CEDH · CASELAW;REPORTS;ENG — 12 mars 1987

.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 }  Application No. 10126/82   PLATTFORM "ÄRZTE FÜR DAS LEBEN"   against       AUSTRIA         REPORT OF THE COMMISSION   (adopted on 12 March 1987)     TABLE OF CONTENTS   I.       INTRODUCTION         (paras. 1-16) .........................................     1           A.       The application                 (paras. 2-4) ..................................     1           B.       The proceedings                 (paras. 5-11) .................................     1           C.       The present Report                 (paras. 12-16) ................................     2   II.      ESTABLISHMENT OF THE FACTS         (paras. 17-70) ........................................     4           A.       Particular circumstances of the case                 (paras. 17-37) ................................     4                   a)    The applicant association's demonstration                      at Stadl-Paura                      (paras. 17-25) ...........................     4                   b)    Remedies taken by the applicant                      association following the above                      demonstration                      (paras. 26-32) ...........................     5                   c)    The demonstration in Salzburg                      (paras. 33-36) ...........................     7                   d)    Remedies concerning the demonstration in                      Salzburg                      (para. 37) ...............................     7           B.       The relevant Austrian legislation and practice                 concerning the exercise of the right to                 protection of freedom of assembly                 (paras. 38-70) ................................     8                   a)    The constitutional guarantee of                      freedom of assembly                      (paras. 38-43) ...........................     8                   b)    Administrative measures designed to protect                      the exercise of the freedom of assembly, in                      particular measures of police protection                      (paras. 44-53) ...........................    10                   c)    Protection of the right of assembly by                      criminal law                      (paras. 54-64) ...........................    12                   d)    Protection of the right of assembly by                      administrative penal law                      (para. 65-70) ............................    15       III.     SUBMISSIONS OF THE PARTIES         (paras. 71-86) ........................................    16           A.       The applicant association                 (paras. 71-79) ................................    16           B.       The Government                 (paras. 80-86) ................................    17     IV.      OPINION OF THE COMMISSION         (paras. 87-121) .......................................    19           A.       Point at issue                 (para. 87) ....................................    19           B.       Applicability of Article 13                 (paras. 88-95) ................................    19           C.       Scope of the remedy required by Article 13                 (paras. 96-99) ................................    21           D.       Effectiveness of the remedies available in the                 present case                 (paras. 100-120) ..............................    22                   a)    Constitutional complaint                      (paras. 101-105) .........................    22                   b)    Hierarchical appeal                      (paras. 106-108) .........................    23                   c)    Official liability action                      (paras. 109-111) .........................    23                   d)    Institution of criminal proceedings                      (paras. 112-117) .........................    24                   e)    Administrative penal proceedings                      (paras. 118-120) .........................    25           E.       Conclusion                 (para. 121) ...................................    25   APPENDIX I       :   HISTORY OF PROCEEDINGS .....................    26   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ..............    27 I.     INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant is a private association under Austrian law which has its registered office in Vienna.   It is composed of doctors opposed to legalised abortion who, through their activities in this association, seek to bring about a change in the pertinent Austrian legislation.   Before the Commission, the association was represented by Mr.   Alfons Adam, a lawyer in Vienna, who had been instructed by the association's president, Dr.   Johann Wilde.   3.       The application is directed against Austria whose Government were represented by their Agent, Mr.   Helmut Türk, Head of the International Law Department of the Federal Ministry of Foreign Affairs.   4.       Insofar as declared admissible, the application concerns the applicant association's complaint that under Austrian law it did not have effective remedies at its disposal by which it could secure a sufficient protection of two demonstrations which it held in December 1980 and May 1982 respectively and which were disturbed by counter-demonstrators.   The association complains that the failure to provide such remedies amounts to a breach of Article 13 of the Convention.   B.       The proceedings   5.       The application was introduced on behalf of the applicant association on 13 September 1982.   It was registered on 20 September 1982.   6.       On 14 May 1984 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them   to present before 27 July 1984 their observations in writing on the admissibility and merits of the application.           The Government submitted their observations on 30 July 1984 and the applicant association replied on 11 October 1984.   7.       On 7 May 1985 the Commission decided to hold an oral hearing on the admissibility and merits of the application.   8.       The hearing took place on 17 October 1985.   The parties were represented as follows:   -        the applicant association by its lawyer, Mr.   A. Adam of         Vienna, and by its president, Dr.   J. Wilde; and   -        the Government by their Agent, Mr.   H. Türk, Head of the         International Law Department of the Federal Ministry of         Foreign Affairs, who was assisted by Mr.   W. Okresek, of the         Federal Chancellery's Department of Constitutional Law,         and by Mr.   A. Holzhammer, of the Federal Ministry of the         Interior, Advisers.   9.       Following the hearing, the Commission declared inadmissible, as being manifestly ill-founded, the applicant association's complaints under Articles 9, 10 and 11 of the Convention concerning the allegedly insufficient protection of its demonstrations by the Austrian authorities.   It declared admissible the applicant association's further complaint under Article 13 that it did not have an effective domestic remedy in relation to its claim under Article 11 of the Convention.   10.      The text of this decision, approved by the Commission on 7 March 1986, was on 20 March 1986 transmitted to the parties who were invited to submit any supplementary observations on the merits which they wished to make.   The Government submitted such observations on 2 May 1986 and the applicant association on 5 May 1986.   11.       After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   12.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                       MM. J.A. FROWEIN, Acting President                         G. SPERDUTI                         E. BUSUTTIL                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                     Mrs G.H. THUNE   13.      The text of this Report was adopted on 12 March 1987 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.     14.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   15.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   16.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS   A.       Particular circumstances of the case&S   a)       The applicant association's demonstration at Stadl-Paura           i)   Notification of the demonstration   17.      On 30 November 1980 the applicant association, in accordance with Section 2 of the Assembly Act, gave notice to the competent police authority (Bezirkshauptmannschaft) for the district of Wels-Land, Upper Austria, of an intended anti-abortion demonstration to be held at Stadl-Paura on 28 December 1980, under the theme of "a memorial to the deaths of an unknown number of children unborn through abortion".   18.      It was originally planned that there should be a religious ceremony in the church of Stadl-Paura followed by a march to the practice of a doctor at Stadl-Paura who carried out abortions.   19.      No objections were raised by the authority against these plans and upon its application the applicant association also got the authorisation to use the public road for this purpose.   However, it was not authorised to use loudspeakers.           ii)   Restrictions on planned counter-demonstrations   20.      Several counter-demonstrations were also notified to the authority.   Thus a women's organisation of the Socialist Party proposed to hold a pro-abortion meeting at the village hall (Volkshaus) of Stadl-Paura followed by a march to the above doctor's practice.   A local group likewise wished to manifest its solidarity with this doctor by demonstrating in front of his practice.   However, these two demonstrations were prohibited under Section 6 of the Assembly Act because they coincided as to time and place with the applicant association's demonstration and it was feared that this might endanger the public order and security.   21.      The Socialist women's organisation then modified its plans and notified the authority of its intention to hold its demonstration earlier on the same day.   This demonstration was not prohibited because it did not coincide with the applicant association's demonstration.   According to the notification it was to end by 1.45 p.m. while the applicant association's demonstration was to start at a different place, namely at the church of Stadl-Paura, only at 2 p.m.           iii)   Re-routing of the demonstration   22.      Nevertheless, the applicant association feared that counter-demonstrators might interfere with its demonstration and therefore the original plans were changed at a meeting which the applicant association's representatives held with delegates of the authority in the local priest's private residence shortly before the beginning of the religious ceremony.   It was now decided to cancel the march to the doctor's private practice and instead to organise a religious procession to a nearby hill with a cross, where a field service would be held after which the participants would return to the church for another religious ceremony.   23.      The authority did not object to the rerouting, but observed that crowd control would be more difficult in view of the fact that the police had already been stationed along the first route, in particular near the doctor's practice.   150 policemen had actually been deployed along the original route.   The responsible authority indicated that they could not in any event prevent the counter-demonstrators from throwing eggs or from disrupting the march and religious services through loudspeakers, whatever route was chosen.           iv)   Disturbances of the demonstration   24.      The applicant association's meeting then took place in the modified form beginning with a mass in the local church.   During the mass, a large number of counter-demonstrators gathered in front of the church.   The police took no action to disperse them.   This counter-demonstration, which was not identical with the Socialist women's demonstration, had not been formally brought to the notice of the authority in conformity with the provisions of the Assembly Act. The applicant association's march to the hill which followed the mass was disrupted by the counter-demonstrators who mixed with the participants of the march disturbing the reading of the rosary with their shouting.   25.      On arriving at the hill, the applicant association's anti-abortion group, numbering around 500, attempted to celebrate mass.   They were surrounded by a like number of counter-demonstrators who threw eggs and grass-tufts at the participants of the association's meeting.   In addition, they disturbed the field-mass by using loudspeakers. 100 policemen were present.   The special anti-riot police units equipped with helmets and dogs did not intervene.   At the end of the religious ceremony the police formed a cordon between the groups of demonstrators, thereby allowing the participants of the applicant association's demonstration to return to the church.   The counter-demonstrators were finally dispersed outside the church.   b)       Remedies taken by the applicant association following the         above demonstration           i)   Hierarchical appeal (Dienstaufsichtsbeschwerde)   26.      On 21 January 1981, the applicant association lodged a hierarchical appeal (see paras. 47-50 below) with the Upper Austrian Regional Directorate for Public Security complaining that the local authorities had failed to secure sufficient protection of the demonstration.   27.      In its reply the Directorate informed the applicant association that it saw no reason to take any disciplinary or other measures as it considered that the measures taken by the local authorities had been adequate in the circumstances. 150 policemen had been deployed because it was expected that despite the prohibition of two counter-demonstrations there would be a considerable number of counter-demonstrators.   The police had been given orders to intervene and disperse the counter-demonstration only if there was a danger of violence resulting in physical injury.   It was not possible to protect absolutely an open-air demonstration such as the one organised by the applicant association against noise and the throwing of objects which did not endanger the physical integrity of persons.   If the police had immediately intervened, violence would almost inevitably have occurred and at least this was prevented in the present case.           ii)   Action under criminal and administrative penal law   28.      The applicant association did not request the institution of criminal proceedings against the counter-demonstrators either by reporting a criminal offence or by filing a subsidiary private prosecution under Section 48 of the Code of Criminal Procedure ("Subsidiaranklage", see para. 62 below).   However, some action was in fact taken against certain of the counter-demonstrators under criminal law.   Both the Upper Austrian Regional Directorate for Public Security and the local police (Gendarmeriepostenkommando) of Stadl-Paura laid an information against persons unknown for causing disturbance in a meeting.   A private organisation (österreichische Bürgerinitiative zum Schutz der Menschenwürde) laid a criminal information against the Member of Parliament involved in the counter-demonstration for breaking up a religious ceremony and incitement to hatred under Sections 185, 188, 282 of the Criminal Code and also for offending against Section 2 of the Assembly Act.   In addition, there was a criminal information against two further persons.   However, on 1 April 1981 these proceedings were discontinued under Section 90 of the Code of Criminal Procedure by the public prosecutor of Wels.   29.      One person who had been caught throwing eggs at the demonstration was fined AS 1,000 for disturbing the peace (Ordnungsstörung) in administrative penal proceedings taken against her under Section IX of the Administrative Proceedings (Introduction) Act.   Some eggs found in her possession had been confiscated during the demonstration.           iii)   Constitutional appeal   30.      The applicant association subsequently appealed to the Constitutional Court ("Verfassungsbeschwerde", see paras. 41-43 below), claiming that the authorities' inaction during the above demonstration had resulted in a failure to secure the exercise of its constitutionally guaranteed rights to freedom of assembly and religious practice.   31.      At the hearing on 11 December 1981, the Constitutional Court took evidence from various witnesses who confirmed that the events had taken place in the way described above.   32.      However, by a decision of 1 March 1982, which was served on the applicant association on 8 April 1982, the Constitutional Court rejected the appeal as inadmissible on the ground that it lacked competence to deal with the matter.   It found that the facts established showed that the applicant association's complaint clearly was not directed against a formal decision, nor against acts of direct administrative coercion taken against the association itself.   c)       The demonstration in Salzburg   33.      The applicant association staged a second anti-abortion demonstration on 1 May 1982 in the square in front of Salzburg Cathedral.   Notice of this demonstration was given to the competent police authority which again raised no objections although the Socialist Party's May Day celebrations took place in the City of Salzburg at the same time.   In fact, the applicant association's demonstration was notified earlier to the authority, and as the association could not be pursuaded to change the time and place of this demonstration, the Socialist Party's intended meeting on Cathedral Square had to be cancelled.   34.      The association's meeting began at 2.15 p.m. and lasted until 3.30 p.m.   Then about 100 participants marched into Salzburg Cathedral for an hour of prayers.   By about 1.30 p.m. some 350 people had come to Cathedral Square who by their behaviour indicated that they were opponents of the meeting.   About 100 police officers formed a cordon around the participants in the meeting in order to protect them from direct molestation.   The counter-demonstrators loudly voiced their displeasure because they regarded the meeting as a provocation.   35.      Additional trouble was caused by the presence of sympathisers of an extreme right-wing party (NDP) who declared their solidarity with the theme of the applicant association's meeting.   A request from the authorities to the association's president to order these persons off the square was unsuccessful.   36.      The police were able to ensure unimpeded access to the Cathedral.   As the shouting went on and there was thus a risk of the hour of prayers being disturbed, the authorities finally ordered Cathedral Square to be cleared.   In view of the existing situation and as a result of this action, the people concerned left.   d)       Remedies concerning the demonstration in Salzburg   37.      In view of the Constitutional Court's decision of 1 March 1982 (para. 32 above), the applicant association did not lodge a consti- tutional appeal following the Salzburg demonstration.   Nor did it take any other remedies concerning the disruption of this demonstration.     B.       The relevant Austrian legislation and practice concerning the         exercise of the right to protection of freedom of assembly&S     a)       The constitutional guarantee of freedom of assembly           i)   Substantive provisions   38.      Article 12 of the Basic Law of 1867 on the General Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, Imperial Law Gazette No. 142) provides that Austrian citizens shall have inter alia the right of assembly and that the exercise of this right shall be regulated by special legislation.   An additional constitutional basis of the right of assembly is provided by Article 11 of the Convention itself which in Austria has the rank of a constitutional provision (cf.   Article II of the Constitutional Law of 4 March 1964, Federal Law Gazette No. 59).   39.      The special legislation referred to in Article 12 of the Basic Law is contained in the Assembly Act (Versammlungsgesetz). This legislation was originally enacted in 1867 (Imperial Law Gazette No. 135).   It has been expressly maintained by Article 149 of the Federal Constitution and was consolidated in 1953 (Wiederverlaut- barung, Federal Law Gazette No. 98).   Since then it is referred to as the Assembly Act 1953.   40.      The Act contains inter alia the following provisions:           Section 1       Public meetings shall be permitted                        in accordance with the provisions of                        this Act.           Section 2       (1) Any person intending to organise a                        public meeting or any meeting which is                        generally open to persons other than                        invited guests shall give the authorities                        notice in writing at least 24 hours in                        advance, indicating the purpose, place                        and time of the meeting.   This notice                        must reach the authorities not less than                        24 hours before the time at which the                        projected meeting is to be held.                          (2) On request, the authorities shall                        issue a certificate stating that notice                        has been given.   No stamp duty shall be                        levied on the notice.           Section 6       Meetings whose purpose is contrary                        to criminal law or which endanger public                        safety or welfare shall be forbidden by                        the authorities.           Section 11      (1) Primary responsibility for ensuring                        that the law is observed and order maintained                        shall lie with the persons organising and                        in charge of the meeting.                          (2) These persons shall take immediate                        action to prevent pronouncements or                        actions which are contrary to law.   If                        their instructions are not obeyed, the                        organisers shall immediately close the                        meeting.           Section 12      The authorities shall be entitled to send                        to any meeting of the kind referred to in                        Section 2 a representative or representa-                        tives, who shall be admitted to a suitable                        place of their choice within the meeting                        and be given any information which they may                        request concerning the organisers and the                        speakers.           Section 13      (1) Any meeting organised in contravention                        of the Act shall be prohibited and, if                        necessary, terminated by the authorities.                          (2) Similarly, a lawfully organised meeting                        shall be terminated by order of the representa-                        tive of the authorities or, if no representa-                        tive is present, the authorities themselves,                        if unlawful actions are committed at it or                        if it assumes a character endangering public                        order.           Section 14      (1) Once a meeting has been terminated,                        all those present shall be obliged to leave                        the meeting place and disperse immediately.                          (2) In the event of non-compliance, force may                        be used to disperse the meeting.           ii)   Constitutional complaint proceedings (Verfassungsbeschwerde)   41.      In the Austrian legal system the control of the respect of the constitutional right of assembly is exclusively entrusted to the Constitutional Court.   Case law has developed according to which any violation of the Assembly Act must be regarded as a direct interference with this constitutional right as guaranteed by Article 12 of the Basic Law (cf.   Official Collection of Constitutional Court Decisions, No. 2002/50) and by Article 11 of the Convention (cf. ibid., Nos. 7762/76, 8610/79 and 9103/81).   Accordingly there remains no room for an additional control by the Administrative Court of the lawfulness of the application of the Assembly Act.   The Administrative Court declares itself incompetent to deal with such cases (cf. Official Collection of Administrative Court Decisions, No. 7096A).   42.      The basis of the Constitutional Court's competence to receive complaints concerning the violation of constitutionally guaranteed rights such as the right of assembly is Article 144 of the Federal Constitution.   Paragraph 1 of this Article reads as follows in the version of 1975 (Federal Law Gazette No. 302):           "The Constitutional Court pronounces on complaints         against formal decisions (Bescheide) of administrative         authorities insofar as the applicant alleges a violation         of his constitutionally guaranteed rights or a violation         of his rights by virtue of the application of an illegal         ordinance, an unconstitutional law, or an unlawful treaty.         Under the same conditions the Court likewise pronounces on         complaints concerning the exercise of direct administrative         authority and coercion against a particular individual         (Ausübung unmittelbarer verwaltungsbehördlicher Befehls-         und Zwangsgewalt gegen eine bestimmte Person)..."   43.      Administrative acts which do not come within the description of either a "formal administrative decision" or of "the exercise of direct administrative authority and coercion against a particular individual" cannot be challenged before the Constitutional Court.   b)       Administrative measures designed to protect the exercise         of the freedom of assembly, in particular measures of         police protection           i)   Substantive provisions   44.      The Assembly Act itself provides for a number of administrative measures to protect lawful assemblies.   Although it is not expressly stated in the law, the machinery to prohibit (Section 6) or terminate (Section 13) unlawful meetings or meetings which endanger the public order is in practice often used to deal with counter-demonstrations the holding of which might interfere with the lawful exercise of the original demonstrators' right of assembly.   45.      In addition, Section 14 para. 2 of the Assembly Act expressly provides for the use of force to disperse a meeting, and this provision can also be used to deal with unlawful counter-demonstrations. The deployment of police forces for this purpose is presupposed.   The Constitutional Court has recognised an active duty of the police authorities to protect lawful assemblies which may not be forbidden merely because of the possibility of their being disturbed by counter-demonstrations (cf.   Official Collection of Constitutional Court Decisions, No. 8609/79).   46.      The police enjoy a wide discretion in the exercise of their powers for the maintenance of public peace, order and security, including the exercise of these powers for the purpose of protecting demonstrations.   In the latter respect the law does not provide for any subjective rights of the demonstrators beyond their constitutional right of assembly (see Section a) above).           ii)   Proceedings before administrative authorities:              Hierarchical appeal (Dienstaufsichtsbeschwerde)   47.      Formal administrative proceedings cannot be instituted to obtain a particular form of protection of demonstrations.   The decisions taken by the competent police authority in this respect either at the request of the interested party or of its own motion are, as a rule, of an internal nature.   Accordingly they also cannot be challenged in administrative appeal proceedings before a higher authority.     48.      The procedure for raising the issue of allegedly inadequate police protection before the competent higher authorities is that of a hierarchical appeal (Dienstaufsichtsbeschwerde).   It is not limited to the assertion of subjective rights and to allegations of unlawful behaviour of the authority.   It can also be used to criticise the exercise of the authority's discretion within the framework of the law, in particular as regards its appropriateness.   49.      In substance the hierarchical appeal is no more than a suggestion to the competent higher authority to make use of the supervisory powers which it has vis-à-vis the lower authority by virtue of Article 20 para. 2 of the Federal Constitution.   These supervisory powers include in particular the right to give binding instructions to the subordinate authority both as regards the concrete case and as regards the approach to be taken generally in future cases.   The supervisory authority may also take disciplinary action against the responsible officials or other suitable measures. If supervisory measures are taken, they are not dependent on any right of the applicant, but rather the consequence of the supervisory authority's duty to secure a lawful and orderly administration.   50.      The applicant has no right to the taking of any action following his hierarchical appeal, in particular no right to the actual exercise of supervisory powers.   Nor does he have a right to a decision on his complaint or to information on what action has been taken.   In practice, some information is usually given unless the complaint appears to be abusive or manifestly without foundation.             iii)   Proceedings before judicial authorities:               Official liability action (Amtshaftung)   51.      In certain cases a failure to provide sufficient police protection to a demonstration may also give rise to official liability proceedings.   The conditions are set out in the Official Liability Act (Amtshaftungsgesetz, Federal Law Gazette No. 20/1949, as amended).   52.      Section 1 of this Act provides that public corporations (Rechtsträger) are liable to compensate according to the provisions of the civil law any damage which their organs have caused to anybody's property or person (Schaden am Vermögen oder an der Person) by faulty and unlawful behaviour in exercise of legal powers.   Only "faulty and unlawful" behaviour by the authority can therefore give rise to a claim.   Moreover, there must be a causal link between this behaviour and the alleged damage.   It has further been clarified in the case law that only material damage can be compensated whereas there is no legal basis to claim compensation for moral damage.   53.      The proceedings are divided into two stages.   In the first stage, the injured party must submit his claim to the public corporation concerned, i.e. in the case of police authorities the Federation.   Thereafter, if the competent body