FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76900/01 by Karl ÖLLINGER against Austria

The European Court of Human Rights (First Section), sitting on 24 March 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 31 July 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The appl icant, Mr Karl Öllinger , is an Austrian national who was born in 1951 and lives in Vienna . He was represented before the Court by Mr M. Hager, a lawyer practising in Linz . The respondent Gove rnment were represented by Ambassador H . Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 30 October 1998 the applicant , who is a member of Parliament for the Green Party, notified the Salzburg Federal Police Authority ( Bundespolizeidirektion ) under Section 2 of the Assembly Act ( Versammlungsgesetz ) that on All Saints ' Day, 1 November 1998, from 9 a.m. until 1 p.m. , he would organise a meeting at the Salzburg municipal cemetery in front of the war memorial. He noted that the meeting would coincide with the gathering of Comradeship IV ( Kameradschaft IV ) whi ch he considered to be unlawful .

The purpose of the meeting would be the commemoration of the Salzburg Jews assassinat ed by the SS during the Second World W ar. The applicant expected about six participants, who would carry commemoration notes in their hands and on their clothes. The applicant stated that no other means of expression (such as speaking choirs or banners) which might offend piety or public order would be used.

On 31 October 1998 the Salzburg Federa l Police Authority, relying on Section 6 of the Assembly Act and on Article 11 of the Convention, prohibited the meeting on the ground that it would endanger public order and security.

The authority noted that F.E., also a member of parliament for the Green party, had informed the Salzburg Federal Police Authority of the allegedly illegal assembly of Comradeship IV in memory of the SS soldiers killed in the Second World W ar which was to be held at the same time and place, but had refused to give an undertaking that the proposed meeting in memory of the assassinated Salzburg Jews would not disturb that gathering.

The Salzburg Federal Police Authority noted that Comradeship IV was a registered association. Like a number of other organisations it traditionally held a commemoration ceremony at the Salzburg municipal cemetery on All Saints ' Day. Such commemorations qualified as popular ceremonies within the meaning of Section 5 of the Assembly Act which did not require authorisation. The disturbance of this and other commemoration ceremonies was likely to offend the religious feelings of the public attending the cemetery and would certainly be considered as a derision of the dead soldiers of both world wars and, thus, as an unbearable provocation. Thus, protests by visitors of the cemetery were to be feared which could degenerate into open conflict between them and the participants of the assembly.

The Salzburg Federal Police Authority ordered that any remedies against this decision should not have suspensive effect. Accordingly, the demonstration could not take place.

On 17 August 1999 the Salzburg Public Security Authority ( Sicherheitsdirektion ) dismissed the applicant ' s appeal.

It noted that Comradeship IV was a registered association whose members were mainly former members of the SS. Since more than forty years they commemorated SS soldiers killed in the S econd World War on All Saints ' Day by gathering and depositing a wreath in front of the war memorial of the Salzburg municipal cemetery. In the past years, a number of organisations had organised protest campaigns with the aim of disturbing the said commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors of the cemetery and had required intervention by the police.

The Public Security Authority, referring to the sub missions of F. E. , found that the assembly planned by the applicant also aimed at a confrontation with the Comradeship IV and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the commemoration ceremony of Comradeship IV.

On 13 December 2000 the Constitutional Court ( Verfassungsgerichtshof ) dismissed the applicant ' s complaint alleging violations of his rights to freedom of assembly, freedom of expression and freedom of religion and his right to non-discrimination.

The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to balance the applicant ' s interest in holding the meeting against the public interests enumerated in Article 11 § 2 of the Convention. It went on to say that the prohibition of the proposed meeting would not be justified, if its sole purpose were the protection of the commemoration ceremony of Comradeship IV and expressed doubts as to the authorities ' assessment that the said meeting was a popular ceremony within the me aning of Section 5 of the Assembly Act which did not require authorisation. Nevertheless, the prohibition of the meeting proposed by the applicant was justified for other reasons.

The authorities had also had regard to the fact that the gathering of Comradeship IV had in past years been the target of activities aimed at disturbing it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention. The authorities had therefore correctly assumed that the prohibition of the applicant ' s assembly was necessary to protect the general public against potential disturbances.

The Constitutional Court added further considerations in support of this conclusion. It observed that All Saints ' Day was an important religious holiday on which the population traditionally attended cemeteries in order to commemorate the dead. As a religious tradition, the commemoration of the dead was protected by Article 9 of the Convention which contained a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others. Thus, the prohibition of the assembly at issue was necessary under Article 11 § 2 of the Convention for the protection of the rights and freedoms of others. It followed that it did not violate any other Convention right relied on by the applicant.

This decision was served on the applicant ' s counsel on 5 February 2001 .

B. Relevant domestic law

The Assembly Act 1953 ( Versammlungsgesetz ) regulates the exercise of the right to freedom of assembly. Section 2 § 1 provides that any person intending to organise a public assembly or any assembly 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.

Pursuant to Section 5 certain gatherings such as public entertainment, popular ceremonies or religious processions do not fall within the scope of the Assembly Act.

Pursuant to Section 6 the competent author ity shall prohibit any assembly which would contravene criminal law or endanger public order and security.

COMPLAINTS

The applicant complained under Article s 9, 10, 11 and 14 of the Convention about the prohibition of his intended meeting. He s ubmitted in particular that the authorities failed to give sufficient reasons for their refusal.

THE LAW

The applicant complained about the prohibition of an assembly he intended to hold on All Saints ' Day in commemoration of the Salzburg Jews assassinated by the SS during the Second World War. He relied on Articles 9, 10, 11 and 14 of the Convention.

The parties ' submissions concentrated on Article 11 which reads as follows:

“ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Government submitted that the interference with the applicant ' s right to freedom of assembly was prescribed by law, namely by Section 6 of the Assembly Act. It served a legitimate aim, as it s purpose was to maintain public order and to protect the rights and freedoms of others, namely the undisturbed worship of all those visiting the cemetery on a ll Saints ' Day which was itself protected by Article 9 of the Convention.

As to the question whether the prohibition of the appl icant ' s assembly was necessary, the Government pointed out that the Constitutional Court ' s case-law required the authorities to weigh the applicant ' s interest in holding the assembly against the public interest s enumerated in the second paragraph of Article 11. Furthermore, in making the prognosis whether the assembly would run counter to these interests they were required to rely on circumstances which could be objectively verified. A number of factors justified the authorities ' assumption that the applicant ' s assembly was mainly aimed at disturbing the commemoration ceremony of Comradeship IV. The time and venue chosen for the assembly so as to make it coincide with the gathering of Comradeship IV, the view expressed by the applicant and by F.E., another member of the Green party, that the latter gathering was unlawful and their failure to give the required assurances not to disturb the wreath laying ceremony of Comradeship IV. Furthermore the authorities rightly assumed that a confrontation between the two groups would endanger public order at the municipal cemetery and of fend the religious feelings of uninvolved visitors. In arriving at that conclu sion the authorities could also rely on experiences from previous years in which assemblies like the one planned by the applicant had annoyed visitors, had led to heated discussions and had required police intervention.

T he Government conceded that an assembly cannot be prohibited solely on the ground of a certain likelihood of tensions and confrontations between opposing groups. However, in the particular circumstances of the case, the prohibition was justified on order to protect the rights of others protected by Article 9 of Convention. All Saints ' Day was traditionally devoted to commemorating the dead and t he prohibition of the assembly, aimed at avoid ing loud disputes unbefitting th e peace and quiet of a cemetery, was necessary to ensure that visitors could exercise their religious belief without disturbance.

Given the impossibility to exclude disturbances, the authorities were not under a positive obligation to allow both meetings, all the more so as measures designed to prevent confrontations ( such as a police cordon) would themselves have disturbed the pe ace required at a cemetery on Al l Saints ' Day.

The applicant agreed with the position taken by both, the Constitutional Court and the Government, namely that the prohibition of the assembly cannot be justified solely by the aim of protecting the meeti ng of Comradeship IV against disturbances.

However, in his view the prohibition was not justified for any other reasons either. He asserted that the position taken by the authorities in the domestic proceedings and by the Government before the Court disregarded that the purpose of the meeting was the expression of an opinion, namely to remind the public of the crimes committed by the SS and to commemorate the jews assassinated by them. That the meeting coincided with the ceremony of Comradeship IV, whose members were mainly former members of the SS, was an essential part of the message he wished to convey. The authorities had failed to give sufficient reasons for the prohibition. Furthermore, they did not correctly balance the interest of the applicant and of Comradeship IV to hold their respective meetings and did not make any efforts to ensure that both assemblies could take place. The contested decisions were tantamount to protecting the commemoration ceremony for SS soldiers against legitimate criticism.

The Court considers, in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President