CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1990

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 13812/88                       by S.                       against Austria             The European Commission of Human Rights sitting in private on 3 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 11 February 1988 by S. against Austria and registered on 29 April 1988 under file No. 13812/88;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant, who is represented by Rechtsanwalt Dr. Thomas Prader of Vienna, is an Austrian citizen born in 1964 who resides in Vienna.   He complains of the prohibition of a demonstration which he wished to organise on 4 May 1985.           The relevant facts may be summarised as follows:           Following the arrest of several persons who had sprayed political slogans on walls, a series of demonstrations took place in Vienna in March and April 1985 by sympathisers of the arrested persons.   In front of criminal courts and around a prison where the above persons were detained the demonstrators shouted slogans and made noise, using megaphones, whistles, rattles and saucepanlids.   Two of the demonstrations (on 16 March and on 27 April 1985) were dissolved by the police.           On 2 May 1985 the applicant notified the Vienna Directorate of the Federal Police (Bundespolizeidirektion) of his intention to organise a further demonstration on 4 May 1985 between 12 and 23 p.m. He announced that the demonstrators would use inter alia music and rhythmical instruments, and that there would be no noice after 22 p.m.   The subject of the demonstration was to be "repression in Austria".           On 3 May 1985 the Directorate of the Federal Police prohibited the demonstration under Section 6 of the Assembly Act (Versammlungsgesetz 1953) on the ground that it would endanger public security (öffentliche Sicherheit) and public order (öffentliches Wohl).   It ordered that any remedies against this decision should not have suspensive effect.   The demonstration accordingly could not take place.           In the reasons the Directorate of the Federal Police referred to the previous demonstrations, concluding therefrom that the main purpose of the proposed demonstration would be to make noise and to provoke the police and population by the shouting of injurious and seditious slogans as on 27 April, leading to complaints by the population.   The deliberate making of noise could not be accepted as a legitimate manifestation.           The applicant's appeal against this decision was rejected by the Vienna Directorate of Public Security (Sicherheitsdirektion) on 9 September 1985.   It stated that, while any demonstration in public streets might disturb the population, there were limits to the degree of disturbance that could be tolerated.   A balance had to be struck with the interests of the public.   While the shouting of slogans was as such legitimate (although in the present case their content violated the public interest, because even if they were not meant seriously and did not constitute criminal offences, they were generally directed against the State and its institutions), it was not legitimate to make excessive noise during 10 hours.           The applicant appealed further to the Federal Ministry of the Interior (Bundesministerium für Inneres - Generaldirektion für die öffentliche Sicherheit) which, however, did not take a decision within the statutory time limit of six months.   The applicant therefore complained to the Administrative Court (Verwaltungsgerichtshof) of the inactivity of the Ministry (Säumnisbeschwerde).   On 10 February 1988 the Administrative Court declined jurisdiction, finding that any interference with freedom of assembly concerned a constitutional right and therefore could only be challenged before the Constitutional Court (Verfassungsgerichtshof).   This rule was of general application and also extended to alleged procedural defects, including an alleged failure by the authority to decide within the statutory time limit.           On 1 April 1988 the Ministry finally took its decision, rejecting the applicant's appeal while amending the original decision to the effect that the demonstration was prohibited only on the ground that it endangered public order.           The Ministry observed that freedom of assembly was in principle guaranteed by Article 12 of the Basic Law on the General Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, 1867) and by Article 11 of the Convention.   However, under both provisions its exercise could be subjected to legal restrictions.   Section 6 of the Assembly Act provided for the prohibition of assemblies whose purpose was contrary to criminal law or which endangered public security or public order.   The prohibition of the present demonstration under this provision was justified.   While the aims pursued by the demonstration were as such legitimate, it was not legitimate to exercise the right of freedom of assembly in a manner which led to excessive interference with the interests of other persons.   Objectively, the deliberate making of noise constituted an administrative offence under Article IX para. 1 sub-para 1 of the Introductory Act to the Laws on Administrative Procedure (Einführungs- gesetz zu den Verwaltungsverfahrensgesetzen), and this went beyond the limits of the admissible exercise of freedom of assembly as circumscribed by the criminal law, including the administrative penal law.   This restriction was covered by Article 11 para. 2 of the Convention as a measure for the prevention of disorder and for the protection of the rights of others.   However, the expected shouting of certain slogans did not constitute a criminal offence within the jurisdiction of the courts, and therefore it was not justified to assume a danger to public security.           The Ministry also rejected the applicant's procedural complaints, finding that it had not been required to take evidence on the question whether the applicant expected the demonstration to be a peaceful one, and on the further question whether individual persons had complained of the noise caused by the earlier demonstrations.   The noice had been clearly observed by the authorities.           The applicant's constitutional complaint against this decision was rejected by the Constitutional Court on 1 October 1988.   It considered that the Directorate of the Federal Police could reasonably expect in the circumstances that as at previous demonstrations excessive noise would be made.   It was irrelevant in this context whether individual persons had complained of noise and how long that noise had lasted.   The prohibition, as finally upheld by the Ministry, was exclusively based on the expectation of excessive noise, and according to Article 11 para. 2 of the Convention the authorities had been required to consider whether such noise was to be tolerated by the public.   This would have been the case if the noise had not infringed Article IX of the Introductory Act to the Laws on Administrative Procedure.   However, in the present case the making of noise had been an aim in itself.   The applicant had admitted that the demonstrators thereby wished to establish a contact and communicate with a person detained in the prison in a manner that she could hear it.   However, the legitimate purpose of an assembly could only be discussion of opinions between the participants or the conveyance of such opinions to others.   The use of noise in a form which could be described as "acoustic terror" was not an appropriate means to convey to the population the intended criticism of courts and authorities.   The prohibition of the demonstration to protect public order had therefore been based on a correct weighing of the various interests involved.           As regards the applicant's procedural complaints the Constitutional Court considered the length of the appeal proceedings irrelevant for the constitutionality of the impugned decision and the alleged refusal of access to the file disproven.   The applicant had been granted access by the Ministry at least to all those files on which the impugned decision was based.   COMPLAINTS           The applicant complains under Article 11 of the Convention that the prohibition of the intended demonstration was unjustified. The expected making of noise was not of itself susceptible of justifying a preventive interference with the right of assembly which was of fundamental importance in a democratic society.   Moreover, it would have been limited in time and intensity and could not possibly have caused an excessive disturbance of the inhabitants of a main road where there was already a lot of traffic noise.   The authorities had never provided the slightest proof of complaints by private persons.           The applicant further complains under Article 13 of the Convention that no effective domestic remedy was available to him in Austria to challenge the interference with his rights under Article   11.   The Administrative Court was incompetent and the Constitutional Court did not take up his complaint of the excessive length of the appeal proceedings before the Federal Ministry of the Interior which had lasted more than 2 years.   THE LAW           The applicant complains that there has been a violation of Article 11 (Art. 11) of the Convention in that the prohibition of a demonstration which he intended to organise was unjustified.           The Commission considers that there has clearly been an interference with the applicant's right to freedom of peaceful assembly as guaranteed by Article 11 para. 1 (Art. 11-1) of the Convention.           As regards the justification of this interference under Article 11 para. 2 (Art. 11-2), the Commission notes that the prohibition of the demonstration was based on Section 6 of the Assembly Act and thus "prescribed by law".   It pursued the aim of protecting public order in particular by the prevention of excessive noise which could have disturbed the population.   This aim clearly corresponded to purposes recognised in Article 11 para. 2 (Art. 11-2), namely "the prevention of disorder" and "the protection of the rights of others".           It remains to be examined whether the interference was also "necessary in a democratic society" in order to achieve the above purposes, in particular whether it was proportionate.   In this respect the Commission notes that the authorities had observed excessive noise during previous demonstrations and that the demonstration of 27 April 1985 had been dissolved because of the noise and the shouting of seditious slogans.   The content of these slogans was first also considered as relevant for the prohibition of the demonstration, but in the final decisions of the Ministry and of the Constitutional Court the only reason retained was the making of excessive noise.   The applicant does not contest that noise would have been made during the demonstration, but he contends that this could under no circumstances justify a preventive measure and in any event the noise would not have been excessive.           It is true that also in the present case the authorities could have reacted by a dissolution of the demonstration if it led to excessive noise.   However, the Commission recalls that under the case-law of the Convention organs the domestic authorities enjoy a certain margin of appreciation regarding the measures they may take to achieve legitimate purposes under Article 11 para. 2 (Art. 11-2) of the Convention. The Commission considers that it can as such be regarded as "necessary in a democratic society" to prevent excessive noise of a demonstration, and it further considers that it was not disproportionate in the present case to do so by the prohibition of the demonstration rather than by its subsequent dissolution.   Having regard to the previous experience it was in no way unreasonable or arbitrary to assume that the proposed demonstration would also lead to excessive noise.   This assumption was supported, in particular, by the text of the applicant's notification to the authority and his subsequent admission that the noise should be loud enough to be heard by an inmate of a prison.           It follows that the measure complained of is covered by Article 11 para. 2 (Art. 11-2) of the Convention.   The applicant's complaint in this respect must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       As regards the applicant's further complaint under Article 13 (Art. 13) of the Convention, the Commission considers that the applicant's claim that a demonstration must be allowed notwithstanding the making of excessive noise was not an "arguable claim" within the meaning of the case-law of the Convention organs (cf. in particular Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series A No. 139), and therefore the applicant's complaint of a violation of Article 13 (Art. 13) of the Convention must be rejected as being manifestly ill-founded.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission           (H.C. KRÜGER)                                (C.A. NØRGAARD)