Lexploria

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 of the public

corporation refuses to recognise the claim, it can be asserted by an

action before the civil courts.

c) Protection of the right of assembly by criminal law (Strafrecht)

i) Substantive provisions

54. The Criminal Code (Strafgesetzbuch, Federal Law Gazette

No. 60/1974) contains the following special provisions on the

protection of assemblies:

Section 284 (Breaking up of meetings) Any person

using force, or the threat of force, to prevent or break up

a meeting, procession or similar demonstration which is not

forbidden shall be liable to imprisonment for up to one year.

Section 285 (Prevention or disruption of a meeting)

Any person who prevents or seriously disrupts an authorised

meeting by:

1. barring access to the place of assembly,

2. preventing or obstructing the access of a person

entitled to attend or seriously molesting such a person,

making it impossible or difficult for him to attend,

3. forcing his way into the meeting without

authorisation, or

4. obstructing a person appointed to conduct or preserve

order at a meeting or physically resisting such a person's

instructions concerning the conduct of such a meeting

shall be liable to imprisonment for up to six months

or to a fine of up to 360 times the daily rate.

55. Religious meetings are furthermore protected by Section 189

(interference with religious practises) which is worded as

follows:

(1) Any person using force, or the threat of force, to

prevent or disrupt lawful religious services or acts of

worship celebrated by churches or religious communities

established within the country shall be liable to

imprisonment for up to two years.

(2) Any person who:

1. in a place reserved for the lawful religious

practices of a church or religious community established

within the country,

2. during a lawful act of public worship celebrated

by a church or religious community established within the

country, or

3. with an object directly employed in lawful worship by

a church or religious community established within the country

misconducts himself in a manner calculated to give

justifiable offence shall be liable to imprisonment for up to

six months or to a fine of up to 360 times the daily rate.

56. Moreover, the interference with demonstrations by the unlawful

use of force may also come under Section 105 of the Criminal Code which

reads as follows:

(1) Any person using force, or the threat of force, to compel

another person to perform, submit to or refrain from an action

shall be liable to imprisonment for up to one year.

(2) The act shall not be unlawful if the use or threat of

force as a means to the end in question is not contrary to

morality.

57. The offences regulated in the Criminal Code can be committed

not only by those who directly carry out the incriminated acts,

but also by those who instigate them or otherwise participate in them

(Section 12) or who, contrary to their specific duties, fail to

prevent them (Section 2). The deliberate failure to prevent criminal

acts is furthermore punishable as a separate offence under

Section 286 of the Criminal Code, and abuse of official authority

(Missbrauch der Amtsgewalt) is an offence under Section 302. It is

therefore possible, in principle, to institute criminal proceedings

against officials who fail to prevent criminal offences of

individuals, or who otherwise abuse their official powers concerning

the protection of a demonstration. However, it is not possible to

prosecute officials if the specific conditions laid down in Sections

2, 12, 286 or 302 of the Criminal Code are not met.

ii) Institution of criminal proceedings

58. The criminal offences described above are all public

prosecution offences (Offizialdelikte). The institution of

proceedings is therefore normally the task of the competent

prosecution authorities (Staatsanwaltschaft). The latter have a

special duty under Section 34 of the Code of Criminal Procedure

(Strafprozessordnung 1960 in the consolidated version published in

Federal Law Gazette No. 631/1975) to prosecute ex officio all criminal

offences which come to their knowledge and which are punishable not

only at the request of the injured person or other interested party.

They are further obliged to accept reports alleging criminal offences

(Section 86), to examine them and undertake the necessary inquiries

(Sections 87-88). Finally they decide whether there are sufficient

grounds to proceed with the prosecution or whether the proceedings

should be discontinued (Zurücklegung der Anzeige, Section 90).

59. Everybody has the right to report criminal offences

(Strafanzeige). Apart from the prosecution authorities themselves,

the police, investigating judges and District Courts are also obliged

to accept such reports and to forward them to the competent

prosecution authorities (Section 86). However, the right to report an

offence does not imply a right to the actual institution of criminal

proceedings.

60. All public authorities have a duty promptly to report to the

competent prosecution authority all criminal offences which they

observe or which otherwise come to their knowledge (principle of

legality, Section 84 of the Code of Criminal Procedure). This duty

also applies to the police, who are further obliged to conduct the

necessary inquiries under the authority of the competent public

prosecutor (Section 88). In addition, the police have special powers

of arrest, even without a judicial warrant, if the offender is caught

in or immediately after the commission of a criminal offence, or in

other cases if there is an immediate danger (Section 177).

61. An injured party may join the criminal proceedings as a

private party (Privatbeteiligter) in order to obtain a decision by the

criminal court on his civil claims against the offender (Section 47 of

the Code of Criminal Procedure). However, it has been clarified by

the constant case law of the Austrian courts that only material

damage can be claimed in this way. The joinder as a private

party for the purpose of asserting moral damage or other interests is

inadmissible.

62. Under certain conditions a private party is entitled to

institute and conduct the criminal proceedings instead of the public

prosecutor (Subsidiaranklage, "subsidiary private prosecution",

Section 48). This possibility exists in particular if the public

prosecutor discontinues the proceedings in accordance with Section 90

(see para. 58 above). In this case, the injured party must be informed

and, if he declares his intention to assert civil claims (cf. para. 61

above), he may submit a request to open preliminary investigation

proceedings (Section 48 para. 1). The Review Chamber (Ratskammer) of

the Regional Court takes a final decision on this request, i.e. there

is no further remedy if it refuses to institute proceedings and

the injured party can then assert his civil claims only in normal

civil proceedings. If, however, the request is accepted, the private

party generally takes the place of the public prosecutor in the

further proceedings subject to certain limitations (Section 49

para. 2). The public prosecutor is kept informed of the development

of the proceedings and may resume his functions (Section 49 para. 1).

A similar right of the private party to continue the proceedings also

exists where they were originally conducted by the public prosecutor

who later decides to discontinue them (Section 48, paras. 2 and 3).

63. As the possibility to file a subsidiary private prosecution

presupposes the assertion of a civil claim, it is only available if

the conditions of Section 47 are met, i.e. this possibility is also

only given in case of material damage, while moral damage or other

interests are not regarded as sufficient.

64. Any failure of the public authorities (including the

prosecution authorities and police) to comply with their above duties

under the Code of Criminal Procedure may itself give rise to the

institution of criminal proceedings (e.g. for abuse of official powers

according to Section 302 of the Criminal Code). It may also be taken

as the basis for a hierarchical appeal (cf. paras. 48-50 above) or for

official liability proceedings (cf. paras. 51-53 above).

d) Protection of the right of assembly by

administrative penal law (Verwaltungsstrafrecht)

i) Substantive provisions

65. The provisions of criminal law designed to protect

demonstrations or religious ceremonies are supplemented by provisions

of administrative penal law which stipulate sanctions for minor

offences.

66. The following provisions are relevant:

- Section 19 of the Assembly Act which provides that

offences against the Act to which ordinary criminal law does not

apply constitute an administrative offence punishable by imprisonment

of up to six weeks or by a fine of up to AS 5,000.-.

- Section IX para. 1 (1) of the Administrative Proceedings

(Introduction) Act (Einführungsgesetz zu den Verwaltungsver-

fahrensgesetzen, Federal Law Gazette No. 172/1950, as amended in

Federal Law Gazette No. 232/1977) which provides that a breach of the

peace in a public place by behaviour likely to cause annoyance is an

administrative offence punishable by a fine of up to AS 3,000.- or, in

aggravating circumstances, by imprisonment of up to two weeks.

- Article II, Section 4, para. 2 of the Second Constitutional

Law (Transitional Provisions) Act (Zweites Verfassungs-Ãœberleitungs-

gesetz, Federal Law Gazette No. 393/1929) which provides that

contraventions against police instructions shall be punishable as an

administrative offence.

67. These measures are primarily concerned with the behaviour of

private individuals interfering with a demonstration. However, in

principle they can also apply to officals, in particular if they

instigate or facilitate the commission of administrative offences

(cf. Section 7 of the Code of Administrative Offences (Verwaltungs-

strafgesetz), Federal Law Gazette No. 172/1950).

ii) The institution of administrative criminal proceedings

68. The procedure is regulated in the Code of Administrative

Offences. The predominant principle is that of official investigation

by the deciding authority itself, in this case the District Authority.

There are no special prosecution authorities besides the deciding

authority.

69. The proceedings are, in principle, instituted and conducted

ex officio (Section 25). The law mentions reports on the

commission of administrative offences (Anzeige, Section 40), but it

does not provide for special duties of other authorities including the

police to report such offences. They are only bound by the general

constitutional principles of legality (Article 18 of the Federal

Constitution) and mutual assistance (Article 22).

70. By contrast with the law of criminal procedure there is no

right for a private party to request the institution or continuation of

proceedings by way of a "subsidiary private prosecution". A possibility

to request a decision on civil claims in connection with the

proceedings is only given where the applicable substantive law so

provides (Section 57 of the Code of Administrative Offences). The

above provisions of substantive law do not contain such clauses.

III. SUBMISSIONS OF THE PARTIES

A. The applicant association

71. The applicant association submits under Article 13 of the

Convention that it did not have any effective remedy before a domestic

authority by which it could secure its right, included in Article 11

of the Convention, to obtain adequate protection of its demonstrations,

i.e. protection which ensured that the aim of these demonstrations,

namely to make certain views known to the public, could be achieved in

a meaningful way.

72. If in the present case an effective remedy had been available

to the applicant association, it would have submitted that the authority

at Stadl-Paura failed to disperse the counter-demonstrators which had

gathered outside the church when the first mass was celebrated; that it

failed to redeploy the police forces in such a way as to prevent the

counter-demonstrators access to Paura Hill prior to the celebration of

the field mass, and that it remained inactive during the latter ceremony

despite its being disturbed by the counter-demonstrators. As regards

the demonstration in Salzburg it would have submitted that the archways

leading up to Cathedral Square were left open for the counter-

demonstrators although it would have been easy to stop them there,

and that the counter-demonstration was not terminated earlier despite

massive disturbances of the applicant association's meeting.

73. The various remedies suggested by the Government were either

inaccessible to the applicant association, or ineffective.

74. As regards a constitutional complaint, this is the remedy

which the applicant association tried to use with regard to the first

demonstration. However, the Constitutional Court declined its

jurisdiction. It recognises only the right to assemble, but not the

right to effective protection of an assembly against interferences by

other groups against which the authorities remain inactive.

Accordingly, this remedy is ineffective.

75. As regards the protection by the criminal law, the applicant

association observes that the relevant provisions of the Criminal Code

(cf. paras. 54-56 above) are based on a concept of use or threat

of force which does not cover such disturbances as occurred at its

demonstrations. For this reason alone the criminal law does not

provide an effective remedy in this case.

76. The applicant association furthermore submits that the relevant

offences stipulated in the Criminal Code are to be prosecuted ex officio.

However, despite the authorities' duty under Section 84 of the Code of

Criminal Procedure to take proceedings in respect of any criminal acts

which they observe or which come to their knowledge (cf. para. 60

above) none of the many police officers present at the applicant

association's two demonstrations reported a suspicion of criminal

offences.

77. It would have been open to the applicant association itself to

report offences of counter-demonstrators, but this would have been

futile in view of the authorities' attitude. In any event there is no

right of the informer to any action being taken subsequent to his

reporting the offence (cf. para. 59 above).

78. A subsidiary private prosecution (Section 48 of the Code of

Criminal Procedure) was not available to the applicant association

because this remedy, as interpreted in constant case law, presupposes

the existence of a material damage while a violation of non-material

interests is not sufficient (cf. paras. 62-63 above).

79. Finally, an official liability action was excluded because it

too presupposes the existence of material damage (cf. para. 52 above).

The applicant association itself did not suffer any such damage.

B. The Government

80. The Government find it illogical that the Commission on the

one hand accepted that the Austrian legislation and its implementation

in the particular case were in line with Article 11 of the Convention,

and that, on the other hand, it nevertheless declared the applicant

association's complaint under Article 13 admissible. If the positive

obligation to protect demonstrations which the Commission reads into

Article 11 of the Convention is fulfilled by the provisions of the

Assembly Act, the Criminal Code and the Administrative Proceedings

(Introduction) Act, then it would rather seem to follow that the

remedies provided by these legislative provisions must also be

considered as sufficient to enforce the above positive obligation.

81. The Commission's approach seems to be based on the assumption

that in case of a positive obligation resulting from the Convention

there must be a particular remedy by which inaction of the authority

which allegedly contravenes that obligation can be reviewed. Further,

the Commission seems to assume that the traditional remedies provided

by the criminal law, which are designed to prevent active

interferences with a fundamental right, are not sufficient in relation

to interferences by third parties. However, the full implementation

of the principles postulated by the Commission would extend the idea

of legal protection too far.

82. The Government invoke the Klass judgment of the European Court

of Human Rights of 6 September 1978 (Series A no. 28) which recognised

the possibility of a restricted scope of the remedies envisaged by

Article 13 of the Convention. In particular the Court stated (ibid.

at para. 70):

"Admittedly, the effectiveness of these remedies is

limited and they will in principle apply only in

exceptional cases. However, in the circumstances of

the present proceedings it is hard to conceive of

more effective remedies being possible."

Although the facts of the present case are not directly

comparable to those of the Klass case, the principle developed in that

case concerning the limited scope of remedies should nevertheless be

applied.

83. In normal circumstances, the legal remedies provided by the

State serve to prevent active interferences by the authorities. The

present case, however, does not concern such active interferences, but

alleged inaction of the authorities. In this situation it goes too

far to demand as full a legal review as in a case of active inter-

ference. An aggregate of various remedies each of which has only

a limited scope must rather be considered as sufficient.

84. In this connection, the Government point out that a

constitutional appeal must not necessarily fail. In its decision of

1 March 1982 (cf. para. 32 above), the Constitutional Court hinted at

the possibility that it would not have declined its jurisdiction to

review an act of direct administrative coercion if the facts had

presented themselves in a slightly different manner. That is the

reason why it carefully examined the facts of the particular case,

including the circumstance that the authority had not refused to

protect the applicant association's meeting, and the further

circumstance that no coercion had been used against the association

itself. This shows that the Constitutional Court would in fact have

assumed its jurisdiction if e.g. the authority had limited its role to

that of a wholly passive observer or if it had generally rejected a

request for the protection of the demonstration. This analysis of the

Constitutional Court's decision has also been confirmed in legal

writings (cf. Nowak, Zur Drittwirkung der Grundrechte, EuGRZ 1984,

133, 141).

85. As regards the other remedies discussed in the decision on

admissibility, the Government observe that it is not entirely correct

to say that there was no material damage. Insofar as such damage had

been caused (e.g. by the throwing of eggs) the persons concerned would

therefore have had the possibility to bring an official liability

action or a subsidiary private prosecution against the perpetrators.

86. Moreover, it is contested that in the context of criminal

proceedings against the responsible officials (under Sections 2 and 12

in conjunction with Sections 284, 285 and 302 of the Criminal Code) the

question could not have been examined whether the conduct of the

authorities as such had been appropriate in the circumstances and

whether or not the applicant association's right to assembly had been

sufficiently protected. In such proceedings it would have been

necessary to clarify whether, by his inactivity, the official in question

had violated positive duties incumbent on him under the law, including

the duty to protect freedom of assembly by positive action required by

the law and necessary to be taken in conformity with the principle of

legality.

IV. OPINION OF THE COMMISSION

A. Point at issue

87. The only point still at issue is whether the applicant association had

"an effective remedy before a national authority", as required by Article 13

(Art. 13) of the Convention, in respect of the allegedly insufficient

protection of its freedom of assembly.

B. Applicability of Article 13 (Art. 13)

88. Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

89. This provision has been interpreted in the following way

in the Silver and Others judgment of 25 March 1983, Eur. Court H.R.,

Series A no. 61, p.42 para. 113:

"(a) where an individual has an arguable claim to be

the victim of a violation of the rights set forth in the

Convention, he should have a remedy before a national

authority in order both to have his claim decided and, if

appropriate, to obtain redress (see the ... Klass and Others

judgment, Series A no. 28, p. 29 para .64);

(b) the authority referred to in Article 13 (Art. 13) may not

necessarily be a judicial authority but, if it is not, its

powers and the guarantees which it affords are relevant

in determining whether the remedy before it is effective

(ibid., p. 30 para. 67);

(c) although no single remedy may itself entirely satisfy

the requirements of Article 13 (Art. 13), the aggregate of remedies

provided for under domestic law may do so (see, mutatis

mutandis, the X. v. the United Kingdom judgment, Series A

no. 46, p. 26 para. 60, and the Van Droogenbroeck judgment

of 24 June 1982, Series A no. 50, p. 32 para. 56);

(d) neither Article 13 (Art. 13) nor the Convention in general lays

down for the Contracting States any given manner for

ensuring within their internal law the effective

implementation of any of the provisions of the Convention -

for example, by incorporating the Convention into domestic

law (see the Swedish Engine Drivers' Union judgment of

6 February 1976, Series A no. 20, p. 18 para. 50).

It follows from the last-mentioned principle that the

application of Article 13 (Art. 13) in a given case will depend upon

the manner in which the Contracting State concerned has

chosen to discharge its obligation under Article 1 (Art. 1) directly

to secure to anyone within its jurisdiction the rights and

freedoms set out in section I (see ... Ireland v. the United

Kingdom judgment, Series A no. 25, p. 91 para. 239)."

90. It follows from the above that the right to an effective

remedy under Article 13 (Art. 13) does not depend on the existence of a breach

of another right or freedom in the Convention (cf. Silver and Others

Comm. Report 11.10.80, paras. 445-451).

91. However for Article 13 (Art. 13) to apply the claim that a provision of

the Convention has been breached must be an arguable one (cf. Klass judgment,

as referred to in para. 89 above). The criteria as to when there is an

arguable claim have been developed by the Commission in the case of James and

Sarah Boyle, X and Y v. the United Kingdom (Comm. Report 7.5.86, para. 74).

Such a claim should have the following elements:

- it should concern a right or freedom guaranteed by the

Convention;

- it should not be wholly unsubstantiated on the facts;

- it should give rise to a prima facie issue under

the Convention.

92. In the present case the applicant association invokes its

right to an effective remedy under Article 13 (Art. 13) as regards alleged

breaches of Article 11 (Art. 11) of the Convention resulting from insufficient

protection of certain demonstrations. The applicability of Article 13

(Art. 13) depends on whether this claim was arguable under Article 11 (Art. 11).

93. In this respect, the Commission recalls its decision on

admissibility of 17 October 1985 (Appendix II). There the Commission

held that the right to freedom of peaceful assembly within the meaning

of Article 11 para. 1 (Art. 11-1) of the Convention includes the right to

protection against counter-demonstrators, and that a claim of

insufficient protection does not as such fall outside the scope of

this provision. It further follows from the terms of this decision

that the association's claim of insufficient protection of its

demonstrations was at least arguable in the particular circumstances

of the case, although it was in the last analysis unfounded.

94. In this respect the present case can be distinguished from

application No. 10746/84, Verein Alternatives Lokalradio Bern and

Verein Radio Dreyeckland Basel v. Switzerland (dec. 16.10.86, to be

published in D.R.), where the Commission found that the applicants' complaint

under Article 13 (Art. 13) was manifestly ill-founded because they had not been

able to show that they could reasonably claim to be victims of a violation of

other Convention rights invoked by them. This finding was based on the

particular nature of the right invoked in that case (Article 10 (Art. 10) of

the Convention), which in the area of the grant of radio licences is restricted

by the terms of the Convention, Article 10 para. 1 (Art. 10-1) in fine stating

that the discretion shall be left to the national authorities. No such

restriction is inherent in the right invoked by the applicant association in

the present case, i.e. the right to the freedom of peaceful assembly under

Article 11 (Art. 11) of the Convention.

95. It follows that Article 13 (Art. 13) applies and that the applicant

association was thus entitled to an "effective remedy before a

national authority" in relation to its above claim under Article 11 (Art. 11).

C. Scope of the remedy required by Article 13 (Art. 13)

96. As regards the further question whether there was in fact an

effective remedy, the Government observe that, in reaching the

conclusion as to the inadmissibility of the applicant association's

complaint under Article 11 (Art. 11), the Commission expressly recognised that

the machinery provided by Austrian law for the protection of

demonstrations, as applied in the present case, met the requirements

of Article 11 (Art. 11). In the Government's view this confirmed that the

aggregate of remedies provided by Austrian law for the protection

of demonstrations was sufficient to achieve the relevant aims of the

Convention. For this reason it was not necessary to grant the

applicant association a specific remedy by which it could obtain a

review of the allegedly insufficient protection of its demonstrations.

This would extend the idea of legal protection too far. The Government

rely on the Klass and Others judgment of 6 September 1978 (Eur. Court

H.R., Series A no. 28, para. 70) which recognised that a limited scope

of remedies may be sufficient for the purposes of Article 13 (Art. 13) in

certain circumstances.

97. However, the operation of Article 13 (Art. 13) is not superfluous in a

case where the requirements of Article 11 (Art. 11) or of another substantive

article of the Convention have actually been met. Article 13 (Art. 13) adds a

guarantee to the obligation to comply with the substantive provisions

of the Convention: the right to obtain control of such compliance

at the domestic level, and not only before the Convention

organs which, in principle, have merely a subsidiary function to review

the domestic decisions on the matter (cf. the above-mentioned case of

James and Sarah Boyle, X and Y v. the United Kingdom, Comm. Report

7.5.86, para. 73).

98. The Commission considers that only a remedy open to the

applicant association itself could fulfil the requirements of

Article 13 (Art. 13). A remedy against private persons who disturbed the

assembly in question is not sufficient: Their acts do not constitute

interferences with Article 11 (Art. 11) which could form the basis of an

application to the Commission. Article 13 (Art. 13) requires a possibility

effectively to complain of the authorities' failure to protect the

exercise of freedom of assembly against such acts, because to provide

this protection is part of the State's responsibility under Article 11

(Art. 11) (cf. Decision on the Admissibility, Appendix II, para. 6 of The Law).

99. The exception stated in the Klass case that remedies of a

limited scope may be sufficient in certain circumstances does not

apply here. That case concerned secret surveillance measures which by

their nature had to remain confidential and could not be brought to

the notice of the persons concerned, who therefore could not be granted

an immediate and full remedy in respect of those measures. A similar

situation where access to a remedy would thwart the very objective of

a measure interfering with a Convention right, does not exist in the

present case.

D. Effectiveness of the remedies available in the present case

100. The Commission will examine in turn the following remedies:

a) constitutional complaint

b) hierarchical appeal

c) official liability action

d) criminal proceedings

e) administrative criminal proceedings.

a) Constitutional complaint (Verfassungsbeschwerde)

101. This remedy was used by the applicant association in relation

to its first demonstration at Stadl-Paura. The Constitutional Court

declined its jurisdiction on the basis of the terms of Article 144 of

the Federal Constitution. Under this provision, a constitutional

complaint can be lodged only against administrative decisions or acts

of direct administrative coercion (cf. paras. 42-43 above). In the

Constitutional Court's view, the inactivity of the authorities impugned

in the present case did not fall within either category of

challengeable acts (cf. para. 32 above).

102. In the light of this decision the applicant association

considers it obvious that a constitutional complaint is not an

effective remedy in a case like the present one. The Government

observe, however, that the question of sufficient protection of a

demonstration is not as such outside the jurisdiction of the

Constitutional Court. In their submission the applicant association

could have obtained a review of this question if it had provoked a

challengeable act of administration. The Constitutional Court in fact

carried out a very careful examination of the facts in order to

ascertain whether they involved such an act.

103. It is not clear, however, how the applicant association could

have provoked a challengeable act of administration recognised as such

by the Constitutional Court. As regards the argument that it could

have requested specific measures of protection whose refusal would

have constituted an administrative decision, it is to be noted that the

association did in fact raise certain specific requests (protection

against disturbance by noise or throwing of objects) which were

implicitly rejected by the authority before the demonstration started.

And yet the Constitutional Court did not regard the limitation of the

scope of protection as a challengeable administrative decision.

104. It is true that the applicant association did not make

specific requests for better protection when the demonstration was

already going on. However, the Commission considers that it is not

for the organiser of a demonstration to indicate to the authority the

details of the protection to be afforded. At this stage the authority

will often have to take quick and informal decisions according to the

development of the situation at each moment. In the present case, too,

the relevant measures were taken on the basis of internal decisions of

the authority which as such were not subject to review by the

Constitutional Court. It has not been shown that the applicant

association could have provoked any formal decisions in this regard.

105. It follows that a constitutional complaint was not an

effective remedy reasonably accessible to the applicant association.

b) Hierarchical appeal (Dienstaufsichtsbeschwerde)

106. The applicant association filed a hierarchical appeal in

relation to its first demonstration at Stadl-Paura. The supervisory

police authority, i.e. the Upper Austrian Regional Directorate for

Public Security, examined the measures taken by the local police and

found them unobjectionable. Accordingly, it saw no reason to take any

disciplinary or other measures (cf. para. 27 above).

107. The hierarchical appeal led to an examination by the competent

supervisory authority of the substantive issue relevant under Article

11 (Art. 11) of the Convention as to whether or not the protection afforded to

the applicant association's demonstrations was sufficient in the

circumstances. However, according to the constant case law of the

Austrian Courts, the hierarchical appeal does not give the person

making it a personal right to the exercise by the State of its

supervisory powers. The hierarchical appeal in fact is no more than

information submitted to the supervisory organ with the suggestion to

make use of its powers if it sees fit to do so. These powers can be

exercised in exactly the same way without the initiative coming from a

hierarchical appeal. If proceedings are taken, they take place

exclusively between the supervisory organ and the official concerned,

and the applicant will not be a party. Consequently, he will not

receive a decision regarding his hierarchical appeal. He receives

information telling him in which way the supervisory organ has dealt

with his hierarchical appeal. This is current practice, but it

appears that there is not even a legal obligation to give him such

information. Normally, the effect of any action taken will not be of

any direct and immediate consequence for the proceedings which have

given rise to the hierarchical appeal (cf. Application No. 7464/76,

Karrer, Fuchs and Kodrnja v. Austria, Dec. 5.12.78, D.R. 14 p. 51).

108. For these reasons, the Commission does not consider that the

hierarchical appeal referred to by the Government was an effective

remedy within the meaning of Article 13 (Art. 13) of the Convention in the

circumstances of the present case.

c) Official liability action (Amtshaftung)

109. The Government have relied on the possibility to file an

official liability action. It is true that, if admitted, such an

action might in fact lead to a comprehensive review of the question

whether or not the authority has fulfilled its legal duties concerning

the protection of a demonstration. However, only compensation for

material damage can be claimed (cf. para. 52 above). As the applicant

association itself did not suffer any such damage, this remedy was not

open to it.

110. In the Commission's opinion it is not sufficient that such an

action might have been open to individual persons who suffered damage

when they participated in the applicant association's demonstration.

These persons' rights as participants in the demonstration are not

identical to those of the applicant association as the organiser, and

Article 13 (Art. 13) of the Convention clearly gives the right to an effective

national remedy to "everybody whose rights and freedoms as set forth

in [the] Convention are violated".

111. The Commission therefore considers that an official liability

action was not an effective remedy in respect of the applicant

association's complaints.

d) Institution of criminal proceedings (Strafverfahren)

112. The Government place particular emphasis on the protection of

demonstrations by criminal law. They claim that the applicant

association could have requested the institution of criminal

proceedings both against private individuals and against the

responsible officials. The applicant association contests this,

referring on the one hand to the limited scope of the criminal

offences in question and on the other to the limited scope of the

rights of the injured party under the Code of Criminal Procedure.

113. In the present case the applicant association's complaints

under Article 11 (Art. 11) of the Convention were not limited to allegations

that the authorities had failed to prosecute criminal offences

committed at the demonstrations. It was alleged on a broader basis

that the authorities had failed to provide sufficient protection for

the demonstrations concerned. The question arises whether criminal

proceedings against the responsible officials would have provided the

applicant association with an effective remedy in this respect.

114. The Commission notes that it is, in principle, possible to

institute criminal proceedings against officials who allegedly failed

to prevent criminal offences of individuals, or who could otherwise be

said to have abused their official powers concerning the protection of

a demonstration (cf. para. 57 above). However, it must be assumed that

in many cases the conduct of the responsible officials will not attain

the level of criminal behaviour. Indeed, it has not been alleged in

the present case by the applicant association that the authorities'

conduct was of a criminal nature.

115. Even insofar as the criminal law might have been applicable,

the applicant association could not itself have instituted

proceedings. Its only possibility would have been to report criminal

offences which the prosecuting authorities would then have been

obliged to investigate. However, this would not have implied any

right for the applicant association to obtain the actual institution

of proceedings (cf. paras. 58-60 above). The further possibility to

bring a subsidiary private prosecution under Section 48 of the Code of

Criminal Procedure was not open to the applicant association in the

circumstances of the case as it uncontestedly had not suffered any

material damage (cf. paras. 62-63 above).

116. The Government object that material damage was in fact caused

to certain persons who had participated in the association's

demonstration, e.g. by the throwing of objects which spoiled their

clothing. However, it appears that this circumstance would have

created a possibility to bring a "subsidiary private prosecution" only

for the persons concerned. It has not been shown that the legal

position of the association itself regarding this procedural

possibility would have been affected in any way. Even if a

"subsidiary private prosecution" had been admitted on this basis, it

is hardly conceivable that the relevant proceedings would have

extended beyond the particular incident and would have covered the

totality of the applicant association's grievances concerning the

alleged failure to provide sufficient protection for its

demonstration.

117. It follows that, apart from its limited scope, the criminal

law did not afford an effective remedy to the applicant association

by which it could obtain review of the question of the allegedly

insufficient protection of its demonstrations.

e) Administrative penal proceedings (Verwaltungsstrafverfahren)

118. Such proceedings were actually taken against one person

following the applicant association's demonstration at Stadl-Paura.

The person concerned was fined under Article IX of the Administrative

Proceedings (Introduction) Act for a breach of the peace. This action

was taken ex officio (cf. para. 29 above).

119. It is true that certain disturbances of the demonstrations

alleged by the applicant association might have constituted

administrative offences as defined by Austrian law (cf. paras. 66-67

above) and that the association could have reported these offences to

the competent authority under Section 40 of the Code of Administrative

Offences (cf. para. 69 above). However, no more than in criminal

proceedings was there an enforceable right to have the proceedings

actually instituted. In particular, there was no possibility of

ensuring proceedings by way of a "subsidiary private prosecution"

(cf. para. 70 above).

120. It follows that administrative penal law did not provide an

effective remedy to the applicant association.

E. Conclusion

134. The Commission concludes, by a unanimous vote, that in the

present case there has been a violation of Article 13 (Art. 13) of the

Convention in that the applicant association did not have any

effective remedy before a national authority as regards the allegedly

insufficient protection of its freedom of assembly.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

&_APPENDIX I&S

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

13 September 1982 Introduction of the application

20 September 1982 Registration of the application

Examination of Admissibility

14 May 1984 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

30 July 1984 Government's observations

11 October 1984 Applicant association's observations

in reply

7 May 1985 Commission's deliberations and

decision to hold an oral hearing

17 October 1985 Oral hearing on admissibility and

merits, Commission's deliberations

and decision to declare the

application in part admissible and

in part inadmissible

7 March 1986 Commission approves text of decision

on admissibility

Examination of the merits

20 March 1986 Decision on admissibility transmitted

to the parties

2 May 1986 Government's observations on the merits

5 May 1986 Applicant association's observations

on the merits

14 July 1986 ) Commission's consideration of the

) state of proceedings

10 December 1986 )

5 and 12 March 1987 Commission's deliberations on the

merits, final vote and adoption of

the Report

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PLATTFORM: "ÄRZTE FÜR DAS LEBEN" v. AUSTRIA

PLATTFORM: "ÄRZTE FÜR DAS LEBEN" v. AUSTRIA