Öllinger v. Austria (Application no. 76900/01)

A selection of key paragraph(s) can be found below the document.


44. In the Court’s view, the unconditional prohibition of a counter-demonstration is 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 an issue of public interest (see, mutatis mutandis, Jerusalem v. Austria, no. 26958/95, § 36, ECHR 2001 II). The Court finds it striking that the domestic authorities attached no weight to this aspect of the case.
45. It is undisputed that the aim of protecting the gathering of Comradeship IV does not provide sufficient justification for the contested prohibition. This has been clearly pointed out by the Constitutional Court. The Court fully agrees with that position.
46. Therefore, it remains to be examined whether the prohibition was justified to protect the cemetery-goers’ right to manifest their religion. The Constitutional Court relied on the solemn nature of All Saints’ Day, traditionally dedicated to the commemoration of the dead, and on the disturbances experienced in previous years as a result of disputes between members of Comradeship IV and members of counter-demonstrations.
47. However, the Court notes a number of factors which indicate that the prohibition in issue was disproportionate to the aim pursued. First and foremost, the assembly was in no way directed against the cemetery-goers’ beliefs or the manifestation of them. Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers. Moreover, while the authorities feared that, as in previous years, heated debates might arise, it was not alleged that any violent incidents had occurred on previous occasions.
48. In these circumstances, the Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors.
49. Instead, the domestic authorities imposed an unconditional prohibition on the applicant’s assembly. The Court therefore finds that they gave too little weight to the applicant’s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery-goers in being protected against some rather limited disturbances.
50. Having regard to these factors, and notwithstanding the margin of appreciation afforded to the State in this area, the Court considers that the Austrian authorities failed to strike a fair balance between the competing interests.
51. Consequently, there has been a violation of Article 11 of the Convention.


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