Application No. 15961/90
by J.K.
against Austria
The European Commission of Human Rights sitting in private on
8 February 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mr. H.C. KRÜGER, 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 23 October 1989
by J.K. against Austria and registered on 10 January 1990 under file
No. 15961/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen born in 1947. He lives in
Klagenfurt. He is represented before the Commission by Mr. K. Katary,
a lawyer practising in Vienna.
The facts of the case may be summarised as follows:
The applicant is the editor of a periodical entitled "Weitblick"
(Long view). On 2 February 1988 the periodical printed four verses of
the national socialist song "Es zittern die morschen Knochen" ("The
rotten bones quake"). Proceedings under Section 3 of the National
Socialism (Prohibition) Act 1945 ("the Prohibition Act") were formally
discontinued by the prosecuting authority (Staatsanwaltschaft) on 19
March 1988, pursuant to Article 90 para. 1 of the Code of Criminal
Procedure (Strafprozeßordnung).
The Klagenfurt Federal Police (Bundespolizeidirektion) brought
administrative criminal proceedings against the applicant, which led
to his conviction on 23 September 1988 by the Carinthian Security
Directorate (Sicherheitsdirektion) for having disseminated national
socialist philosophy within the meaning of the Prohibition Act because
he failed to prevent the publication of the national socialist song "Es
zittern die morschen Knochen". He was fined AS 1,000 under Section 9
(1) (7) of the Introductory Provisions to the Code of Administrative
Procedure (Einführungsgesetz zu den Verwaltungsverfahrensgesetzen) with
provision for two days' imprisonment in default. Section 9(1)(7) was
added to the Introductory Provisions in 1986.
The applicant made a complaint under Article 144 of the Federal
Constitution, alleging a violation of Article 90 para. 2 of the Federal
Constitution (as the offence in the Prohibition Act is defined as
political and therefore to be tried by a jury), a violation of the
principle of Austrian law that the Prohibition Act regulated
exhaustively questions of national socialism, and a violation of
Article 6 para. 1 of the Convention. The applicant also requested the
Constitutional Court to refer his complaints to the Administrative
Court (Verwaltungsgerichtshof), should it not be accepted by the
Constitutional Court.
On 7 March 1989, the Constitutional Court rejected the
applicant's complaint.
COMPLAINTS
The applicant has complained of the fine imposed on him and the
proceedings involved, alleging violations of Articles 5, 6, 7 and 10
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 October 1989 and registered
on 10 January 1990.
On 15 October 1991 the Commission decided to communicate the
application to the respondent Government with a request to submit
written observations on the admissibility and merits of the complaints
concerning Article 6 of the Convention.
The respondent Government submitted their observations, after an
extension of the time-limit, on 6 and 20 March 1992. The applicant
submitted his observations in reply on 6 May 1992.
On 7 and 9 October 1992 the respondent Government informed the
Commission that pursuant to the applicant's administrative complaint
the Administrative Court had quashed the decision of the Carinthian
Security Directorate of 23 September 1988. The Government submitted
a copy of the Administrative Court's decision of 4 August 1992. On 21
October 1992, in reply to the respondent Government's letters of 7 and
9 October 1992, and in the light of the Administrative Court's decision
of 4 August 1992, the applicant informed the Commission that he wished
to withdraw his application.
REASONS FOR THE DECISION
The Commission finds that the applicant regards the matter as
resolved and no longer intends to pursue his petition, within the
meaning of Article 30 para. 1(a) and (b) of the Convention. Respect
for human rights as defined in the Convention does not require the
examination of the application to be continued.
For these reasons the Commission unanimously
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy