Application No. 10126/82
PLATTFORM "ÄRZTE FÜR DAS LEBEN"
against
AUSTRIA
REPORT OF THE COMMISSION
(adopted on 12 March 1987)
TABLE OF CONTENTS
I. INTRODUCTION
(paras. 1-16) ......................................... 1
A. The application
(paras. 2-4) .................................. 1
B. The proceedings
(paras. 5-11) ................................. 1
C. The present Report
(paras. 12-16) ................................ 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-70) ........................................ 4
A. Particular circumstances of the case
(paras. 17-37) ................................ 4
a) The applicant association's demonstration
at Stadl-Paura
(paras. 17-25) ........................... 4
b) Remedies taken by the applicant
association following the above
demonstration
(paras. 26-32) ........................... 5
c) The demonstration in Salzburg
(paras. 33-36) ........................... 7
d) Remedies concerning the demonstration in
Salzburg
(para. 37) ............................... 7
B. The relevant Austrian legislation and practice
concerning the exercise of the right to
protection of freedom of assembly
(paras. 38-70) ................................ 8
a) The constitutional guarantee of
freedom of assembly
(paras. 38-43) ........................... 8
b) Administrative measures designed to protect
the exercise of the freedom of assembly, in
particular measures of police protection
(paras. 44-53) ........................... 10
c) Protection of the right of assembly by
criminal law
(paras. 54-64) ........................... 12
d) Protection of the right of assembly by
administrative penal law
(para. 65-70) ............................ 15
III. SUBMISSIONS OF THE PARTIES
(paras. 71-86) ........................................ 16
A. The applicant association
(paras. 71-79) ................................ 16
B. The Government
(paras. 80-86) ................................ 17
IV. OPINION OF THE COMMISSION
(paras. 87-121) ....................................... 19
A. Point at issue
(para. 87) .................................... 19
B. Applicability of Article 13
(paras. 88-95) ................................ 19
C. Scope of the remedy required by Article 13
(paras. 96-99) ................................ 21
D. Effectiveness of the remedies available in the
present case
(paras. 100-120) .............................. 22
a) Constitutional complaint
(paras. 101-105) ......................... 22
b) Hierarchical appeal
(paras. 106-108) ......................... 23
c) Official liability action
(paras. 109-111) ......................... 23
d) Institution of criminal proceedings
(paras. 112-117) ......................... 24
e) Administrative penal proceedings
(paras. 118-120) ......................... 25
E. Conclusion
(para. 121) ................................... 25
APPENDIX I : HISTORY OF PROCEEDINGS ..................... 26
APPENDIX II : DECISION ON THE ADMISSIBILITY .............. 27
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a private association under Austrian law
which has its registered office in Vienna. It is composed of doctors
opposed to legalised abortion who, through their activities in this
association, seek to bring about a change in the pertinent Austrian
legislation. Before the Commission, the association was represented by
Mr. Alfons Adam, a lawyer in Vienna, who had been instructed by the
association's president, Dr. Johann Wilde.
3. The application is directed against Austria whose Government
were represented by their Agent, Mr. Helmut Türk, Head of the
International Law Department of the Federal Ministry of Foreign
Affairs.
4. Insofar as declared admissible, the application concerns the
applicant association's complaint that under Austrian law it did not
have effective remedies at its disposal by which it could secure a
sufficient protection of two demonstrations which it held in
December 1980 and May 1982 respectively and which were disturbed by
counter-demonstrators. The association complains that the failure to
provide such remedies amounts to a breach of Article 13 of the
Convention.
B. The proceedings
5. The application was introduced on behalf of the applicant
association on 13 September 1982. It was registered on
20 September 1982.
6. On 14 May 1984 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to
present before 27 July 1984 their observations in writing on the
admissibility and merits of the application.
The Government submitted their observations on 30 July 1984
and the applicant association replied on 11 October 1984.
7. On 7 May 1985 the Commission decided to hold an oral hearing
on the admissibility and merits of the application.
8. The hearing took place on 17 October 1985. The parties were
represented as follows:
- the applicant association by its lawyer, Mr. A. Adam of
Vienna, and by its president, Dr. J. Wilde; and
- the Government by their Agent, Mr. H. Türk, Head of the
International Law Department of the Federal Ministry of
Foreign Affairs, who was assisted by Mr. W. Okresek, of the
Federal Chancellery's Department of Constitutional Law,
and by Mr. A. Holzhammer, of the Federal Ministry of the
Interior, Advisers.
9. Following the hearing, the Commission declared inadmissible,
as being manifestly ill-founded, the applicant association's
complaints under Articles 9, 10 and 11 of the Convention concerning
the allegedly insufficient protection of its demonstrations by the
Austrian authorities. It declared admissible the applicant
association's further complaint under Article 13 that it did not have
an effective domestic remedy in relation to its claim under Article 11
of the Convention.
10. The text of this decision, approved by the Commission
on 7 March 1986, was on 20 March 1986 transmitted to the parties
who were invited to submit any supplementary observations on the
merits which they wished to make. The Government submitted such
observations on 2 May 1986 and the applicant association on 5 May 1986.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (b) of the Convention, also placed itself
at the disposal of the parties with a view to securing a friendly
settlement. In the light of the parties' reaction, the Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. J.A. FROWEIN, Acting President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
13. The text of this Report was adopted on 12 March 1987
and is now transmitted to the Committee of Ministers of the Council of
Europe, in accordance with Article 31 para. 2 of the Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
i) to establish the facts, and
ii) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
15. A schedule setting out the history of the proceedings before
the Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
16. The full text of the parties' submissions, together with
the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particular circumstances of the case&S
a) The applicant association's demonstration at Stadl-Paura
i) Notification of the demonstration
17. On 30 November 1980 the applicant association, in accordance
with Section 2 of the Assembly Act, gave notice to the competent
police authority (Bezirkshauptmannschaft) for the district of
Wels-Land, Upper Austria, of an intended anti-abortion demonstration
to be held at Stadl-Paura on 28 December 1980, under the theme of "a
memorial to the deaths of an unknown number of children unborn through
abortion".
18. It was originally planned that there should be a religious
ceremony in the church of Stadl-Paura followed by a march to the
practice of a doctor at Stadl-Paura who carried out abortions.
19. No objections were raised by the authority against these plans
and upon its application the applicant association also got the
authorisation to use the public road for this purpose. However, it
was not authorised to use loudspeakers.
ii) Restrictions on planned counter-demonstrations
20. Several counter-demonstrations were also notified to the
authority. Thus a women's organisation of the Socialist Party proposed
to hold a pro-abortion meeting at the village hall (Volkshaus) of
Stadl-Paura followed by a march to the above doctor's practice. A
local group likewise wished to manifest its solidarity with this
doctor by demonstrating in front of his practice. However, these two
demonstrations were prohibited under Section 6 of the Assembly Act
because they coincided as to time and place with the applicant
association's demonstration and it was feared that this might
endanger the public order and security.
21. The Socialist women's organisation then modified its plans and
notified the authority of its intention to hold its demonstration
earlier on the same day. This demonstration was not prohibited
because it did not coincide with the applicant association's
demonstration. According to the notification it was to end by
1.45 p.m. while the applicant association's demonstration was to start
at a different place, namely at the church of Stadl-Paura, only at
2 p.m.
iii) Re-routing of the demonstration
22. Nevertheless, the applicant association feared that
counter-demonstrators might interfere with its demonstration and
therefore the original plans were changed at a meeting which the
applicant association's representatives held with delegates of the
authority in the local priest's private residence shortly before the
beginning of the religious ceremony. It was now decided to cancel
the march to the doctor's private practice and instead to organise a
religious procession to a nearby hill with a cross, where a field
service would be held after which the participants would return to
the church for another religious ceremony.
23. The authority did not object to the rerouting, but observed
that crowd control would be more difficult in view of the fact that
the police had already been stationed along the first route, in
particular near the doctor's practice. 150 policemen had
actually been deployed along the original route. The responsible
authority indicated that they could not in any event prevent the
counter-demonstrators from throwing eggs or from disrupting the march
and religious services through loudspeakers, whatever route was
chosen.
iv) Disturbances of the demonstration
24. The applicant association's meeting then took place in the
modified form beginning with a mass in the local church. During the
mass, a large number of counter-demonstrators gathered in front of the
church. The police took no action to disperse them. This
counter-demonstration, which was not identical with the Socialist
women's demonstration, had not been formally brought to the notice of
the authority in conformity with the provisions of the Assembly Act.
The applicant association's march to the hill which followed the mass
was disrupted by the counter-demonstrators who mixed with the
participants of the march disturbing the reading of the rosary with
their shouting.
25. On arriving at the hill, the applicant association's
anti-abortion group, numbering around 500, attempted to celebrate
mass. They were surrounded by a like number of counter-demonstrators
who threw eggs and grass-tufts at the participants of the
association's meeting. In addition, they disturbed the field-mass by
using loudspeakers. 100 policemen were present. The special anti-riot
police units equipped with helmets and dogs did not intervene. At the
end of the religious ceremony the police formed a cordon between the
groups of demonstrators, thereby allowing the participants of the
applicant association's demonstration to return to the church. The
counter-demonstrators were finally dispersed outside the church.
b) Remedies taken by the applicant association following the
above demonstration
i) Hierarchical appeal (Dienstaufsichtsbeschwerde)
26. On 21 January 1981, the applicant association lodged a
hierarchical appeal (see paras. 47-50 below) with the Upper Austrian
Regional Directorate for Public Security complaining that the local
authorities had failed to secure sufficient protection of the
demonstration.
27. In its reply the Directorate informed the applicant
association that it saw no reason to take any disciplinary or other
measures as it considered that the measures taken by the local
authorities had been adequate in the circumstances. 150 policemen had
been deployed because it was expected that despite the prohibition of
two counter-demonstrations there would be a considerable number of
counter-demonstrators. The police had been given orders to intervene
and disperse the counter-demonstration only if there was a danger of
violence resulting in physical injury. It was not possible to protect
absolutely an open-air demonstration such as the one organised by the
applicant association against noise and the throwing of objects which
did not endanger the physical integrity of persons. If the police had
immediately intervened, violence would almost inevitably have occurred
and at least this was prevented in the present case.
ii) Action under criminal and administrative penal law
28. The applicant association did not request the institution of
criminal proceedings against the counter-demonstrators either by
reporting a criminal offence or by filing a subsidiary private
prosecution under Section 48 of the Code of Criminal Procedure
("Subsidiaranklage", see para. 62 below). However, some action was in
fact taken against certain of the counter-demonstrators under criminal
law. Both the Upper Austrian Regional Directorate for Public Security
and the local police (Gendarmeriepostenkommando) of Stadl-Paura laid
an information against persons unknown for causing disturbance in a
meeting. A private organisation (österreichische Bürgerinitiative zum
Schutz der Menschenwürde) laid a criminal information against the
Member of Parliament involved in the counter-demonstration for
breaking up a religious ceremony and incitement to hatred under
Sections 185, 188, 282 of the Criminal Code and also for offending
against Section 2 of the Assembly Act. In addition, there was a
criminal information against two further persons. However, on
1 April 1981 these proceedings were discontinued under Section 90 of
the Code of Criminal Procedure by the public prosecutor of Wels.
29. One person who had been caught throwing eggs at the
demonstration was fined AS 1,000 for disturbing the peace
(Ordnungsstörung) in administrative penal proceedings taken against
her under Section IX of the Administrative Proceedings (Introduction)
Act. Some eggs found in her possession had been confiscated during
the demonstration.
iii) Constitutional appeal
30. The applicant association subsequently appealed to the
Constitutional Court ("Verfassungsbeschwerde", see paras. 41-43
below), claiming that the authorities' inaction during the above
demonstration had resulted in a failure to secure the exercise of its
constitutionally guaranteed rights to freedom of assembly and
religious practice.
31. At the hearing on 11 December 1981, the Constitutional Court
took evidence from various witnesses who confirmed that the events had
taken place in the way described above.
32. However, by a decision of 1 March 1982, which was served on the
applicant association on 8 April 1982, the Constitutional Court
rejected the appeal as inadmissible on the ground that it lacked
competence to deal with the matter. It found that the facts
established showed that the applicant association's complaint clearly
was not directed against a formal decision, nor against acts of direct
administrative coercion taken against the association itself.
c) The demonstration in Salzburg
33. The applicant association staged a second anti-abortion
demonstration on 1 May 1982 in the square in front of Salzburg
Cathedral. Notice of this demonstration was given to the competent
police authority which again raised no objections although the
Socialist Party's May Day celebrations took place in the City of
Salzburg at the same time. In fact, the applicant association's
demonstration was notified earlier to the authority, and as the
association could not be pursuaded to change the time and place of
this demonstration, the Socialist Party's intended meeting on
Cathedral Square had to be cancelled.
34. The association's meeting began at 2.15 p.m. and lasted until
3.30 p.m. Then about 100 participants marched into Salzburg Cathedral
for an hour of prayers. By about 1.30 p.m. some 350 people had come
to Cathedral Square who by their behaviour indicated that they were
opponents of the meeting. About 100 police officers formed a cordon
around the participants in the meeting in order to protect them from
direct molestation. The counter-demonstrators loudly voiced their
displeasure because they regarded the meeting as a provocation.
35. Additional trouble was caused by the presence of sympathisers
of an extreme right-wing party (NDP) who declared their solidarity
with the theme of the applicant association's meeting. A request from
the authorities to the association's president to order these persons
off the square was unsuccessful.
36. The police were able to ensure unimpeded access to the
Cathedral. As the shouting went on and there was thus a risk of the
hour of prayers being disturbed, the authorities finally ordered
Cathedral Square to be cleared. In view of the existing situation and
as a result of this action, the people concerned left.
d) Remedies concerning the demonstration in Salzburg
37. In view of the Constitutional Court's decision of 1 March 1982
(para. 32 above), the applicant association did not lodge a consti-
tutional appeal following the Salzburg demonstration. Nor did it take
any other remedies concerning the disruption of this demonstration.
B. The relevant Austrian legislation and practice concerning the
exercise of the right to protection of freedom of assembly&S
a) The constitutional guarantee of freedom of assembly
i) Substantive provisions
38. Article 12 of the Basic Law of 1867 on the General Rights of
Citizens (Staatsgrundgesetz über die allgemeinen Rechte der
Staatsbürger, Imperial Law Gazette No. 142) provides that Austrian
citizens shall have inter alia the right of assembly and that the
exercise of this right shall be regulated by special legislation. An
additional constitutional basis of the right of assembly is provided
by Article 11 of the Convention itself which in Austria has the rank
of a constitutional provision (cf. Article II of the Constitutional
Law of 4 March 1964, Federal Law Gazette No. 59).
39. The special legislation referred to in Article 12 of the
Basic Law is contained in the Assembly Act (Versammlungsgesetz).
This legislation was originally enacted in 1867 (Imperial Law Gazette
No. 135). It has been expressly maintained by Article 149 of the
Federal Constitution and was consolidated in 1953 (Wiederverlaut-
barung, Federal Law Gazette No. 98). Since then it is referred to as
the Assembly Act 1953.
40. The Act contains inter alia the following provisions:
Section 1 Public meetings shall be permitted
in accordance with the provisions of
this Act.
Section 2 (1) 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
projected meeting is to be held.
(2) On request, the authorities shall
issue a certificate stating that notice
has been given. No stamp duty shall be
levied on the notice.
Section 6 Meetings whose purpose is contrary
to criminal law or which endanger public
safety or welfare shall be forbidden by
the authorities.
Section 11 (1) Primary responsibility for ensuring
that the law is observed and order maintained
shall lie with the persons organising and
in charge of the meeting.
(2) These persons shall take immediate
action to prevent pronouncements or
actions which are contrary to law. If
their instructions are not obeyed, the
organisers shall immediately close the
meeting.
Section 12 The authorities shall be entitled to send
to any meeting of the kind referred to in
Section 2 a representative or representa-
tives, who shall be admitted to a suitable
place of their choice within the meeting
and be given any information which they may
request concerning the organisers and the
speakers.
Section 13 (1) Any meeting organised in contravention
of the Act shall be prohibited and, if
necessary, terminated by the authorities.
(2) Similarly, a lawfully organised meeting
shall be terminated by order of the representa-
tive of the authorities or, if no representa-
tive is present, the authorities themselves,
if unlawful actions are committed at it or
if it assumes a character endangering public
order.
Section 14 (1) Once a meeting has been terminated,
all those present shall be obliged to leave
the meeting place and disperse immediately.
(2) In the event of non-compliance, force may
be used to disperse the meeting.
ii) Constitutional complaint proceedings (Verfassungsbeschwerde)
41. In the Austrian legal system the control of the respect of the
constitutional right of assembly is exclusively entrusted to the
Constitutional Court. Case law has developed according to which
any violation of the Assembly Act must be regarded as a direct
interference with this constitutional right as guaranteed by Article 12
of the Basic Law (cf. Official Collection of Constitutional Court
Decisions, No. 2002/50) and by Article 11 of the Convention (cf. ibid.,
Nos. 7762/76, 8610/79 and 9103/81). Accordingly there remains no room
for an additional control by the Administrative Court of the
lawfulness of the application of the Assembly Act. The Administrative
Court declares itself incompetent to deal with such cases (cf.
Official Collection of Administrative Court Decisions, No. 7096A).
42. The basis of the Constitutional Court's competence to receive
complaints concerning the violation of constitutionally guaranteed
rights such as the right of assembly is Article 144 of the Federal
Constitution. Paragraph 1 of this Article reads as follows in the
version of 1975 (Federal Law Gazette No. 302):
"The Constitutional Court pronounces on complaints
against formal decisions (Bescheide) of administrative
authorities insofar as the applicant alleges a violation
of his constitutionally guaranteed rights or a violation
of his rights by virtue of the application of an illegal
ordinance, an unconstitutional law, or an unlawful treaty.
Under the same conditions the Court likewise pronounces on
complaints concerning the exercise of direct administrative
authority and coercion against a particular individual
(Ausübung unmittelbarer verwaltungsbehördlicher Befehls-
und Zwangsgewalt gegen eine bestimmte Person)..."
43. Administrative acts which do not come within the description
of either a "formal administrative decision" or of "the exercise of
direct administrative authority and coercion against a particular
individual" cannot be challenged before the Constitutional Court.
b) Administrative measures designed to protect the exercise
of the freedom of assembly, in particular measures of
police protection
i) Substantive provisions
44. The Assembly Act itself provides for a number of
administrative measures to protect lawful assemblies. Although
it is not expressly stated in the law, the machinery to prohibit
(Section 6) or terminate (Section 13) unlawful meetings or meetings
which endanger the public order is in practice often used to deal with
counter-demonstrations the holding of which might interfere with the
lawful exercise of the original demonstrators' right of assembly.
45. In addition, Section 14 para. 2 of the Assembly Act expressly
provides for the use of force to disperse a meeting, and this
provision can also be used to deal with unlawful counter-demonstrations.
The deployment of police forces for this purpose is presupposed. The
Constitutional Court has recognised an active duty of the police
authorities to protect lawful assemblies which may not be forbidden
merely because of the possibility of their being disturbed by
counter-demonstrations (cf. Official Collection of Constitutional
Court Decisions, No. 8609/79).
46. The police enjoy a wide discretion in the exercise of their
powers for the maintenance of public peace, order and security,
including the exercise of these powers for the purpose of protecting
demonstrations. In the latter respect the law does not provide for
any subjective rights of the demonstrators beyond their constitutional
right of assembly (see Section a) above).
ii) Proceedings before administrative authorities:
Hierarchical appeal (Dienstaufsichtsbeschwerde)
47. Formal administrative proceedings cannot be instituted to
obtain a particular form of protection of demonstrations. The
decisions taken by the competent police authority in this respect
either at the request of the interested party or of its own motion
are, as a rule, of an internal nature. Accordingly they also cannot
be challenged in administrative appeal proceedings before a higher
authority.
48. The procedure for raising the issue of allegedly inadequate
police protection before the competent higher authorities is that of a
hierarchical appeal (Dienstaufsichtsbeschwerde). It is not limited to
the assertion of subjective rights and to allegations of unlawful
behaviour of the authority. It can also be used to criticise the
exercise of the authority's discretion within the framework of the
law, in particular as regards its appropriateness.
49. In substance the hierarchical appeal is no more than a
suggestion to the competent higher authority to make use of the
supervisory powers which it has vis-à-vis the lower authority by
virtue of Article 20 para. 2 of the Federal Constitution. These
supervisory powers include in particular the right to give binding
instructions to the subordinate authority both as regards the
concrete case and as regards the approach to be taken generally
in future cases. The supervisory authority may also take disciplinary
action against the responsible officials or other suitable measures.
If supervisory measures are taken, they are not dependent on any
right of the applicant, but rather the consequence of the supervisory
authority's duty to secure a lawful and orderly administration.
50. The applicant has no right to the taking of any action
following his hierarchical appeal, in particular no right to the
actual exercise of supervisory powers. Nor does he have a right to a
decision on his complaint or to information on what action has been
taken. In practice, some information is usually given unless the
complaint appears to be abusive or manifestly without foundation.
iii) Proceedings before judicial authorities:
Official liability action (Amtshaftung)
51. In certain cases a failure to provide sufficient police
protection to a demonstration may also give rise to official liability
proceedings. The conditions are set out in the Official Liability Act
(Amtshaftungsgesetz, Federal Law Gazette No. 20/1949, as amended).
52. Section 1 of this Act provides that public corporations
(Rechtsträger) are liable to compensate according to the provisions of
the civil law any damage which their organs have caused to anybody's
property or person (Schaden am Vermögen oder an der Person) by faulty
and unlawful behaviour in exercise of legal powers. Only "faulty and
unlawful" behaviour by the authority can therefore give rise to a
claim. Moreover, there must be a causal link between this behaviour
and the alleged damage. It has further been clarified in the case law
that only material damage can be compensated whereas there is no legal
basis to claim compensation for moral damage.
53. The proceedings are divided into two stages. In the first
stage, the injured party must submit his claim to the public
corporation concerned, i.e. in the case of police authorities the
Federation. Thereafter, if the competent body of the public
corporation refuses to recognise the claim, it can be asserted by an
action before the civil courts.
c) Protection of the right of assembly by criminal law (Strafrecht)
i) Substantive provisions
54. The Criminal Code (Strafgesetzbuch, Federal Law Gazette
No. 60/1974) contains the following special provisions on the
protection of assemblies:
Section 284 (Breaking up of meetings) Any person
using force, or the threat of force, to prevent or break up
a meeting, procession or similar demonstration which is not
forbidden shall be liable to imprisonment for up to one year.
Section 285 (Prevention or disruption of a meeting)
Any person who prevents or seriously disrupts an authorised
meeting by:
1. barring access to the place of assembly,
2. preventing or obstructing the access of a person
entitled to attend or seriously molesting such a person,
making it impossible or difficult for him to attend,
3. forcing his way into the meeting without
authorisation, or
4. obstructing a person appointed to conduct or preserve
order at a meeting or physically resisting such a person's
instructions concerning the conduct of such a meeting
shall be liable to imprisonment for up to six months
or to a fine of up to 360 times the daily rate.
55. Religious meetings are furthermore protected by Section 189
(interference with religious practises) which is worded as
follows:
(1) Any person using force, or the threat of force, to
prevent or disrupt lawful religious services or acts of
worship celebrated by churches or religious communities
established within the country shall be liable to
imprisonment for up to two years.
(2) Any person who:
1. in a place reserved for the lawful religious
practices of a church or religious community established
within the country,
2. during a lawful act of public worship celebrated
by a church or religious community established within the
country, or
3. with an object directly employed in lawful worship by
a church or religious community established within the country
misconducts himself in a manner calculated to give
justifiable offence shall be liable to imprisonment for up to
six months or to a fine of up to 360 times the daily rate.
56. Moreover, the interference with demonstrations by the unlawful
use of force may also come under Section 105 of the Criminal Code which
reads as follows:
(1) Any person using force, or the threat of force, to compel
another person to perform, submit to or refrain from an action
shall be liable to imprisonment for up to one year.
(2) The act shall not be unlawful if the use or threat of
force as a means to the end in question is not contrary to
morality.
57. The offences regulated in the Criminal Code can be committed
not only by those who directly carry out the incriminated acts,
but also by those who instigate them or otherwise participate in them
(Section 12) or who, contrary to their specific duties, fail to
prevent them (Section 2). The deliberate failure to prevent criminal
acts is furthermore punishable as a separate offence under
Section 286 of the Criminal Code, and abuse of official authority
(Missbrauch der Amtsgewalt) is an offence under Section 302. It is
therefore possible, in principle, to institute criminal proceedings
against officials who fail to prevent criminal offences of
individuals, or who otherwise abuse their official powers concerning
the protection of a demonstration. However, it is not possible to
prosecute officials if the specific conditions laid down in Sections
2, 12, 286 or 302 of the Criminal Code are not met.
ii) Institution of criminal proceedings
58. The criminal offences described above are all public
prosecution offences (Offizialdelikte). The institution of
proceedings is therefore normally the task of the competent
prosecution authorities (Staatsanwaltschaft). The latter have a
special duty under Section 34 of the Code of Criminal Procedure
(Strafprozessordnung 1960 in the consolidated version published in
Federal Law Gazette No. 631/1975) to prosecute ex officio all criminal
offences which come to their knowledge and which are punishable not
only at the request of the injured person or other interested party.
They are further obliged to accept reports alleging criminal offences
(Section 86), to examine them and undertake the necessary inquiries
(Sections 87-88). Finally they decide whether there are sufficient
grounds to proceed with the prosecution or whether the proceedings
should be discontinued (Zurücklegung der Anzeige, Section 90).
59. Everybody has the right to report criminal offences
(Strafanzeige). Apart from the prosecution authorities themselves,
the police, investigating judges and District Courts are also obliged
to accept such reports and to forward them to the competent
prosecution authorities (Section 86). However, the right to report an
offence does not imply a right to the actual institution of criminal
proceedings.
60. All public authorities have a duty promptly to report to the
competent prosecution authority all criminal offences which they
observe or which otherwise come to their knowledge (principle of
legality, Section 84 of the Code of Criminal Procedure). This duty
also applies to the police, who are further obliged to conduct the
necessary inquiries under the authority of the competent public
prosecutor (Section 88). In addition, the police have special powers
of arrest, even without a judicial warrant, if the offender is caught
in or immediately after the commission of a criminal offence, or in
other cases if there is an immediate danger (Section 177).
61. An injured party may join the criminal proceedings as a
private party (Privatbeteiligter) in order to obtain a decision by the
criminal court on his civil claims against the offender (Section 47 of
the Code of Criminal Procedure). However, it has been clarified by
the constant case law of the Austrian courts that only material
damage can be claimed in this way. The joinder as a private
party for the purpose of asserting moral damage or other interests is
inadmissible.
62. Under certain conditions a private party is entitled to
institute and conduct the criminal proceedings instead of the public
prosecutor (Subsidiaranklage, "subsidiary private prosecution",
Section 48). This possibility exists in particular if the public
prosecutor discontinues the proceedings in accordance with Section 90
(see para. 58 above). In this case, the injured party must be informed
and, if he declares his intention to assert civil claims (cf. para. 61
above), he may submit a request to open preliminary investigation
proceedings (Section 48 para. 1). The Review Chamber (Ratskammer) of
the Regional Court takes a final decision on this request, i.e. there
is no further remedy if it refuses to institute proceedings and
the injured party can then assert his civil claims only in normal
civil proceedings. If, however, the request is accepted, the private
party generally takes the place of the public prosecutor in the
further proceedings subject to certain limitations (Section 49
para. 2). The public prosecutor is kept informed of the development
of the proceedings and may resume his functions (Section 49 para. 1).
A similar right of the private party to continue the proceedings also
exists where they were originally conducted by the public prosecutor
who later decides to discontinue them (Section 48, paras. 2 and 3).
63. As the possibility to file a subsidiary private prosecution
presupposes the assertion of a civil claim, it is only available if
the conditions of Section 47 are met, i.e. this possibility is also
only given in case of material damage, while moral damage or other
interests are not regarded as sufficient.
64. Any failure of the public authorities (including the
prosecution authorities and police) to comply with their above duties
under the Code of Criminal Procedure may itself give rise to the
institution of criminal proceedings (e.g. for abuse of official powers
according to Section 302 of the Criminal Code). It may also be taken
as the basis for a hierarchical appeal (cf. paras. 48-50 above) or for
official liability proceedings (cf. paras. 51-53 above).
d) Protection of the right of assembly by
administrative penal law (Verwaltungsstrafrecht)
i) Substantive provisions
65. The provisions of criminal law designed to protect
demonstrations or religious ceremonies are supplemented by provisions
of administrative penal law which stipulate sanctions for minor
offences.
66. The following provisions are relevant:
- Section 19 of the Assembly Act which provides that
offences against the Act to which ordinary criminal law does not
apply constitute an administrative offence punishable by imprisonment
of up to six weeks or by a fine of up to AS 5,000.-.
- Section IX para. 1 (1) of the Administrative Proceedings
(Introduction) Act (Einführungsgesetz zu den Verwaltungsver-
fahrensgesetzen, Federal Law Gazette No. 172/1950, as amended in
Federal Law Gazette No. 232/1977) which provides that a 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 3,000.- or, in
aggravating circumstances, by imprisonment of up to two weeks.
- Article II, Section 4, para. 2 of the Second Constitutional
Law (Transitional Provisions) Act (Zweites Verfassungs-Überleitungs-
gesetz, Federal Law Gazette No. 393/1929) which provides that
contraventions against police instructions shall be punishable as an
administrative offence.
67. These measures are primarily concerned with the behaviour of
private individuals interfering with a demonstration. However, in
principle they can also apply to officals, in particular if they
instigate or facilitate the commission of administrative offences
(cf. Section 7 of the Code of Administrative Offences (Verwaltungs-
strafgesetz), Federal Law Gazette No. 172/1950).
ii) The institution of administrative criminal proceedings
68. The procedure is regulated in the Code of Administrative
Offences. The predominant principle is that of official investigation
by the deciding authority itself, in this case the District Authority.
There are no special prosecution authorities besides the deciding
authority.
69. The proceedings are, in principle, instituted and conducted
ex officio (Section 25). The law mentions reports on the
commission of administrative offences (Anzeige, Section 40), but it
does not provide for special duties of other authorities including the
police to report such offences. They are only bound by the general
constitutional principles of legality (Article 18 of the Federal
Constitution) and mutual assistance (Article 22).
70. By contrast with the law of criminal procedure there is no
right for a private party to request the institution or continuation of
proceedings by way of a "subsidiary private prosecution". A possibility
to request a decision on civil claims in connection with the
proceedings is only given where the applicable substantive law so
provides (Section 57 of the Code of Administrative Offences). The
above provisions of substantive law do not contain such clauses.
III. SUBMISSIONS OF THE PARTIES
A. The applicant association
71. The applicant association submits under Article 13 of the
Convention that it did not have any effective remedy before a domestic
authority by which it could secure its right, included in Article 11
of the Convention, to obtain adequate protection of its demonstrations,
i.e. protection which ensured that the aim of these demonstrations,
namely to make certain views known to the public, could be achieved in
a meaningful way.
72. If in the present case an effective remedy had been available
to the applicant association, it would have submitted that the authority
at Stadl-Paura failed to disperse the counter-demonstrators which had
gathered outside the church when the first mass was celebrated; that it
failed to redeploy the police forces in such a way as to prevent the
counter-demonstrators access to Paura Hill prior to the celebration of
the field mass, and that it remained inactive during the latter ceremony
despite its being disturbed by the counter-demonstrators. As regards
the demonstration in Salzburg it would have submitted that the archways
leading up to Cathedral Square were left open for the counter-
demonstrators although it would have been easy to stop them there,
and that the counter-demonstration was not terminated earlier despite
massive disturbances of the applicant association's meeting.
73. The various remedies suggested by the Government were either
inaccessible to the applicant association, or ineffective.
74. As regards a constitutional complaint, this is the remedy
which the applicant association tried to use with regard to the first
demonstration. However, the Constitutional Court declined its
jurisdiction. It recognises only the right to assemble, but not the
right to effective protection of an assembly against interferences by
other groups against which the authorities remain inactive.
Accordingly, this remedy is ineffective.
75. As regards the protection by the criminal law, the applicant
association observes that the relevant provisions of the Criminal Code
(cf. paras. 54-56 above) are based on a concept of use or threat
of force which does not cover such disturbances as occurred at its
demonstrations. For this reason alone the criminal law does not
provide an effective remedy in this case.
76. The applicant association furthermore submits that the relevant
offences stipulated in the Criminal Code are to be prosecuted ex officio.
However, despite the authorities' duty under Section 84 of the Code of
Criminal Procedure to take proceedings in respect of any criminal acts
which they observe or which come to their knowledge (cf. para. 60
above) none of the many police officers present at the applicant
association's two demonstrations reported a suspicion of criminal
offences.
77. It would have been open to the applicant association itself to
report offences of counter-demonstrators, but this would have been
futile in view of the authorities' attitude. In any event there is no
right of the informer to any action being taken subsequent to his
reporting the offence (cf. para. 59 above).
78. A subsidiary private prosecution (Section 48 of the Code of
Criminal Procedure) was not available to the applicant association
because this remedy, as interpreted in constant case law, presupposes
the existence of a material damage while a violation of non-material
interests is not sufficient (cf. paras. 62-63 above).
79. Finally, an official liability action was excluded because it
too presupposes the existence of material damage (cf. para. 52 above).
The applicant association itself did not suffer any such damage.
B. The Government
80. The Government find it illogical that the Commission on the
one hand accepted that the Austrian legislation and its implementation
in the particular case were in line with Article 11 of the Convention,
and that, on the other hand, it nevertheless declared the applicant
association's complaint under Article 13 admissible. If the positive
obligation to protect demonstrations which the Commission reads into
Article 11 of the Convention is fulfilled by the provisions of the
Assembly Act, the Criminal Code and the Administrative Proceedings
(Introduction) Act, then it would rather seem to follow that the
remedies provided by these legislative provisions must also be
considered as sufficient to enforce the above positive obligation.
81. The Commission's approach seems to be based on the assumption
that in case of a positive obligation resulting from the Convention
there must be a particular remedy by which inaction of the authority
which allegedly contravenes that obligation can be reviewed. Further,
the Commission seems to assume that the traditional remedies provided
by the criminal law, which are designed to prevent active
interferences with a fundamental right, are not sufficient in relation
to interferences by third parties. However, the full implementation
of the principles postulated by the Commission would extend the idea
of legal protection too far.
82. The Government invoke the Klass judgment of the European Court
of Human Rights of 6 September 1978 (Series A no. 28) which recognised
the possibility of a restricted scope of the remedies envisaged by
Article 13 of the Convention. In particular the Court stated (ibid.
at para. 70):
"Admittedly, the effectiveness of these remedies is
limited and they will in principle apply only in
exceptional cases. However, in the circumstances of
the present proceedings it is hard to conceive of
more effective remedies being possible."
Although the facts of the present case are not directly
comparable to those of the Klass case, the principle developed in that
case concerning the limited scope of remedies should nevertheless be
applied.
83. In normal circumstances, the legal remedies provided by the
State serve to prevent active interferences by the authorities. The
present case, however, does not concern such active interferences, but
alleged inaction of the authorities. In this situation it goes too
far to demand as full a legal review as in a case of active inter-
ference. An aggregate of various remedies each of which has only
a limited scope must rather be considered as sufficient.
84. In this connection, the Government point out that a
constitutional appeal must not necessarily fail. In its decision of
1 March 1982 (cf. para. 32 above), the Constitutional Court hinted at
the possibility that it would not have declined its jurisdiction to
review an act of direct administrative coercion if the facts had
presented themselves in a slightly different manner. That is the
reason why it carefully examined the facts of the particular case,
including the circumstance that the authority had not refused to
protect the applicant association's meeting, and the further
circumstance that no coercion had been used against the association
itself. This shows that the Constitutional Court would in fact have
assumed its jurisdiction if e.g. the authority had limited its role to
that of a wholly passive observer or if it had generally rejected a
request for the protection of the demonstration. This analysis of the
Constitutional Court's decision has also been confirmed in legal
writings (cf. Nowak, Zur Drittwirkung der Grundrechte, EuGRZ 1984,
133, 141).
85. As regards the other remedies discussed in the decision on
admissibility, the Government observe that it is not entirely correct
to say that there was no material damage. Insofar as such damage had
been caused (e.g. by the throwing of eggs) the persons concerned would
therefore have had the possibility to bring an official liability
action or a subsidiary private prosecution against the perpetrators.
86. Moreover, it is contested that in the context of criminal
proceedings against the responsible officials (under Sections 2 and 12
in conjunction with Sections 284, 285 and 302 of the Criminal Code) the
question could not have been examined whether the conduct of the
authorities as such had been appropriate in the circumstances and
whether or not the applicant association's right to assembly had been
sufficiently protected. In such proceedings it would have been
necessary to clarify whether, by his inactivity, the official in question
had violated positive duties incumbent on him under the law, including
the duty to protect freedom of assembly by positive action required by
the law and necessary to be taken in conformity with the principle of
legality.
IV. OPINION OF THE COMMISSION
A. Point at issue
87. The only point still at issue is whether the applicant association had
"an effective remedy before a national authority", as required by Article 13
(Art. 13) of the Convention, in respect of the allegedly insufficient
protection of its freedom of assembly.
B. Applicability of Article 13 (Art. 13)
88. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
89. This provision has been interpreted in the following way
in the Silver and Others judgment of 25 March 1983, Eur. Court H.R.,
Series A no. 61, p.42 para. 113:
"(a) where an individual has an arguable claim to be
the victim of a violation of the rights set forth in the
Convention, he should have a remedy before a national
authority in order both to have his claim decided and, if
appropriate, to obtain redress (see the ... Klass and Others
judgment, Series A no. 28, p. 29 para .64);
(b) the authority referred to in Article 13 (Art. 13) may not
necessarily be a judicial authority but, if it is not, its
powers and the guarantees which it affords are relevant
in determining whether the remedy before it is effective
(ibid., p. 30 para. 67);
(c) although no single remedy may itself entirely satisfy
the requirements of Article 13 (Art. 13), the aggregate of remedies
provided for under domestic law may do so (see, mutatis
mutandis, the X. v. the United Kingdom judgment, Series A
no. 46, p. 26 para. 60, and the Van Droogenbroeck judgment
of 24 June 1982, Series A no. 50, p. 32 para. 56);
(d) neither Article 13 (Art. 13) nor the Convention in general lays
down for the Contracting States any given manner for
ensuring within their internal law the effective
implementation of any of the provisions of the Convention -
for example, by incorporating the Convention into domestic
law (see the Swedish Engine Drivers' Union judgment of
6 February 1976, Series A no. 20, p. 18 para. 50).
It follows from the last-mentioned principle that the
application of Article 13 (Art. 13) in a given case will depend upon
the manner in which the Contracting State concerned has
chosen to discharge its obligation under Article 1 (Art. 1) directly
to secure to anyone within its jurisdiction the rights and
freedoms set out in section I (see ... Ireland v. the United
Kingdom judgment, Series A no. 25, p. 91 para. 239)."
90. It follows from the above that the right to an effective
remedy under Article 13 (Art. 13) does not depend on the existence of a breach
of another right or freedom in the Convention (cf. Silver and Others
Comm. Report 11.10.80, paras. 445-451).
91. However for Article 13 (Art. 13) to apply the claim that a provision of
the Convention has been breached must be an arguable one (cf. Klass judgment,
as referred to in para. 89 above). The criteria as to when there is an
arguable claim have been developed by the Commission in the case of James and
Sarah Boyle, X and Y v. the United Kingdom (Comm. Report 7.5.86, para. 74).
Such a claim should have the following elements:
- it should concern a right or freedom guaranteed by the
Convention;
- it should not be wholly unsubstantiated on the facts;
- it should give rise to a prima facie issue under
the Convention.
92. In the present case the applicant association invokes its
right to an effective remedy under Article 13 (Art. 13) as regards alleged
breaches of Article 11 (Art. 11) of the Convention resulting from insufficient
protection of certain demonstrations. The applicability of Article 13
(Art. 13) depends on whether this claim was arguable under Article 11 (Art. 11).
93. In this respect, the Commission recalls its decision on
admissibility of 17 October 1985 (Appendix II). There the Commission
held that the right to freedom of peaceful assembly within the meaning
of Article 11 para. 1 (Art. 11-1) of the Convention includes the right to
protection against counter-demonstrators, and that a claim of
insufficient protection does not as such fall outside the scope of
this provision. It further follows from the terms of this decision
that the association's claim of insufficient protection of its
demonstrations was at least arguable in the particular circumstances
of the case, although it was in the last analysis unfounded.
94. In this respect the present case can be distinguished from
application No. 10746/84, Verein Alternatives Lokalradio Bern and
Verein Radio Dreyeckland Basel v. Switzerland (dec. 16.10.86, to be
published in D.R.), where the Commission found that the applicants' complaint
under Article 13 (Art. 13) was manifestly ill-founded because they had not been
able to show that they could reasonably claim to be victims of a violation of
other Convention rights invoked by them. This finding was based on the
particular nature of the right invoked in that case (Article 10 (Art. 10) of
the Convention), which in the area of the grant of radio licences is restricted
by the terms of the Convention, Article 10 para. 1 (Art. 10-1) in fine stating
that the discretion shall be left to the national authorities. No such
restriction is inherent in the right invoked by the applicant association in
the present case, i.e. the right to the freedom of peaceful assembly under
Article 11 (Art. 11) of the Convention.
95. It follows that Article 13 (Art. 13) applies and that the applicant
association was thus entitled to an "effective remedy before a
national authority" in relation to its above claim under Article 11 (Art. 11).
C. Scope of the remedy required by Article 13 (Art. 13)
96. As regards the further question whether there was in fact an
effective remedy, the Government observe that, in reaching the
conclusion as to the inadmissibility of the applicant association's
complaint under Article 11 (Art. 11), the Commission expressly recognised that
the machinery provided by Austrian law for the protection of
demonstrations, as applied in the present case, met the requirements
of Article 11 (Art. 11). In the Government's view this confirmed that the
aggregate of remedies provided by Austrian law for the protection
of demonstrations was sufficient to achieve the relevant aims of the
Convention. For this reason it was not necessary to grant the
applicant association a specific remedy by which it could obtain a
review of the allegedly insufficient protection of its demonstrations.
This would extend the idea of legal protection too far. The Government
rely on the Klass and Others judgment of 6 September 1978 (Eur. Court
H.R., Series A no. 28, para. 70) which recognised that a limited scope
of remedies may be sufficient for the purposes of Article 13 (Art. 13) in
certain circumstances.
97. However, the operation of Article 13 (Art. 13) is not superfluous in a
case where the requirements of Article 11 (Art. 11) or of another substantive
article of the Convention have actually been met. Article 13 (Art. 13) adds a
guarantee to the obligation to comply with the substantive provisions
of the Convention: the right to obtain control of such compliance
at the domestic level, and not only before the Convention
organs which, in principle, have merely a subsidiary function to review
the domestic decisions on the matter (cf. the above-mentioned case of
James and Sarah Boyle, X and Y v. the United Kingdom, Comm. Report
7.5.86, para. 73).
98. The Commission considers that only a remedy open to the
applicant association itself could fulfil the requirements of
Article 13 (Art. 13). A remedy against private persons who disturbed the
assembly in question is not sufficient: Their acts do not constitute
interferences with Article 11 (Art. 11) which could form the basis of an
application to the Commission. Article 13 (Art. 13) requires a possibility
effectively to complain of the authorities' failure to protect the
exercise of freedom of assembly against such acts, because to provide
this protection is part of the State's responsibility under Article 11
(Art. 11) (cf. Decision on the Admissibility, Appendix II, para. 6 of The Law).
99. The exception stated in the Klass case that remedies of a
limited scope may be sufficient in certain circumstances does not
apply here. That case concerned secret surveillance measures which by
their nature had to remain confidential and could not be brought to
the notice of the persons concerned, who therefore could not be granted
an immediate and full remedy in respect of those measures. A similar
situation where access to a remedy would thwart the very objective of
a measure interfering with a Convention right, does not exist in the
present case.
D. Effectiveness of the remedies available in the present case
100. The Commission will examine in turn the following remedies:
a) constitutional complaint
b) hierarchical appeal
c) official liability action
d) criminal proceedings
e) administrative criminal proceedings.
a) Constitutional complaint (Verfassungsbeschwerde)
101. This remedy was used by the applicant association in relation
to its first demonstration at Stadl-Paura. The Constitutional Court
declined its jurisdiction on the basis of the terms of Article 144 of
the Federal Constitution. Under this provision, a constitutional
complaint can be lodged only against administrative decisions or acts
of direct administrative coercion (cf. paras. 42-43 above). In the
Constitutional Court's view, the inactivity of the authorities impugned
in the present case did not fall within either category of
challengeable acts (cf. para. 32 above).
102. In the light of this decision the applicant association
considers it obvious that a constitutional complaint is not an
effective remedy in a case like the present one. The Government
observe, however, that the question of sufficient protection of a
demonstration is not as such outside the jurisdiction of the
Constitutional Court. In their submission the applicant association
could have obtained a review of this question if it had provoked a
challengeable act of administration. The Constitutional Court in fact
carried out a very careful examination of the facts in order to
ascertain whether they involved such an act.
103. It is not clear, however, how the applicant association could
have provoked a challengeable act of administration recognised as such
by the Constitutional Court. As regards the argument that it could
have requested specific measures of protection whose refusal would
have constituted an administrative decision, it is to be noted that the
association did in fact raise certain specific requests (protection
against disturbance by noise or throwing of objects) which were
implicitly rejected by the authority before the demonstration started.
And yet the Constitutional Court did not regard the limitation of the
scope of protection as a challengeable administrative decision.
104. It is true that the applicant association did not make
specific requests for better protection when the demonstration was
already going on. However, the Commission considers that it is not
for the organiser of a demonstration to indicate to the authority the
details of the protection to be afforded. At this stage the authority
will often have to take quick and informal decisions according to the
development of the situation at each moment. In the present case, too,
the relevant measures were taken on the basis of internal decisions of
the authority which as such were not subject to review by the
Constitutional Court. It has not been shown that the applicant
association could have provoked any formal decisions in this regard.
105. It follows that a constitutional complaint was not an
effective remedy reasonably accessible to the applicant association.
b) Hierarchical appeal (Dienstaufsichtsbeschwerde)
106. The applicant association filed a hierarchical appeal in
relation to its first demonstration at Stadl-Paura. The supervisory
police authority, i.e. the Upper Austrian Regional Directorate for
Public Security, examined the measures taken by the local police and
found them unobjectionable. Accordingly, it saw no reason to take any
disciplinary or other measures (cf. para. 27 above).
107. The hierarchical appeal led to an examination by the competent
supervisory authority of the substantive issue relevant under Article
11 (Art. 11) of the Convention as to whether or not the protection afforded to
the applicant association's demonstrations was sufficient in the
circumstances. However, according to the constant case law of the
Austrian Courts, the hierarchical appeal does not give the person
making it a personal right to the exercise by the State of its
supervisory powers. The hierarchical appeal in fact is no more than
information submitted to the supervisory organ with the suggestion to
make use of its powers if it sees fit to do so. These powers can be
exercised in exactly the same way without the initiative coming from a
hierarchical appeal. If proceedings are taken, they take place
exclusively between the supervisory organ and the official concerned,
and the applicant will not be a party. Consequently, he will not
receive a decision regarding his hierarchical appeal. He receives
information telling him in which way the supervisory organ has dealt
with his hierarchical appeal. This is current practice, but it
appears that there is not even a legal obligation to give him such
information. Normally, the effect of any action taken will not be of
any direct and immediate consequence for the proceedings which have
given rise to the hierarchical appeal (cf. Application No. 7464/76,
Karrer, Fuchs and Kodrnja v. Austria, Dec. 5.12.78, D.R. 14 p. 51).
108. For these reasons, the Commission does not consider that the
hierarchical appeal referred to by the Government was an effective
remedy within the meaning of Article 13 (Art. 13) of the Convention in the
circumstances of the present case.
c) Official liability action (Amtshaftung)
109. The Government have relied on the possibility to file an
official liability action. It is true that, if admitted, such an
action might in fact lead to a comprehensive review of the question
whether or not the authority has fulfilled its legal duties concerning
the protection of a demonstration. However, only compensation for
material damage can be claimed (cf. para. 52 above). As the applicant
association itself did not suffer any such damage, this remedy was not
open to it.
110. In the Commission's opinion it is not sufficient that such an
action might have been open to individual persons who suffered damage
when they participated in the applicant association's demonstration.
These persons' rights as participants in the demonstration are not
identical to those of the applicant association as the organiser, and
Article 13 (Art. 13) of the Convention clearly gives the right to an effective
national remedy to "everybody whose rights and freedoms as set forth
in [the] Convention are violated".
111. The Commission therefore considers that an official liability
action was not an effective remedy in respect of the applicant
association's complaints.
d) Institution of criminal proceedings (Strafverfahren)
112. The Government place particular emphasis on the protection of
demonstrations by criminal law. They claim that the applicant
association could have requested the institution of criminal
proceedings both against private individuals and against the
responsible officials. The applicant association contests this,
referring on the one hand to the limited scope of the criminal
offences in question and on the other to the limited scope of the
rights of the injured party under the Code of Criminal Procedure.
113. In the present case the applicant association's complaints
under Article 11 (Art. 11) of the Convention were not limited to allegations
that the authorities had failed to prosecute criminal offences
committed at the demonstrations. It was alleged on a broader basis
that the authorities had failed to provide sufficient protection for
the demonstrations concerned. The question arises whether criminal
proceedings against the responsible officials would have provided the
applicant association with an effective remedy in this respect.
114. The Commission notes that it is, in principle, possible to
institute criminal proceedings against officials who allegedly failed
to prevent criminal offences of individuals, or who could otherwise be
said to have abused their official powers concerning the protection of
a demonstration (cf. para. 57 above). However, it must be assumed that
in many cases the conduct of the responsible officials will not attain
the level of criminal behaviour. Indeed, it has not been alleged in
the present case by the applicant association that the authorities'
conduct was of a criminal nature.
115. Even insofar as the criminal law might have been applicable,
the applicant association could not itself have instituted
proceedings. Its only possibility would have been to report criminal
offences which the prosecuting authorities would then have been
obliged to investigate. However, this would not have implied any
right for the applicant association to obtain the actual institution
of proceedings (cf. paras. 58-60 above). The further possibility to
bring a subsidiary private prosecution under Section 48 of the Code of
Criminal Procedure was not open to the applicant association in the
circumstances of the case as it uncontestedly had not suffered any
material damage (cf. paras. 62-63 above).
116. The Government object that material damage was in fact caused
to certain persons who had participated in the association's
demonstration, e.g. by the throwing of objects which spoiled their
clothing. However, it appears that this circumstance would have
created a possibility to bring a "subsidiary private prosecution" only
for the persons concerned. It has not been shown that the legal
position of the association itself regarding this procedural
possibility would have been affected in any way. Even if a
"subsidiary private prosecution" had been admitted on this basis, it
is hardly conceivable that the relevant proceedings would have
extended beyond the particular incident and would have covered the
totality of the applicant association's grievances concerning the
alleged failure to provide sufficient protection for its
demonstration.
117. It follows that, apart from its limited scope, the criminal
law did not afford an effective remedy to the applicant association
by which it could obtain review of the question of the allegedly
insufficient protection of its demonstrations.
e) Administrative penal proceedings (Verwaltungsstrafverfahren)
118. Such proceedings were actually taken against one person
following the applicant association's demonstration at Stadl-Paura.
The person concerned was fined under Article IX of the Administrative
Proceedings (Introduction) Act for a breach of the peace. This action
was taken ex officio (cf. para. 29 above).
119. It is true that certain disturbances of the demonstrations
alleged by the applicant association might have constituted
administrative offences as defined by Austrian law (cf. paras. 66-67
above) and that the association could have reported these offences to
the competent authority under Section 40 of the Code of Administrative
Offences (cf. para. 69 above). However, no more than in criminal
proceedings was there an enforceable right to have the proceedings
actually instituted. In particular, there was no possibility of
ensuring proceedings by way of a "subsidiary private prosecution"
(cf. para. 70 above).
120. It follows that administrative penal law did not provide an
effective remedy to the applicant association.
E. Conclusion
134. The Commission concludes, by a unanimous vote, that in the
present case there has been a violation of Article 13 (Art. 13) of the
Convention in that the applicant association did not have any
effective remedy before a national authority as regards the allegedly
insufficient protection of its freedom of assembly.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
&_APPENDIX I&S
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
13 September 1982 Introduction of the application
20 September 1982 Registration of the application
Examination of Admissibility
14 May 1984 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
30 July 1984 Government's observations
11 October 1984 Applicant association's observations
in reply
7 May 1985 Commission's deliberations and
decision to hold an oral hearing
17 October 1985 Oral hearing on admissibility and
merits, Commission's deliberations
and decision to declare the
application in part admissible and
in part inadmissible
7 March 1986 Commission approves text of decision
on admissibility
Examination of the merits
20 March 1986 Decision on admissibility transmitted
to the parties
2 May 1986 Government's observations on the merits
5 May 1986 Applicant association's observations
on the merits
14 July 1986 ) Commission's consideration of the
) state of proceedings
10 December 1986 )
5 and 12 March 1987 Commission's deliberations on the
merits, final vote and adoption of
the Report