CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1994

.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 }                              SUR LA RECEVABILITÉ                         Application No. 22096/93                       by   Josef BUCHNER                           Andrea HART                           Manfred RUCKERBAUER                           Johann SCHMITSBERGER                           Rupert PACHLATKO                           Irene SCHRAMM                           Wilhelm SCHÖBERL                           Gerald HATTMANNDORFER                           Stefan BEIßMANN                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 30 November 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 27 May 1993 by Josef BUCHNER and others against Austria and registered on 21 June 1993 under file No. 22096/93;         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 applicants are all members of the community council of the community of Steyregg.   They are all members of the Action Group for Environmental Protection (Bürgerinitiative für Umweltschutz). Mr. Josef Buchner is the chairman of this parliamentary group and he is also employed as a civil servant of the community of Steyregg.         All applicants are represented before the Commission by Mr. H. Blum, a lawyer practising in Linz.         It follows from the applicants' statements and the documents submitted, that on 15 December 1992 they participated in a community council session.   One item on the agenda was the discussion of and the decision on the community budget project 1993.         The applicants submit that contrary to Section 76 para. 2 of the Community Order 1990 (Gemeindeordnung) the budget project had intentionally not been sent to them before the session although, in view of a similar incident in the year before, they had insisted on having it made available on time.         The applicants thereupon requested that the community council session be adjourned or the budget item be dropped from the agenda. These requests were rejected by a majority composed of other political parties.         Thereupon the applicants declared that they were not prepared to participate in the taking of an unlawful decision on the budget project and retired to the visitors' bench.         When they intended to return to participate in the discussion on the other items of the agenda the mayor did not admit them.   Thereupon all applicants except for Mr. Manfred Ruckerbauer left the session. The latter was requested by the mayor to also leave the meeting room.         The applicants complained about the incident to the Regional Government of upper Austria (Landesregierung).   They also brought criminal charges.         On 19 February 1993 the Public Prosecution in Linz informed the regional government that they saw no reason to institute criminal proceedings.   A request made by applicant Joseph Buchner to the Regional Court (Landesgericht) in Linz to institute criminal proceedings against the mayor was rejected on 24 March 1993.         On 27 April 1993 the Regional Government wrote to the applicants as follows:         It was true that under Section 76 para. 2 of the Upper Austrian Community Order the budget project should have been sent to every member of the Community Council.   However, it followed from observations submitted by the Steyregg community that it had been the task of Mr. Josef Buchner, one of the applicants, in his capacity as communal officer to prepare the community council session and send out all necessary documents.   According to the community Buchner had been instructed by the mayor to take the necessary measures.         On the other hand, Mr Buchner had stated in a letter of 5 February 1993 that since 9 July 1992 he had been cut off by the mayor from receiving the necessary information and that it had consequently become impossible for him to comply with his communal tasks.         It was further stated that the mayor had laid charges against Buchner for having allegedly neglected his communal obligations and the proceedings relating to these charges were still pending.         Insofar as the applicants had been prevented by the mayor from returning to their seats and continuing participation in the community council session, it was stated in the letter of the Regional Government that the Upper Austrian Community Order 1990 did not contain any provision justifying this measure.   The letter closed with the remark that the community council would in the future have to take this into account.   COMPLAINTS         The applicants consider that at the community council session of 15 December 1992 their rights as guaranteed under Articles 10 and 11 of the Convention have been violated.   They further invoke Article 13 of the Convention.   THE LAW   1.     The applicants complain that as members of a community council they were prevented by the presiding mayor from returning to a session of the community council which they had all deliberately left in protest against the decision of the majority of the council rejecting certain requests formulated by them except for one, who was excluded from the session by the mayor.         They invoke the rights to freedom of expression (Article 10) (Art. 10) and freedom of association (Article 11) (Art. 11).         The Commission notes that, the measure in question was taken in the exercise of the powers of the chairman of a public meeting with a view to ensuring the correct and proper course of the meeting.   The applicants have not alleged that before deliberately leaving the meeting in question they had been arbitrarily prevented from expressing their views on the agenda items at the community council meeting in question.   Nor have they alleged that at a subsequent meeting they were prevented from expressing their political or other opinions.   There is no question either of the applicants having been prevented from exercising their political activities vis-à-vis the public at large.         It cannot in these circumstances be found that the mayor's decision not to re-admit the applicants to a particular meeting which the applicants had chosen to leave and the mayor's   further decision to exclude Mr. Ruckerbauer from part of the meeting amounted to an interference with the rights invoked by the applicants.         It follows that the application has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants also complain that they did not dispose of an effective remedy in the sense of Article 13 (Art. 13) of the Convention.         However, it follows from the preceding findings that they did not have an arguable claim to be the victim of a violation of Convention rights (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No. 131, p. 24 para. 55).   To the extent that the present complaint is related to the Public Prosecutor's refusal to institute criminal proceedings it is observed that the Convention does not guarantee a right to have criminal proceedings instituted against third persons, in particular public officials (see No. 864/60, Dec. 10.3.62, Collection 9 pp. 17-22).         This part of the application is therefore likewise manifestly ill-founded.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber =      (M.F. BUQUICCHIO)                        (A. WEITZEL)