The International Human Rights Framework on the Right of Peaceful Assembly
Austria is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Austria is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Austria is a State Party to the 1950 European Convention on Human Rights. Article 11 governs freedom of assembly and association:
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 10 of Austria's Federal Constitution confers on the federal government the right to adopt legislation on the right of assembly
The 1953 Assembly Act (as amended) (Versammlungsgesetz) is Austria's primary legislation regulating the exercise of the right to freedom of assembly. Section 2(1) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing at least 24 hours in advance, indicating the purpose, place, and time of the meeting.
Under Section 5, certain gatherings such as public entertainment, popular ceremonies, or religious processions do not fall within the scope of the Assembly Act.
Section 6 mandates that the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security.
Section 14 stipulates that:
(1) As soon as an assembly is declared as dissolved, all those present are obliged to immediately leave the place of assembly and separate.
(2) In case of non-compliance, authorities may apply means of enforcement to dissolve the assembly.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Under the 1991 Administrative Penal Act, arrest and detention shall be carried out with respect for human dignity and the most considerate treatment possible of the person.§36(2), 1991 Administrative Penal Act.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
A 1969 law (as amended) governs police use of firearms. It is considerably more permissive than international law allows.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2015 Concluding Observations on Austria, the Human Rights Committee addressed briefly the right of peaceful assembly, expressing its concern that:
some provisions of the 2015 Amendments to the Law on the Recognition of Islamic Religious Communities may be discriminatory and unduly restrict the enjoyment of the right to freedom of religion in community with others, as well as the rights to association and assembly
There have been a number of cases brought against Austria before the European Court of Human Rights concerning alleged violations of the right of peaceful assembly. Most have not found a violation by the State. A notable exception is the Öllinger case described below.
Öllinger v. Austria (2006)
The case concerned the banning of a gathering at a cemetery on All Saints’ Day intended to counter another gathering in memory of killed SS soldiers by commemorating Jews killed by the SS.
The police prohibited the meeting in order to prevent disturbances of the Comradeship IV commemoration meeting which was considered a popular ceremony not requiring authorisation. In 2000, the Constitutional Court dismissed a complaint by the applicant, although it did found the approach of the police authority and public security authority to have been too narrow. It observed that the prohibition of the intended meeting would not have been justified if its sole purpose had been the protection of the Comradeship IV ceremony. The prohibition had nevertheless been justified or even required in view of the state’s positive obligation under Article 9 of the European Convention to protect those practising their religion against deliberate disturbance by others. All Saints’ Day was an important religious holiday on which the population traditionally went to cemeteries to commemorate the dead and disturbances caused by disputes between members of the assembly organised by the applicant and members of Comradeship IV were likely to occur in the light of the experience of previous years.
The applicant’s right to freedom of peaceful assembly had to be balanced against the other association’s right to protection against disturbance of its assembly and the cemetery users’ right to protection of their freedom to practice their religion.The applicant had emphasised that the main purpose of his assembly was to remind the public of the crimes committed by the SS and to commemorate the Salzburg Jews murdered by them. The coincidence in time and venue with the commemoration ceremony of Comradeship IV had been an essential part of the message he wished to convey. The unconditional prohibition of a counter-demonstration was a very far-reaching measure which would require particular justification, all the more so as the applicant, being a member of parliament, essentially wished to protest against the gathering of Comradeship IV and, thus, to express an opinion on a issue of public interest. The Court found it striking that the domestic authorities had attached no weight to that aspect of the case.
Considering whether the prohibition had been justified to protect the cemetery users’ right to practise their religion, the Court noted a number of factors which indicated that the prohibition at issue had been disproportionate to the aim pursued. In no way had the assembly been directed against the cemetery users’ beliefs or the manifestation of them. Moreover, the applicant had expected only a small number of participants and had envisaged peaceful and silent means of expressing their opinion, explicitly ruling out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of visitors to the cemetery. Moreover, while the authorities had feared that, as in previous years, heated debates might arise, it had not been alleged that any incidents of violence had occurred on previous occasions. In those circumstances, the Court was not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring a police presence in order to keep the two assemblies apart, had not been a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors. The Austrian authorities had given too little weight to the applicant’s interest in holding the intended assembly and expressing his protest against the meeting of Comradeship IV, while giving too much weight to the interest of cemetery users in being protected against some rather limited disturbances. In sum, the authorities had failed to strike a fair balance between the competing interests.