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AS TO THE ADMISSIBILITY OF

Application No. 14093/88

by Herbert MOOSMANN

against Austria

The European Commission of Human Rights sitting in private

on 15 October 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

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 22 July 1988

by Herbert Moosmann against Austria and registered on 2 August 1988

under file No. 14093/88;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having regard to :

- the Commission's decision of 7 January 1991 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government

on 27 March 1991 and the observations in reply submitted

by the applicant on 21 May 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen who resides at Lauterach,

Vorarlberg. He is represented by Mr. W.L. Weh, a lawyer practising in

Bregenz.

The facts as agreed between the parties may be summarised as

follows.

The applicant is a member of the "Action Committee Survival"

(Bürgerinitiative Überleben) which was founded to protest against a

road construction project connecting the motorways on the Swiss and

Austrian side of the Rhine valley. The projected road led through one

of the last natural habitats in the Rhine valley which the Action

Committee wished to see preserved. On 8 October 1986 wooden crosses

(symbolising death of nature) were erected along the most probable

line of the road on private properties whose owners had expressly or

tacitly agreed to the protest action.

The member of the Vorarlberg Provincial Government (Landes-

regierung) competent for the department of road construction arrived

on the spot and ordered the workmen of the department to remove the

crosses. The measure was carried out despite objections of the Action

Committee who claimed that it was unlawful for the workmen of the road

construction department to trespass on private property and that the

removal of the crosses amounted to theft. The crosses, some of which

were damaged during the action, were stored on the premises of the

road construction department and subsequently returned to the owners

under a preliminary injunction issued by the District Court

(Bezirksgericht) of Dornbirn.

The applicant and several other persons lodged a complaint

against the removal of the crosses with the Constitutional Court

(Verfassungsgerichtshof). They claimed that the Provincial Government

had ordered the removal in its official capacity, and that the

measure of immediate administrative compulsion unlawfully interfered

with their constitutional rights to freedom of expression and

unviolability of property.

On 13 December 1986 the Constitutional Court, in summary

proceedings under Article 144 para. 2 of the Federal Constitution,

refused to deal with the case which it referred to the Administrative

Court (Verwaltungsgerichtshof). It considered that the complaint

showed insufficient prospects of success, the alleged unconstitutionality

of the impugned measure being only a consequence of a possible

violation of the ordinary law the respect of which was to be

controlled by the Administrative Court.

The Administrative Court, in a decision of 18 December 1987

which was served on the applicant on 22 January 1988, declared the

complaint inadmissible on the ground that it was not competent to deal

with the matter. The impugned measure could not be regarded as an act

of administrative compulsion. Such an act presupposed the exercise of

public powers while the competence of the member of the Provincial

Government responsible for road construction was limited to acts iure

gestionis. Since the measure thus was not an administrative act

challengeable before the Administrative Court, it could be left open

whether or not it had been lawful.

Other members of the action group laid a criminal information

(Strafanzeige) against the member of the Provincial Government. The

public prosecutor having refused to bring a charge, they requested a

judicial decision on the institution of criminal proceedings. This

request was rejected by the Review Chamber (Ratskammer) of the

Regional Court (Landesgericht) of Feldkirch on 24 August 1987. This

Court, too, considered that the impugned act was one performed iure

gestionis, for which reason there could be no abuse of public powers

within the meaning of Section 302 of the Penal Code. Nor had the

offence of damaging property (Section 125 of the Penal Code) been

committed because an aggregate of things - i.e. the entirety of the

crosses erected on the land - could not be regarded as property within

the meaning of this provision, and because the damage done to some

crosses had only been caused by negligence. Nor was there a

deprivation of property within the meaning of Section 135 of the Penal

Code, because there had been no intent permanently to deprive the

owners of their property.

COMPLAINTS

The applicant alleges that the above measure unjustifiedly

interfered with his right to freedom of expression, as guaranteed by

Article 10 of the Convention, and his right to the peaceful enjoyment

of his possessions, as guaranteed by Article 1 of Protocol No. 1 to

the Convention. He claims, in particular, that the erection of the

crosses for the purpose of a demonstration was an exercise of his

freedom of expression, and that the removal of and damage to the

crosses interfered with both this freedom and his property rights.

The measure was ordered by a member of the Provincial Government in

his official capacity and is therefore imputable to the Austrian State

under the Convention. Moreover, the measure was unlawful in two

respects: it was ordered by an incompetent organ and had no legal

basis. It was arbitrary and therefore also infringed Article 14 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 July 1988 and registered

on 2 August 1988.

On 7 January 1991 the Commission decided to communicate the

application to the respondent Government for observations on its

admissibility and merits. These observations were submitted on

27 March 1991 and the applicant replied on 21 May 1991.

THE LAW

The applicant mainly invokes Article 10 (Art. 10) of the

Convention which guarantees the right to freedom of expression.

The Government submit that the removal of the crosses which

the applicant and others had erected as a protest against a road

construction project constituted an act of the administration in the

sphere of private law (Akt der Privatwirtschaftsverwaltung) and not an

act of sovereign power engaging the State's responsibility under the

Convention. They further argue, in eventu, that domestic remedies are

not exhausted.

The Commission first considers that a civil action for the

return of the crosses would not offer effective redress as it would

only determine the private law issue as to the right of ownership or

possession, not, however, whether the stifling of the purpose for

which the crosses had been erected was justified under Article 10

para. 2 (Art. 10-2) which lays down the conditions under which a State

may interfere with the right to freedom of expression.

The Commission further considers that the question whether the

act complained of constitutes an interference by a public authority

with the right to freedom of expression and if so whether it was

justified raises difficult questions of law which cannot be resolved

at this stage of the proceedings since they require a detailed

examination of the merits.

The Commission also notes that no other ground for

inadmissibility has been established.

For these reasons, the Commission, without in any way

prejudging the merits, unanimously

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MOOSMANN v. AUSTRIA

MOOSMANN v. AUSTRIA

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