European Court of Human Rights
29 June 2006
Facts
The applicant, a member of the Austrian Parliament, planned to hold a symbolic protest in a cemetery on All Saints’ Day. The event was intended to be peaceful: wreaths were to be laid on the graves of Nazi war criminals with the inscription “In memory of all victims.” The police banned the event, arguing that it could offend cemetery visitors and disturb public order. The applicant did not hold the protest and brought the matter before the courts.
Complaint
The applicant complained that the ban on holding the protest in the cemetery violated his right to freedom of assembly under Article 11 of the Convention.
Court decision
The Court acknowledged that while states may restrict assemblies to protect the rights of others - including the right to practise religion - and to maintain public order, such restrictions must be proportionate. The Court found that the applicant’s planned action was symbolic, brief, and aimed at drawing attention to the memory of victims. There was no evidence that it posed a serious threat to public order.
The judgment emphasised that peaceful protest, even if it provokes debate or controversy within society, is protected under Article 11 of the Convention. State authorities cannot prohibit demonstrations merely because they may be unpopular or unwelcome to some members of the public. Civil resistance can be symbolic and peaceful, and any restrictions on it must be assessed with great caution.
The Austrian authorities’ decision to ban the event was found to be disproportionate and in violation of Article 11 of the Convention.