AS TO THE ADMISSIBILITY OF

Application No. 15225/89

by Ludwig FRIEDL

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. M. de SALVIA, Deputy 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 5 June 1989 by Ludwig FRIEDL against Austria and registered on 20 July 1989 under file No. 15225/89;

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 1953, is an Austrian national and resident in Vienna.  Before the Commission he is represented by Mr. T. Prader , a lawyer practising in Vienna.

A. Particular circumstances of the case

On 10 February 1988 the applicant notified the Vienna Federal Police Department ( Bundespolizeidirektion ) that the Institute for Psychology at the Vienna University, working group " Strafvollzug " (execution of sentences), intended to organise a manifestation and "sit-in" in the Vienna Karlsplatz -Opera-Passage ( Kärntnertorpassage ) in the period from 11 until 24 February 1988 in order to provide information about the problems of homeless persons.  The organiser of the manifestation would use three tables for information material, two photo-stands and megaphones.  Fifty persons at least were expected to participate. Furthermore, on 24 February 1988 a demonstration of homeless persons would take place.

In the afternoon of the same day, an official of the Police Department informed the applicant by telephone that the notified "sit-in" could not be considered an assembly within the meaning of the Assembly Act 1953 ( Versammlungsgesetz ).  It rather constituted a use of public streets for purposes other than traffic and, therefore, required authorisation by the Vienna Municipality under the Road Traffic Regulations 1960 ( Straßenverkehrsordnung ).

On 12 February 1988 the " Kurdistan-Komitee ", Vienna, informed the Vienna Federal Police Department about its intention to organise a sit-in and hunger-strike of about twenty participants at the Karlsplatz -Opera-Passage in the period from 16 until 27 February 1988.

The manifestation of the working group " Strafvollzug " started on 12 February 1988, and continued without interruption day and night.  In the course of the manifestation pamphlets with the heading "homeless persons can sleep peacefully until 24 February" were distributed, which, on two pages, provided information about the manifestation and the problems of homeless persons, in particular in Vienna, and asked for charity.

In a report of 16 February 1988 the guard-room ( Wachzimmer ) at the Karlsplatz -Opera-Passage described the situation at that place arising from the manifestation of the homeless persons and the manifestation organised by the " Kurdistan-Komitee ".

It stated in particular that the area concerned had already in the past been a meeting place for shady characters; however, since the start of the manifestation of the homeless persons the complaints about the participants and the excesses in the course of that manifestation had increased.  The participants in that manifestation not only loitered about and consumed alcohol like in the past, but had established themselves as at a camping place.  They were cooking on the spot; food, left- overs and other dust were scattered about and in between they were sleeping.  Those "camping" were essentially identical with the homeless persons normally gathering at this place, and further persons were now attracted.  Since the start of the second manifestation the pedestrian traffic in the passage had been considerably obstructed.  The manifestations required an area of 8 x 12 m each.  There were serious complaints, especially by parents of schoolchildren, who feared the manifestation area.  There had also been a dispute between drunken homeless persons and the " Kurdistan-Komitee ".

On 17 February 1988 the Vienna Federal Police Department informed the Vienna Municipality that it did not consider the two manifestations as assemblies within the meaning of the Assembly Act, and that the authorisation of both manifestations fell within the competence of the Municipality.

On 18 February 1988 the Vienna Municipality arranged for traffic signs to be put up at the Karlsplatz -Opera-Passage identifying the area as reserved for pedestrian traffic.

In the early morning of 19 February 1988 police officers of the Vienna Inner City Police Office ( Bezirkspolizeikommissariat ), in the presence of officials of the Vienna Municipality, requested the homeless persons to leave the place.  The participants were informed that their manifestation required an authorisation under S. 82 para. 1 of the Road Traffic Regulations, and that obstructing the pedestrian traffic would amount to an offence under the Road Traffic Regulations.  As those present did not immediately agree to leave, their personal particulars were established.  The participants in the manifestation subsequently left.

The Vienna Inner City Police Office, in its report of 19 February 1988 about the further developments in the Karlsplatz -Opera-Passage stated inter alia that in the evening of the preceding day the number of participants in the manifestation had slightly increased to over fifty persons, and persons belonging to radical circles had joined.  Social workers who had come to inform the participants had been hindered in their work.  The participants had known about the unlawfulness of their activities hours before the police action.  At the beginning of the police action, on 19 February 1988 about 1 a.m., the participants were informed about the legal position, and they were requested to leave the passage area, i.e. a pedestrians way within the meaning of S. 52 subsec . 17 of the Road Traffic Regulations.  At the same time they were told that there was an opportunity of free transport and overnight accommodation for homeless persons.  Nevertheless the applicant had invited his mind-mates to stay, because he thought that the sit-in had been properly notified.  The applicant was subsequently informed about a telephone call with the Head of the President's Office ( Präsidialabteilung ) at the Vienna Federal Police Department, and about the fact that he had knowingly made a false statement about the legal position.  The applicant then gave in and the participants began to prepare themselves for their transport.  The police action terminated at 2,45 a.m.  The identity of fifty-seven persons was established.  Furthermore the police action was, as far as the radius of the monitor in the Police Office reached, registered on a videotape.  A police photographer was also present.

      The applicant alleges that the police took individual photographs of him.  The Government submit that only the manifestation as such was photographed in order to establish the situation of the manifestation in relation to the pedestrian traffic.  Individual persons on these photographs remained anonymous in that no names were entered.

On 21 March 1988 the applicant, represented by Mr. Prader , lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ).  He submitted that the facts that, on 17 and 19 February 1988, officials of the Vienna Federal Police Department had taken pictures of him, had established his identity by force and recorded his personal data as well as stored this information, and that the assembly had been dissolved, violated his rights under Articles 8 and 11 of the Convention.  Furthermore, the applicant, referring to the Commission's Report of October 1985 in the Plattform " Ärzte für das Leben " case, argued that the Constitutional Court should change its case-law concerning challengeable acts of State organs.

On 13 December 1988 the Constitutional Court declared the applicant's complaint concerning the taking of photographs, the establishment of his identity and registering of his personal data as well as the storing of this material inadmissible.  The remainder of the complaint was dismissed on the ground that there was no indication of a violation of the applicant's constitutional rights.

The Constitutional Court established the facts on the basis of the parties' submissions and the administrative files.  It proceeded in particular from the two above-mentioned police reports of 16 and 19 February 1988.  Furthermore, the Constitutional Court found no reasons to doubt that police officers had photographed the applicant on the occasion of his participation in the manifestation, that his identity had been established and that these data were stored by the Vienna Federal Police Department.

As regards the first part of the applicant's complaint, the Constitutional Court found in particular that, according to its constant case-law, the applicant could not complain about a police activity which did not constitute an order ( Befehl mit unverzüglichem Befolgungsanspruch ) or the use of physical force ( Anwendung physischen Zwangs ), and thus no administrative coercion ( Ausübung unmittelbarer verwaltungsbehördlicher Befehls - oder Zwangsgewalt ) against a specific person within the meaning of S. 144 para. 2, second sentence, of the Constitution ( Bundesverfassungsgesetz ).  In the present case, the police authorities had not used any physical force or coercion.  Even assuming an interference with Article 8 of the Convention, no issue could arise under Article 13 of the Convention, because this provision could not extend the competence of the Constitutional Court.

With regard to the applicant's complaint that he had been hindered from participating in an assembly, the Constitutional Court found that the event concerned, considering its length and circumstances, namely essentially a camping in the Karlsplatz -Opera-Passage, did not constitute an assembly within the meaning of Article 11 of the Convention.  According to its constant case-law, a meeting of several persons only constituted an assembly if it was organised with the intention of inducing the participants to a common action, and if it resulted in a particular association of the participants.

B. Relevant domestic law

S. 2 para. 1 of the Road Traffic Regulations 1960 ( Straßen-verkehrsordnung ) defines as road any area destined for public pedestrian or vehicular traffic.

S. 78 (c) prohibits the obstruction of the pedestrian traffic on pavements in built-up areas.  Such obstruction to the traffic is an administrative offence ( Verwaltungsübertretung ) under SS. 78 (c), 99 para. 3 (d).

Pursuant to S. 82 of the Road Traffic Regulations, the use of public roads for purposes other than traffic is subject to an authorisation .  The unauthorised use of a road for such other purposes constitutes an administrative offence under SS. 82, 99 para. 3 (d).

S. 32 para. 1 of the Administrative Offences Act ( Verwaltungs-strafgesetz ) states that a person charged with an administrative offence ( Beschuldigter ) is any person suspected of having committed an administrative offence as of the moment of the first prosecution measure ( Verfolgungsmaßnahme ) until the termination of the proceedings.  According to S. 32 para. 2 a prosecution measure is any official act by a public authority against a particular person charged with an administrative offence, such as a summons ( Ladung ), a warrant to appear ( Vorführungsbefehl ), a request for questioning ( Ersuchen um Vernehmung ), an order to investigate the facts and the unknown offender ( Auftrag zur Ausforschung ), a penal order ( Strafverfügung ) etc.

S. 33 para. 1 of the Administrative Offences Act provides in particular that, at the time of his first questioning, any person charged with an administrative offence has to be asked about his christian and family name, the time and place of birth, his nationality and family status, his profession and place of residence as well as his pecuniary circumstances, his income and family situation.

S. 35 (c) of the Administrative Offences Act authorises organs of the public security to arrest persons caught in the act of committing an administrative offence in order to bring them before the authorities, when the person concerned continues the punishable act, in spite of being cautioned, or attempts to repeat it.

COMPLAINTS

1.    The applicant complains under Article 11 of the Convention that the Austrian police authorities unlawfully dispersed the manifestation of homeless persons.

2.    The applicant complains under Article 8 para. 1 of the Convention that on 17 and 19 February 1988, in the course of his participation in an assembly, officials of the Vienna Federal Police Department took pictures of him, established his identity and recorded his personal data as well as stored this information.  He considers that this interference with his right to respect for his private life was not in accordance with the law.

3. The applicant complains under Article 13, in conjunction with Article 8 para. 1, of the Convention that he did not have an effective remedy to complain about the above violation of his right to respect for his private life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 June and registered on 20 July 1989.

On 27 May 1991 the Commission decided to communicate the application and to invite the respondent Government to submit written observations on its admissibility and merits.

The Government's observations were submitted after an extension of the time-limit on 21 October 1991.  Also after an extension of the time-limit, the applicant submitted his observations in reply on 7 January 1992.

THE LAW

1.    The applicant complains that the Austrian police authorities unlawfully dissolved the sit-in and manifestation of homeless persons.

He invokes Article 11 of the Convention.

Article 11, so far as relevant, reads:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ..."

The respondent Government, referring to the reasoning in the Constitutional Court's judgment of 13 December 1988, submit that the manifestation concerned did not constitute an assembly within the meaning of Article 11 of the Convention.

The applicant considers that the manifestation in question was no accidental meeting, as he had deliberately assembled with an average of fifty persons in order to inform as many persons as possible about the problems of homeless persons.

The Commission recalls that the right of peaceful assembly is a fundamental right in a democratic society and, like the right to freedom of expression, one of the foundations of such a society (No. 8191/78, Dec. 10.10.79, D.R. 17 p. 93).  It should not, therefore, be interpreted restrictively (No. 13079/87, Dec. 6.3.89, to be published in D.R. 60).

The freedom of peaceful assembly within the meaning of Article 11 para. 1 applies to peaceful demonstrations, and covers not only static meetings, but also public processions.  The Commission has also found that a demonstration by means of repeated sit-ins blocking a public road fell within the ambit of Article 11 para. 1 (cf. No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138; No. 10126/82, Dec. 17.10.85, D.R. 44 p. 65; No. 13079/87, loc. cit.).

The present applicant, member of the Institute for Psychology at the Vienna University, working group " Strafvollzug ", organised a manifestation and "sit-in" in the Vienna Karlsplatz -Opera-Passage in order to provide information about the problems of homeless persons.  The manifestation started on 11 February and was scheduled to last until 24 February 1988.  The organiser of the manifestation used three tables for information material, two photo-stands and megaphones.  There was an average of fifty persons present.  The manifestation was dispersed on 19 February 1988.

A police report of 16 February 1988 described the situation arising from the manifestation of homeless persons at the Karlsplatz -Opera-Passage.  According to this report, the participants of that manifestation had established themselves like campers at a camping place.  

The Constitutional Court, in its decision of 13 December 1988, found that the event concerned, considering its length and circumstances, namely essentially a camping in the Karlsplatz -Opera-Passage, did not constitute an assembly within the meaning of Article 11 of the Convention.  According to its constant case-law, a meeting of several persons only constituted an assembly if it was organised with the intention of inducing the participants to a common action, and if it resulted in a particular association of the participants.

The Commission, having regard to the particular circumstances of the sit-in of homeless persons and other participants in the manifestation concerned, has considered whether or not there was an interference with the applicant's right to peaceful assembly within the meaning of Article 11 of the Convention.  However, it finds no need to resolve this problem as the complaint is in any case manifestly ill-founded for the following reasons.

If the measures to disperse the manifestation on 19 February 1988 interfered with the applicant's right to peaceful assembly, there would be a breach of Article 11, if this restriction was not prescribed by Austrian law and not necessary in a democratic society for one of the purposes set out in paragraph 2 of this Article.

The Government submit that the manifestation concerned had not been authorised in accordance with the Road Traffic Regulations, and furthermore constituted an obstruction to the pedestrian traffic at the Karlsplatz -Opera-Passage.  The restriction was therefore prescribed by Austrian law.  It was also necessary for the prevention of disorder.

The applicant contends that the Austrian police authorities did not correctly balance the interests of the participants in the manifestation and the interests of the public in an unhindered pedestrian traffic.

The Commission considers that the order of the Austrian police authorities requiring the applicant and the other participants to leave the Karlsplatz -Opera-Passage, thereby dispersing the manifestation, was based on S. 78 (c), S. 82 para. 1 and S. 99 para. 3 (a), (d) of the Road Traffic Regulations in conjunction with S. 35 (c) of the Administrative Offences Act.

As regards the necessity of the restriction in question, 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 to 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 review by the Convention organs 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 and on average fifty other participants of the manifestation in question intended to inform the public about the problems of homeless persons.  They had installed information tables and photo-stands, and participants were staying day and night at the Karlsplatz -Opera-Passage.  Moreover, as from 16 February 1988 onwards, there was a manifestation by members of the " Kurdistan-Komitee " at the same place.  According to a police report of 16 February 1988, the pedestrian traffic was thereby considerably obstructed, and there were serious complaints by persons affected by the manifestation about the situation at the Karlsplatz -Opera-Passage.

The Commission, balancing the public interest in the prevention of disorder, in particular in an unhindered and safe traffic on public streets, and the interests of the applicant and the other participants in continuing their manifestation, does not find that the eventuel dissolution of their manifestation which had already lasted about a week was unjustified in principle or disproportionate to the aims pursued by the authority.

It follows that, in the circumstances of the present case, the decision to disperse the manifestation 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 of the Convention.

2.    The applicant further complains that on 17 and 19 February 1988, in the course of his participation in an assembly, officials of the Vienna Federal Police Department took pictures of him, established his identity and recorded his personal data as well as stored this material.  He considers that this constituted an unlawful interference with his right to respect for his private life within the meaning of Article 8 para. 1 of the Convention.

Article 8, so far as relevant, provides:

"1. Everyone has the right to respect for his private ... life, ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The Government maintain that the alleged interference with the applicant's right under Article 8 para. 1 was justified under Article 8 para. 2 as being in accordance with the Austrian law, in particular SS. 32, 33 of the Administrative Offences Act, and necessary in a democratic society for the prevention of crime.

The applicant submits that he had not committed an administrative offence and that, in any case, the Austrian authorities had not intended to institute proceedings against him.

The Commission considers that the applicant's complaint under Article 8 of the Convention raises serious questions of fact and law which can only be resolved by an examination as to its merits.  This part of the application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.  No other grounds for declaring it inadmissible have been established.

3. The applicant also complains under Article 13, in conjunction with Article 8 para. 1, of the Convention that he did not have an effective remedy to complain about the above violation of his right to respect for his private life.

Article 13 provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The Government submit that in the circumstances of the present case the applicant has no arguable claim that there was a violation of Article 8 of the Convention.

The Commission, having regard to its above considerations under Article 8 of the Convention, considers that the applicant's related complaint unbder Article 13 cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2.  Accordingly, it reserves also this aspect of the case for an examination as to the merits.

For these reasons, the Commission, by a majority,

1. Declares INADMISSIBLE the applicant's complaint under Article 11

of the Convention,

2. Declares ADMISSIBLE the remainder of the application,

without prejudging the merits of the case.

Deputy Secretary to the Commission President of the Commission

    (M. de Salvia) (C.A. Nørgaard )