Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26633/95

by Erwin BADER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 February 1995

by Erwin BADER against Austria and registered on 3 March 1995 under

file No. 26633/95;

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 applicant, an Austrian citizen born in 1943, is a University

Professor residing in Vienna. Before the Commission he is represented

by Mr. K.A. Schachtschneider, a University Professor residing in

Nürnberg, Germany.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 5 May 1994 the National Assembly (Nationalrat), the first

chamber of the Austrian Parliament, adopted the "Federal Constitutional

Act on the Accession of Austria to the European Union"

(Bundesverfassungsgesetz über den Beitritt Österreichs zur Europäischen

Union). This Constitutional Act enabled the competent Austrian

authorities to conclude the treaty on Austria's accession to the

European Union.

On 7 May also the Federal Assembly (Bundesrat), the second

chamber of Parliament, adopted the above Constitutional Act.

Thereupon the President of the Republic (Bundespräsident),

pursuant to Article 44 para. 3 of the Federal Constitution (Bundes-

Verfassungsgesetz) and the Federal Act on Referenda

(Volksabstimmungsgesetz), ordered that a referendum on the above

Constitutional Act be held. The question for the referendum was

whether the Constitutional Act should acquire the force of law ("ob der

Gesetzesbeschluss Gesetzeskraft erlangen sollte").

On 12 June 1994 the referendum took place. According to the

official result of the referendum, published on 23 June 1994 in the

"Wiener Zeitung", 3.145,981 of the votes were "yes", while 1.578,850

of the votes were "no".

On 22 July 1994 the applicant introduced a request under Article

141 para. 3 of the Federal Constitution with the Constitutional Court

(Verfassungsgerichtshof) in which he challenged the referendum as

unlawful and requested the Constitutional Court to annul it. He also

submitted the necessary number of declarations by other voters in

support of his application.

The applicant submitted in particular that the text of the

Constitutional Act adopted by the National Assembly on 5 May 1994 was

unconstitutional as being contrary to the basic principles of the

Austrian Federal Constitution. Furthermore the procedure prescribed

by Federal Act on Referenda was unconstitutional or, in the

alternative, not complied with by the Austrian authorities. He also

submitted that the Austrian Broadcasting Corporation (Österreichischer

Rundfunk - ORF), several members of the Federal Government, members of

Regional Governments, the Chamber of Commerce, the President of the

Republic and the Church had given biased information and made biased

statements in favour of Austria's accession to the European Union and

thus had unduly influenced the voters.

On 30 August 1994 the Constitutional Court dismissed the

applicant's application for annulment of the referendum. It found that

in the context of an application for annulment of a referendum it could

not examine the applicant's arguments concerning the

unconstitutionality of the Constitutional Act which had been subject

to the referendum, but only the referendum itself.

As regards the applicant's complaint that the ORF had

disseminated biased information incompatible with its obligation of

objectivity under the Broadcasting Act (Rundfunkgesetz), the

Constitutional Court found that these allegations were not sufficiently

substantiated. In any event journalists of the ORF were independent

and any alleged violation of their obligation to respect objectivity

had to be raised first with the Broadcasting Supervisory Board

(Kommission zur Wahrung des Rundfunkgesetzes).

As regards the applicant's allegation that propaganda by organs

of the State had unduly influenced the voters in favour of a positive

vote in the referendum, the Constitutional Court observed that in the

context of elections and referenda the State must, in general, not

interfere with advertising in favour of a certain manner of voting.

However, it also had the obligation to prevent that oral or written

agitation in the course an election campaign overstepped the limits set

in the interest of freedom of elections. Thus, the State had the

obligation to prevent a virulent campaign of disinformation originating

from public authorities. However, the applicant had failed to show

that the advertisement for a positive decision by members of the

Federal Government and other public institutions amounted to such an

inadmissible campaign. What the applicant regarded as inadmissible

propaganda was merely neutral information of the public on the issues

of the referendum.

Insofar the statements made by politicians in the public had a

tendency in favour of an accession of Austria to the European Union

also the politicians making these statements could rely on their right

to freedom of opinion. Members of the Government, which were

politically responsible to Parliament, had the right to make statements

in favour of the policy adopted by the Government. In this respect the

Constitutional Court found that there was a fundamental difference

between elections and referenda. While in elections the voter had the

possibility to choose between competing political parties, no such

choice exists under the law in respect of referenda. Rather, the voter

had to give his opinion on an issue which had already been determined

by the legislator. The voter did not have to decide on parties and

personalities but on the question whether a decision by the legislator

should acquire the force of law or not.

The Constitutional Court also found that the procedural

requirements of the Federal Act on Referenda had been complied with.

COMPLAINTS

The applicant complains that in preparing the referendum the

competent Austrian authorities did not comply with their obligations

under Article 10 of the Convention to inform the public. The citizens

did not have sufficient time at their disposal to form an opinion on

all the far reaching implications the issue of Austria's accession to

the European Union had and they were not provided with comprehensive,

detailed and neutral information on the underlying issues. Rather the

Austrian authorities disseminated incomplete and biased information for

the purpose of unduly influencing the voters in favour of a positive

vote at the referendum. Furthermore, opponents to Austria's accession

to the European Union had not been given the possibility to participate

in the counting of the votes. The applicant also relies on Article 9

of the Convention and Article 3 of Protocol No. 1.

THE LAW

1. The applicant complains under Article 10 (Art. 10) of the

Convention that in the context of the referendum on Austria's accession

to the European Union the Austrian authorities did not comply with

their obligation to inform fully and correctly the general public.

Article 10 (Art. 10) of the Convention reads as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

However, the Commission recalls that under Article 25 of the

Convention it may only receive petitions from a "person, non-

governmental organisation or group of individuals claiming to be the

victim of a violation ...". It follows from this provision that the

applicant cannot complain as a representative for people in general,

because the Convention does not permit such an "actio popularis". The

Commission is only required to examine the applicant's complaints that

he was himself a victim of a violation. The Commission finds therefore

that the applicant can only claim to be a victim of a violation of

Article 10 (Art. 10) of the Convention insofar he may be understood to

complain that the Austrian authorities did not inform the applicant

sufficiently on the above issues (see No. 7045/75, Dec. 10.12.76, D.R.

7 p. 87; No. 9297/81, Dec. 1.3.82, D.R. 28 p. 204; No. 10039/82, Dec.

11.5.84, D.R. 38 p. 74).

It follows that this part of the application is incompatible

ratione personae within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The Commission has next examined the applicant's complaint that

the Austrian authorities did not inform him sufficiently on the issues

underlying the referendum of 12 June 1994 and that this failure

violated Article 10 (Art. 10) of the Convention.

The Commission recalls that the right to freedom to receive

information basically prohibits a Government from restricting a person

from receiving information that others wish or may be willing to impart

to him. Article 10 (Art. 10) does not, in general, confer on the

individual a right of access to a register containing information on

his personal position, nor does it embody an obligation on Governments

to impart such information to the individual (Eur. Court H.R., Leander

judgment of 26 March 1987, Series A no. 116, p.29, para. 74; Gaskin

judgment of 7 July 1989, Series A no. 160, p. 21, para. 52).

Therefore, the Commission cannot find that Article 10 (Art. 10)

guarantees, in circumstances such as in the present case, an unfettered

individual right to be informed by State authorities on issues of

general interest in a specific way. Moreover, the Commission observes

that the applicant does not allege that he was prevented by the

Austrian authorities to obtain information he deemed necessary in order

to form his opinion for the purpose of voting in the above referendum.

In these circumstances the Commission does not find any

appearance of a violation of Article 10 (Art. 10) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant further relies on Article 9 (Art. 9) of the

Convention, which guarantees to everyone "the right to freedom of

thought, conscience and religion".

However, to the extent the applicant may be understood to

complain that he is personally affected in the exercise of this right,

the Commission cannot find that any alleged insufficiency of

information provided by the Austrian authorities in relation to the

above referendum prevented the applicant from the effective exercise

of his rights under Article 9 (Art. 9) of the Convention.

It follows that also this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. Lastly the applicant relies on Article 3 of Protocol No. 1 (P1-3)

which provides that the "High Contracting Parties undertake to hold

free elections at reasonable intervals by secret ballot, under

conditions which will ensure the free expression of the opinion of the

people in the choice of the legislature."

However, the Commission recalls that the obligation of the High

Contracting Parties under this provision are limited to the field of

elections concerning the choice of the legislature and do not extend

to referenda (see No. 7096/75, Dec. 3.10.75, D.R. 3 p. 165).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention 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 First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BADER v. AUSTRIA

BADER v. AUSTRIA