AS TO THE ADMISSIBILITY OF
Application No. 21318/93
by Walter OCHENSBERGER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 13 January 1993
by Walter OCHENSBERGER against Austria and registered on
3 February 1993 under file No. 21318/93;
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 1941 and resident
in Sibratsgfäll (Vorarlberg). Before the Commission he is represented
by Mr. H. Schaller, a lawyer practising in Traiskirchen.
The facts, as they have been submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 30 May 1991 the Feldkirch Public Prosecutor's Office drew up
a bill of indictment in which he accused the applicant of having
edited, published and distributed in 1989 and 1990 articles in the
periodical "Sieg-AJ-Pressedienst", which, having regard to the contents
of these articles, constituted National Socialist activities
(Betätigung im nationalsozialistischen Sinne) under Section 3g of the
National Socialism Prohibition Act (Verbotsgesetz).
On 29 November and 9 December 1991 the trial against the
applicant took place before the Court of Assizes of the Feldkirch
Regional Court sitting with a jury (Geschwornengericht).
According to the transcript of the hearing of 29 November 1991
the Public Prosecutor, with the agreement of the defence, marked
certain parts of the incriminated articles with red ink which were then
read out in court. Copies of the marked issues of the periodical
concerned were distributed to the members of the jury.
At the same court hearing the applicant's lawyer also made
numerous requests for the taking of evidence. He proposed that the
Court of Assizes should obtain reports by experts in contemporary
history, theology, ethnology, anthropology, ecology, journalism and
economic history. These expert opinions should prove the truth of the
incriminated articles, in particular on the dangers of uncontrolled and
unrestrained immigration for the local population and its ethnic
purity, on systematic malpractice of Jews in the United States, on the
guilt for causing the Second World War and on the purpose and operation
of concentration camps by the Third Reich. These requests were
rejected by the bench of the Court of Assizes which found that they
were phrased too generally to allow the taking of specific evidence
and, in any event, concerned matters of legal qualification involving
value judgments for which the opinions of the requested experts were
irrelevant. Moreover, in respect of historical facts, the evidence
requested by the applicant concerned matters of common knowledge in
regard to which evidence need not be taken.
On 9 December 1991 the Court of Assizes convicted the applicant
of the offence under Section 3g of the National Socialist Prohibition
Act and sentenced him to three years' imprisonment.
The Court of Assizes found that in 1989 and 1990 the applicant
had engaged in National Socialist activities by having edited,
published and distributed articles and contributions in the periodical
"Sieg-AJ-Presse-Dienst" specified in the judgment. These articles and
contributions, as apparent from their lay-out, presentation, pictures
and contents, had incited people to racial hatred, antisemitism and
xenophobia, glorified the Germanic race in a biased manner and denied
the sovereignty of Austria. They also presented in a biased and
propagandist manner the actions and aims of the Third Reich dominated
by Adolf Hitler, in particular by justifying the installation of
concentration camps in the territory of the Third Reich and in the
territories occupied in the course of the Second World War, by
minimising the killings therein and by putting the blame for those
killings on the allied powers. As regards the editing, publishing and
distribution of further articles specified in the judgment, the Court
of Assizes acquitted the applicant of the offence under Section 3g of
the National Socialist Prohibition Act.
On 17 July 1992 the Supreme Court (Oberster Gerichtshof)
dismissed the applicant's plea of nullity but granted his appeal and
reduced the sentence to two years' imprisonment.
As regards the applicant's argument that his conviction exceeded
the bill of indictment, the Supreme Court noted that the Public
Prosecutor in his bill of indictment had stated that the entire
contents of the incriminated articles were the subject of the charge,
that at the trial he had marked particular passages which had been read
out in court and that the judgment referred to the entire articles.
The Supreme Court found that the Public Prosecutor could not be deemed
to have partly abandoned the charge against the applicant since he had
made no such unequivocal statement, either expressly or implicitly, at
the trial. As was apparent from the transcript of the hearing, the
purpose of marking and reading out in court certain passages of the
incriminated articles was to show the opinion of their authors by
pointing to salient examples.
The Supreme Court also found that the Court of Assizes had acted
correctly when it refused to take the evidence proposed by the
applicant.
It found, in particular, that the applicant's request for expert
reports on ethnology, anthropology, ecology, contemporary history and
journalism, in order to prove that all the dangers foreseen by the
applicant in an uncontrolled immigration policy in fact caused serious
prejudice to the local Austrian population, was irrelevant to the
allegation of incitement to racial hatred. Moreover, the request for
expert reports on American contemporary and economic history, to prove
that the description of malpractices of Jews in the United States was
based on concrete facts, was also irrelevant to this accusation.
The requested expert opinion on contemporary history, to prove
that the articles concerning the concentration camps were true, had no
relevance for the allegations that the applicant had incited people to
racial hatred, had presented in a biased and propagandist way the acts
of violence, in breach of human rights, which had been committed by the
National Socialist regime, and had minimised the killings in the
concentration camps.
The further requests for evidence to prove that the demand for
the "Anschluss" of Austria to the German Reich, and the claim that
antisemitsm and the fight against large scale immigration were not part
of the typical National Socialist ideology, were also irrelevant to the
charge. It was common knowledge, requiring no evidence, that anti-
semitism was not an exclusive idea of National Socialism and that there
had been demands for the "Anschluss" immediately after the First World
War.
With respect to the further request for an expert report on an
aspect of contemporary German history, the applicant had failed to
indicate why such an opinion was necessary.
As regards the applicant's sentence, the Supreme Court noted that
meanwhile the statutory range of punishment had been reduced, and found
that, in view of this development in the law, the applicant's sentence
had also to be reduced.
B. Relevant domestic law
Section 3g of the National Socialist Prohibition Act
(Verbotsgesetz) reads as follows:
"Whoever performs activities inspired by National Socialist ideas
in a manner not coming within the scope of Section 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."
By an amendment which entered into force on 20 March 1992, the
range of punishment was amended from 5 to 10 years to 1 to 10 years.
COMPLAINTS
1. The applicant complains under Article 10 of the Convention that
his conviction for National Socialist activities violated his right to
freedom of expression. He submits that, in a non-totalitarian
democratic State based on the rule of law, political activities like
his should not be liable to punishment and that the provisions on
prohibition against activities involving the expression of National
Socialist ideas were not sufficiently precise.
2. The applicant also complains about the alleged unfairness of the
criminal proceedings conducted against him. He submits that the
defence was gravely misled on the actual contents of the charge against
him. While the Public Prosecutor in his bill of indictment initially
stated that the entire contents of the articles concerned were the
subject of the charge, he had at the trial, on 29 November 1991,
reduced the charge to specific passages in these articles.
Nevertheless, the judgment referred again to the entire articles. The
applicant further submits that the Court of Assizes refused to take
certain expert evidence proposed by the defence and refers in this
respect to the whole of his plea of nullity to the Supreme Court. He
relies on Article 6 para. 3 (a) and (d) of the Convention.
THE LAW
1. The applicant complains under Article 10 (Art. 10) of the
Convention that his conviction for National Socialist activities
violated his right to freedom of expression.
Article 10 (Art. 10) of the Convention, as far as material to the
case, reads as follows:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary."
The Commission notes the applicant's conviction for having
edited, published and distributed various articles and finds,
therefore, that there has been an interference with the applicant's
freedom of expression within the meaning of Article 10 para. 1
(Art. 10-1) of the Convention. Such interference entails a breach of
Article 10 (Art. 10) unless it is justified under the second paragraph
of Article 10 (Art. 10).
The Commission observes that the applicant's conviction was based
on Section 3g of the National Socialism Prohibition Act and was,
therefore, "prescribed by law" within the meaning of Article 10 para.
2 (Art. 10-2) of the Convention.
The Commission refers to its previous case-law in which it has
held that "the prohibition against activities involving the 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" (No. 12774/87, Dec. 12.10.89,
D.R. 62 p. 216, at p. 220).
The Commission also refers to Article 17 (Art. 17) of the
Convention which reads as follows:
"Nothing in this Convention may be interpreted as implying
for any State, group of person any right to engage in any
activity or perform any act aimed at the destruction of any
of the rights and freedoms set forth herein or at their
limitation to a greater extent than is provided for in the
Convention."
In respect of this provision the Commission has previously held
that it "covers essentially those rights which will facilitate the
attempt to derive therefrom a right to engage personally in activities
aimed at the destruction of any of the rights and freedoms set forth
in the Convention. In particular, the Commission has found that the
freedom of expression enshrined in Article 10 (Art. 10) of the
Convention may not be invoked in a sense contrary to Article 17
(Art. 17)" (No. 12194/86, Dec. 12.5.88, D.R. 56 p. 205, at p. 209).
As regards the circumstances of the present case, the Commission
particularly notes the findings of the Court of Assizes that the
applicant's publications incited the reader to racial hatred,
antisemitism and xenophobia. Consequently, the Commission finds that
the applicant is essentially seeking to use the freedom of information
enshrined in Article 10 (Art. 10) of the Convention as a basis for
activities which are contrary to the text and spirit of the Convention
and which, if admitted, would contribute to the destruction of the
rights and freedoms set forth in the Convention (cf. loc. cit.
No. 12194/86).
Under these circumstances the Commission concludes that the
interference with the applicant's freedom of expression can be
considered as "necessary in a democratic society" within the meaning
of Article 10 para. 2 (Art. 10-2) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains of alleged unfairness in the
criminal proceedings against him. He submits that the defence was
gravely misled about the actual contents of the charge against him and
that the Court of Assizes refused to take certain expert evidence
proposed by the defence. He invokes Article 6 para. 3 (a) and (d)
(Art. 6-3-a, 6-3-d) of the Convention.
The relevant part of Article 6 (Art. 6) of the Convention reads
as follows:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing ...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him; ...
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 Commission recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific
aspects of the general concept of a fair trial set forth in paragraph
1 of the Article. Accordingly, the Commission will examine the
applicant's complaints under the two provisions taken together and in
the light of the proceedings considered as a whole (see Eur. Court
H.R., Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12,
para. 31).
As regards the nature and content of the charge against the
applicant, the Commission finds that the applicant has not shown that
the defence was misled by the prosecution in the present case. In this
connection the Commission has had regard to the findings of the Supreme
Court concerning the indictment and the marking of particularly
relevant passages in the publication in question with the agreement of
the applicant's counsel.
Insofar as the applicant complains that his requests for the
taking of evidence were not granted, the Commission recalls that paras.
1 and 3 (d) of Article 6 (art. 6-3-d) do not grant the defence an
absolute or unlimited right to have expert testimony taken. It is
primarily the task of the domestic courts to decide on the relevance
of the evidence proposed (cf. No. 10486/83, Dec. 9. 10.86, D.R. 49 p.
86, at p. 102).
In this respect, the Commission notes that in the present case
the Court of Assizes rejected the applicant's requests because they
involved matters which were either of common knowledge or irrelevant
to the proceedings. The Commission finds that the reasons given by the
Court of Assizes, and confirmed by the Supreme Court, were neither
arbitrary nor unfair.
The Commission concludes that there is no evidence in the present
case that the applicant's defence rights were impaired.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy