Lexploria

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)

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W.G. v. AUSTRIA

W.G. v. AUSTRIA

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