CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)