CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 mai 1996

.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. 26633/95                       by Erwin BADER                       against Austria          The European Commission of Human Rights (First Chamber) sitting in private on 15 May 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        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 February 1995 by Erwin BADER against Austria and registered on 3 March 1995 under file No. 26633/95;        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 applicant, an Austrian citizen born in 1943, is a University Professor residing in Vienna.   Before the Commission he is represented by Mr. K.A. Schachtschneider, a University Professor residing in Nürnberg, Germany.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 5 May 1994 the National Assembly (Nationalrat), the first chamber of the Austrian Parliament, adopted the "Federal Constitutional Act on the Accession of Austria to the European Union" (Bundesverfassungsgesetz über den Beitritt Österreichs zur Europäischen Union).   This Constitutional Act enabled the competent Austrian authorities to conclude the treaty on Austria's accession to the European Union.        On 7 May also the Federal Assembly (Bundesrat), the second chamber of Parliament, adopted the above Constitutional Act.        Thereupon the President of the Republic (Bundespräsident), pursuant to Article 44 para. 3 of the Federal Constitution (Bundes- Verfassungsgesetz) and the Federal Act on Referenda (Volksabstimmungsgesetz), ordered that a referendum on the above Constitutional Act be held.   The question for the referendum was whether the Constitutional Act should acquire the force of law ("ob der Gesetzesbeschluss Gesetzeskraft erlangen sollte").        On 12 June 1994 the referendum took place.   According to the official result of the referendum, published on 23 June 1994 in the "Wiener Zeitung", 3.145,981 of the votes were "yes", while 1.578,850 of the votes were "no".        On 22 July 1994 the applicant introduced a request under Article 141 para. 3 of the Federal Constitution with the Constitutional Court (Verfassungsgerichtshof) in which he challenged the referendum as unlawful and requested the Constitutional Court to annul it.   He also submitted the necessary number of declarations by other voters in support of his application.        The applicant submitted in particular that the text of the Constitutional Act adopted by the National Assembly on 5 May 1994 was unconstitutional as being contrary to the basic principles of the Austrian Federal Constitution.   Furthermore the procedure prescribed by Federal Act on Referenda was unconstitutional or, in the alternative, not complied with by the Austrian authorities.   He also submitted that the Austrian Broadcasting Corporation (Österreichischer Rundfunk - ORF), several members of the Federal Government, members of Regional Governments, the Chamber of Commerce, the President of the Republic and the Church had given biased information and made biased statements in favour of Austria's accession to the European Union and thus had unduly influenced the voters.        On 30 August 1994 the Constitutional Court dismissed the applicant's application for annulment of the referendum.   It found that in the context of an application for annulment of a referendum it could not examine the applicant's arguments concerning the unconstitutionality of the Constitutional Act which had been subject to the referendum, but only the referendum itself.        As regards the applicant's complaint that the ORF had disseminated biased information incompatible with its obligation of objectivity under the Broadcasting Act (Rundfunkgesetz), the Constitutional Court found that these allegations were not sufficiently substantiated.   In any event journalists of the ORF were independent and any alleged violation of their obligation to respect objectivity had to be raised first with the Broadcasting Supervisory Board (Kommission zur Wahrung des Rundfunkgesetzes).        As regards the applicant's allegation that propaganda by organs of the State had unduly influenced the voters in favour of a positive vote in the referendum, the Constitutional Court observed that in the context of elections and referenda the State must, in general, not interfere with advertising in favour of a certain manner of voting. However, it also had the obligation to prevent that oral or written agitation in the course an election campaign overstepped the limits set in the interest of freedom of elections.   Thus, the State had the obligation to prevent a virulent campaign of disinformation originating from public authorities.   However, the applicant had failed to show that the advertisement for a positive decision by members of the Federal Government and other public institutions amounted to such an inadmissible campaign.   What the applicant regarded as inadmissible propaganda was merely neutral information of the public on the issues of the referendum.        Insofar the statements made by politicians in the public had a tendency in favour of an accession of Austria to the European Union also the politicians making these statements could rely on their right to freedom of opinion.   Members of the Government, which were politically responsible to Parliament, had the right to make statements in favour of the policy adopted by the Government.   In this respect the Constitutional Court found that there was a fundamental difference between elections and referenda.   While in elections the voter had the possibility to choose between competing political parties, no such choice exists under the law in respect of referenda.   Rather, the voter had to give his opinion on an issue which had already been determined by the legislator.   The voter did not have to decide on parties and personalities but on the question whether a decision by the legislator should acquire the force of law or not.        The Constitutional Court also found that the procedural requirements of the Federal Act on Referenda had been complied with.   COMPLAINTS        The applicant complains that in preparing the referendum the competent Austrian authorities did not comply with their obligations under Article 10 of the Convention to inform the public.   The citizens did not have sufficient time at their disposal to form an opinion on all the far reaching implications the issue of Austria's accession to the European Union had and they were not provided with comprehensive, detailed and neutral information on the underlying issues.   Rather the Austrian authorities disseminated incomplete and biased information for the purpose of unduly influencing the voters in favour of a positive vote at the referendum.   Furthermore, opponents to Austria's accession to the European Union had not been given the possibility to participate in the counting of the votes.   The applicant also relies on Article 9 of the Convention and Article 3 of Protocol No. 1.   THE LAW   1.    The applicant complains under Article 10 (Art. 10) of the Convention that in the context of the referendum on Austria's accession to the European Union the Austrian authorities did not comply with their obligation to inform fully and correctly the general public.        Article 10 (Art. 10) of the Convention reads as follows:        "1.    Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive and      impart information and ideas without interference by public      authority and regardless of frontiers.   This Article shall not      prevent States from requiring the licensing of broadcasting,      television or cinema enterprises.        2.     The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society, in the interests of      national security, territorial integrity or public safety, for      the prevention of disorder or crime, for the protection of health      or morals, for the protection of the reputation or rights of      others, for preventing the disclosure of information received in      confidence, or for maintaining the authority and impartiality of      the judiciary."        However, the Commission recalls that under Article 25 of the Convention it may only receive petitions from a "person, non- governmental organisation or group of individuals claiming to be the victim of a violation ...".   It follows from this provision that the applicant cannot complain as a representative for people in general, because the Convention does not permit such an "actio popularis".   The Commission is only required to examine the applicant's complaints that he was himself a victim of a violation.   The Commission finds therefore that the applicant can only claim to be a victim of a violation of Article 10 (Art. 10) of the Convention insofar he may be understood to complain that the Austrian authorities did not inform the applicant sufficiently on the above issues (see No. 7045/75, Dec. 10.12.76, D.R. 7 p. 87; No. 9297/81, Dec. 1.3.82, D.R. 28 p. 204; No. 10039/82, Dec. 11.5.84, D.R. 38 p. 74).        It follows that this part of the application is incompatible ratione personae within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The Commission has next examined the applicant's complaint that the Austrian authorities did not inform him sufficiently on the issues underlying the referendum of 12 June 1994 and that this failure violated Article 10 (Art. 10) of the Convention.        The Commission recalls that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.   Article 10 (Art. 10) does not, in general, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on Governments to impart such information to the individual (Eur. Court H.R., Leander judgment of 26 March 1987, Series A no. 116, p.29, para. 74; Gaskin judgment of 7 July 1989, Series A no. 160, p. 21, para. 52).        Therefore, the Commission cannot find that Article 10 (Art. 10) guarantees, in circumstances such as in the present case, an unfettered individual right to be informed by State authorities on issues of general interest in a specific way.   Moreover, the Commission observes that the applicant does not allege that he was prevented by the Austrian authorities to obtain information he deemed necessary in order to form his opinion for the purpose of voting in the above referendum.        In these circumstances the Commission does not find any appearance of a violation of Article 10 (Art. 10) of the Convention.        It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further relies on Article 9 (Art. 9) of the Convention, which guarantees to everyone "the right to freedom of thought, conscience and religion".        However, to the extent the applicant may be understood to complain that he is personally affected in the exercise of this right, the Commission cannot find that any alleged insufficiency of information provided by the Austrian authorities in relation to the above referendum prevented the applicant from the effective exercise of his rights under Article 9 (Art. 9) of the Convention.        It follows that also this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    Lastly the applicant relies on Article 3 of Protocol No. 1 (P1-3) which provides that the "High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."        However, the Commission recalls that the obligation of the High Contracting Parties under this provision are limited to the field of elections concerning the choice of the legislature and do not extend to referenda (see No. 7096/75, Dec. 3.10.75, D.R. 3 p. 165).        It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention 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 First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)