna Municipality fined the applicant
AS 500 for violation of S. 82 para. 1 in conjunction with S. 99
para. 1 (d) of the Road Traffic Regulations.
On 28 April 1987 the Office of the Vienna Provincial Government
(Amt der Landesregierung) dismissed the applicant's appeal (Berufung).
The Provincial Government found that on 29 April 1986 at 5 p.m., in the
Schottentorpassage, the applicant had used the public road for
purposes other than traffic in that he had put up an information desk
and distributed pamphlets, brochures, posters and labels. He had thus
pursued activities which required authorisation under S. 82 of the Road
Traffic Regulations without having such an authorisation. The
Provincial Government considered that there had been no assembly within
the meaning of the Assembly Act, in particular because the activities
were not such that a greater number of people participated in an
organised assembly or procession for a particular purpose, nor had
there been a common action of the participants, i.e. an association for
a common demonstration or common manifestation. The mere intention to
motivate persons present to take future common action did not suffice
for the assumption of an assembly. The distribution of pamphlets to
passers-by in the Schottentorpassage was capable of obstructing
traffic, the more so as the desk had a size of 3 x 1 m and there was
heavy pedestrian traffic at the time in question.
On 12 March 1988 the Constitutional Court (Verfassungs-
gerichtshof) 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 (Verwaltungs-
gerichtshof).
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 four days 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 corresponding pamphlets.
There was no demonstration, but only those who happened to pass by were
informed. On 29 April 1986 only two persons had distributed pamphlets
and brochures.
Furthermore, the Constitutional Court considered that the
interference with the applicant's right to freedom of expression was
justified as being in accordance with S. 82 paras. 1 and 5 in
conjunction with S. 99 para. 3 (d) of the Road Traffic Regulations and
necessary for the public safety and the prevention of disorder, i.e.
the security and free flow of traffic. The obligation to request a
prior authorisation under S. 82 para. 1 of the Road Traffic Regulations
did not unreasonably restrict the freedom of expression.
On 18 January 1989 the Administrative Court dismissed the
applicant's appeal (Beschwerde). The Administrative Court found in
particular that even activities aiming at political publicity were
subject to S. 82 para. 1 of the Road Traffic Regulations if they could
possibly obstruct the traffic. The decision was served upon the
applicant on 1 March 1989.
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 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 provides inter alia 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 for having imparted information in the Schottentorpassage on 29
April 1986.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 31 August and registered on
15 September 1989.
On 1 July 1991 the Commission decided to communicate the
application to the respondent Government, and to invite them to submit
written observations on its admissibility and merits.
After an extension of the time-limit, the Government's
observations were submitted on 21 January 1992. The applicant, also
after an extension of the time-limit, submitted his observations in
reply on 6 April 1992.
THE LAW
The applicant complains that he was punished for having
participated in an assembly and for having imparted information on a
public road. He invokes Articles 10 and 11 (Art. 10, 11) of the
Convention.
The Government, referring to the decision of the Constitutional
Court of 12 March 1988 and its constant case-law, maintain that the
applicant's activities at the Schottentorpassage could not be
considered as an assembly within the meaning of Article 11 para. 1
(Art. 11-1) of the Convention.
The Commission has had regard to the parties' arguments and the
circumstances of the applicant's activities at the information desk 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 parties agree that the applicant's
punishment for not having obtained an authorisation in respect of his
activities at the Schottentorpassage 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 Government submit that the applicant's activities at the
information stand had not been authorised in accordance with the Road
Traffic Regulations, and furthermore constituted an obstruction of the
pedestrian traffic. The restriction had therefore been prescribed by
Austrian law, and it had also been necessary for the prevention of
disorder.
The applicant maintains that the authorisation procedure under
the Road Traffic Regulations is disproportionate in the circumstances.
The exercise of the right to freedom of expression in public
thoroughfares should not be subjected to authorisation procedures which
cost time and money.
The Commission, having regard to the domestic decisions and
particularly to the Constitutional Court's judgment of 12 March 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, and
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 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 as regards the question 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, together with members
of environmental groups, intended to inform the public about some
aspects of Austrian and international energy policy. To this end, he
set up an information desk of 1 x 3 m in the Schottentorpassage, where,
from 10 a.m. until 6 p.m., he distributed pamphlets, brochures, posters
and labels.
The Austrian authorities imposed upon the applicant a fine of
AS 500 for violation of S. 82 para. 1 of the Road Traffic Regulations.
The Office of the Vienna Provincial Government, in its appeal decision
of 28 April 1987, referred to the obstruction of pedestrian traffic
resulting from the distribution of pamphlets to passers-by in the
Schottentorpassage. It had particular regard to the size of the
information table used and the heavy pedestrian traffic on 29 April
1986 at 5 p.m.
The Commission, balancing the interests of the prevention of
disorder, in particular of an unhindered and safe traffic on 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, the application is manifestly ill-founded 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 Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy