CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

COURT (CHAMBER)

CASE OF CHORHERR c. AUTRICHE

(Application no. 13308/87)

JUDGMENT

STRASBOURG

25 August 1993
2 CHORHERR c. AUTRICHE JUDGMENT

In the case of Chorherr v. Austria,

The European Court of Human Rights, sitting, in accordance with Article
43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") and the relevant provisions of
the Rules of Court, as a Chamber composed of the following judges:
Mr R. RYSSDAL, President,
Mr Thór VILHJÁLMSSON,
Mr F. GÖLCÜKLÜ,
Mr F. MATSCHER,
Mr N. VALTICOS,
Mr I. FOIGHEL,
Mr A.N. LOIZOU,
Mr M.A. LOPES ROCHA,
Mr G. MIFSUD BONNICI,
and also of Mr M.-A. EISSEN, Registrar, and Mr H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 26 February and 22 June 1993,
Delivers the following judgment, which was adopted on the last-
mentioned date:

PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 10 July 1992, within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of
the Convention. It originated in an application (no. 13308/87) against the
Republic of Austria lodged with the Commission under Article 25 (art. 25)
by an Austrian national, Mr Otmar Chorherr, on 14 July 1987.
The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48)
and to the declaration whereby Austria recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the request was
to obtain a decision as to whether the facts of the case disclosed a breach by
the respondent State of its obligations under Articles 5 and 10 (art. 5, art.
10).
2. In response to the enquiry made in accordance with Rule 33 para. 3
(d) of the Rules of Court, the applicant stated that he wished to take part in

The case is numbered 22/1992/367/441. The first number is the case's position on the list
of cases referred to the Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the Court since its creation and on
the list of the corresponding originating applications to the Commission.

As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1
January 1990.
3 CHORHERR c. AUTRICHE JUDGMENT

the proceedings and designated the lawyer who would represent him (Rule
30).
3. The Chamber to be constituted included ex officio Mr F. Matscher,
the elected judge of Austrian nationality (Article 43 of the Convention) (art.
43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On
26 September 1992, in the presence of the Registrar, the President drew by
lot the names of the other seven members, namely Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr N. Valticos, Mr I. Foighel, Mr A.N. Loizou, Mr M.A.
Lopes Rocha and Mr G. Mifsud Bonnici (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber (Rule 21
para. 5) and, through the Registrar, consulted the Agent of the Austrian
Government ("the Government"), the Delegate of the Commission and the
applicant’s lawyer on the organisation of the proceedings (Rules 37 para. 1
and 38). Pursuant to the order made in consequence, the Registrar received
the applicant’s memorial on 15 December 1992. On 4 January 1993 the
Government informed him that they would not be submitting a memorial.
5. In accordance with the President’s decision, the hearing took place in
public in the Human Rights Building, Strasbourg, on 24 February 1993. The
Court had held a preparatory meeting beforehand.
There appeared before the Court:
- for the Government
Mr F. CEDE, Ambassador,
Legal Adviser, Ministry of Foreign Affairs, Agent,
Mr S. ROSENMAYR, Federal Chancellery,
Mr A. DEARING, Federal Ministry of the Interior, Advisers;
- for the Commission
Mrs G.H. THUNE, Delegate;
- for the applicant
Mr T. HÖHNE, Rechtsanwalt, Counsel.
The Court heard addresses by the above-mentioned representatives, as
well as their replies to its questions.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

6. Mr Otmar Chorherr is an Austrian citizen and currently resides in
Vienna.
7. On 26 October 1985 a military ceremony was held in the Rathausplatz
in Vienna to mark the thirtieth anniversary of Austrian neutrality and the
fortieth anniversary of the end of the Second World War. It started at 11
4 CHORHERR c. AUTRICHE JUDGMENT

a.m. with the taking of the oath by some 1,200 conscripts and continued
with a march past which ended at around 1 p.m. It was attended by about
50,000 people, in addition to numerous dignitaries on the official platform.
During the ceremony the applicant and a friend distributed leaflets
calling for a referendum on the purchase of fighter aircraft by the Austrian
armed forces ("Volksbegehren für eine Volksabstimmung gegen
Abfangjäger"). They wore rucksacks to the backs of which were attached
enlargements of the leaflet; these measured about 50cm by 70cm, projected
approximately 50cm above the heads of the persons carrying them and bore
the slogan "Austria does not need any interceptor fighter planes"
("Österreich braucht keine Abfangjäger").
8. According to the judgment delivered by the Constitutional Court
(Verfassungsgerichtshof) on 28 November 1986 on the basis of the police
file and the statements of the parties (see paragraph 10 below), what
happened subsequently can be summarised as follows.
The actions of the two men had caused a commotion among the
spectators, whose view had been blocked. Two policemen informed the
applicant and his friend that they were disturbing public order and instructed
them to cease what could only be regarded as a demonstration. However,
they refused to comply, asserting their right to freedom of expression. When
they persisted despite further warnings from police officers and increasingly
loud protests from the crowd, they were arrested (festgenommen) at 11.15
a.m. and were taken to Central Vienna police station
(Bezirkspolizeikommissariat Innere Stadt), where administrative criminal
proceedings (Verwaltungsstrafverfahren) were instituted against them.
9. At the police station the applicant was placed in police custody (in
den Arrest abgegeben) at 11.35. After ascertaining whether he had a
criminal record, a police officer questioned him from 2.15 p.m. Mr Chorherr
denied that he had been warned that he was committing administrative
offences (Verwaltungsübertretungen); he would otherwise, so he said, have
immediately ceased his action. He was released at 2.40 p.m.
10. On 4 April 1986 he filed an appeal (Beschwerde) in the
Constitutional Court against his arrest and the prohibition on distributing
leaflets. He relied inter alia on Articles 5 and 10 (art. 5, art. 10) of the
Convention and asserted his right to personal freedom (Recht auf
persönliche Freiheit) and freedom of expression (Freiheit der
Meinungsäußerung).
Mr Chorherr claimed that he had not disturbed the crowd in any way and
had never been ordered by the police to cease demonstrating. The
Constitutional Court did not, however, give credence to his statements, as in
its opinion the majority of the spectators had come to watch the parade and
some of them had had their enjoyment of it marred by the applicant’s
conduct.
5 CHORHERR c. AUTRICHE JUDGMENT

The appeal was dismissed on 28 November 1986. The Constitutional

Court found, in relation to the applicant’s arrest, that Mr Chorherr’s conduct
could properly have been considered an administrative offence and that the
applicant, caught in the act of committing the offence, had continued despite
the instructions of the police officers. It took the view that the requirements
of Article 4 of the Law on the Protection of Personal Freedom (Gesetz zum
Schutz der persönlichen Freiheit), section 35, sub-paragraph 3, of the Law
on Administrative Offences (Verwaltungsstrafgesetz) of 1950 and section
IX(1), sub-paragraph 1, of the Introductory Law of the Administrative
Procedure Laws (Einführungsgesetz zu den Verwaltungsverfahrensgesetzen
- "the Introductory Law") had therefore all been complied with in this
respect (see paragraph 12 below).
As to the custody (Anhaltung), the Constitutional Court held that this had
been in conformity with section 36 (1), first sentence, of the Law on
Administrative Offences, since there had been no particular circumstance to
make the police think that the applicant, if released, would not recommence
his culpable actions.
Finally, the court considered that the order to remove the placards and
cease distributing leaflets had not in any way infringed the constitutional
right to freedom of opinion, as its aim was not to prevent the applicant
exercising such freedom, but rather to put an end to a breach of the peace.
11. At the conclusion of the administrative criminal proceedings the
Federal Police Authority (Bundespolizeidirektion) in Vienna made a
sentence order (Straferkenntnis) on 29 April 1987, fining Mr Chorherr
1,000 schillings for causing excessive noise and a breach of the peace
(section VIII, second limb, and section IX(1), sub-paragraph 1, of the
Introductory Law - see paragraph 12 below). On appeal by the applicant, the
Public Security Authority (Sicherheitsdirektion) on 3 March 1988, while
amending the wording of the decision, upheld the conviction on the latter
charge and reduced the fine to 700 schillings; on 25 April 1988 it withdrew
the charge of causing excessive noise. The applicant did not appeal to the
Administrative Court or the Constitutional Court.

II. RELEVANT DOMESTIC LAW

12. The administrative procedure legislation, reissued on 23 May 1950
by a decision of the Federal Government (Kundmachung der
Bundesregierung vom 23. Mai 1950 über die Wiederverlautbarung von
Rechtsvorschriften auf dem Gebiet des Verwaltungsstrafverfahrens),
includes the following provisions.
Introductory Law of the Administrative Procedure Laws
6 CHORHERR c. AUTRICHE JUDGMENT

Section VIII, second limb

"A person who ... offends public decency or causes excessive noise commits an
administrative offence ..."

Section IX(1), sub-paragraph 1

"A person who ... causes a breach of the peace by conduct likely to cause annoyance
... commits ... an administrative offence ..."
Law on Administrative Offences
Arrest (Festnahme)
Section 35

"The agents of the security forces may, except in the cases specially regulated by
law, arrest persons caught in the act of committing an offence, for the purpose of
bringing them before the authorities, if

...

(3) despite being warned, the person in question persists in the culpable conduct or
attempts to repeat it."

Section 36(1)

"Every arrested person must immediately be brought before the nearest competent
authority, or released if the reason for the arrest has already ceased to exist ..."

III. THE AUSTRIAN RESERVATION TO ARTICLE 5 (ART. 5) OF THE

CONVENTION
13. The instrument of ratification of the Convention deposited by the
Austrian Government on 3 September 1958 contains, inter alia, the
following reservation:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there
shall be no interference with measures for the deprivation of liberty prescribed in the
laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950,
subject to review by the Administrative Court or the Constitutional Court as provided
for in the Austrian Federal Constitution."


Note by the Registrar: at the time Austria made the reservation referred to in the next
paragraph, this section was numbered VII.
7 CHORHERR c. AUTRICHE JUDGMENT

PROCEEDINGS BEFORE THE COMMISSION

14. Mr Chorherr applied to the Commission on 14 July 1987. He
complained of a violation of Articles 5 and 10 (art. 5, art. 10) of the
Convention.
On 1 March 1991 the Commission declared the complaint relating to the
sentence order (see paragraph 11 above) inadmissible on the ground of
failure to exhaust domestic remedies (Article 26 of the Convention) (art.
26), and declared the remainder of the application (no. 13308/87)
admissible. In its report of 21 May 1992 (made under Article 31) (art. 31), it
expressed the opinion that there had been no breach of Article 5 (art. 5)
(twelve votes to two), but that there had been a violation of Article 10 (art.
10) (seven votes to seven, with the acting President’s casting vote). The full
text of the Commission’s opinion and of the separate opinions contained in
the report is reproduced as an annex to this judgment.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 (art. 5)

15. The applicant alleged that his arrest and his detention by the police
had infringed Article 5 para. 1 (art. 5-1) of the Convention, which reads as
follows:
"Everyone has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure
prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;

..."
According to the Government, the contested measures were founded on
laws covered by the Austrian reservation in respect of Article 5 (art. 5) (see
paragraph 13 above).
In Mr Chorherr’s submission, on the other hand, his conduct was in no
way "likely to cause annoyance" and consequently was not caught either by

Note by the Registrar: for practical reasons this annex will appear only with the printed
version of the judgment (volume 266-B of Series A of the Publications of the Court), but a
copy of the Commission's report is available from the registry.
8 CHORHERR c. AUTRICHE JUDGMENT

section IX(1), sub-paragraph 1, of the Introductory Law (see paragraph 12

above) or by any other of the provisions covered by the reservation, which
was therefore not applicable.
However, the Constitutional Court found that the deprivation of liberty
was based on section IX(1), sub-paragraph 1, and that all the relevant
requirements had been complied with (see paragraph 10 above).
16. It is therefore necessary to determine whether the above-mentioned
reservation satisfies the conditions laid down in Article 64 (art. 64) of the
Convention. Only two of them need be examined here: the prohibition of
reservations "of a general character" and the requirement that the
reservation should contain "a brief statement of the law concerned". The
other conditions are manifestly fulfilled and compliance therewith was not
moreover in dispute before the Court.

A. The "general character" of the Austrian reservation in respect of

Article 5 (art. 5)
17. In the applicant’s view the field of application of section IX(1), sub-
paragraph 1, of the Introductory Law is so vast that it cannot be regarded as
a "law" within the meaning of Article 64 para. 1 (art. 64-1) of the
Convention. As the Austrian reservation embraced the aforementioned
section of the Introductory Law, it was of "a general character" and thus
prohibited under the Convention provision.
In the Government’s contention, the section in question is aimed at a
very specific offence, the limits of which have been even more precisely
defined by a substantial body of case-law from the Administrative Court.
18. The Court reiterates that "by ‘reservation of a general character’ in
Article 64 (art. 64) is meant in particular a reservation couched in terms that
are too vague or broad for it to be possible to determine their exact meaning
and scope" (see the Belilos v. Switzerland judgment of 29 April 1988,
Series A no. 132, p. 26, para. 55). It shares the Commission’s view that the
Austrian reservation encompasses a limited number of laws which, taken
together, constitute a well-defined and coherent body of substantive and
procedural administrative provisions. Among other things, they lay down
rules for the punishment of offences, setting out the punishable acts, the
penalties incurred and the procedure to be followed.
It should be added that the provisions to which the reservation applied in
this case were all in force on 3 September 1958, when Austria ratified the
Convention (see paragraph 13 above), namely sections VIII and IX(1) of the
Introductory Law and sections 35 and 36 (1) of the Law on Administrative
Offences (see paragraph 12 above and also, mutatis mutandis, the Campbell
and Cosans v. the United Kingdom judgment of 25 February 1982, Series A
no. 48, p. 17, para. 37).
9 CHORHERR c. AUTRICHE JUDGMENT

It follows that the wording of the reservation in question does not attain,
in relation to the provisions in issue here, the degree of generality prohibited
by Article 64 para. 1 (art. 64-1) of the Convention.

B. The need for a "brief statement of the law concerned"

19. Mr Chorherr and a minority of the Commission stressed that, by way
of "brief statement", the reservation confined itself to a mere reference to
the Federal Official Gazette (Bundesgesetzblatt). They considered that it
was not possible by reading the text in question to obtain a precise idea of
the content of the laws concerned, especially in view of the fact that there
were four of them and they were long. Paragraph 2 of Article 64 (art. 64-2)
had therefore not been complied with.
20. According to the Court’s case-law, the "brief statement" as required
by that provision "both constitutes an evidential factor and contributes to
legal certainty"; its purpose "is to provide a guarantee - in particular for the
other Contracting Parties and the Convention institutions - that a reservation
does not go beyond the provisions expressly excluded by the State
concerned" (see the Belilos judgment, cited above, Series A no. 132, pp. 27-
28, para. 59, and the Weber v. Switzerland judgment of 22 May 1990,
Series A no. 177, p. 19, para. 38). This does not, however, mean that it is
necessary under Article 64 para. 2 (art. 64-2) to provide a description, even
a concise one, of the substance of the texts in question.
In this instance, the reference to the Federal Official Gazette - preceded
moreover by an indication of the subject-matter of the relevant provisions -
makes it possible for everyone to identify the precise laws concerned and to
obtain any information regarding them. It also provides a safeguard against
any interpretation which would unduly extend the field of application of the
reservation. Accordingly, that reservation complies with Article 64 para. 2
(art. 64-2).
Conclusion
21. As the reservation is therefore compatible with Article 64 (art. 64),
the Court finds that there has been no violation of Article 5 (art. 5).

II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

22. In complaining of the deprivation of liberty inflicted on him, the
applicant also relied on Article 10 (art. 10), which 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 ...

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
10 CHORHERR c. AUTRICHE JUDGMENT

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."
23. None of the participants in the proceedings disputed that the measure
in question constituted an interference with the exercise of Mr Chorherr’s
right to freedom of expression. Such intervention is in breach of Article 10
(art. 10) unless it was "prescribed by law", pursued one or more of the
legitimate aims set out in paragraph 2 (art. 10-2) and was "necessary in a
democratic society" to attain them.

A. Whether the interference was "prescribed by law"

24. In Mr Chorherr’s submission, section IX(1), sub-paragraph 1, of the
Introductory Law could not be regarded as a "law" within the meaning of
paragraph 2 of Article 10 (art. 10-2) of the Convention. Its wording was, he
argued, too general and made it impossible "to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail" (see the Sunday Times v. the United Kingdom (no. 1) judgment
of 26 April 1979, Series A no. 30, p. 31, para. 49).
25. The Court reiterates that the level of precision required of the
domestic legislation - which cannot in any case provide for every
eventuality - depends to a considerable degree on the content of the
instrument considered, the field it is designed to cover and the number and
status of those to whom it is addressed (see, inter alia, the following
judgments: Silver and Others v. the United Kingdom, 25 March 1983,
Series A no. 61, p. 33, para. 88; Groppera Radio AG and Others v.
Switzerland, 28 March 1990, Series A no. 173, p. 26, para. 68; and
Herczegfalvy v. Austria, 24 September 1992, Series A no. 244, p. 27, para.
89). Furthermore it is primarily for the national authorities to interpret and
apply domestic law (see, among other authorities, the Hadjianastassiou v.
Greece judgment of 16 December 1992, Series A no. 252, p. 18, para. 42).
In the present case there is nothing in the Constitutional Court’s judgment to
lend weight to the proposition that the wording of the contested provision
creates a situation incompatible with legal certainty (see paragraphs 10 and
12 above). Mr Chorherr was therefore in a position to foresee to a
reasonable extent the risks inherent in his conduct. Accordingly, the Court
considers, like the Government and the Commission, that the interference
was "prescribed by law".

B. Whether the aim pursued was legitimate

26. The applicant maintained that the sole purpose of the impugned
measures was to prevent him from expressing in public an opinion hostile to
the army; these measures could not therefore find support in paragraph 2 of
Article 10 (art. 10-2).
11 CHORHERR c. AUTRICHE JUDGMENT

27. The Government replied that the police intervention was intended to
prevent disorder and to protect the rights of citizens to attend a military
parade without being molested. They invoked, inter alia, the positive duties
that Article 11 (art. 11) of the Convention entailed for the State (see the
Plattform "Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series
A no. 139, p. 12, para. 32).
28. Having regard to all the circumstances surrounding the actions of the
applicant and the police, the Court, like the Commission, sees no grounds
for doubting that the arrest in issue pursued at least one of the legitimate
aims referred to in Article 10 para. 2 (art. 10-2), namely the prevention of
disorder.

C. Whether the interference was "necessary in a democratic society"

29. Mr Chorherr denied that the interference in question had been
necessary. If the poster projecting above his rucksack had genuinely
blocked the view of a number of spectators, it would have been sufficient
for the police to ask him to remove it. In reality, however, it could not have
caused a substantial nuisance because at the same time he had been moving
among the crowd handing out leaflets, which again was not in itself conduct
liable to create such a serious disturbance as to justify his arrest. In any
event, if the police officers had clearly ordered him to cease his
demonstration - which they did not - he would have complied with that
instruction.
The majority of the Commission drew attention to the fact that the
applicant had not been released until one and a half hours after the end of
the ceremony and expressed the opinion that the interference complained of
was disproportionate.
30. In the Government’s contention, the police had had to intervene
because of the commotion that the applicant’s behaviour was beginning to
engender among the spectators who wished to attend the parade peaceably.
Some of them had even threatened the applicant, who had moreover, despite
his claims to the contrary, refused to obey the instructions of the police
officers. It was therefore to be feared, if the police merely moved him
further away, that he would continue his action elsewhere and that it would
get out of hand. The length of the police custody was explained by the fact
that at the same time thirteen other persons who had been arrested were
being detained at the police station for questioning.
31. The Court has consistently held that the Contracting States enjoy a
certain margin of appreciation in assessing whether and to what extent an
interference is necessary, but this margin goes hand in hand with European
supervision embracing both the legislation and the decisions applying it;
when carrying out that supervision the Court must ascertain whether the
impugned measures are "proportionate to the legitimate aim pursued", due
regard being had to the importance of freedom of expression in a democratic
12 CHORHERR c. AUTRICHE JUDGMENT

society (see, among other authorities, the following judgments: Barfod v.

Denmark, 22 February 1989, Series A no. 149, p. 12, para. 28; Groppera
Radio AG and Others, cited above, Series A no. 173, p. 28, para. 72; and
Observer and Guardian v. the United Kingdom, 26 November 1991, Series
A no. 216, p. 30, para. 59).
That margin of appreciation extends in particular to the choice of the -
reasonable and appropriate - means to be used by the authorities to ensure
that lawful manifestations can take place peacefully (see, mutatis mutandis,
the Plattform "Ärzte für das Leben" judgment, cited above, Series A no.
139, p. 12, para. 34).
32. The Court notes in the first place that the nature, importance and
scale of the parade could appear to the police to justify strengthening the
forces deployed to ensure that it passed off peacefully. In addition, when he
chose this event for his demonstration against the Austrian armed forces, Mr
Chorherr must have realised that it might lead to a disturbance requiring
measures of restraint, which in this instance, moreover, were not excessive.
Finally, when the Constitutional Court approved these measures it expressly
found that in the circumstances of the case they had been intended to
prevent breaches of the peace and not to frustrate the expression of an
opinion (see paragraph 10 above).
33. In the light of these findings, it cannot be said that the authorities
overstepped the margin of appreciation which they enjoyed in order to
determine whether the measures in issue were "necessary in a democratic
society" and in particular whether there was a reasonable relationship of
proportionality between the means employed and the legitimate aim
pursued.
In conclusion, no violation of Article 10 (art. 10) has been established.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been no violation of Article 5 (art. 5);

2. Holds by six votes to three that there has been no violation of Article 10
(art. 10).

Done in English and in French, and delivered at a public hearing in the

Human Rights Building, Strasbourg, on 25 August 1993.

Rolv RYSSDAL
President

Marc-André EISSEN
13 CHORHERR c. AUTRICHE JUDGMENT

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the Convention and

Rule 53 para. 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:

(a) partly dissenting opinion of Mr Valticos;

(b) joint partly dissenting opinion of Mr Foighel and Mr Loizou.

R. R.
M.-A. E.
PARTLY DISSENTING OPINION OF JUDGE VALTICOS
14 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

(Translation)

In the case of Chorherr v. Austria, one of the questions which arose was
that of the validity of the reservation made by the Austrian Government in
respect of Article 5 (art. 5) of the European Convention on Human Rights
when they ratified that Convention in 1958.
In general, since the adoption of the Convention, sufficient attention
would not seem to have been paid to the question of the reservations made
in relation thereto and it gives rise to issues which are far from simple.
The Convention itself authorises reservations to the Convention, but
subject to specific conditions which do not appear always to have been
strictly complied with. It does so in Article 64 (art. 64), which is worded as
follows:
"1. Any State may, when signing [the] Convention or when depositing its
instrument of ratification, make a reservation in respect of any particular provision of
the Convention to the extent that any law then in force in its territory is not in
conformity with the provision. Reservations of a general character shall not be
permitted under this Article (art. 64).

2. Any reservation made under this Article (art. 64) shall contain a brief statement of
the law concerned."
Such reservations are therefore subject to four conditions:
1. They must be made when the Convention is signed or when the
instrument of ratification is deposited, and therefore no later.
2. They are authorised only in so far as a law then in force in the territory
of the country concerned is not in conformity with the particular Convention
provision in question. They cannot therefore extend to laws enacted
subsequently or, presumably, to instruments which are not laws.
3. Reservations of a general character are not permitted.
4. Every reservation must contain a brief statement of the law concerned.
It follows that the substance of the law to which the reservation relates must
be briefly set out so that the parties concerned (States, individuals and
supervisory institutions) know what the precise scope of the reservation is.
Accordingly, it is not sufficient merely to indicate the law in question
mentioning its date, number or even title. Sufficient indication of its
substance must be given.
In the light of these general principles, it can only be concluded that the
reservation made by the Austrian Government in respect of Article 5 (art. 5)
of the Convention does not fully satisfy that last condition. It is worded as
follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there
shall be no interference with the measures for the deprivation of liberty prescribed in
the laws on administrative procedure, BGBl no. 172/1950, subject to review by the
Administrative Court or the Constitutional Court as provided for in the Austrian
Federal Constitution."
15 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

This provision is precise only with regard to the identification of the laws
in question and the subject-matter dealt with (certain deprivations of liberty
which are subject only to subsequent review by the Administrative Court or
the Constitutional Court), without further specification. It clearly does not
contain a "brief statement" of the substance of this law which would make it
possible to understand the law’s content and its scope, or to determine
whether the text amounts to a general reservation which is not permitted
under the Convention.
Accordingly, in my view, the reservation cannot be regarded as valid and
cannot therefore be taken into account.
In these circumstances, compliance with Article 5 (art. 5) of the
Convention must be examined regardless of this "reservation".
Nevertheless, before such an examination is undertaken in this case, it is
also necessary to consider more closely a much wider problem concerning
reservations, namely when, and above all in what circumstances, their
validity can be examined, which gives rise to various questions. The first
aspect (the timing) is only partly clear. Practice has helped to render it more
obscure. The basic text, which is Article 64 (art. 64), does not permit of any
doubt: it is, as has been seen, "when signing [the] Convention or when
depositing [the] instrument of ratification" that the reservation must be
made, and no later. But it is also necessary that the reservation should relate
to a law which was, as has been said, then in force in the country and which
was not then in conformity with the provision of the Convention in
question.
Thus, under the Convention, certain discrepancies may be maintained,
but it is not possible to derogate from that instrument at a later date. Where
the law in question is amended, the discrepancy to which the reservation
relates could no doubt, if a strict view is not taken, be retained in the new
text, but it could not of course be widened.
We now come to an important question: how and when can the
institutions responsible for ensuring observance of the Convention satisfy
themselves of the conformity of reservations deposited by the States with
the conditions laid down by the Convention? This is where a problem arises
and a lacuna appears to exist.
In principle, the institutions responsible for review (Court and
Commission) examine the question of compliance with the Convention only
if an application is submitted by a State, an individual, etc. alleging non-
compliance with the Convention. On such an occasion, the question of the
validity of a reservation may arise if the application concerns compliance by
a respondent State with a provision which has been the subject of a
reservation. This was the situation in the Belilos v. Switzerland case
(judgment of 29 April 1988, Series A no. 132) among others.
But what happens if an application is not submitted, or so long as an
application is not submitted, in relation to such a provision?
16 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

It appears that when a State ratifies the Convention, there is no regular,

systematic practice of verifying, or at any rate of judicially reviewing, the
validity of reservations (or of interpretative declarations, which are often
reservations in disguise).
If I am correctly informed, Council of Europe officials have on occasion
conducted more or less unofficial exchanges of views with the national civil
servants concerned and, when the reservation (or interpretative declaration)
is deposited with the instrument of ratification of the Convention, the
Secretariat of the Council of Europe notifies the declaration to the other
member States (see, for example, notification reference JJ 2175 C, tr/5-21 of
26 January 1989). It may happen that States submit comments or objections,
but this does not affect the validity of the reservation or declaration (unless,
presumably, these objections are particularly numerous).
Such a practice - if I have correctly understood it - is of course common
where simple multilateral conventions are involved. It corresponds more or
less to the provisions (Articles 19 and 20) of the Vienna Convention on the
Law of Treaties of 1969, but that Convention "reserves" its position as
regards the situation in which reservations are prohibited by the treaty in
question and that in which only certain reservations may be made. This is
exactly the position with which we are confronted. As regards the European
Convention on Human Rights and in view of its nature and its purpose, it
cannot be considered that the objection made by a State to a reservation
made by another precludes the State which made the reservation from
becoming a party to the Convention in relation to the State which has
objected. Such a view, which is already disputable as such , cannot apply to
the European Convention on Human Rights, which constitutes what
Georges Scelle would have called a Law Treaty (as opposed to Contract
Treaties) and which is in addition - and this is crucial here - equipped with
judicial control machinery.
It is therefore necessary in the present case to take account, for the
purpose of considering reservations, of two important special features: first,
as has been said, the fact that the Convention specifies in Article 64 (art. 64)
which reservations are authorised and secondly, the fact that the Convention
has set up an organised control system and that it is therefore the institutions
constituted under that system which, as in the Belilos case, are called upon
to determine the compatibility of a reservation with the terms of the
Convention.
It is therefore this control machinery and it alone, in other words
essentially the Court, which can rule on the validity of a reservation. That is
moreover what has on occasion happened, but in less than satisfactory
conditions because a question of a practical nature arises in addition to the
legal issue.

See in this connection Paul Reuter, "Introduction au droit des traités", Paris, PUF, 1972-
85, nos. 132-133, pp. 74-75.
17 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

Reference may be made in this regard to the Belilos judgment, in which

the Court, examining an application concerning Switzerland, had to
consider an "interpretative declaration" deposited when that country ratified
the Convention, in 1974, and took the view, in its judgment delivered in
1988, that the declaration in question could not be accepted. It therefore
ruled on the substance of the case without taking account of the reservation.
But that meant that for fourteen years Switzerland had been under the
impression that its declaration was valid. Following the Court’s judgment, it
made another "interpretative declaration", which was therefore submitted
some considerable time after ratification (which gives rise to another
problem, which will be examined below).
We must therefore ask ourselves how many reservations already
deposited by various States really comply with the conditions laid down in
Article 64 (art. 64). It suffices to read the text of such reservations to
appreciate that there is some cause for concern. Behind the impressive
façade of ratification of the Convention by all the member States of the
Council of Europe, reservations sometimes constitute regrettable cracks.
So what should be done? And here a distinction should be drawn
between reservations which have already been deposited and those which
may be in the future by new member States.
Clearly we have to be realistic. It would be impossible now to call into
question what has been done over a period of several decades. That would
be a daunting task and would cast doubt upon the legal certainty created by
so many years of tacit acceptance. It is only in connection with specific
applications relating to compliance with a provision which has been the
subject of a reservation that the question should be examined. In such cases,
the Commission should systematically transmit the question to the Court so
that it may review the position.
On the other hand, for any new ratification of the Convention which
contains a reservation or interpretative declaration equivalent to a
reservation it would be appropriate for the Council of Europe, before
registering the ratification, to submit to the Court the issue of the
reservation’s conformity with Article 64 (art. 64). This is a question of the
observance of the Convention, which the Court was set up to ensure.
There remains one last question, which was referred to above: if, several
years after it has been made (when the Convention was ratified), a
reservation is found to be contrary to the rules laid down in Article 64 (art.
64) and is therefore held to be null and void, can it be replaced by another
reservation which is more consistent with that Article (art. 64)? In principle
that should not be possible, because a reservation may be made only at the
moment of ratification. That would, however, be unreasonable, because the
government concerned have been informed of the non-validity of their
reservation only several years after the ratification. The government in
question should therefore have the opportunity to rectify the situation and to
18 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

submit a valid reservation within a reasonable time and on the basis of their
former reservation. That is what appears to have happened in regard to the
Swiss declaration which the Belilos judgment found to be invalid, but the
government concerned ought also - and this does not appear to have been
done - to inform the Court of the new wording, so that it can rule on the
validity of the declaration, since otherwise the problem may recur.
The matter having been discussed from a general point of view, what
happens in the present case (Chorherr) if the Austrian Government’s
reservation concerning Article 5 (art. 5) of the Convention is not valid?
Article 5 (art. 5) should then be fully applicable to the case before the Court.
In my view, it may nevertheless be held that there has been no violation of
this provision, in view of the fact that the individuals in question were
arrested because, as is stated in Article 5 (art. 5), it was reasonably
considered necessary to prevent them committing a public-order offence.
The case must therefore be studied in the different context of Article 10
(art. 10), which concerns freedom of expression. In this respect I consider
that there has been a violation as the means used by the police were
disproportionate to the legitimate aim pursued, regard being had to the
importance of freedom of expression in a democratic society.
JOINT PARTLY DISSENTING OPINION OF JUDGES
FOIGHEL AND LOIZOU
19 CHORHERR c. AUTRICHE JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE VALTICOS

Our only point of disagreement with the view of the majority is that we
are of the opinion that the interference with the applicant’s right of
expression safeguarded by Article 10 (art. 10) was disproportionate to the
legitimate aim pursued. Accordingly such interference was not necessary in
a democratic society.
It seems to us that the impairment of the spectators’ view which was one
of the actions of the applicant that made the crowd agitated could have been
remedied by several other measures, in the circumstances, than resorting to
the extreme measures of arrest and detention. Nor was it necessary to keep
him in custody for about an hour and a half after the end of the ceremony,
that is after the reason for his arrest had ceased to exist.