Switzerland:
1P.303/2001/kra I. PUBLIC LAW DIVISION August 24, 2001 Attended by federal court vice president Aemisegger, president of the I. public law division, federal judge Aeschlimann, substitute judge Pont Veuthey and court recorder Dreifuss. in the matter of B.________, Zurich, main complainant, represented by attorney Wilfried Caviezel vs. Police legal office of the City of Zurich, Zurich district, magistrate of criminal affairs, superior court of Zurich Canton, III. criminal chamber, a criminal hearing has yielded: A.- B.________ was fined 200 Swiss franks for each occurrence by the police legal office of the City of Zurich with citations of 13 January 2000 and of 6 March 2000. He had been accused, on 21 December 1999 and on 3 January 2000, at the split of Bahnhof and Usteri streets in Zurich, of distributing informational material of the Scientology Church (flyers and test questionnaires for the "Oxford Capacity Analysis" personality test) and with having conducted business with passersby without being in possession of the required permits. B.________ contested both citations with the magistrate for criminal matters of Zurich district. He basically did not dispute the action of which he had been accused, but argued he did not need a permit because promulgating his religion fell under religious freedom in the sense of Art. 15 BV, and was therefore exempt from permit. The magistrate combined the two processes and fined B.________ 400 franks for "repeated use of public land for special purposes without a permit." He based his decision on Art. 37 sect 1. of the general police code of the City of Zurich of 30 March 1977 (APV) i.V.m. Art. 20 sect 2 APC, as well as Art. 2 and 26 of the regulations of the City of Zurich under the temporary use of public land for special purposes of 16 June 1972 (VBoeGS). B.- B.________ responded with a cantonal appeal to the superior court of the Canton of Zurich. That court confirmed the finding of guilt in its essentials. In the sense of a "technical correction" it deleted only the Art. 20 sect 2 APV from the record, since that regulation was not applicable to the commercially qualified activity engaged in by B.________ which the magistrate had held relevant. C.- B.________ took action against this decision by filing on 30 April 2001 a legal complaint. He charged that the superior court had violated: the prohibition on arbitrariness (Art. 9 BV) and the principle "in dubio pro reo" (Art. 6 nbr. 1 EMRK); the right to legal hearing (Art. 29 sect 2 BV); legal equality (Art. 8 BV); freedom of belief and freedom of conscience (Art. 8 BV); freedom of opinion and freedom of information, as well as freedom of media (Art. 16 and 17 BV). D.- The police legal office, the magistrate in criminal matters and the superior court have waived notifications of the complaint. The federal court takes into consideration: 1.- The provisions for judgment of the legal complaint are basically fulfilled and do not occasion comment. The complaint is entered under the proviso of the legally qualifying, founded charge (Art. 90 sect. 1 lit. b OC; BGE 125 I 492 E. 1b p. 495 with references). 2.- a) The conviction of the main complainant is based, according to the contested judgment of the superior court, on Art. 2 of the regulations of the City of Zurich on the temporary used of public land for special purposes of 16 June 1972 (VBoeGS) i.V.m. Art. 26 VBoeGS and Art. 37 sect 1 of the general police code of the City of Zurich of 30 March 1977 (APV). According to Art. 2 VBoeGS i.V.m. Art. 1 Abs. 1 VBoeGS the temporary use of public land for special purposes of a commercial nature requires a permit by the police legal office. b) The main complainant charges that the superior court had, in an arbitrary manner and in violation of the principle "in dubio pro reo" as well as the right to legal hearing, observed that he was conducting commercial business by distributing printed matter on the public street and that this represented something beyond ordinary use. c) the Federal Court, in a just recently published decision (BGE 126 I 133 E. 3 and 4), confirmed the judgment of the Administrative Court of the Canton of Zurich, which qualified the distribution of flyers and of questionnaires for the "Oxford Capacity Analysis" personality test for the the Scientology Church as a commercially motivated business action under use of public land beyond ordinary usage. The Federal Court took into consideration that the distribution of the printed matter in question primarily served the remunerative business of courses and books without the goal of religious missionary activity being (directly) observable from the content of the printed matter. Those who wish to conduct remunerative business in this manner, even those who say they have a religious missionary goal associated with the public to whom this goal is not clear, have to take it as part of their business that these business operations are seen as economically motivated and will be dealt with according to the applicable regulations (BGE 126 I 133 E. 3). The attitude of the city agencies and the administrative court, who at the time decided that the use of the public land exceeded that meant for the public, is deemed by the federal court to indeed be stringent, but tenable for the City of Zurich. The activity under use of public land was not simply the distribution of printed matter. In addition to that, active conversation with passersby was sought in order to arouse their interest in the services offered. Accordingly, maneuvers among passersby, gatherings, discussions or even conversations in heavily traveled places can lead to disruption in the flow of traffic (BGE 126 I 133 E. 4c). d) It is generally uncontested that the activities in question by the main complainant were pursued on one of the most frequented spots in the city of Zurich, and in factual hindsight were situated identically to those condemned by BGE 126 I 133. The main complainant has already had hearings in the canton in which he said he did not simply hand out flyers and questionnaires, but in addition to that, sought to engage passersby in conversation. Neither does the main complainant dispute the testimony from the superior court which states that from the flyers and the "Oxford Capacity Analysis," it would not occur to a casual passerby that this was recruitment for a religious organization. In factual hindsight, he charges only that the superior court had unjustly not recognized arbitrariness in the first decision that by publicly distributing flyers and questionnaires, the intermediate goal was being pursued of offering passersby remunerative services, although the flyers and questionnaires were distributed with free services. It was claimed that both the personality test and the invitation into the Scientology information center were completely free, and these were not, directly or indirectly, associated with the sale of services. It was said that the distribution of both sets of printed matter had the sole purpose of making the public acquainted and familiar with Scientology. It was said that a contrary motive or a contrary intention were not be be found on record and that this contradicted the stated intentions of the Scientologists as well as the declared, recorded intention of the main complainant, whose claim to a legal hearing was allegedly violated by the superior court. In response to that, the magistrate, in the decision of 11 July 2000, had stated that it had been acknowledged by the court that in the evaluation of the personality test, personnel trained by the Scientology Church made an attempt to get test subjects to buy books or to take one of the many courses offered by Scientology. From this it was clear to the magistrate that Scientology was attempting to promote sales by using advanced marketing methods, which would also include the distribution of flyers and tests. The superior court confirmed these findings in that it considered that it had been acknowledged by the court and decided upon in known court decisions and not contested by the main complainant that the Scientology Church offered and sold a large number of books and courses. It was correspondingly expected that members of the church would take these courses for money to continue their Scientology training. This assumption was based on staff of the Scientology Church recommending remunerative services to solve personal problems which allegedly had been uncovered in the evaluation of the test. In BGE 126 I 133 E. 3b, the Federal Court determined that the distribution of flyers and questionnaires for the personality test, according to the relevant, current determinations of the Zurich Administrative Court, primarily served the remunerative business of selling books and courses. FromBGE 119 IV 210 it also shows that Scientologists in the past have no= t been afraid to use the results of the personality test as a sales argument in order to sell mentally handicapped (retarded) people training material and courses to solve their personal problems for amounts in the hundreds of thousand of franks (see also the decision of the Federal Court of 14 December 1994, E. 3 and 4, Pra 1996 Nr. 2 p. 4 with numerous references, as well as BGE 125 IV 109). Therefore, there can be no discussion here of arbitrariness in the observation of the magistrate who saw the recruitment of people by offering free services on the the street being in disregard of stated intentions, at least as far as serving the purpose of offering remunerative services. Therefore, neither did the superior court violate the prohibition on arbitrariness or the associated principle "in dubio pro reo," in that it did not find a constitutional violation by the magistrate. The corresponding charge proves to be unfounded insofar as the requirements for a basis can be represented by a legal complaint (see Art. 90 sect. 1 lit. b OG; see BGE 125 I 492 E. 1b/c). In the facts of the case at hand it is not evident to what degree the superior court is supposed to have violated the right to a legal hearing, in that there is a lack of evidence in the contested facts - it's not more closely described in the submitted complaint (see BGE 122 II 464 E. 4a; 119 Ib 492 E. 5b/bb S. 505 f.; 115 Ia 97 E. 5b, each has references). e) The relevant facts of the case submitted are uncontested by those who submitted them, or they were regarded by the cantonal agency without any arbitrariness with respect to: the main complainant distributing printed matter on public land; his stated goal of religious missionary work was not clearly evident and that it, at least consequentially, served a business dealing with books and courses. The main complainant also did not contest that, beyond the simple distribution of printed matter, he sought to engage passersby in conversation. As the Federal Court has just recently decided in the references mentioned from BGE 126 I 133 that there is no constitutional objection in the rules about special use of public land or in the police regulation of commercial activity according to cantonal law in the public interest. The main complainant has not submitted anything that would give reason to deviate from the current federal court decision. f) The regulation of special use is basically the sole responsibility of the cantons according to cantonal law or the communities responsible therefore which prescribe protection by the police or provide coordination and prioritization between the diverse uses of public object by the use of permit (see BGE 126 I 133 E. 4; 122 I 279 E. 2b; 105 Ia 92 E. 2 S. 93 f. with references), as they exist for the City of Zurich according to Art. 2 VBoeGS. The main complainant does not contest that the regulations do not present a legal basis on which to issue permits to control commercial operations which are linked to special use of public land. There is therefore no evidence as to the degree to which the cantonal agencies are supposed to have violated constitutional law by deciding that the main complainant's activity could not take place without a permit or that it was a criminal offence in accordance with Art. 2 VBoeBGS. 3.- The cantonal authorities have prohibited the activity engaged in by the main complainant with no arbitrariness in accordance with the regulation of commercially motivated business action on public land. On the further complaint and appeal by the main complainant, according to which he said the activity he was engaged in was not subject to the acquisition of a permit, no further action was taken; his charges stemmed from the irrelevant premise that since he said the activity he was engaged in was motivated strictly by idealistic missionary work, his activity would therefore have to be regarded by others in the same way, therefore he claimed protection under freedom of belief and of conscience, freedom of opinion and of information and freedom of media. Even if that would have been the case, if the obligation to obtain a permit for special use, as it stands here, could not be supported by law, the basic rights he invoked were still not violated (see BGE 105 Ia 91 E. 2 S. 93 f.; see also Fritz Gygi, Verwaltungsrecht, Bern 1986, S. 235 f.; Ulrich Haefelin/Georg Mueller, Grundriss des Allgemeinen Verwaltungsrechts, 3. Auflage, Z=FCrich 1998, Rz. 1876 f.; Urs Saxer, The Basic Law and the use of public streets, Diss. Zurich 1988, p. 232) Special control of the rights of freedom, the exercise of which affects the use of public land, falls within the realm of consideration of the public interest in issuing or denying a permit for special use of public land (BGE 126 I 133 E. 4d S. 140; 124 I 267 E. 3a; 121 I 279 E. 2; 105 Ia 91 E. 3; Fritz Gygi, a.a.O., S. 237; Ulrich Haefelin/Georg Mueller, a.a.O., Rz. 1883 ff.). Anything different cannot be surmised from the additional reference invoked by the main complainant, BGE 96 I 586, since that decision, in contrast to this, deals strictly with the distribution of printed matter of idealistic content on public land without engaging passersby in conversation, which hardly is an affront to the question of the legally permitted use of the streets. 4.- Altogether the complaint proves to be unfounded and is dismissed. The main complainant bears the cost of the hearings (Art. 156 sect. 1 OG). Accordingly the Federal Court has found: 1.- The complaint, as presented, is dismissed. 2.- A bill for court costs of 3,000 franks will be sent to the complainant. 3.- A copy of this decision will be sent in writing to the main complainant, the police office of the City of Zurich, the Zurich District Court, the magistrate for criminal affairs, as well as the Superior Court of the Canton of Zurich, III. criminal chamber. ______________ Lausanne, 24. August 2001 In the name of the I. Public Legal Division of the SWISS FEDERAL COURT The President: The court recorder: --- Personal German Scientology News Informative
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