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Ban on demonstrations taking place in city centers?


The idea is not entirely new (keyword: “demo zones”), but there are reasons why it has not been implemented. Now the debate has been reignited in view of the weekly “Corona demos” and the economically strained situation of the retail industry.

Our Partner Kerstin Holzinger explained what the legal framework for restrictions on public gatherings looks like in a talk with the Kurier.

In addition, we answer the central questions on the topic here:

Can a demonstration be banned altogether, relocated or limited in time?

As assemblies, demonstrations are particularly protected by fundamental rights. Both the Basic Law of 1867 (“Staatsgrundgesetz 1867”) and the European Convention on Human Rights grant fundamental legal protection to assemblies.

According to the Assembly Act, authorities have to be notified in writing of the demonstration at least 48 hours before it is to be held, stating the purpose, place and time of the assembly (if representatives of foreign states, international organizations or other subjects of international law are to take part in the assembly, the notification has to be received one week in advance). By law (according to the Assembly Act), the authority only has the option of prohibiting assemblies. This can happen if one of the below-mentioned reasons is realized:

  • Conflict with criminal law (e.g. violation of the Prohibition Act)
  • Endangering public safety or public welfare (e.g. demonstrations in front of prisons, which raise fears of riots in the prison; blockades of major traffic routes for several hours [not the case if there is a thematic connection, e.g. demonstration concerning transit traffic]), targeted disruption of the exercise of fundamental rights [e.g. religious practice]).
  • Conflict with the provisions of assembly law (e.g. “ban mile” around the National Council, Federal Council, Federal Assembly, State Parliament: during their assembly, no open-air assembly is to take place within a radius of 300 m).

The competent authority must not order a change in terms of location or time on its own initiative; the Assembly Act only allows for a general prohibition. If the authority therefore comes to the conclusion that the notified meeting should be prohibited, it has to inform the organizer of this and work towards a change in the notification. The authorities are not allowed to change the notification themselves. If the organizer does not comply with the authority’s request to change their notification, the assembly has to be prohibited.

A ban has to be based on clear and present threats; mere forecasts and fears are not sufficient. The Constitutional Court assumes, for example, that even the possibility of violent counter-demonstrations or the possibility that extremists with violent intentions will join a demonstration cannot justify its prohibition. Even if there were a theoretical risk of violent clashes, it would be up to the police to intervene between the two groups and maintain public order. However, specific experiences of the authority with comparable assemblies or reports about them can justify a ban (cf. Word Economic Forum in Salzburg in 2002).

Who is responsible?

The competent authorities for decisions on assemblies are, in principle, the district administrative authorities, otherwise the regional police directorates. Appeals against decisions of the authorities can be lodged with the respective provincial administrative court. The Minister of the Interior is the supreme authority.

The competent authority has to receive the notification no later than 48 hours before the start of the assembly. If the authority comes to the conclusion that the assembly in the form reported should be prohibited, it will contact the organizer. The notification can then be amended so that the assembly does not have to be prohibited. Otherwise, the assembly is prohibited.

What needs to be taken into consideration?

Having the possibility to collectively and publicly express an opinion is a top priority in a democracy – in this regard, the extent to which one can actually exercise their right to freedom of assembly is considered a yardstick of a functioning democracy.

Conversely, the exercise of freedom of assembly often leads to conflicts with other fundamental rights, such as the economic interests of businesses, when demonstrations in city centers keep customers away during important business hours or when demonstrations block important traffic routes. But it is precisely this conflict with the rights and freedoms of others that in turn ensures demonstrations the attention they need to spread their cause.

When can a demonstration be dissolved?

The mere violation of the notification obligation does not justify the dissolution of a demonstration.

A demonstration has to be dissolved if unlawful events occur during the assembly or if it takes on a character that threatens public order – for example, in the case of Nazi propaganda, repeated use of rockets or the blocking of construction work. In any case, gatherings within the ban mile are to be dissolved.

Do Corona rules also apply to Corona demos?

People without 2G proof are also allowed to take part in demonstrations (who are otherwise currently still subject to a “lockdown” with exit restrictions); this takes account of the high status of gatherings in constitutional law. However, masks are compulsory outdoors.

Other restrictions that apply to “gatherings” (limited number of people, assigned seating, etc.) also do not apply to assemblies under the Assembly Act. However, for gatherings of more than 50 people, a COVID 19 officer has to be appointed and a COVID 19 prevention concept has to be developed and implemented.

Our expert Kerstin Holzinger will be happy to answer any further questions you may have on this topic by phone or at akut@hnp.at.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

 

26. January 2022

 
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