AS TO THE ADMISSIBILITY OF

                      Application No. 18116/91

                      by Gudrun HAUER and Alfred GUGGENHEIM

                      against Austria

      The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993, the following members being present:

           MM.   A. WEITZEL, President

                 C.L. ROZAKIS

                 F. ERMACORA

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

           Mrs.  J. LIDDY

           MM.   M.P. PELLONPÄÄ

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 4 April 1991 by

Gudrun HAUER and Alfred GUGGENHEIM against Austria and registered on

24 April 1991 under file No. 18116/91;

      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 facts of the case, as they have been submitted by the

parties, may be summarised as follows:

      The first applicant, born in 1953, is an Austrian national and

resident in Vienna.  She is a journalist by profession.  The second

applicant, born in 1926, is also an Austrian national and resident in

Vienna.  He is a businessman by profession.  Before the Commission they

are represented by MM. T. Prader and W. Goeritz, lawyers practising in

Vienna.

A.    The particular circumstances of the case

      In the evening of 24 November 1988 a memorial against war and

fascism was unveiled in the course of a celebration at the

Albertinaplatz in Vienna.  Some thousand persons participated in the

event, amongst them the applicants, members of an association

furthering the interests of homosexuals.  The applicants unrolled a

banner with the inscription "Thousands of homosexual victims of

concentration camps wait for their rehabilitation" ("1000e homosexuelle

KZ-Opfer warten auf ihre Rehabilitierung"). Subsequently, at about

19.20 hrs., two police officers requested the applicants to remove the

banner.  Two other members of the association accompanied them in order

to ask a superior police officer about the reasons for this request.

At about 19.30 hrs., a group of twenty to thirty police officers rushed

towards the banner, tore the staff away on the first applicant's side,

the staff on the second applicant's side having been twisted.  The

banner was taken away by the authorities.

      On 4 January 1989 the applicants lodged a complaint with the

Constitutional Court claiming that they had been violated in their

right to freedom of expression.

      On 8 March 1989 the Attorney General's Department, in their

observations upon the applicants' complaint, submitted that prior to

the unveiling of the memorial an illegal demonstration had commenced

and had to be dissolved.  At the celebration members of the association

furthering a homosexual initiative had unrolled two banners with the

above-mentioned inscription on one of them and on the other the

inscription "Der Führer ging, die Arisierer blieben" ("The 'Führer'

left, the 'Aryanisers' stayed").  They also unrolled a red and black

flag.  Participants of the illegal demonstration joined them.  This

manifestation had not been announced in writing.  At 19.09 hrs. police

officers requested the applicants to remove the banners.  The persons

participating in the demonstration refused and resisted the police

officers, hit and kicked them.  Two groups of police officers were then

ordered to remove the banners.  One of the banners was removed; it was

damaged.  Some of the participants in the demonstration were arrested.

The Department considered that the applicants had expressed their

opinion in the course of a demonstration which they had not duly

announced in accordance with the Assembly Act (Versammlungsgesetz).

This demonstration could therefore have been dissolved under S. 13

para. 1 of the Assembly Act.  As a less stringent measure, the

competent authority decided to remove the banners concerned, which

characterised its carriers as a particular demonstration.  Such a

restriction was necessary in a democratic society within the meaning

of Article 10 of the Convention.

      On 12 October 1990 the Austrian Constitutional Court

(Verfassungsgerichtshof) dismissed the applicants' complaint under

S. 144 of the Federal Constitution (Bundes-Verfassungsgesetz).  The

Constitutional Court found that the action taken by police officers of

the Vienna Federal Police Department (Bundespolizeidirektion) on

24 November 1988 at about 19.30 hrs., namely to take away a banner held

up by the applicants, had not violated their constitutional rights.

The Constitutional Court transferred the complaint to the Austrian

Administrative Court (Verwaltungsgerichtshof) for a decision whether

the measure complained of had violated any other of their rights.

      The Constitutional Court, having heard the applicants and several

witnesses and consulted the police files, established the relevant

facts as follows:  On 24 November 1988 the Vienna Municipality had

organised a ceremony to unveil a memorial against war and fascism at

the "Albertinaplatz".  Shortly before, police authorities had dissolved

an unlawful assembly at the opera, whose participants had obviously

intended to join the ceremony.  Some thousand persons participated in

this ceremony.  The applicants and other members of the association

furthering the interests of homosexuals displayed a 4 m. long banner

stating that thousands of homosexual victims of concentration camps

demanded their rehabilitation.  Another group, apparently participants

of the previously dissolved assembly, displayed a banner stating that

the 'Führer' left, but the 'Aryanisers' stayed.  The police authorities

could reasonably assume a connection between both groups.  Although two

police officers had requested the applicants to take the banner down,

they had continued to show it and thus caused agitation.  After they

had disregarded a further request, police officers took the banner

away.  The Constitutional Court considered that, so far as the

statements of the persons heard were divergent, namely on the question

whether or not the banner had caused agitation, those witnesses denying

it were untrustworthy as the action as such was obviously intended to

draw public attention to the aims of the group of homosexuals.

      The Constitutional Court considered that the removal of the

banner constituted an act of direct administrative authority and

coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und

Zwangsgewalt) within the meaning of S. 144 para. 2, second sentence,

of the Constitution, which interfered with the applicants' right to

freedom of expression, as guaranteed by the Austrian Basic Law

(Staatsgrundgesetz) and Article 10 of the Convention.

      According to the Constitutional Court, the interference would

have been unconstitutional if the administrative act had been taken

without any legal basis, or on a legal basis which was at variance with

Article 10 of the Convention, or if the competent authority had applied

a legal basis, which was unobjectionable under the Constitution, in an

inconceivable manner.

      The Constitutional Court rejected the applicants' argument that

the removal of their banner had no legal basis at all.

      The Constitutional Court found that Article 11 of the Convention

obliged the State authorities to protect lawful assemblies (with

reference to Eur. Court H.R., Plattform 'Ärzte für das Leben' judgment

of 21 June 1988, Series A no. 139).  Having regard to this

constitutional duty, S. IX para. 1 (1) of the Administrative

Proceedings (Introduction) Act (Einführungsgesetz zu den Verwaltungs-

verfahrensgesetzen) had to be interpreted in such a way as to qualify

any conduct running counter to the exercise of freedom of assembly as

a disturbance of public order.  Although this provision, according to

its wording, belonged to administrative criminal law, it had to be

interpreted in conformity with constitutional law to the effect that

it entitled and obliged the police authorities to oppose any

disturbances of public order in the course of an assembly.  Such police

measures were, however, limited to the extent that, in the

circumstances of the particular case, the measure in question had to

be appropriate and proportionate in order to ensure the undisturbed

course of the assembly.

      In the present case, the applicants had attempted to demonstrate

their interests and claims at a particularly solemn ceremony to unveil

a memorial against war and fascism.  The police officers could

reasonably assume that the applicant's conduct did amount to a

disturbance of the ceremony, and that the other participants

surrounding them had only restrained their annoyance in order not to

disturb the ceremony further.  Noting that the applicants had refused

to take the banner down, the Constitutional Court found that its

removal was the appropriate and proportionate means in order to

terminate the disturbing action.

      According to the Constitutional Court, the applicants' banner had

thus been removed pursuant to the duty of the authorities under

Article 11 of the Convention to protect lawful assemblies and in a

conceivable application of S. IX para. 1 (1) of the Administrative

Proceedings (Introduction) Act.  Consequently the applicants' right to

freedom of expression had not been violated.

      The question whether the authorities had acted lawfully

(rechtsrichtig) was not to be decided by the Constitutional Court, but

by the Austrian Administrative Court (Verwaltungsgerichtshof).

      The decision was served on 20 November 1990.

      On 26 November 1990 the Administrative Court requested the

applicants to complete their complaint and indicate the legal

provisions which had allegedly been violated.

      On 16 January 1991 the Administrative Court discontinued the

complaint proceedings on the ground that the applicants had not

complied with its request of 26 November 1990.

B.    Relevant domestic law

      The Assembly Act 1953 (Versammlungsgesetz) regulates the exercise

of the right of assembly.

      S. 2 para. 1 provides that 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 planned meeting is to be held.

      According to S. 13 para. 1 any meeting organised in contravention

of the Act shall be prohibited and, if necessary, terminated by the

authorities.

      S. IX para. 1 (1) of the Administrative Proceedings

(Introduction) Act (Einführungsgesetz zu den Verwaltungsverfahrens-

gesetzen) provides that the 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 3000 or, in aggravating circumstances,

by imprisonment of up to two weeks.  As from 1 May 1993

S. IX para. 1 (1) has been replaced by S. 81 of the Security Police Act

(Sicherheitspolizeigesetz).

      The competence of the Constitutional Court to receive complaints

about the violation of constitutionally guaranteed rights is laid down

in S. 144 para. 1 of the Federal Constitution (Bundesverfassungs-

gesetz), and relates to complaints against formal decisions of

administrative authorities or complaints concerning the exercise of

direct administrative authority and coercion against a particular

individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und

Zwangsgewalt gegen eine bestimmte Person).

      Under S. 130 of the Federal Constitution, the Administrative

Court determines applications alleging the unlawfulness of an

administrative decision (Bescheid) or authority and coercion (Befehls-

und Zwangsgewalt) against a particular individual or the breach by a

competent authority of its duty to take a decision.

COMPLAINTS

      The applicants complain under Article 10 of the Convention that

the Austrian police authorities violated their right to freedom of

expression in that they removed their banner.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 4 April 1991 and registered on

24 April 1991.

      On 2 December 1991 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

      On 18 May 1992, after an extension of the time-limit, the

Government submitted their observations.  The observations in reply by

the applicant were submitted on 20 July 1992.

THE LAW

1.    The applicants complains that the removal of their banner by

Austrian police authorities on 24 November 1988 amounted to a violation

of their right to freedom of expression.  They rely on Article 10

(Art. 10) of the Convention, which provides, so far as relevant, as

follows:

      "1. Everyone has the right to freedom of expression.  This right

      shall include freedom to hold opinions and to receive and impart

      information and ideas without interference by public authority

      ...

      2. The exercise of these freedoms, since it carries with it

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

      and are necessary in a democratic society, ... for the prevention

      of disorder or crime, ... for the protection of ... the rights

      of others, ..."

2.    The Government maintain that the applicants failed, as required

by Article 26 (Art. 26) of the Convention, to exhaust the domestic

remedies at their disposal under Austrian law.  They submit in

particular that the applicants did not pursue their complaint

proceedings before the Austrian Administrative Court.  The

Administrative Court could have determined whether the removal of the

banner had been carried out in a lawful manner.  The Constitutional

Court only had decided that the removal of the banner could conceivably

be based on S. IX para. 1 (1) of the Administrative Proceedings

(Introduction) Act.  They refer, in this respect, to the Commission's

decision on the admissibility of Application No. 13308/87 of 1 March

1991 (not published).

      Pursuant to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law.

      The Commission observes that the basis of the rule of exhaustion

of domestic remedies under Article 26 (Art. 26) of the Convention is

that, before proceedings are brought in an international court, the

respondent State must have had an opportunity to redress the alleged

damage by domestic means within the framework of its own legal system

(cf. No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).

      The Commission recalls that, in its decision on the admissibility

of Application No. 13308/87 of 1 March 1991, it held that domestic

remedies were not exhausted on the ground that the complaint concerned

had neither been put to the Constitutional Court nor to the

Administrative Court.

      The Commission considers that, in accordance with S. 144 para. 1

of the Federal Constitution, the Constitutional Court was competent to

determine the question whether the removal of the applicants' banner

violated their right to freedom of expression.  The Constitutional

Court, having taken evidence and established the relevant facts,

examined in detail whether the removal interfered with the applicants'

right to freedom of expression, as guaranteed by the Austrian Basic Law

and the Convention, whether this interference had a basis in Austrian

law and was an appropriate and proportionate means in order to

terminate the disturbance of public order.  The Constitutional Court

finally concluded that the applicants' constitutional rights, in

particular their right to freedom of expression, had not been violated.

It transferred the complaint to the Austrian Administrative Court only

as regards the question whether any other rights had been breached.

      In these circumstances, the Commission finds that the complaint

proceedings instituted by the applicants before the Austrian

Constitutional Court constituted an effective and sufficient remedy

with regard to their complaint under Article 10 (Art. 10) of the

Convention which they now raise before the Commission.  The condition

under Article 26 (Art. 26) of the Convention that domestic remedies

must be exhausted has, therefore, been met.

3.    The Government agree that there has been an interference with the

applicants' right under Article 10 para. 1 (Art. 10-1) of the

Convention.  They consider that this interference was justified under

Article 10 para. 2 (art. 10-2).  The Government, relying on the

decision of the Constitutional Court and its interpretation of S. IX

para. 1 (1) of the Administrative Proceedings (Introduction) Act,

submit in particular that the action taken by the police authorities

to protect the ceremony to unveil the memorial against war and fascism

was prescribed by Austrian law.  They further contend that the removal

of the banner was a proportionate measure to protect the ceremony and

prevent disorder.

      As regards the lawfulness of the interference, the applicants

submit that, in the proceedings before the Constitutional Court, the

Attorney General's Department argued that the police authorities had

acted with the intention to disband an unlawful assembly.  However,

they did not hold an assembly.  S. IX para. 1 (1) of the Administrative

Proceedings (Introduction) Act belonged to the sphere of administrative

criminal law and did not entitle police authorities to prevent

disturbances of assemblies.  Furthermore, there was no indication that

such a disturbance had in fact already occurred.  The applicants also

argue that the forcible removal of their banner was not necessary in

a democratic society.

      The Commission finds that there has been an interference with the

applicants' right under Article 10 para. 1 (Art. 10-1), which is not

in dispute between the parties.  Such interference is in breach of

Article 10 (Art. 10) unless it was "prescribed by law", pursued one or

more of the legitimate aims set out in paragraph 2 and was "necessary

in a democratic society" to attain them.

      As regards the question of whether the interference was

"prescribed by law", the Commission recalls that the interference with

the right protected by Article 10 para. 1 (Art. 10-1) must have some

basis in domestic law, which itself must be accessible to the person

concerned and be formulated with sufficient precision to enable the

individual to foresee its consequences for him (Eur. Court H.R.,

Barthold judgment of 25 March 1985, Series A no. 90, p. 21, para. 45;

Müller and Others judgment of 24 May 1988, Series A no. 133, p. 20,

para. 29; mutatis mutandis, Kruslin judgment of 24 April 1990, Series

A no. 176-A, p. 20, para. 27; Huvig judgment of 24 April 1990, Series

A no. 176-B, p. 52, para. 26; Chorherr judgment of 25 August 1993,

para. 26, to be published in Series A no. 266-B).

      The Commission observes that the provisions of the Assembly Act,

relied upon by the administrative authorities, have not been considered

a sufficient legal basis either by the Constitutional Court or by the

respondent Government.  The Commission notes that the Constitutional

Court, in its judgment of 12 October 1990, relied on S. IX para. 1 (1)

of the Administrative Proceedings (Introduction) Act, and referred to

the reasoning of the European Court of Human Rights in its Plattform

"Ärzte für das Leben" judgment, according to which public authorities

are obliged to take positive action and protect an assembly (Eur. Court

H.R., Plattform "Ärzte für das Leben" judgment of 21 June 1988, Series

A no. 139).  The Constitutional Court drew the conclusion that S. IX

para. 1 (1) of the Administrative Proceedings (Introduction) Act had

to be interpreted so as to provide a legal basis for the action taken

in the present case.

      The Commission considers that, in the light of the Constitutional

Court's reasoning, this provision can be regarded as a legal basis for

the interference in question.  As regards the question of legal

certainty, the Commission finds that the wording of the provision in

question was such as to enable the applicants to foresee to a

reasonable extent the risk of a police reaction to their conduct (cf.

Eur. Court H.R., Chorherr judgment, loc. cit., para. 26).

      As regards the purpose of the interference, the Commission notes

the reasoning of the Constitutional Court according to which the

removal of the banner aimed at protecting a particular ceremony and

thus the rights of those participating therein.  The Commission finds

that the interference also aimed at the prevention of disorder in

general.  The interference thus pursued legitimate aims within the

meaning of Article 10 para. 2 (Art. 10-2).

      Finally, on the necessity question, the Commission recalls that

the adjective "necessary" within the meaning of Article 10 para. 2

(Art. 10-2) implies the existence of a "pressing social need".  The

Contracting States enjoy a certain margin of appreciation in

determining whether such a need exists, but this goes hand in hand with

a European supervision, the extent of which depends upon the

circumstances.  The review under the Convention is confined to the

question whether the measures taken on the national level are, in the

light of the case as a whole, justifiable in principle and

proportionate  (cf. Eur. Court H.R., Markt Intern Verlag GmbH and Klaus

Beermann judgment, loc. cit., pp. 19-20, para. 33; Sunday Times (No. 2)

judgment of 26 November 1991, Series A no. 217, pp. 28-29, para. 50;

Chorherr judgment, loc. cit., para. 32).

      The Commission, having regard to the facts as presented by the

applicants and established by the Constitutional Court, notes that the

applicants showed their banner on the occasion of a ceremony with a

solemn character.

      The Commission, balancing the applicants' interest in exercising

their right to freedom of expression and the public interest in

protecting the undisturbed performance of the ceremony in question,

finds that the removal of the applicants' banner, as a precautionary

measure in the circumstances of the present case, did not overstep the

margin of appreciation left to the national authorities.  The

interference can, therefore, be regarded as "necessary in a democratic

society" for the prevention of disorder and the protection of the

rights of others.  In particular, there was a reasonable relationship

of proportionality between the means employed and the legitimate aims

pursued.

      It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

      (M.F. Buquicchio)                       (A. Weitzel)