Politie Salzburg verbiedt tegendemonstratie bij SS-herdenking - Mensenrechtenhof veroordeelt Oostenrijk (en)
Press release issued by the Registrar
CHAMBER JUDGMENT
ÖLLINGER v. AUSTRIA
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Öllinger v. Austria (application no. 76900/01).
The Court held by six votes to one that there had been a violation of Article 11 (freedom of assembly) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 5,878.88 euros in respect of costs and expenses. (The judgment is available only in English.) 1. Principal facts The applicant, Karl Öllinger, is an Austrian national who was born in 1951 and lives in Vienna. He is a member of parliament for the Green Party.
On 30 October 1998 the applicant notified Salzburg Federal Police Authority that, on All Saints’ Day (1 November) 1998 from 9 a.m. until 1 p.m., he would be holding a meeting at the Salzburg municipal cemetery in front of the war memorial in commemoration of the Salzburg Jews killed by the SS during the Second World War. He expected about six people to attend, carrying commemorative messages, and specified that there would be no chanting or banners. He noted that the meeting would coincide with the gathering of Comradeship IV (Kameradschaft IV), in memory of the SS soldiers killed in the Second World War.
On 31 October 1998 Salzburg Federal Police Authority prohibited the meeting and, on 17 August 1999, Salzburg Public Security Authority dismissed an appeal against that decision by the applicant. The police authority and public security authority considered the prohibition of the applicant’s assembly necessary in order to prevent disturbances of the Comradeship IV commemoration meeting, which was considered a popular ceremony not requiring authorisation. They had particular regard to the experience of previous protest campaigns by other organisers against the gathering of Comradeship IV, which had disturbed other visitors to the cemetery and had required police intervention.
On 13 December 2000 the Constitutional Court dismissed a complaint by the applicant. However the Constitutional Court also found the approach of the police authority and public security authority to have been too narrow. It observed that the prohibition of the intended meeting would not be justified if its sole purpose were the protection of the Comradeship IV ceremony. It went on to say that the prohibition was nevertheless justified or even required by the State’s positive obligation under Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights to protect those practising their religion against deliberate disturbance by others. All Saints’ Day was an important religious holiday on which the population traditionally went to cemeteries to commemorate the dead and disturbances caused by disputes between members of the assembly organised by the applicant and members of Comradeship IV were likely to occur in the light of the experience of previous years.
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2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 31 July 2001 and declared admissible on 24 March 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Françoise Tulkens (Belgian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
and also Søren Nielsen, Section Registrar.
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3.Summary of the judgment2
Complaints The applicant complained about the prohibition on the holding of his commemorative meeting, relying on Article 11, Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the Convention. Decision of the Court Article 11
The Court noted that the applicant’s case concerned competing fundamental rights; his right to freedom of peaceful assembly and to freedom of expression had to be balanced against the other association’s right to protection against disturbance of its assembly and the cemetery users’ right to protection of their freedom to practice their religion. Noting that the domestic authorities had regard to the various competing Convention rights, the Court examined whether they had achieved a fair balance between them.
The applicant’s assembly was clearly intended as a counter-demonstration to protest against the gathering of Comradeship IV, an association which consisted mainly of former members of the SS. The applicant emphasised that the main purpose of his assembly was to remind the public of the crimes committed by the SS and to commemorate the Salzburg Jews murdered by them. The coincidence in time and venue with the commemoration ceremony of Comradeship IV was an essential part of the message he wished to convey.
In the Court’s view, the unconditional prohibition of a counter-demonstration was a very far-reaching measure which would require particular justification, all the more so as the applicant, being a member of parliament, essentially wished to protest against the gathering of Comradeship IV and, thus, to express an opinion on a issue of public interest. The Court found it striking that the domestic authorities attached no weight to that aspect of the case.
It was undisputed that the aim of protecting the gathering of Comradeship IV did not provide sufficient justification for the contested prohibition, as had been clearly pointed out by the Constitutional Court. The Court fully agreed with that position.
Considering whether the prohibition was justified to protect the cemetery users’ right to practise their religion, the Court noted a number of factors which indicated that the prohibition at issue was disproportionate to the aim pursued. First and foremost, the assembly was in no way directed against the cemetery users’ beliefs or the manifestation of them. Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of visitors to the cemetery. Moreover, while the authorities feared that, as in previous years, heated debates might arise, it was not alleged that any incidents of violence had occurred on previous occasions.
In those circumstances, the Court was not convinced by the Austrian Government’s argument that allowing both meetings while taking preventive measures, such as ensuring a police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors. The Court found that the Austrian authorities gave too little weight to the applicant’s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery users in being protected against some rather limited disturbances. The Court therefore considered that the Austrian authorities had failed to strike a fair balance between the competing interests and that there had been a violation of Article 11.
Articles 9, 10 and 14
The Court found that no separate examination of the applicant’s complaints under Articles 9 10 and 14 was necessary.
Judge Loucaides expressed a dissenting opinion, which are annexed to the judgment.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. 2 This summary by the Registry does not bind the Court.