DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the finding that there has been a violation of Article 11 of the Convention in this case. I find the judgment of the Austrian Constitutional Court in all respects reasonable and in line with the provisions of Article 11. In particular I find that the Constitutional Court was right in finding that the prohibition of the assembly in issue was necessary for the protection of the rights and freedoms of others, namely all those persons visiting the cemetery in order to commemorate the dead on All Saints ’ Day. As was rightly observed by the same court, that day is an important religious holiday and the commemoration of the dead is protected by Article 9 of the Convention, which contain s a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others.

The applicant sought authorisation for a meeting to be organised by him in Salzburg cemetery in front of the war memorial. The meeting would coincide in place and time with the gathering of Comradeship IV in memory of the SS soldiers killed in the Second World War, and its purpose would be to commemorate the Salzburg Jews killed by the SS during the same war.

The applicant expected about six participants, who would carry commemorative messages in their hands and attached to their clothes. He stated that no other means of expression (such as chanting or banners) which might offend piety or public order would be used. However, there was undisputed evidence that another member of the same party organising the meeting had refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt the gathering of Comradeship IV. Furthermore, in the past few years a number of organisations had organised protest campaigns with the aim of disrupting Comradeship IV ’ s commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors to the cemetery and had required intervention by the police. In the circumstances , the Constitutional Court was right in finding that the authorities had correctly assumed that the prohibition of the assembly being organised by the applicant was necessary to protect the general public against potential disturbances.

I would like also to add the following: the gathering of Comradeship IV in memory of the SS soldiers killed in the Second World War was regarded by the authorities as not requiring any authorisation because it qualified as a “popular ceremony” with in the meaning of section 5 of the Assembly Act. The Constitutional Court expressed doubts regarding the correctness of this finding. I share these doubts and I would even go so far as to say that personally I do not see how such a finding can legally be justified. Be that as it may, the fact remains that Comradeship IV was a registered association and for more than forty years had commemorated SS soldiers killed in the Second World War by gathering on All Saints ’ Day and laying a wreath in front of the war memorial at Salzburg municipal cemetery. If the applicant ’ s aim was to contest the legality of this provocative gathering, the proper way to do so was indisputably through legal means or peaceful demonstrations against the authorities who allowed the gatherings, and certainly not through a confrontation in a cemetery on All Saints ’ Day. In substance, the as sembly planned by the applicant was a political meeting whose objectives may have been understandable (see paragraph 43 of the judgment), but I fail to see how the time and place of such meeting showed any respect for the rights of others in the cemetery (not belonging to Comradeship IV). The time and place of the proposed demonstration or gathering were not appropriate. A cemetery is a sacred place and is not, in my opinion , the proper place, especially on All Saints ’ Day, for political demonstrations, however respectable they may be, when other people are present in the cemetery and have a right to peaceful commemoration of the dead. This, I believe, becomes even more evident when there is undisputed evidence, as in this case, of a real danger of such disturbances in the cemetery as to require intervention by the police.

All civilised people agree that the Nazis and their SS were a horrible part of the history of mankind. The Holocaust and other abhorrent crimes against the Jews and other peoples received the condemnation of the whole world and millions of people died in order to save humanity from this scourge. However, I repeat that there is a time and place for any political demonstration or gathering entailing disturbances at the expense of the rights of others.

Finally, I feel the need to deal with the major points of the reasoning of the majority, which are as follows:

(a) “[ T ] he assembly was in no way directed against the cemetery-goers ’ beliefs or the manifestation of them ” (paragraph 47 o f the judgment)

The assembly would have had the inevitable result of interfering with the rights of the cemetery-goers , and that should have been known by those participating in it. Even though it was not their principal aim , the result would have been th e same.

(b) “ Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opin i on, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers ” (par agraph 47)

The participants would have formed an organised group of persons sharing the same objective of confrontation with Comradeship IV. Therefore, the small number of members of this group would not have changed the fact that a certain disturbance would inevitably be caused at the expense of the rights of the others in the cemetery. Here, the majority ignore the fact that one of the members of the party organising this assembly “ refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt th [e] gathering [of Comradeship IV] ” (see paragraph 11 of the judgment). Furthermore, commemorative messages are not silent means of expressing an opinion, for they speak for themselves, and even though the message conveyed would have been just and fair, it would still h ave been a kind of provocation.

(c) “[ W ] hile the authorities feared that, as in previous years, heated debates might arise, it was not alleged that any violent incident s had occurred on previous occasions ” (par agraph 47)

The majority accept the possibility of heated debates – and in any event there was undisputed evidence that these had occurred in previous years. However, it seems that they consider that such debates would not amount to a disturbance as long as there were no “ violent incidents”. I find no difficulty in disagreeing with that. In any event, one cannot reasonably exclude the possibility that heated debates might develop into violent incidents. It is also useful to note that , according to the facts, the past incidents “ had disturbed other visitors to the cemetery and had made police intervention necessary ” (paragraph 40 of the judgment).

(d) “[ T ] he Court is not convinced by the Government ’ s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant ’ s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery ’ s visitors ” (par agraph 48)

The majority find that an arrangement consisting in allowing both meetings while taking preventive measures such as ensuring police presence in order to keep the two assemblies separated would have been a solution. However, I do not see how (i) the police presence for the purpose in question would not in itself have upset the peace required for the protection of the rights of the cemetery visitors, and (ii) the police presence could have prevented heated debates. It could possibly have prevented violent incidents , but even the effort to do so would have entailed sufficient disturbance in the cemetery.

(e) “ The Court therefore finds that they gave too little weight to the applicant ’ s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery-goers in being protected against some rather limited disturbances ” (par agraph 49)

The facts before the Court do not, in my view, support such a conclusion, especially the finding to the effect that the disturbances would have been “rather limited”. In any event, limited or not, disturbances in the cemetery on All Saints ’ Day would have been sufficient to justify the application of the limitation regarding the “protection of the rights and freedoms of others” in the circumstances of the present case.

(f) “[ N ] otwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the Austrian authorities failed to strike a fair balance between the competing interests ” (par agraph 50)

Although I personally am reluctant to invoke the “margin of appreciation” save in exceptional cases, the reference to this concept by the majority in the context of the present case does not appear to have been pertinent , as I believe that they have substituted their own assessment of the circumstances of the case for that of the Constitutional Court and left nothing to the latter ’ s margin of appreciation.

For all the above reasons, I find that there has been no violation of Article 11 of the Convention in this case.