CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1992

.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. 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)