In the case of Plattform "Ärzte für das Leben",
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human Rights and
Fundamental Freedoms ("the Convention") and the relevant provisions
of the Rules of Court, as a Chamber composed of the following judges:
Mr. R. Ryssdal,
President,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro
Farinha,
Mr. R. Macdonald,
Mr. A. Spielmann,
Mr. J. A. Carrillo
Salcedo,
and also of Mr. M.-A. Eissen, Registrar,
and Mr. H. Petzold, Deputy Registrar,
Having deliberated in private on 25 March and 25 May 1988,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 14 May 1987, within
the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an application (no. 10126/82)
against Austria lodged with the Commission under Article 25 (art. 25) by an
association called Plattform "Ärzte für das Leben" ("Doctors for
the right to life" Campaign, "Plattform") on 13 September 1982.
The Commission’s request referred to Articles 44 and 48 (art.
44, art. 48) and to Austria’s declaration recognising the compulsory jurisdiction
of the Court (Article 46) (art. 46). The purpose of the request was to obtain a
decision from the Court as to whether or not the facts of the case disclosed a
breach by the respondent State of its obligations under Article 13 (art. 13) of
the Convention.
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of the Rules of Court, the applicant association stated that it wished
to take part in the proceedings pending before the Court and designated the
lawyer who would represent it (Rule 30).
3. The Chamber of seven judges to be constituted included ex officio
Mr. F. Matscher, the elected judge of Austrian nationality (Article 43 of the
Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21
§ 3 (b)). On 23 May 1987, in the presence of the Registrar, the President of
the Court drew by lot the names of the other five members, namely Mr. J.
Pinheiro Farinha, Mr. R. Macdonald, Mr. J. Gersing, Mr. A. Spielmann and Mr.
A.M. Donner (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently,
Mr. F. Gölcüklü and Mr. J.A. Carrillo Salcedo, substitute judges, replaced Mr.
Donner and Mr. Gersing, who were unable to attend (Rules 22 § 1 and 24 § 1).
4. On 20 June 1987, the President gave the applicant association’s
counsel leave to use the German language (Rule 27 § 3).
5. Having assumed the office of President of the Chamber (Rule
21 § 5) and, after consulting - through the Registrar - the Agent of the
Austrian Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant association, Mr. Ryssdal
(a) decided on 8 July 1987 that there was no need at that stage
to arrange for written pleadings to be filed (Rule 37 § 1);
(b) directed on 3 November 1987 that the oral proceedings
should commence on 21 March 1988 (Rule 38).
6. On 16 September 1987, the Registrar received the applicant
association’s claims under Article 50 (art. 50) of the Convention.
7. The hearing was held in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a preparatory meeting
immediately beforehand.
There appeared before the Court:
- for the Government
Mr. H. Türk, Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr. W. Okresek, Federal
Chancellery,
Mr. A. Holzhammer, Federal
Ministry of the Interior, Counsel;
- for the Commission
Mr. G. Batliner, Delegate,
- for the applicant association
Mr. A. Adam, Rechtsanwalt, Counsel.
The Court heard addresses by Mr. Türk and Mr. Okresek for the Government,
by Mr. Batliner for the Commission and by Mr. Adam for the applicant
association, as well as their replies to its questions.
AS TO THE FACTS
8. Plattform "Ärzte für das Leben" is an
association of doctors who are campaigning against abortion and are seeking to
bring about reform of the Austrian legislation on the matter. In 1980 and 1982
it held two demonstrations which were disrupted by counter-demonstrators despite
the presence of a large contingent of police.
I. THE DEMONSTRATION AT STADL-PAURA
A. Planning of the demonstration
9. The applicant association decided to hold a religious
service at Stadl-Paura Church (Upper Austria) on 28 December 1980, after which there would be a march to the surgery of a doctor who carried out abortions. As
required under section 2 of the Assembly Act of 1953 (see paragraph 40 of the
Commission’s report), it gave notice, on 30 November, to the police authority
for the district of Wels-Land. The police made no objection and gave the
participants permission to use the public highway. The police did, however,
have to ban two other planned demonstrations, which were announced subsequently
by supporters of abortion, as these demonstrations were to be held at the same
time and in the same place as the Plattform demonstration.
10. As the organisers feared that incidents might occur nonetheless,
they sought - shortly before the beginning of the march - to change their
plans, in consultation with the local authorities. They gave up the idea of
demonstrating outside the doctor’s surgery and decided instead to march to an
altar erected on a hillside quite a distance away from the church and hold a
religious ceremony there.
11. The police representatives pointed out to them that the
main body of the police officers had already been deployed along the route originally
planned and that because of the lie of the land the new route was not suited to
crowd control. They did not refuse to provide protection but stated that -
irrespective of the route chosen or to be chosen - it would be impossible to
prevent counter-demonstrators from throwing eggs and disrupting both the march
and the religious service.
B. The incidents
12. During the mass, a large number of counter-demonstrators -
who, it seems, had not given the notice required under the Assembly Act -
assembled outside the church and were not dispersed by the police. They
disrupted the march to the hillside by mingling with the marchers and shouting
down their recitation of the rosary. The same thing happened at the service
celebrated in the open air: some five hundred people attempted to interrupt it
using loudspeakers and threw eggs and clumps of grass at the congregation.
13. At the end of the ceremony, when tempers had risen to the
point where physical violence nearly broke out, special riot-control units -
which had until then been standing by without intervening - formed a cordon
between the opposing groups, and this enabled the procession to return to the
church.
14. In a letter to the Upper Austrian Safety Authority, the chairman
of the association described the counter-demonstrators’ behaviour as
"relatively peaceful": on other occasions, the opponents of Plattform
had attacked the association’s members and had assaulted policemen.
C. Remedies pursued after the demonstration
1. Remedies sought by the association itself
(a) Disciplinary complaint
15. On 21 January 1981, the applicant association lodged a disciplinary
complaint (Dienstaufsichtsbeschwerde - see paragraphs 47-50 of the Commission’s
report) alleging that the local police had failed to provide sufficient protection
for the demonstration.
The Upper Austrian Safety Authority considered that the
behaviour of the police had been irreproachable and it decided not to take any disciplinary
measures against them. It referred to the difficulty of completely protecting
an open-air demonstration from verbal abuse and from missiles which were not
likely to cause the participants any physical harm. The Authority added that,
in not intervening, the police had been prompted by the concern to avoid more
serious trouble.
(b) Constitutional appeal
16. Plattform subsequently lodged an appeal with the Constitutional Court (Verfassungsbeschwerde - see paragraphs 41-43 of the Commission’s
report); in the association’s submission the local authorities’ failure to act
had in the instant case allowed an infringement of the freedoms of assembly and
religious observance, both of which were guaranteed by the Austrian
Constitution.
On 11 December 1981, the Constitutional Court heard evidence
from several witnesses with a view to establishing the facts sufficiently clearly.
In a judgment on 1 March 1982, it held that it had no jurisdiction and
consequently declared the appeal inadmissible. It noted that the applicant
association’s complaint was clearly not directed against a "decision"
or acts of direct administrative coercion within the meaning of Article 144 of
the Constitution (see Official Collection of the Judgments of the Constitutional Court, no. 9334/1982).
2. Proceedings taken officially
(a) Ordinary criminal proceedings
17. Plattform did not take any ordinary criminal proceedings
by lodging a complaint or by bringing a subsidiary private prosecution ("Subsidiaranklage"
- see paragraphs 58-64 of the Commission’s report).
The Upper Austrian Safety Authority and the local police, however,
opened investigation proceedings against a person or persons unknown for
disruption of a meeting. For its part, a private organisation, the
"Österreichische Bürgerinitiative zum Schutz der Menschenwürde", lodged
a complaint against one of the counter-demonstrators, a member of parliament,
alleging obstruction of a religious ceremony and incitement to hatred under
Articles 188, 189 and 283 of the Criminal Code as well as an offence against
section 2 of the 1953 Assembly Act. Complaints were also lodged against two
other people.
The Wels public prosecutor discontinued the proceedings on 1 April 1981, however, under Article 90 of the Code of Criminal Procedure.
(b) Administrative criminal proceedings
18. One person caught in the act of throwing eggs was fined 1,000
Austrian schillings under section IX of the law enacting the Administrative
Proceedings Acts (see paragraph 66 of the Commission’s report).
II. THE SALZBURG DEMONSTRATION
19. The competent police authority gave permission for a
second demonstration against abortion to be held in the cathedral square in Salzburg on 1 May 1982. An anniversary meeting was due to be held in the square by the
Socialist Party on the same day, but it had to be cancelled because notice of
it had been given after the applicant association had given notice of its own
meeting.
The demonstration began at 2.15 p.m. and ended with an hour of prayers inside the cathedral.
At about 1.30 p.m. some three hundred and fifty people angrily shouting
their opposition had passed through the three archways which provide access to
the square and gathered outside the cathedral. A hundred policemen formed a
cordon around the Plattform demonstrators to protect them from direct attack. Other
trouble was caused by sympathisers of an extreme right-wing party, the NDP, who
voiced their support for Plattform. The police asked the association’s chairman
to order these people to disperse, but without success.
In order to prevent the religious ceremony being disrupted, the
police cleared the square.
20. No proceedings were taken after these incidents, and in
view of the Constitutional Court’s decision of 1 March 1982 the applicant association considered that a second appeal would have served no purpose.
PROCEEDINGS BEFORE THE COMMISSION
21. The Plattform "Ärzte für das Leben" association
applied to the Commission on 13 September 1982 (application no. 10126/82). It claimed
that it had not had sufficient police protection during the demonstrations it
had held on 28 December 1980 at Stadl-Paura and on 1 May 1982 at Salzburg; it
submitted that there had been a violation of Articles 9, 10 and 11 (art. 9,
art. 10, art. 11) of the Convention. It also relied on Article 13 (art. 13),
claiming that the Austrian legal system did not provide an "effective remedy
before a national authority" to ensure the effective exercise of the
rights in question.
22. On 17 October 1985, the Commission declared inadmissible,
as being manifestly ill-founded, the complaints under Articles 9, 10, and 11
(art. 9, art. 10, art. 11); on the other hand, it declared admissible the
complaint under Article 13 (art. 13). In its report of 12 March 1987 (Article 31) (art. 31), it unanimously held that there had been no violation of this
Article (art. 13).
The full text of the Commission’s opinion, together with a
summary made by the Commission of the relevant domestic law and practice, is reproduced
as an annex to this judgment.
FINAL SUBMISSIONS MADE TO THE COURT
23. At the hearing on 21 March 1988, the Government requested the Court to hold that "the provisions of Article 13 (art. 13) of the
European Convention on Human Rights [had] not been infringed and that the facts
which gave rise to the dispute accordingly disclose[d] no violation of the
Convention".
AS TO THE LAW
24. The applicant association stated that no effective remedy
was available to it in Austria for its complaint under Article 11 (art. 11); it
relied on Article 13 (art. 13), which provides:
"Everyone whose rights and freedoms as set forth in [the]
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."
25. The Government’s main submission was that Article 13
(art. 13) applied only where a substantive provision of the Convention had been
infringed. As evidence of this, they cited the French text, containing the
words "ont été violés", which in their view were clearer than the
corresponding English terms ("are violated").
The Court does not accept this submission. Under its case-law, Article
13 (art. 13) secures an effective remedy before a national "authority"
to anyone claiming on arguable grounds to be the victim of a violation of his
rights and freedoms as protected in the Convention; any other interpretation
would render it meaningless (see, as the most recent authority, the Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
26. Although it declared the complaint under Article 11 (art.
11) inadmissible as being manifestly ill-founded, the Commission considered it
arguable for the purposes of Article 13 (art. 13). The Government thought it
contradictory to declare one and the same complaint to be manifestly
ill-founded under a substantive provision and yet arguable under Article 13
(art. 13).
27. The Court does not propose to give an abstract definition
of the notion of "arguability". In order to ascertain whether Article
13 (art. 13) was applicable in the instant case, it is sufficient that it should
determine, in the light of the facts of the case and the nature of the legal
issue or issues raised, whether the claim that the requirements of Article 11
(art. 11) had not been complied with was arguable notwithstanding that the
Commission dismissed it as manifestly ill-founded. The latter’s decision on
admissibility may provide the Court with useful pointers as to the arguability
of the relevant claim (see the Boyle and Rice judgment previously cited, Series
A no. 131, pp. 23-24, §§ 54-55).
28. Before the Commission, Plattform complained that the
Austrian authorities had disregarded the true meaning of freedom of assembly by
having failed to take practical steps to ensure that its demonstrations passed
off without any trouble.
29. In the Government’s submission, Article 11 (art. 11) did
not create any positive obligation to protect demonstrations. Freedom of peaceful
assembly - enshrined in Article 12 of the Austrian Basic Law of 1867 - was
mainly designed to protect the individual from direct interference by the
State. Unlike some other provisions in the Convention and the Austrian
Constitution, Article 11 (art. 11) did not apply to relations between
individuals. At all events, the choice of the means to be used in a given
situation was a matter for the State’s discretion.
30. In its decision of 17 October 1985 on admissibility, the Commission dealt at length with the question whether Article 11 (art.
11) impliedly required the State to protect demonstrations from those wishing
to interfere with or disrupt them. It answered this question in the
affirmative.
31. The Court does not have to develop a general theory of
the positive obligations which may flow from the Convention, but before ruling
on the arguability of the applicant association’s claim it has to give an interpretation
of Article 11 (art. 11).
32. A demonstration may annoy or give offence to persons
opposed to the ideas or claims that it is seeking to promote. The participants
must, however, be able to hold the demonstration without having to fear that
they will be subjected to physical violence by their opponents; such a fear
would be liable to deter associations or other groups supporting common ideas
or interests from openly expressing their opinions on highly controversial
issues affecting the community. In a democracy the right to counter-demonstrate
cannot extend to inhibiting the exercise of the right to demonstrate.
Genuine, effective freedom of peaceful assembly cannot,
therefore, be reduced to a mere duty on the part of the State not to interfere:
a purely negative conception would not be compatible with the object and purpose
of Article 11 (art. 11). Like Article 8 (art. 8), Article 11 (art. 11)
sometimes requires positive measures to be taken, even in the sphere of
relations between individuals, if need be (see, mutatis mutandis, the X and Y
v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, § 23).
33. Concurring with the Government and the Commission, the
Court finds that Austrian law is concerned to protect demonstrations by such positive
action. For example, Articles 284 and 285 of the Criminal Code make it an
offence for any person to disperse, prevent or disrupt a meeting that has not
been prohibited, and sections 6, 13 and 14(2) of the Assembly Act, which
empower the authorities in certain cases to prohibit, bring to an end or
disperse by force an assembly, also apply to counter-demonstrations (see
paragraphs 54 and 40 of the Commission’s report).
34. While it is the duty of Contracting States to take
reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully,
they cannot guarantee this absolutely and they have a wide discretion in the
choice of the means to be used (see, mutatis mutandis, the Abdulaziz, Cabales
and Balkandali judgment of 28 May 1985, Series A no. 94, pp. 33-34, § 67, and
the Rees judgment of 17 October 1986, Series A no. 106, pp. 14-15, §§ 35-37). In
this area the obligation they enter into under Article 11 (art. 11) of the
Convention is an obligation as to measures to be taken and not as to results to
be achieved.
35. In the applicant association’s submission, the police
remained entirely passive at each of the two demonstrations in issue. The Government
and the Commission disagreed; in their view, immediate intervention was not
justified in the absence of any serious assaults and would inevitably have
provoked physical violence.
36. The Court does not have to assess the expediency or effectiveness
of the tactics adopted by the police on these occasions but only to determine
whether there is an arguable claim that the appropriate authorities failed to
take the necessary measures.
37. As regards the incidents at Stadl-Paura on 28 December
1980 (see paragraphs 9-13 above), it must first be noted that the two demonstrations
planned by supporters of abortion, which were due to be held at the same time
and place as Plattform’s demonstration (of which notice had been given on 30
November) had been prohibited. Furthermore, a large number of uniformed and
plain-clothes policemen had been deployed along the route originally planned,
and the police representatives did not refuse the applicant association their protection
even after it decided to change the route despite their objections. Lastly, no
damage was done nor were there any serious clashes; the counter-demonstrators
chanted slogans, waved banners and threw eggs or clumps of grass, which did not
prevent the procession and the open-air religious service from proceeding to
their conclusion; special riot-control units placed themselves between the opposing
groups when tempers had risen to the point where violence threatened to break
out.
38. For the 1982 demonstration in Salzburg (see paragraph 19 above)
the organisers had chosen the date of 1 May, the day of the traditional Socialist
march which had to be cancelled - as regards the cathedral square - because the
applicant association had given notice of its demonstration earlier. Furthermore,
a hundred policemen were sent to the scene to separate the participants from
their opponents and avert the danger of direct attacks; they cleared the square
so as to prevent any disturbance of the religious service.
39. It thus clearly appears that the Austrian authorities did
not fail to take reasonable and appropriate measures.
No arguable claim that Article 11 (art. 11) was violated has
thus been made out; Article 13 (art. 13) therefore does not apply in the instant
case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 13 (art. 13).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 21 June 1988.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
