Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13812/88

by S.

against Austria

The European Commission of Human Rights sitting in private

on 3 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 February 1988

by S. against Austria and registered on 29 April 1988 under file

No. 13812/88;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who is represented by Rechtsanwalt Dr. Thomas

Prader of Vienna, is an Austrian citizen born in 1964 who resides in

Vienna. He complains of the prohibition of a demonstration which he

wished to organise on 4 May 1985.

The relevant facts may be summarised as follows:

Following the arrest of several persons who had sprayed

political slogans on walls, a series of demonstrations took place in

Vienna in March and April 1985 by sympathisers of the arrested

persons. In front of criminal courts and around a prison where the

above persons were detained the demonstrators shouted slogans and made

noise, using megaphones, whistles, rattles and saucepanlids. Two of

the demonstrations (on 16 March and on 27 April 1985) were dissolved

by the police.

On 2 May 1985 the applicant notified the Vienna Directorate of

the Federal Police (Bundespolizeidirektion) of his intention to

organise a further demonstration on 4 May 1985 between 12 and 23 p.m.

He announced that the demonstrators would use inter alia music and

rhythmical instruments, and that there would be no noice after 22

p.m. The subject of the demonstration was to be "repression in

Austria".

On 3 May 1985 the Directorate of the Federal Police

prohibited the demonstration under Section 6 of the Assembly Act

(Versammlungsgesetz 1953) on the ground that it would endanger public

security (öffentliche Sicherheit) and public order (öffentliches

Wohl). It ordered that any remedies against this decision should not

have suspensive effect. The demonstration accordingly could not take

place.

In the reasons the Directorate of the Federal Police referred

to the previous demonstrations, concluding therefrom that the main

purpose of the proposed demonstration would be to make noise and to

provoke the police and population by the shouting of injurious and

seditious slogans as on 27 April, leading to complaints by the

population. The deliberate making of noise could not be accepted as a

legitimate manifestation.

The applicant's appeal against this decision was rejected by

the Vienna Directorate of Public Security (Sicherheitsdirektion) on

9 September 1985. It stated that, while any demonstration in public

streets might disturb the population, there were limits to the degree

of disturbance that could be tolerated. A balance had to be struck

with the interests of the public. While the shouting of slogans was as

such legitimate (although in the present case their content violated

the public interest, because even if they were not meant seriously and

did not constitute criminal offences, they were generally directed

against the State and its institutions), it was not legitimate to make

excessive noise during 10 hours.

The applicant appealed further to the Federal Ministry of the

Interior (Bundesministerium für Inneres - Generaldirektion für die

öffentliche Sicherheit) which, however, did not take a decision within

the statutory time limit of six months. The applicant therefore

complained to the Administrative Court (Verwaltungsgerichtshof) of the

inactivity of the Ministry (Säumnisbeschwerde). On 10 February 1988

the Administrative Court declined jurisdiction, finding that any

interference with freedom of assembly concerned a constitutional right

and therefore could only be challenged before the Constitutional Court

(Verfassungsgerichtshof). This rule was of general application and

also extended to alleged procedural defects, including an alleged

failure by the authority to decide within the statutory time limit.

On 1 April 1988 the Ministry finally took its decision,

rejecting the applicant's appeal while amending the original decision

to the effect that the demonstration was prohibited only on the ground

that it endangered public order.

The Ministry observed that freedom of assembly was in

principle guaranteed by Article 12 of the Basic Law on the General

Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der

Staatsbürger, 1867) and by Article 11 of the Convention. However,

under both provisions its exercise could be subjected to legal

restrictions. Section 6 of the Assembly Act provided for the

prohibition of assemblies whose purpose was contrary to criminal law

or which endangered public security or public order. The prohibition

of the present demonstration under this provision was justified. While

the aims pursued by the demonstration were as such legitimate, it was

not legitimate to exercise the right of freedom of assembly in a

manner which led to excessive interference with the interests of other

persons. Objectively, the deliberate making of noise constituted an

administrative offence under Article IX para. 1 sub-para 1 of the

Introductory Act to the Laws on Administrative Procedure (Einführungs-

gesetz zu den Verwaltungsverfahrensgesetzen), and this went beyond the

limits of the admissible exercise of freedom of assembly as

circumscribed by the criminal law, including the administrative penal

law. This restriction was covered by Article 11 para. 2 of the

Convention as a measure for the prevention of disorder and for the

protection of the rights of others. However, the expected shouting of

certain slogans did not constitute a criminal offence within the

jurisdiction of the courts, and therefore it was not justified to

assume a danger to public security.

The Ministry also rejected the applicant's procedural

complaints, finding that it had not been required to take evidence on

the question whether the applicant expected the demonstration to be a

peaceful one, and on the further question whether individual persons

had complained of the noise caused by the earlier demonstrations. The

noice had been clearly observed by the authorities.

The applicant's constitutional complaint against this decision

was rejected by the Constitutional Court on 1 October 1988. It

considered that the Directorate of the Federal Police could reasonably

expect in the circumstances that as at previous demonstrations excessive

noise would be made. It was irrelevant in this context whether

individual persons had complained of noise and how long that noise had

lasted. The prohibition, as finally upheld by the Ministry, was

exclusively based on the expectation of excessive noise, and according

to Article 11 para. 2 of the Convention the authorities had been

required to consider whether such noise was to be tolerated by the

public. This would have been the case if the noise had not infringed

Article IX of the Introductory Act to the Laws on Administrative

Procedure. However, in the present case the making of noise had been

an aim in itself. The applicant had admitted that the demonstrators

thereby wished to establish a contact and communicate with a person

detained in the prison in a manner that she could hear it. However,

the legitimate purpose of an assembly could only be discussion of

opinions between the participants or the conveyance of such opinions

to others. The use of noise in a form which could be described as

"acoustic terror" was not an appropriate means to convey to the

population the intended criticism of courts and authorities. The

prohibition of the demonstration to protect public order had

therefore been based on a correct weighing of the various interests

involved.

As regards the applicant's procedural complaints the

Constitutional Court considered the length of the appeal proceedings

irrelevant for the constitutionality of the impugned decision and the

alleged refusal of access to the file disproven. The applicant had

been granted access by the Ministry at least to all those files on

which the impugned decision was based.

COMPLAINTS

The applicant complains under Article 11 of the Convention

that the prohibition of the intended demonstration was unjustified.

The expected making of noise was not of itself susceptible of

justifying a preventive interference with the right of assembly which

was of fundamental importance in a democratic society. Moreover, it

would have been limited in time and intensity and could not possibly

have caused an excessive disturbance of the inhabitants of a main road

where there was already a lot of traffic noise. The authorities had

never provided the slightest proof of complaints by private persons.

The applicant further complains under Article 13 of the

Convention that no effective domestic remedy was available to him in

Austria to challenge the interference with his rights under Article

11. The Administrative Court was incompetent and the Constitutional

Court did not take up his complaint of the excessive length of the

appeal proceedings before the Federal Ministry of the Interior which

had lasted more than 2 years.

THE LAW

The applicant complains that there has been a violation of

Article 11 (Art. 11) of the Convention in that the prohibition of a

demonstration which he intended to organise was unjustified.

The Commission considers that there has clearly been an

interference with the applicant's right to freedom of peaceful

assembly as guaranteed by Article 11 para. 1 (Art. 11-1) of the

Convention.

As regards the justification of this interference under

Article 11 para. 2 (Art. 11-2), the Commission notes that the

prohibition of the demonstration was based on Section 6 of the

Assembly Act and thus "prescribed by law". It pursued the aim of

protecting public order in particular by the prevention of excessive

noise which could have disturbed the population. This aim clearly

corresponded to purposes recognised in Article 11 para. 2 (Art. 11-2),

namely "the prevention of disorder" and "the protection of the

rights of others".

It remains to be examined whether the interference was also

"necessary in a democratic society" in order to achieve the above

purposes, in particular whether it was proportionate. In this

respect the Commission notes that the authorities had observed

excessive noise during previous demonstrations and that the

demonstration of 27 April 1985 had been dissolved because of the noise

and the shouting of seditious slogans. The content of these slogans

was first also considered as relevant for the prohibition of the

demonstration, but in the final decisions of the Ministry and of the

Constitutional Court the only reason retained was the making of

excessive noise. The applicant does not contest that noise would have

been made during the demonstration, but he contends that this could

under no circumstances justify a preventive measure and in any event

the noise would not have been excessive.

It is true that also in the present case the authorities could

have reacted by a dissolution of the demonstration if it led to

excessive noise. However, the Commission recalls that under the

case-law of the Convention organs the domestic authorities enjoy a

certain margin of appreciation regarding the measures they may take to

achieve legitimate purposes under Article 11 para. 2 (Art. 11-2) of

the Convention. The Commission considers that it can as such be

regarded as "necessary in a democratic society" to prevent excessive

noise of a demonstration, and it further considers that it was not

disproportionate in the present case to do so by the prohibition of

the demonstration rather than by its subsequent dissolution. Having

regard to the previous experience it was in no way unreasonable or

arbitrary to assume that the proposed demonstration would also lead to

excessive noise. This assumption was supported, in particular, by the

text of the applicant's notification to the authority and his

subsequent admission that the noise should be loud enough to be heard

by an inmate of a prison.

It follows that the measure complained of is covered by

Article 11 para. 2 (Art. 11-2) of the Convention. The applicant's

complaint in this respect must therefore be rejected as being manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. As regards the applicant's further complaint under Article 13

(Art. 13) of the Convention, the Commission considers that the applicant's

claim that a demonstration must be allowed notwithstanding the

making of excessive noise was not an "arguable claim" within the

meaning of the case-law of the Convention organs (cf. in particular

Eur. Court H.R., Plattform "Ärzte für das Leben" judgment of 21 June

1988, Series A No. 139), and therefore the applicant's complaint of a

violation of Article 13 (Art. 13) of the Convention must be rejected as being

manifestly ill-founded.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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