AS TO THE ADMISSIBILITY OF
Application No. 12774/87
by B.H., M.W., H.P. and G.K.
against Austria
The European Commission of Human Rights sitting in private
on 12 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
MM. C.L. ROZAKIS
L. LOUCAIDES
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 December
1986 by B.H., M.W., H.P. and G.K. against Austria and registered on 25
February 1987 under file No. 12774/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated on 5 July and 12 October 1989;
Decides as follows:
THE FACTS
The applicants, Austrian citizens born in 1951, 1958, 1958 and
1950 respectively, reside in Vienna. All are respresented by the
first applicant who has lodged two previous applications with the
Commission (No. 8514/79 rejected on 16 October 1980 and No. 9905/82
rejected on 15 March 1984).
The facts submitted may be summarised as follows.
The applicants complain of Assize Court (Geschworenengericht)
proceedings taken against them and other persons under the National
Socialism Prohibition Act (Verbotsgesetz). The investigation started
in 1978, and the indictment was preferred in February 1983. The trial
before the Regional Criminal Court (Landesgericht für Strafsachen) of
Vienna opened in October 1983. On 2 April 1984 each of the applicants
was convicted of one or more offences under Section 3g of the above
Act. They received conditional prison sentences of 9, 3, 18 and 12
months respectively.
Section 3g para. 1 provides:
(German)
"Wer sich auf andere als in den §§3a bis 3f bezeichnete
Weise im nationalsozialistischen Sinne betätigt, wird,
sofern die Tat nicht nach einer anderen Bestimmung strenger
strafbar ist, mit Freiheitsstrafe von 5 bis 10 Jahren, bei
besonderer Gefährlichkeit des Täters oder der Betätigung bis
zu 20 Jahren bestraft. Auch kann auf Vermögensverfall erkannt
werden."
(Translation)
"Whoever performs activities inspired by National Socialist
ideas in a manner not coming within the scope of Sections 3a
to 3f shall be liable to punishment by a prison sentence between
5 and 10 years, and if the offender or his activity is particularly
dangerous, by a prison sentence of up to 20 years, unless the act
is punishable under a different provision stipulating a more serious
sanction. The court may also pronounce the forfeiture of property."
As provided for in the Code of Criminal Procedure
(Strafprozessordnung) in regard to Assize Court proceedings, the
judgment was not reasoned. In view of the detailed questions put to
the jury (Geschworenen) it appears that the applicants were found
guilty of various acts, performed by them in connection with their
membership and leading functions in right wing political organisations
called "Aktion Neue Rechte" (ANR) and "Nationalistischer Bund
Nordland" (NBN), which constituted activities inspired by National
Socialist ideas. These activities included, inter alia, the
preparation and promotion of certain publications (such as pamphlets
suggesting that the killing of six million jews by the Nazis was a
lie; the ANR party programme based on biological differences between
individuals, peoples and races, the principle of elitarianism, the
national unity of the German nation in its "Lebensraum" as a whole,
including "foreign occupied territories", rejection of the concept of
an "Austrian nation" and recognition of the German character of this
territory; publications calling for a boycott of the Austrian national
holiday which was described as a hypocritical exercise, while the
State Treaty was referred to as the "Diktat" of Vienna and the
prohibition of Anschluss as being null and void and contrary to the
right of self-determination; publications calling for the celebration
of the day of German unity in Austria and describing the concept of an
Austrian nation as a lie; proposals to introduce typical Nazi songs
and Nazi titles in the ANR, etc.). They further included the
participation in certain demonstrations (inter alia celebration of the
90th birthday of Hitler in Braunau, organisation of a demonstration
against the Austrian State Treaty, holding of paramilitary exercises,
use of uniforms remindful of Nazi outfits and shouting of Nazi paroles
such as "Sieg Heil", "Rotfront verrecke").
The presiding judge had in his legal instructions to
the jury stated that Austria had made a reservation concerning the
compatibility of the Prohibition Act with Articles 10 and 11 of the
Convention. The legal instructions also listed examples of acts
coming within the scope of Section 3g, in order to provide guidance to
the jury in view of the broad wording of this provision. A voluminous
expert opinion on affinities between ANR and NBN activities and
National Socialist ideology, which had been prepared during the
investigation, was, however, not used at the trial.
The Supreme Court (Oberster Gerichtshof) confirmed the above
convictions on 25 June 1986 while reducing the sentence of the third
applicant to fifteen months. It rejected, in particular, the
applicants' pleas of nullity (Nichtigkeitsbeschwerden) by which they
had challenged the composition of the Assize Court (alleged bias of a
juror), the expert opinion to which the indictment referred (alleged
bias of the expert and one-sidedness of the opinion), the refusal to
hear further experts at the trial, the formulation of the questions to
the jury (allegedly partly prejudicial to the defence and partly not
sufficiently precise) and of the legal instructions given to the jury
(allegedly wrong information concerning an Austrian reservation to the
Convention and prejudicial examples of acts coming within the scope of
Section 3g of the Prohibition Act), the late transmission of the trial
transcript to the defence (as interference with the applicant's rights
of defence, in particular as regards their appeals) and finally the
order imposing the entire costs of proceedings on the applicants
although they had partially been acquitted.
COMPLAINTS
The applicants allege violations of their rights under
Articles 6, 7, 10, 14, and 18 of the Convention.
THE LAW
1. The Commission has first examined the applicants' complaints
under Articles 7, 10, 14 and 18 (Art. 7, 10, 14, 18) of the Convention
concerning the legal basis of their conviction.
Article 7 para. 1 (Art. 7-1) of the Convention provides:
"1. No one shall be held guilty of any criminal offence
on account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed."
The applicants submit that Section 3g of the National
Socialism Prohibition Act is not a valid norm of Austrian law. It
was enacted in an unlawful procedure and abrogated by subsequent
constitutional legislation, including Article 10 (Art. 10) of the Convention.
Moreover Section 3g is not sufficiently precise to serve as a basis
for a criminal conviction. Its broad wording allows arbitrary
application to acts not inspired by National Socialist ideology, but
by German nationalist thinking compatible with the Austrian democratic
system. There has thus been a violation of Article 7 para. 1 (Art.7-1)
of the Convention.
The Commission notes, however, that the Austrian Supreme Court
confirmed the continued validity and the constitutionality of Section
3g of the Prohibition Act, which is primarily a question of internal
law. The Commission finds that this decision is neither arbitrary nor
unreasonable. It here observes that in the Austrian State Treaty of
1955 Austria undertook to maintain its legislation outlawing National
Socialist activities. As regards the alleged lack of precision of
Section 3g, it is true that the reference to "activities inspired by
National Socialist ideas" is rather vague. However, the legislator
intended to outlaw any kind of National Socialist activities. The
scope of the provision is limited to National Socialism as a
historical ideology, frequently referred to in Austria and elsewhere.
This is a sufficiently precise concept which allows distinctions to be
drawn from other types of nationalist thinking. The Commission notes
that the case-law and legal doctrine in Austria have developed further
criteria making the applicable law sufficiently accessible and
foreseeable. Thus the jury in the present case was also able to
distinguish between activities of the applicants which could and which
could not be regarded as being inspired by National Socialist ideas.
The Commission therefore finds no appearance of a violation of
Article 7 (Art. 7) of the Convention. This part of the application is
therefore manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicants claim that Section 3g, as applied in their
case, unjustifiedly interfered with their freedom of expression
guaranteed by Article 10 (Art. 10) of the Convention in that it provided a
disproportionate sanction for the expression of certain opinions, in
particular on historical facts which should be discussed freely in a
democratic society. The applicants also complain of discrimination,
contrary to Article 14 (Art. 14) of the Convention, on account of their being
Austrians attached to German nationalism, and state that similar
sanctions are not provided for those who deny, minimize or defend
communist crimes or war crimes of the Allied Powers. Finally, they
invoke Article 18 (Art. 18) of the Convention, claiming that the
restrictions of their freedom of expression were applied for other
purposes than authorised by the Convention, namely in order to
suppress German nationalist thinking and publications which were not
forbidden.
However, the Commission finds no indication of a violation of
these provisions. The prohibition against activities involving expression
of National Socialist ideas is both lawful in Austria and, in view of
the historical past forming the immediate background of the Convention
itself, can be justified as being necessary in a democratic society in
the interests of national security and territorial integrity as well
as for the prevention of crime. It is therefore covered by Article 10
para. 2 (Art. 10-2) of the Convention.
Insofar as National Socialist activities are treated
differently in Section 3g from those of other political groups, this
has an objective and reasonable justification in the historical
experience of Austria during the National Socialist era, her treaty
obligations, and the danger which activities based on National
Socialist thinking may constitute for the Austrian society. The
Commission also refers to Article 17 (Art. 17) of the Convention which
provides that nothing in the Convention shall be interpreted as
implying for any group or person any right to engage in any activity
aimed at the destruction or limitation of the Convention rights (cf.
No. 12194/86, Kühnen v. Federal Republic of Germany, Dec. 12.5.88,
to be published in D.R.). The Commission notes that National
Socialism is a totalitarian doctrine incompatible with democracy and
human rights and that its adherents undoubtedly pursue aims of the
kind referred to in Article 17 (Art. 17). There is therefore no
appearance of discrimination contrary to Article 14 (Art. 14) of the
Convention.
Insofar as the applicants finally allege that, contrary to
Article 18 (Art. 18) of the Convention, the restriction of their freedom of
expression pursued other purposes than those provided for in the
Convention, the Commission finds no indication that they were actually
convicted of anything but activities inspired by National Socialist
ideas. This also applies to the promotion of publications for which
the applicants were convicted.
The applicants' complaints based on Articles 10, 14 and 18
(Art. 10, 14, 18) of the Convention are therefore manifestly
ill-founded.
3. The applicants finally allege violations of Article 6 (Art. 6)
of the Convention which, insofar as relevant, reads as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing within
a reasonable time by an independent and impartial tribunal
established by law. ...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(b) to have adequate time and facilities for the
preparation of his defence;
...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him;
..."
The applicants first submit that, contrary to Article 6
para. 1 (Art. 6-1), the Assize Court was not impartial. One member of
the jury allegedly belonged to a trade union organisation which had
called for a ban of the ANR. However, the applicants' challenge of
this juror was rejected as having been raised out of time and, in any
event, as being unsubstantiated. The Commission finds no evidence of
bias on the part of this juror. It is further alleged that the jury
as a whole was improperly influenced by a press campaign against the
applicants in which the presiding judge participated. However, the
applicants did not challenge the presiding judge nor the jury on this
ground and there is again no evidence that the Court or any of its
members were biased.
It is also submitted that the jury was improperly influenced
by a one-sided expert opinion, prepared by a professor whose superiors
had been engaged in activities against the ANR. However, the expert
opinion in question was prepared during the investigation and only
used by the prosecution when preparing the indictment; it was not put
before the jury and therefore could neither have influenced its
impartiality nor the fairness of the trial. The applicants complain
that at the trial no further expert opinions were obtained, as
requested by the fourth applicant. However, as the first expert
opinion was not laid before the Court, there was no unequal treatment
of the defence and the prosecution in this respect. Moreover, Article 6
para. 1 read in conjunction with para. 3 (d) (Art. 6-1+6-3-d)
of the Convention, does not give the defence an absolute right to the
hearing of specific expert evidence. The Commission considers that
in the present case the refusal of additional expert evidence was
justified in the circumstances.
The applicants then complain that the trial was unfair because
some questions to the jury were imprecise, others suggestive. However,
the Commission finds nothing in the questions which would allow the
conclusion that the trial was unfair.
The applicants also challenge as unfair the legal instructions
given to the jury by the presiding judge. They allege that the
examples given to illustrate the scope of Section 3g of the
Prohibition Act corresponded to the charges and therefore implied a
finding of their guilt. However, in view of the broad wording of
Section 3g, the Commission accepts that it could reasonably be
regarded as necessary to provide guidance to the jury by way of
illustrative examples tailored towards the facts of the concrete case.
The presiding judge did not simply present the various acts included in
the indictment as constituting behaviour punishable under Section 3g.
As observed by the Supreme Court, the examples were taken from
previous case-law of the Austrian courts and left it to the jury to
judge which elements should be regarded as decisive for determining
the charge. The jury in fact did not follow the indictment on all
points and made a number of distinctions. Viewed as a whole, the
trial therefore does not appear unfair.
The applicants further complain that the presiding judge
wrongly stated that Austria had made a reservation to Articles 10 and
11 (Art. 10, 11) of the Convention concerning the Prohibition Act.
The Supreme Court considered this as irrelevant as in any event the
provisions of the Prohibition Act were covered by the exceptions in
paragraph 2 of each of these Articles. The Commission shares this
view and finds no unfairness in this respect.
The applicants also regard it as unfair that the costs were
imposed on them although they were partially acquitted. However, this
order did not render the proceedings unfair either.
The applicants complain that the trial record was served upon
them late, thus impairing their rights of defence in that they could
not ask for corrections before the verdict of the jury and were
hampered in the preparation of their appeals. However, the Commission
finds no unfairness of the trial in this respect and notes that the
applicants submitted voluminous pleas of nullity and appeals to the
Supreme Court. It also finds no appearance of a violation of the
applicants' rights under Article 6 para. 3 (b) (Art. 6-3-b).
The applicants finally complain of the length of the
proceedings, including those on appeal, and observe that the
prosecution knew the ANR party programme since 1976. The Commission
notes that the investigation apparently commenced in 1978. The
applicants were tried five years later, between October 1983 and
April 1984. The appeal proceedings lasted more than two years until
June 1986. The total length of the proceedings - altogether some
eight years - is therefore considerable. However, the case was
complicated and involved nine defendants, most of whom were accused of
several offences, extending over a long period. The offences
concerned a complex behaviour consisting in numerous individual acts.
Several searches were carried out and many witnesses heard, in
particular during the investigation in which a voluminous expert
opinion was also obtained. The trial extended over several months,
the judgment runs to 97 pages, the Supreme Court decision to 80 pages.
Taking all circumstances duly into account, the Commission is
satisfied that the length of the proceedings did not exceed the
"reasonable time" provided for in Article 6 para. 1 (Art. 6-1) of the
Convention.
The applicants' complaints under Article 6 (Art. 6) of the Convention
are therefore equally manifestly ill-founded.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy