Information Note on the Court’s case-law 87
June 2006
Öllinger v. Austria - 76900/01
Judgment 29.6.2006 [Section I]
Article 11
Article 11-1
Freedom of peaceful assembly
Prohibition of meeting at cemetery intended to counter a gathering in memory of killed SS soldiers by commemorating Jews killed by the SS: violation
Facts: The applicant is a member of parliament for the Green Party. In 1998 he notified the Salzburg police that, on All Saints’ Day (1 November) from 9 a.m. until 1 p.m., he would be holding a meeting at the municipal cemetery in front of the war memorial in commemoration of the Salzburg Jews killed by the SS during the Second World War. He expected about six people to attend, carrying commemorative messages, and specified that there would be no chanting or banners. He noted that the meeting would coincide with a gathering in memory of SS soldiers killed in the Second World War.
The police prohibited the meeting in order to prevent disturbances of the Comradeship IV commemoration meeting which was considered a popular ceremony not requiring authorisation. Particular regard was to the experience of previous protest campaigns by other organisers against the gathering of Comradeship IV, which had disturbed other visitors to the cemetery and had required police intervention. In 2000, the Constitutional Court dismissed a complaint by the applicant, although it did found the approach of the police authority and public security authority to have been too narrow. It observed that the prohibition of the intended meeting would not have been justified if its sole purpose had been the protection of the Comradeship IV ceremony. The prohibition had nevertheless been justified or even required in view of the State’s positive obligation under Article 9 of the Convention to protect those practising their religion against deliberate disturbance by others. All Saints’ Day was an important religious holiday on which the population traditionally went to cemeteries to commemorate the dead and disturbances caused by disputes between members of the assembly organised by the applicant and members of Comradeship IV were likely to occur in the light of the experience of previous years.
Law: The applicant’s right to freedom of peaceful assembly and to freedom of expression had to be balanced against the other association’s right to protection against disturbance of its assembly and the cemetery users’ right to protection of their freedom to practice their religion.The applicant had emphasised that the main purpose of his assembly was to remind the public of the crimes committed by the SS and to commemorate the Salzburg Jews murdered by them. The coincidence in time and venue with the commemoration ceremony of Comradeship IV had been an essential part of the message he wished to convey. The unconditional prohibition of a counter-demonstration was a very far-reaching measure which would require particular justification, all the more so as the applicant, being a member of parliament, essentially wished to protest against the gathering of Comradeship IV and, thus, to express an opinion on a issue of public interest. The Court found it striking that the domestic authorities had attached no weight to that aspect of the case.
Considering whether the prohibition had been justified to protect the cemetery users’ right to practise their religion, the Court noted a number of factors which indicated that the prohibition at issue had been disproportionate to the aim pursued. In no way had the assembly been directed against the cemetery users’ beliefs or the manifestation of them. Moreover, the applicant had expected only a small number of participants and had envisaged peaceful and silent means of expressing their opinion, explicitly ruling out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of visitors to the cemetery. Moreover, while the authorities had feared that, as in previous years, heated debates might arise, it had not been alleged that any incidents of violence had occurred on previous occasions. In those circumstances, the Court was not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring a police presence in order to keep the two assemblies apart, had not been 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. The Austrian authorities had given 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 users in being protected against some rather limited disturbances. In sum, the authorities had failed to strike a fair balance between the competing interests.
Conclusion: violation (six votes to one).
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This summary by the Registry does not bind the Court.
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