Lexploria

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

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CHORHERR v. AUSTRIA

CHORHERR v. AUSTRIA

LEXI