Öllinger v. Austria, No. 76900/01, ECtHR (First Section), 29 June 2006

Prohibition of meeting at cemetery aimed at countering a gathering in memory of killed SS soldiers by commemorating the Jews murdered by the SS during the Second World War.

Art. 11 ECHR
Art. 9 ECHR

1. Right to freedom of peaceful assembly under Article 11 ECHR comprises negative and positive obligations on the part of the State. On the one hand, the State is compelled to abstain from interfering with that right, which also extends to a demonstration that may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. On the other hand, States may be required to take positive measures in order to protect a lawful demonstration against counter-demonstrations.

2. If every probability of tension and heated exchange between opposing groups during a demonstration was to warrant its prohibition, society would be faced with being deprived of the opportunity of hearing differing views.

3. While those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism, the responsibility of the State may be engaged where religious beliefs are opposed or denied in a manner which inhibits those who hold such beliefs from exercising their freedom to hold or express them. In such cases the State may be called upon to ensure the peaceful enjoyment of the right guaranteed under Article 9 ECHR to the holders of those beliefs.
(In the present case, the Court held that the prohibition of a ceremony commemorating the murdered Salzburg Jews that would coincide in time and venue with a gathering in memory of the SS soldiers killed in the Second World War constitutes a violation of Article 11 of the Convention).

In his dissenting opinion, Judge Loucaides found that the Austrian Constitutional Court was right in finding that the prohibition of the assembly in issue was necessary for the protection of the rights and freedom of others, namely all those persons visiting the cemetery in order to commemorate the dead on All Saints' Day.