Lexploria

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)

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