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)
Full & Egal Universal Law Academy