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
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
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. From BGE 119 IV 210 it also shows that Scientologists in the past have not 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, Zürich 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 court recorder:
From the Federal Court
Unconstitutional ban on advertising
No violation of City of Zurich's autonomy
July 1, 2000
Neue Zuercher Zeitung
fel. The prohibition established in 1972 by the Zurich city council against distribution of advertising material on public land has rightly been declared unconstitutional by the Cantonal Constitutional Court. That is one of the conclusions of a new decision by the Federal Court, which unanimously rejected appeal from the city and denied any transgression of city autonomy. The prohibition in question can be found in Art. 20 of the regulations on temporary use of public land for special purposes (VBOeGS).
Based on that decision, the city administrative police, on November 30, 1994, had prohibited Scientology Church Zurich from distributing the "Oxford Capacity Analysis" personality test and the "Why Happiness is no accident" leaflet on city streets. The prohibition was supported by the police board, the city council, the governor's office and the executive offices. The Administrative Court, however, partially acceded to Scientology's complaint, saying that a complete ban on distributing advertising material on city land was not permissible, in light of freedom of trade and commerce. In the other hand, such commercial activity led to increased use of public streets, on which account it would need to be subject to approval. The Federal Court fundamentally agreed with the Administrative Court's consideration.
According to the judgment of the 2nd Public Legal Department, the City of Zurich does enjoy autonomy over its city streets in regulating their use, but, of course, that applies only within general Constitutional limits. And these limits, from the view of the Federal Court, held that an all around ban on distributing commercial material on the public streets was disproportionate. It was said that there is probably a public interest in maintaining pedestrian traffic and any additional clean-up costs. It was also said that interests and documents should be considered in granting a permit. It is noted that all of the legal hearings involved in the case refused to review the problem in the light of freedom of religion, because the distribution of the above-mentioned documents is not rated as religious, but as commercial activity.
Judgment 2P.320/1999; 7. 6. 00 - BGE-Publikation vorgesehen.
Scientologists may advertise
July 1, 2000
by Urs-Peter Inderbitzin
The Scientologists may not be subject to a ban on advertising on public land. The Federal Court said a decision of the Administrative Court did not violate the autonomy of the City of Zurich.
Lausanne. The City of Zurich may not general prohibit Scientologists from distributing leaflets and offering the personality test on public land; they can, however, require that those activities need a permit. That was decided by the Federal Court, which confirmed a decision of the Zurich Administrative Court. In November 1994, the City of Zurich prohibited the Scientologists, immediately effective, from distributing the leaflet "Why Happiness is no accident" and from offering the "Oxford Capacity Analysis" personality test on public land in the City of Zurich. The officials based their prohibition on Zurich Municipal regulations "on the temporary use of public land for special purposes," which said that "printed material, serving the commercial purposes" could not be distributed on public land.
Although all the previous hearings, including the executive assembly, confirmed the prohibition, the Zurich Administrative Court came to the decision that a complete prohibition, in light of freedom of trade and commerce, would not be permissible. It said, however, that the City of Zurich was justified in classifying the distribution of advertising material on public land as an increased communal use and requiring a permit for it. In its decision, the Administrative Court concluded that the distribution of the questionnaire and the advertising material was not a direct expression of religious or weltanschauung opinion, and so therefore did not fall under the protection of freedom of religion.
The City of Zurich viewed the decision of the Administrative Court as impermissible interference with its municipal autonomy and filed appeal with the Federal Court. In vain. The Federal Court's 2nd Legal Department, in any case, came to the conclusion that the Zurich decision to generally ban distribution of commercial material on public land, was disproportionately restrictive. However, it said, there was a possible public interest in having no commercial activity take place on the street as it would influence foot traffic and could cause additional clean-up expenses. At the same time, situations could occur in which the interest of a single commercial enterprise could outweigh the public interest. In such cases there would have to be a weighing of interests and it would have to be decided whether and, depending on the case, which documents would receive approval for distribution.
The Administrative Court permitted Scientology to distribute leaflets. At the same time it chastised the sect. The judgment means that shops will also be permitted to advertise on the street.
March 11, 2000
by Hugo Stamm und Andreas Moesli
Zurich is one curious story richer. It had its beginning when the city prohibited Scientology from distributing leaflets. And it has ended (for the time being) with a double cuckoo's egg which the Administrative Court has laid in the city's nest. The court did not only decided in favor of Scientology, but it also made a a groundbreaking decision that paves the way for additional heartburn for the police department. That is because, now, not only may the Scientologists distribute leaflets, but restaurants and shops. Specifically, the court made a case for a more generous use of public land for commercial purposes. That would be an absurdity, said the Commerce Police, because such a practice would be tied with large administrative expense and would probably lead to a flood of paper similar to the case of that of the new free newspapers. Because of that the Zurich city council will appeal to the Federal Court. Even Scientology is only conditionally happy about the "victory," because the court is giving the sect a break.
Victory with a Boomerang Effect
The dispute began at the end of 1994, when the Zurich Commerce Police forbade Scientology from distributing the personality test and a leaflet on the street. The sect appealed in vain to the city council, the the governor's office and the administrative council. At the Administrative Court, however, Scientology logged a partial victory. The court did not follow the Scientologists' argument in general, but sided with them on legal considerations.
Scientology stated in the proceedings that distributing leaflets was not serving commercial, but religious, interests. The court did not agree and gave the organization a clear rebuff. Neither the leaflet nor the personality test would give the impression that "a religious organization is advertising its beliefs here," it said in a decision which was handed down a short time ago, but which has just now been made known. Because of that, according to the judgment, the distribution of Scientology's printed matter does not fall under the protection of religious freedom.
Even though the content itself of the flyers was not of a commercial nature, it was said that intentions of acquisition were what was behind them, after all. Besides that, Scientology staff had already been convicted of violating criminal law in that they had done a mentally handicapped person out of a great deal of money. The court again came to the conclusion that the commercial slant of Scientology was shown in the comprehensive price lists, mass rebates and commissions. Besides that the organization was said "to sell its services to the public at large with professional marketing methods."
The Administrative Court, however, took the occasion to use the case to direct fundamental criticism at authorities who, it believes, are handling the common and special use of public land too restrictively. It said that social compatibility was important. It said distributing leaflets hardly hindered pedestrian traffic. No public interest was said to be served "by prohibiting, in advance, the distribution of advertising material on public land for commercial purposes," wrote the Administrative Court. It regarded the prohibition by the city council, which feared misuse of public land and harassment of passersby, as irrelevant.
The Ball is in the Federal Court
Therefore, the court proposed that there was a duty to grant the distribution of commercial material. It overturned the decision of the previous hearing and referred the case to the city council. They will, out of basic consideration, take the dispute to the Federal Court. A speaker of the Commerce Police described the decision of the Administrative Court as alien to practice. Granting permits for leafletting operations would be labor intensive, because restrictions of time and place would also have to be determined. Besides that, the lesson learned with the free newspapers, according to the police spokesman, showed that competition could easily go by the wayside. "Other cities don't have such a practice, either."
From the Federal Court
Questions about Scientology
Recognition as Religion?
November 5, 1999
Neue Zuercher Zeitung
"fel. Lausanne, 4. November"
The Federal Court is apparently having difficulty with the question of whether Scientology should be recognized as a religious denomination or not. This deliberation arises from a written basis for a court decision which says that the new regulation in Basel-City Canton conforms to the Constitution in that it says that pedestrians may not be recruited on public land in an unfair manner (NZZ of 1 July 99).
In the course of the public discussion on the decision of June 30 of this year, several judges have insisted that the delicate question remain open and have cautiously reviewed the charges brought up in regard to the disputed regulation in the Basel City code of violations only for the event that Scientology should be treated as a religious denomination. However, such a so-called "self-contained-if-clause" is not found as such in the written basis for the decision. Much more will be carried out after a detailed reference to the various judgments on the question in various countries of Europe, that support the practice of the Federal Court and the Strassburg Organs and will answer to the charges of violation of freedom of religion (BGE 118 Ia 46). That is augmented by the judgment of the First Public Legal Department directly, finally and sybilically: "Whether the teachings of Scientology and their practices have religious character in every regard and therefore the protection of religious freedom has not been decided."
Decision 1P.571/1998 of 6.30.99 - from a BGE Publication.
Ex-Scientologist bringing Scientology to Court
A former Scientologist is demanding his money back from the organization for courses he never took. Some of these pre-payments are booked under "donations."
June 30, 2000
by Ursula Eichenberger
For 16 years of his life, A. Meier (name changed), today 50 years old, belonged to the Scientology organization. He paid 100,000 franks for courses and books. Last Fall the information technician decided to leave. He says he pre-paid for courses which he did not take. Because that money was not refunded to him, Meier filed charges against Scientology in court. The unusual case in which a former Scientologist risked demanding money from Scientology in court started yesterday in Zurich. In 1994, Meier made a pre-payment of almost 9,000 franks. "Prior to that, he was put under considerable pressure," stated his attorney yesterday. Because Meier did not take any more courses, his account received a credit of almost 9,000 franks at the end of 1995.
One year later, Meier's "case supervisor" (he determines how many hours of counseling a member needs to achieve Scientology happiness) determined that he urgently needed "corrective hours." Again, Meier paid 4,000 franks in advance. By doing that he was guaranteed a rebate. Although Meier's did not use over half his hours, Scientology withdrew the entire amount from his account. All in all, Meier is due an amount of over 11,000 franks, which he demanded when he left last year.
At first Scientology said that it had improperly given him a rebate, on which account Meier could not be paid back. When Meier did not give in, Scientology told him his was expelled until further notice. Finally Meier left the organization. He is suing for his money back.
According to Meier's attorney, the "character of the payments" was not changed in that part of the pre-payments were described in the documents as donations. He said it quite clearly was a contract relationship.
While this was being explained, Scientology's legal representative was angrily shaking her head. When she was later the one to speak, the others shook their heads. The [female] attorney, herself a member of Scientology, demanded that Meier's complaint be dismissed, in addition she said there were outstanding debts in the amount of between 13,000 and 17,000 franks. Instead of saying what it was for, she pulled out a lecture about Scientology. The judge finally interrupted her - presumably not just for reasons of time - and asked the question of whether the parties would not like to try to settle out of court. They agreed to try. They were dismissed by the judge with "We will be waiting expectantly."