OTTO-PREMINGER-INSTITUT v. AUSTRIA



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 13470/87

                    OTTO-PREMINGER-INSTITUT

                            against

                            AUSTRIA

                   REPORT OF THE COMMISSION

                 (adopted on 14 January 1993)

TABLE OF CONTENTS

                                                          Page

I.        INTRODUCTION

          (paras. 1 - 18) . . . . . . . . . . . . . . . . . .1

          A.   The application

               (paras. 2 - 4) . . . . . . . . . . . . . . . .1

          B.   The proceedings

               (paras. 5 - 13). . . . . . . . . . . . . . . .1

          C.   The present Report

               (paras. 14 - 18) . . . . . . . . . . . . . . .2

II.       ESTABLISHMENT OF THE FACTS

          (paras. 19 - 46). . . . . . . . . . . . . . . . . .4

          A.   The particular circumstances of the case

               (paras. 19 - 37) . . . . . . . . . . . . . . .4

          B.   Relevant domestic law

               (paras. 38 - 46) . . . . . . . . . . . . . . .8

               1.   Substantive provisions. . . . . . . . . .8

                    (paras. 38 - 39)

               2.   Procedural provisions . . . . . . . . . .9

                    (paras. 40 - 46)

III.      OPINION OF THE COMMISSION

          (paras. 47 - 83). . . . . . . . . . . . . . . . . 12

          A.   Complaints declared admissible

               (para. 47) . . . . . . . . . . . . . . . . . 12

          B.   Points at issue

               (para. 48) . . . . . . . . . . . . . . . . . 12

          C.   As to the alleged violations of

               Article 10 of the Convention

               (paras. 49 - 81) . . . . . . . . . . . . . . 12

               1.   Applicability of Article 10

                    (para. 50). . . . . . . . . . . . . . . 12

               2.   Scope of interference with the

                    applicant association's rights under

                    Article 10 para. 1

                    (paras. 51 - 57). . . . . . . . . . . . 13

               3.   Justification of the interference

                    (Article 10 para. 2)

                    (paras. 58 - 81). . . . . . . . . . . . 14

                    a)   lawfulnes

                         (paras. 59 - 61) . . . . . . . . . 14

                    b)   Legitimate aim

                         (paras. 62 - 63) . . . . . . . . . 14

                    c)   Necessity in a democratic society

                         (paras. 64 - 75) . . . . . . . . . 15

                    aa)  The seizure

                         (paras. 75 - 78) . . . . . . . . . 17

                         Conclusion

                         (para. 79) . . . . . . . . . . . . 18

                    bb)  The forfeiture

                         (para. 80) . . . . . . . . . . . . 18

                         Conclusion

                         (para. 81) . . . . . . . . . . . . 18

          D.   Recapitulation

               (paras. 82 - 83) . . . . . . . . . . . . . . 18

PARTLY DISSENTING OPINION of Mr. F. ERMACORA joined by

MM. W. WEITZEL and L. LOUCAIDES . . . . . . . . . . . . . . 19

DISSENTING OPINION OF Mr. H.G. SCHERMERS. . . . . . . . . . 21

PARTLY DISSENTING OPINION OF Mrs. J. LIDDY. . . . . . . . . 22

APPENDIX I     : HISTORY OF PROCEEDINGS . . . . . . . . . . 23

APPENDIX II    : DECISION AS TO THE ADMISSIBILITY . . . . . 24

APPENDIX III   : SUMMARY OF THE CONTENTS OF THE FILM. . . . 32

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant, Otto-Preminger-Institut Verein für audiovisuelle

Mediengestaltung (OPI), is a private association established in

Innsbruck, acting through its executive committee (Vorstand) who

instructed Mr. Frank Höpfel, a university professor and criminal

defence counsel in Innsbruck, to represent it before the Commission.

3.   The application is directed against Austria whose Government are

represented by their Agent, Ambassador Helmut Türk, Deputy Secretary

General and Legal Counsel of the Federal Ministry of Foreign Affairs.

4.   The application concerns the prohibition to show the film "Das

Liebeskonzil" in the applicant association's cinema in Innsbruck on the

ground that its showing would constitute the criminal offence of

blasphemy.  The film was seized and subsequently confiscated in

"objective media proceedings".  The applicant association complains

that these measures violated its right of freedom of expression as

guaranteed by Article 10 of the Convention.

B.   The proceedings

5.   The application was introduced on 6 October 1987 and registered

on 2 December 1987.

6.   On 5 March 1990 the Commission decided to bring the application

to the notice of the respondent Government and to invite them to submit

before 11 May 1990 observations in writing on the admissibility and

merits of the application as well as a copy of the confiscated film.

7.   At the Government's request, the time-limit was extended to

11 June 1990.  The Government submitted observations on 25 May 1990 and

the applicant association replied thereto on 5 July 1990.  On

12 October 1990 the Government submitted the confiscated copy of the

film to the Commission.

8.   On 7 January 1991 the Commission decided to appoint a delegation

of five German speaking members (MM. Trechsel, Ermacora, Jörundsson,

Weitzel and Danelius) to attend a screening of the film.  The screening

took place on 15 January 1991.

9.   The delegation deliberated on 16 January 1991 and reported to the

full Commission on 17 January 1991.  The Commission's deliberations

continued on 12 April 1991.

10.  On the same day the Commission declared the application

admissible and fixed a further screening of the film before the full

Commission in the presence of the parties.

11.  At the screening on 5 July 1991 the following members of the

Commission were present: MM. C.A. Nørgaard (President),

J.A. Frowein, S. Trechsel, F. Ermacora, G. Jörundsson, A.S. Gözübüyük,

A. Weitzel, H.G. Schermers, H. Danelius, Mrs. G.H. Thune,

Mr. C.L. Rozakis, Mrs. J. Liddy, MM. L. Loucaides, J.-C. Geus,

M.P. Pellonpää and B. Marxer.  The parties were represented as follows:

the Government by Mr. Wolf Okresek of the Federal Chancellery and

Mr. Florian Haug of the Federal Ministry for Foreign Affairs; the

applicant association by Mr. Frank Höpfel, Mr. Dietmar Zingl, manager

of the applicant association's cinema and Mr. Friedrich Schmidt,

cashier of the applicant association.

12.  Further information was submitted by the applicant association

on 5 November and communicated to the respondent Government on

23 November 1992.

13.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

14.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          MM.  C. A. NØRGAARD, President

               J. A. FROWEIN

               S. TRECHSEL

               F. ERMACORA

               G. JÖRUNDSSON

               A. S. GÖZÜBÜYÜK

               A. WEITZEL

               H. G. SCHERMERS

               H. DANELIUS

          Mrs. G. H. THUNE

               J. LIDDY

          MM.  L. LOUCAIDES

               J.-C. GEUS

               M. P. PELLONPÄÄ

15.  The text of this Report was adopted on 14 January 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

16.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i)   to establish the facts, and

ii)  to state an opinion as to whether the facts found disclose a

     breach by the State concerned of its obligations under the

     Convention.

17.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

19.  The applicant is a private association in Innsbruck with the aim

to give information and enable communication on audio-visual media, as

well as to encourage creativity and entertainment in this field.  The

applicant association also runs a cinema which was licensed by a

decision of the Provincial Government of the Tyrol on 26 January 1984.

In this cinema the association intended to show the film "Das

Liebeskonzil" (Council in Heaven) to the general public on 13 May 1985

at 22.00h.

20.  This film by Werner Schroeter is based on a theatre play by

Oskar Panizza of 1894 which after its first performance gave rise to

criminal proceedings against the author before the Regional Court of

Munich in 1895.  After those proceedings, the play had not been shown

on stage until 1973 when it was produced in Hamburg.  Since then,

performances have taken place in several countries, including Germany,

Italy and Austria.  The film shows this play, as put on the stage in

the Teatro Belli in Rome in 1981 (a performance which provoked a

theatre scandal), as a story within the story of the criminal

proceedings against the author.  The play concerns a Council in Heaven,

convoked by God the Father after having learnt of the lascivious life

of the people of Naples in order to invent a punishment which would

strike mankind without interfering with their need for salvation.

After deliberations with, inter alia, the Virgin Mary and Jesus Christ

the Devil is also consulted and it is finally decided on the latter's

proposal that the Devil and Salome procreate a daughter who is sent to

Earth to spread syphilis first in the Court of the Pope and the

monasteries and finally among the ordinary people.

21.  The film had earlier been shown in Vienna in February 1984.

According to the Government the institution of criminal proceedings had

been considered by the Vienna public prosecutor's office at that time.

However, these proceedings had eventually not been pursued as the film

had been taken off the programme of the Vienna cinema concerned and it

appeared that the copy projected was no longer in Austria and therefore

could not be seized.  According to the report of the Vienna public

prosecutor's office the contents of the film manifestly fell within the

scope of the criminal offence of disparaging religious precepts

(Herabwürdigung religöser Lehren) within the meaning of Section 188 of

the Austrian Penal Code (Strafgesetzbuch).

22.  The projection of the film in Innsbruck was announced in the

show-window and foyer of the applicant association's cinema and in the

periodical distributed to members of the association and other

interested persons.

23.  The announcement was phrased in the following terms:

     (German)

     "Oskar Panizzas satirische Himmelstragödie wurde von Schroeter

     in einer Aufführung des römischen Teatro Belli verfilmt und in

     eine Rahmenhandlung gestellt, die den 1895 wegen Gotteslästerung

     geführten Prozeß gegen den Dichter und seine Verurteilung

     rekonstruiert.  Panizza geht von der Annahme aus, die Syphilis

     sei die Strafe Gottes für die Unzucht und Sündenhaftigkeit der

     Menschen zur Zeit der Renaissance gewesen, speziell am Hofe des

     Borgia-Papstes Alexander VI.  In Schroeters Film gleichen die

     Vertreter Gottes auf Erden, versehen mit den Insignien weltlicher

     Macht, aufs Haar den himmlischen Protagonisten.

     Karikaturistisch werden bildliche Trivialvorstellungen und

     Auswüchse des christlichen Glaubens auf Korn genommen und die

     Beziehung von Glaubensinhalten und weltlichen Unterdrückungs-

     mechanismen untersucht."

     (Translation)

     "Oskar Panizza's satirical tragedy set in Heaven was filmed by

     Schroeter from a performance of the Teatro Belli in Rome and

     placed in a frame story which reconstructs the trial of the

     writer for blasphemy in 1895 and his conviction.  Panizza starts

     from the assumption that syphilis was God's punishment for the

     lasciviousness and sinfulness of mankind at the time of the

     Renaissance, especially at the court of the Borgia Pope

     Alexander VI.  In Schroeter's film, God's representatives on

     Earth carrying the insignia of worldly power resemble to a hair

     the heavenly protagonists.

     In a caricatural mode trivial imagery and absurdities of the

     Christian creed are targeted and the relationship between

     religious beliefs and worldly mechanisms of oppression is

     investigated."

24.  A regional newspaper also announced the title of the film and the

date and place of its projection without giving details as to its

contents.

25.  On 10 May 1985 i.e. before the date of the intended projection,

the public prosecutor at the request of the Innsbruck diocese of the

Roman Catholic Church instituted criminal proceedings against the

applicant association's manager, being the responsible person under the

Media Act (Mediengesetz), on the suspicion of the attempted criminal

offence of disparaging religious precepts under Section 188 of the

Penal Code.

26.  On 12 May 1985, after the film had been shown in a private

session in the presence of a duty judge (Journalrichter), the

prosecution requested its seizure under Section 36 of the Media Act.

This was granted by the Regional Court (Landesgericht) of Innsbruck the

same day, and the film therefore could not be shown to the general

public.  As the applicant association's manager had returned the film

to the distributor, a firm in Vienna, the film was actually seized at

the latter's premises on 11 June 1985.

27.  The appeal of the applicant association's manager against the

Regional Court's seizure order was rejected by the Innsbruck Court of

Appeal (Oberlandesgericht) on 30 July 1985.  It held that the seizure

was justified since the contents of the film were likely objectively

to constitute the criminal offence of disparaging religious precepts

in such a manner that the fundamental right of artistic freedom had to

give way.  In this context the subjective side of the offence, i.e. the

intent of the applicant association's manager, was not essential, the

seizure being a preventive measure which could be taken on the basis

of the objective facts if there was a well-founded suspicion of a

criminal offence.  In the Court of Appeal's opinion the massive insult

to religious feelings outweighed the arguments based on artistic

freedom, the public's general interest in information and the financial

interests of the persons who wished to show the film.

28.  On 24 October 1985 the criminal proceedings against the applicant

association's manager were discontinued and the further proceedings

were conducted as "objective proceedings" for the forfeiture

(Einziehung) of the film under Section 33 of the Media Act.  In these

proceedings, the distribution firm informed the court that the copy to

be shown in Innsbruck was the only copy existing in Austria and that

they waived their right to the return of this copy and agreed to its

destruction.

29.  On 10 October 1986 a trial took place before a single judge of

the Innsbruck Regional Court.  At the trial, the film was shown again

in closed session.  Its contents were described in detail in the trial

record (cf. Appendix III).  The distribution firm was not represented

and the applicant association's manager, who had been summoned as an

interested party (Haftungsbeteiligter), explained that he had sent the

film back to the distribution firm following the seizure order since

he did not wish to have anything to do with the matter.

30.  The court granted the forfeiture on the following grounds:

     (German)

     "Durch die für den 13. Mai 1985 vorgesehene öffentliche

     Aufführung des Tonfilmes 'Das Liebeskonzil', worin in Bild und

     Sprache Gott Vater als seniler, impotenter Trottel, Christus als

     Kretin und die Gottesmutter Maria als lüsterne Dame mit

     ebensolcher Ausdrucksweise dargestellt und die Eucharistie

     verspottet wird, wurde der Tatbestand des Vergehens der

     Herabwürdigung religiöser Lehren nach § 188 StGB verwirklicht."

     (Translation)

     "The intended public projection, on 13 May 1985, of the film

     'Council in Heaven', which, both in image and text, depicts God

     the Father as a senile, impotent idiot, Christ as a cretin and

     Mary the Mother of God as a wanton lady with a corresponding

     manner of expression, and which also ridicules the Eucharistic

     ceremony, came within the definition of the criminal offence of

     disparaging religious precepts under Section 188 of the Criminal

     Code."

31.  In the reasons it was pointed out that God the Father, Christ and

Mary were the central persons of veneration in the Catholic Church and

that also the Eucharistic ceremony was protected by Section 188.  Not

every injury of religious convictions was punishable under this

provision, but only one that disturbed the religious peace by arousing

public irritation.  In the present case the disparagement of God the

Father, Christ, Mary and the Eucharistic ceremony was reinforced by the

general character of the film as an attack on Christian religion.  It

was done in a scope and manner likely to disturb the feelings of

average people, in particular the majority of believing Christians.

This was not counterbalanced by the fact that a small minority of

persons might be able to interpret the film in a positive way, having

regard to the logical context of the disparaging remarks which could

be seen as criticism of historic facts and of religious practices.

32.  The freedom of art under Article 17a of the Basic Law on the

General Rights of Citizens (Staatsgrundgesetz über die allgemeinen

Rechte der Staatsbürger) could not be invoked as this freedom was

limited by other fundamental rights such as the right to religious

freedom and by the necessity of a social order based on tolerance and

respect for legally protected values.  While Section 188 of the Penal

Code did not in itself restrict the freedom of art, there was in the

present case such an intensive interference with religious feelings by

the provocative anti-Christian attitude of the film that it outweighed

the freedom of art.

33.  The applicant association's manager appealed against the

judgment, submitting a declaration signed by some 350 persons who

protested that they had been prevented from having free access to a

work of art, and claiming that Section 188 of the Penal Code had not

been interpreted in line with the requirements of freedom of art under

Article 17a of the Basic Law.

34.  However, on 25 March 1987 the Innsbruck Court of Appeal declared

the appeal inadmissible, finding that the applicant association's

manager had no standing as he was not the owner of the copyright of the

film which belonged to the distribution firm.

35.  In May 1987 the Federal Minister for Education, Arts and Sport,

Mrs. Hawlicek, in a private letter approached the Attorney General

(Generalprokuratur) suggesting the filing of a plea of nullity for

safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes)

with the Supreme Court (Oberster Gerichtshof).

36.  The Attorney General made investigations concerning the steps

taken by the Vienna public prosecutor's office in 1984 (see para. 21

above) and the manner in which the showing of the film had been

announced in Innsbruck (see paras. 22-24 above).  Finally, the

Attorney General ruled on 26 July 1988 that there was no reason to file

a plea of nullity for safeguarding the law.  Detailed reasons were

given for this ruling which included, in particular, references to the

legal doctrine in Austria and the Supreme Court's decision in the

Achternbusch case which concerned the seizure of another film

(11 Os 165,166/85-9, Medien und Recht 1986, No. 2 p. 15).  In this

decision the Austrian Supreme Court had ruled that the right of freedom

of art, as guaranteed by Article 17a of the Basic Law, can be limited

if other fundamental rights and freedoms are infringed, in this

specific case the freedom of belief and conscience (Article 14 of the

Basic Law).

37.  More recently, theatre performances of Panizza's play took place

on two occasions in Austria: in November 1991 in Vienna, and in

October 1992 in Innsbruck.  The Vienna production did not give rise to

any action by the prosecution authorities.  The performance in

Innsbruck was the subject of several complaints (Strafanzeigen) by

private persons.  After preliminary investigations the Innsbruck public

prosecution authorities found no reason to institute criminal

proceedings and decided to discontinue the proceedings under Section 90

of the Austrian Code of Criminal Procedure (Zurücklegung der

Strafanzeige).

B.   Relevant domestic law

1.   Substantive provisions

38.  Section 188 of the Penal Code (Strafgesetzbuch) makes it a

criminal offence to disparage religious precepts.  It reads as follows:

     (German)

     "Wer öffentlich eine Person oder eine Sache, die den Gegenstand

     der Verehrung einer im Inland bestehenden Kirche oder Religions-

     gesellschaft bildet, oder eine Glaubenslehre, einen gesetzlich

     zulässigen Brauch oder eine gesetzlich zulässige Einrichtung

     einer solchen Kirche oder Religionsgesellschaft unter Umständen

     herabwürdigt oder verspottet, unter denen sein Verhalten geeignet

     ist, berechtigtes Ärgernis zu erregen, ist mit Freiheitsstrafe

     bis zu sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen

     zu bestrafen."

     (Translation)

     "Whoever, in circumstances where his behaviour is likely to

     arouse justified indignation, disparages or insults a person who

     or an object which is being venerated by a church or religious

     community established within the country, or a dogma, a legally

     authorised custom or a legally authorised institution of such a

     church or religious community, shall be liable to a prison

     sentence of up to six months or a fine of up to 360 daily rates."

39.  According to the case-law of the Austrian courts the application

of this provision may be subject to certain restrictions resulting from

fundamental rights such as the freedom of art stipulated in Article 17a

of the Basic Law on the General Rights of Citizens (Staatsgrundgesetz

über die allgemeinen Rechte der Staatsbürger).  This provision reads

as follows:

     (German)

     "Das künstlerische Schaffen, die Vermittlung von Kunst sowie

     deren Lehre sind frei."

     (Translation)

     "The artistic production, the dissemination of art and its

     teaching are free."

2.   Procedural provisions

40.  Criminal proceedings concerning media offences (Medieninhalts-

delikte) are mainly governed by the Media Act (Mediengesetz).  The

provisions of the Code of Criminal Procedure (Strafprozeßordnung) are

only applicable in so far as the Media Act contains no special

stipulations (cf. Section 41 para. 1 of the latter Act).

41.  The principal sanction for media offences provided for in the

Media Act is the forfeiture (Einziehung) of the publication whose

contents infringe the criminal law (cf. Section 33 of the Media Act).

Other measures such as seizure of publications (Section 36) are

subordinate to this main sanction.

42.  Forfeiture may be ordered in addition to any criminal sanction

under the Penal Code (cf. Section 33 para. 1 of the Media Act), but

also in separate, so-called "objective", media proceedings.

43.  In the latter respect, Section 33 para. 2 provides as follows:

     (German)

     "Auf Antrag des Anklägers ist auf Einziehung in einem selb-

     ständigen Verfahren zu erkennen, wenn in einem Medium der

     objektive Tatbestand einer strafbaren Handlung hergestellt worden

     ist und die Verfolgung einer bestimmten Person nicht durchführbar

     oder ihre Verurteilung wegen des Vorhandenseins von Gründen, die

     eine Bestrafung ausschließen, nicht möglich ist ...."

     (Translation)

     "Forfeiture shall be pronounced in separate proceedings at the

     request of the prosecutor if a publication in the media fulfils

     the objective facts of a criminal offence and if the prosecution

     of a particular person cannot be secured or if a conviction is

     impossible on grounds excluding the punishment of such a

     person ...."

44.  Seizure is regulated in Section 36 which reads as follows:

     (German)

     "(1) Das Gericht kann die Beschlagnahme der zur Verbreitung

     bestimmten Stücke eines Medienwerkes anordnen, wenn anzunehmen

     ist, daß auf Einziehung nach § 33 erkannt werden wird, und wenn

     die nachteiligen Folgen der Beschlagnahme nicht

     unverhältnismäßigschwerer wiegen als das Rechtsschutzinteresse,

     dem die Beschlagnahme dienen soll.  Die Beschlagnahme ist

     jedenfalls unzulässig, wenn diesem Rechtsschutzinteresse auch

     durch Veröffentlichung einer Mitteilung über das eingeleitete

     strafgerichtliche Verfahren Genüge getan werden kann.

     (2)  Die Beschlagnahme setzt voraus, daß ein Strafverfahren oder

     ein selbständiges Verfahren wegen eines Medieninhaltsdelikts

     geführt oder zugleich eingeleitet wird, und daß der Ankläger oder

     Antragsteller im selbständigen Verfahren die Beschlagnahme

     ausdrücklich beantragt.

     (3)  In dem die Beschlagnahme anordnenden Beschluß ist

     anzugeben, wegen welcher Stelle oder Darbietung des Medienwerkes

     und wegen des Verdachtes welcher strafbaren Handlung die

     Beschlagnahme angeordnet wird ...."

     (Translation)

     "(1) The Court may order the seizure of the copies of a work

     published in the media which are intended for public

     dissemination if it can be assumed that a forfeiture under

     Section 33 will be pronounced and if the adverse consequences of

     the seizure are not disproportionate to the legal interest to be

     served by the seizure.  In any event the seizure is inadmissible

     if this legal interest can also be satisfied by a publication of

     a notice on the institution of the criminal proceedings in

     question.

     (2)  The seizure presupposes the prior or simultaneous

     institution of criminal proceedings or of separate proceedings

     concerning an offence relating to the contents of a publication

     in the media and it may take place only if the prosecution, or

     the applicant in the separate proceedings, has expressly

     requested the seizure.

     (3)  The decision ordering the seizure shall mention the

     passages of the work published in the media, or the particular

     production of it, which has given rise to the seizure order, as

     well as the offence which is suspected to be committed by it

     ...."

45.  In the relevant proceedings the owner (publisher) of the media

in question is to be summoned as a private party (Einziehungs-

beteiligter).  In this respect Section 41 para. 5 of the Media Act

stipulates inter alia:

     (German)

     "... Er hat die Rechte des Beschuldigten; insbesondere steht ihm

     das Recht zu, alle Verteidigungsmittel wie der Beschuldigte

     vorzubringen und das Urteil in der Hauptsache anzufechten ...."

     (Translation)

     "... He shall have the rights of the accused; in particular he

     shall have the right to the same means of defence as the accused

     and to appeal against the judgment on the merits ...."

46.  According to the case-law of the Austrian courts this provision

has the effect of excluding the applicability of the general provisions

of the Code of Criminal Procedure concerning private parties in

forfeiture and confiscation cases (Section 444 of the Code).  Therefore

only the owners (publishers) of the medium in question, but not any

other persons having rights in the object threatened with forfeiture

are entitled to participate in the proceedings.

III.  OPINION OF THE COMMISSION

A.   Complaints declared admissible

47.  The Commission has declared admissible the applicant

association's complaints that the seizure of the film "Das

Liebeskonzil", which it had intended to show in its cinema, and the

subsequent forfeiture of this film unjustifiedly interfered with its

freedom of expression.

B.   Points at issue

48.  The Commission must accordingly determine whether there has been

a violation of Article 10 (Art. 10) of the Convention:

     -    by the seizure, and/or

     -    by the forfeiture

of the film "Das Liebeskonzil".

C.   As to the alleged violations of Article 10 (Art. 10)

     of the Convention

49.  Article 10 (Art. 10) of the Convention 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.  This Article shall not

     prevent States from requiring the licensing of broadcasting,

     television or cinema enterprises.

     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 are 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."

1.   Applicability of Article 10 (Art. 10)

50.  The present case concerns the exercise of freedom of "expression"

in the form of showing a film.  As the last sentence of Article 10

para. 1 (Art. 10-1) implies, this activity is covered by freedom of

expression.  In addition it is not in dispute that the film in question

was a work of art as recognised by the Austrian courts.  In this

respect the Commission recalls the Müller and Others case where the

European Court

of Human Rights acknowledged that artistic expression is included in

freedom of expression within the meaning of Article 10 para. 1

(Art. 10-1) (judgment of 24 May 1988, Series A no. 133, p. 19,

para. 27).

2.   Scope of interference with the applicant association's rights

     under Article 10 para. 1 (Art. 10-1)

51.  The applicant association claims that it was affected both by the

seizure of the film, which prevented it from showing it in its cinema

in Innsbruck on 13 May 1985, and by its subsequent forfeiture, which

finally confirmed the prohibition to show the film in Austria.

52.  The Government claim that the applicant association was only

affected by the seizure of the film, but not by its subsequent

forfeiture.  It was not the owner of the copyright in the film nor the

owner of the copy distributed in Austria, nor was it a party to the

"objective media proceedings" which eventually led to the film being

declared forfeited.

53.  The Commission considers it irrelevant that the applicant

association was not the owner of the copyright.  Under Article 10

para. 1 (Art. 10-1) everyone may, without interference by a public

authority, impart information or ideas from whatever source.  The

applicant association, being a licenced cinema enterprise which wished

to show the film concerned as part of its programme, can therefore rely

on this provision.

54.  The applicant association was directly affected by the seizure

of the film, in connection with criminal proceedings instituted against

its manager before it could be shown.  The seizure was a provisional

measure whose substantive justification under Austrian law was finally

determined only by the subsequent decision on forfeiture

(cf. Appendix II, at p. 30 below).

55.  It is true that in the forfeiture proceedings the applicant

association was not a party and that its manager, who had been allowed

to participate in the proceedings of first instance, was eventually not

recognised as a party.  But the declaration that the film was forfeited

also affected the applicant association since it was thereby

definitively prevented from showing it.

56.  In these circumstances, the Commission considers that there is

a sufficient link between the seizure of the film and the subsequent

"objective" forfeiture proceedings which entitles the applicant

association to invoke Article 10 (Art. 10) in respect of both measures.

57.  The Government admit that both the seizure and the forfeiture

constituted interferences by public authorities with the right to

freedom of expression as laid down in Article 10 para. 1 (Art. 10-1).

In the Commission's view these interferences with the rights of the

applicant association require to be justified under Article 10 para. 2

(Art. 10-2).

3.   Justification of the interference (Article 10 para. 2)

     (Art. 10-2)

58.  To meet the requirements of Article 10 para. 2 (Art. 10-2), any

restriction

of freedom of expression must

-    be prescribed by law;

-    pursue one or more of the legitimate aims set out in this

     provision; and

-    be necessary in a democratic society, having regard to the duties

     and responsibilities which exercise of that freedom carries with

     it.

     a)   Lawfulness

59.  The applicant association contends that the relevant provisions

of the Penal Code and of the Media Act were given an unconstitutional

interpretation and that therefore the measures complained of were not

"prescribed by law".  The Government deny that the criminal law was

applied in a manner incompatible with Article 17a of the Basic Law.

60.  The Commission observes that it is for the domestic courts to

interpret and apply the domestic law.  It notes that the measures

complained of were based on Section 188 of the Austrian Penal Code in

conjunction with the Media Act, and that in applying those provisions

the Austrian criminal courts also considered the relevance of the

constitutional right to freedom of art as laid down in Article 17a of

the Basic Law.  The criminal courts thus dealt with the question of

constitutionality but did not find it appropriate to refer the matter

to the Constitutional Court.  The Commission is satisfied that this was

in line with Austrian law.  There is no indication that the criminal

courts' interpretation and application of the relevant penal provisions

was arbitrary or otherwise unreasonable in a manner incompatible with

the rule of law.

61.  In these circumstances the Commission sees no reason to doubt

that the measures complained of were "prescribed by law".

     b)   Legitimate aim

62.  The Government claim that the seizure and forfeiture of the film

aimed at the "protection of the rights of others", including the right

to freedom of religion within the meaning of Article 9 of the

Convention, and the "protection of morals".  The applicant association,

while not contesting that "the rights of others" might be relevant,

refutes the argument that the measures in question also served to

protect morals.

63.  The obvious purpose of Section 188 of the Austrian Penal Code

which was applied in the present case is to preserve religious peace.

Thus the measures complained of served the protection of the rights of

others and the prevention of disorder within the meaning of Article 10

para. 2 (Art. 10-2).  It is therefore not necessary to consider whether

they also aimed at the protection of morals.  The Commission is

consequently satisfied that the Austrian legislation, as applied in the

present case, pursued legitimate aims covered by this provision.

     c)   Necessity in a democratic society

64.  The Government claim that the restrictions imposed on the

applicant association were "necessary in a democratic society" and

that, in view of the contents of the film, they remained within the

State's margin of appreciation.

65.  The applicant association submits that the film itself involved

a discussion of freedom of art.  The play was presented as a story

within the story of Panizza's trial.  It thus created a certain

distance for the spectator as regards the critical discussion of

religious subjects in the play.

66.  The Commission recalls that with regard to restrictions on

freedom of expression it is important

     "to pay the utmost attention to the principles characterising a

     'democratic society'.  Freedom of expression constitutes one of

     the essential foundations of such a society, one of the basic

     conditions for its progress and for the development of every man.

     Subject to paragraph 2 of Article 10 (Art. 10-2), it is

     applicable not only to 'information' or 'ideas' that are

     favourably received or regarded as inoffensive or as a matter of

     indifference, but also to those that offend, shock or disturb the

     State or any sector of the population.  Such are the demands of

     that pluralism, tolerance and broadmindedness without which there

     is no 'democratic society'.  This means, amongst other things,

     that every 'formality', 'condition', 'restriction' or 'penalty'

     imposed in this sphere must be proportionate to the legitimate

     aim pursued."  (cf. Eur. Court H.R. Handyside judgment of

     7 December 1976, Series A no. 24, p. 23, para. 49).

67.  The present case concerns the exercise of freedom of expression

in the form of making available to the public a work of art.  The

Austrian authorities recognised that the film in question was to be

qualified as a work of art.  Article 10 para. 2 (Art. 10-2) allows

restrictions if there is a "pressing social need" for them.  Any such

restrictions must, however, duly take into account the particular

nature of works of art and their important function in a democratic

society.  As the European Court of Human Rights observed in the Müller

and Others case:

     "Those who create, perform, distribute or exhibit works of art

     contribute to the exchange of ideas and opinions which is

     essential for a democratic society.  Hence the obligation on the

     State not to encroach unduly on their freedom of expression.

     Artists and those who promote their work are certainly not immune

     from the possibility of limitations as provided for in

     paragraph 2 of Article 10 (Art. 10-2).  Whoever exercises his

     freedom of expression undertakes, in accordance with the express

     terms of that paragraph, 'duties and responsibilities'; their

     scope will depend on his situation and the means he uses. ..."

     (Müller and Others judgment of 24 May 1988, Series A no. 133,

     pp. 21-22, paras. 33-34)

68.  As the applicant association has observed, the trial story in the

film constitutes a discussion of the permissible scope of freedom of

art.  However, the main part of the film consists in showing Panizza's

play.

69.  The play as such is not prohibited in Austria.  It is apparently

available in several editions in Austrian bookshops without any

measures having been taken by the Austrian authorities in this respect.

It has also been shown on the stage in Vienna without State

intervention.  A recent performance in Innsbruck has given rise to

investigations following complaints by private persons, but eventually

no prosecution ensued.  Nor does it appear that any restrictions were

imposed in Italy where the play was filmed and in Germany where the

film was produced.

70.  According to the Austrian courts the criminal offence underlying

the prohibition of the film consisted in ridiculing persons and objects

of Christian veneration by a combination of text and image.

71.  As the quotations in the Regional Court's summary (cf.

Appendix III) show, the text of the film is characterised by a strong

satirical undertone concerning the religious issues treated.  The film

itself matches the character of the text.  It is characterised by the

satirical treatment of the subject and the use of caricature as a means

of style.

72.  The Commission considers that recourse to these artistic methods

does not justify the imposition of a restriction on a work of art even

if it deals with religion.  This was also accepted by the Austrian

Attorney General.  In his statement refusing the introduction of a plea

of nullity for safeguarding the law (cf. para. 36) he recognised that

the approach described in the public notice announcing the film (cf.

para. 23) did not as such contravene Section 188 of the Penal Code.

He considered, however, that the presentation of the persons and

objects of religious veneration in the film itself went beyond the

announcement in the notice.

73.  The Austrian courts stated that many believing Christians could

be shocked or otherwise offended in their religious feelings by the way

in which God, Mary and Jesus were shown in the film.  The Commission,

having seen the film, has come to the view that the satirical element

is clearly predominant in the way the story of the film is developed

and the actors behave.

74.  The question therefore arises whether the State's margin of

appreciation - which it had in the exercise of its function to protect

legitimate interests recognised in the Convention (cf. mutatis mutandis

Müller and Others judgment, loc. cit., p. 22, para. 35) - was over-

stepped by the wide scope of the measures taken: the seizure of the

film in Innsbruck before the particular projection intended by the

applicant association could take place, and its subsequent forfeiture

which generally made it impossible for anybody in Austria to see the

film.

aa)  The seizure

75.  Whereas in the Müller case obscene pictures had been shown in a

generally accessible exhibition where the presence of such pictures

could not necessarily be expected - the Court (at para. 36 of the

judgment) especially underlined that the exhibition in question had

sought to attract the public at large including children and that no

admission charge or age-limit had been imposed - , the applicant

association's cinema addressed a much more limited public.  It is true

that no particular restrictions of access were foreseen for the

projection of the film on 13 May 1985 at 22.00 h.  However, as the

applicant association has emphasised, its "cinema of art" addressed a

specially interested public, an admission fee was charged and in view

of the late hour it was unlikely that any small children would attend.

Most important of all, a warning was given to the public as to the

contents of the film in the above-mentioned public announcement, which

in the Commission's view sufficiently described what was to be expected

without itself giving rise to offence.

76.  As to the consequences of a restriction of a work of art, the

Court considered it important in the Müller case (cf. para. 43 of the

judgment) to leave room to the artist to show it to interested persons

in circumstances and places where the requirements for the protection

of legitimate interests of others might be less strict.  In the present

case, however, the seizure of the film in Innsbruck prevented the

applicant association from showing it to any interested audience,

pending a final decision in the matter.

77.  The Commission is of the view that satirical texts or films can

normally not be completely prohibited even if some restrictions

concerning minors or people unaware of the contents may be possible.

A complete prohibition which excludes any chance to discuss the message

of the film must be seen as a disproportionate measure, except where

there are very stringent reasons for such an act.  In the Commission's

view such reasons have not been established.

78.  The Commission therefore finds the restrictions imposed

disproportionate and thus not "necessary in a democratic society"

within the meaning of Article 10 para. 2 (Art. 10-2).

     Conclusion

79.  The Commission concludes, by nine votes to five, that there has

been a violation of Article 10 (Art. 10) of the Convention, as regards

the seizure of the film.

bb)  The forfeiture

80.  The forfeiture of the film constituted a further interference

which aggravated the restriction complained of: it produced permanent

effects in Austria for everybody as regards the freedom to receive and

impart information and ideas.

     Conclusion

81.  The Commission concludes, by thirteen votes to one, that there

has been a violation of Article 10 (Art. 10) of the Convention, as

regards the forfeiture of the film.

D.   Recapitulation

82.  The Commission concludes, by nine votes to five, that there has

been a violation of Article 10 (Art. 10) of the Convention, as regards

the seizure of the film (para. 79).

83.  The Commission concludes, by thirteen votes to one, that there

has been a violation of Article 10 (Art. 10) of the Convention, as

regards the forfeiture of the film (para. 81).

Secretary to the Commission            President of the Commission

     (H.C. KRÜGER)                           (C.A. NØRGAARD)

         PARTLY DISSENTING OPINION of Mr. F. ERMACORA

joined by MM. A. WEITZEL and L. LOUCAIDES

     I have voted for a violation of Article 10 of the Convention as

regards the forfeiture, but against a violation as regards the seizure,

of the film for the following reasons:

     The seizure was granted on the ground that the showing of the

film in public would have constituted the criminal offence under

Section 188 of the Penal Code.

     In their decisions the Austrian Courts pointed out that God, the

Father, Christ and Mary were the central persons of veneration in the

Catholic Church and that also the Eucharistic ceremony was protected

by Section 188.  Not every injury of religious convictions was

punishable under this provision, but only one that disturbed the

religious peace by arousing public irritation.  The disparagement of

God the Father, Christ, Mary and the Eucharistic ceremony in the film

was reinforced by its general character as an attack on Christian

religion.  It was done in a scope and manner likely to disturb the

feelings of average people, in particular the majority of believing

Christians.  This was not counterbalanced by the fact that a small

minority of persons might be able to interpret the film in a positive

way, having regard to the logical context of the disparaging remarks

which could be seen as criticism of historic facts and of religious

practices.  The freedom of art under Article 17(a) of the Basic Law on

the Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte

der Staatsbürger) could not be invoked as this freedom was limited by

other fundamental rights such as the right to religious freedom and by

the necessity of a social order based on tolerance and respect for

legally protected values.  While Section 188 of the Penal Code did not

in itself restrict the freedom of art, the film constituted such an

intensive interference with religious feelings that its provocative

anti-Christian attitude outweighed the freedom of art.

     I find with the majority of the Commission that the seizure of

the film was lawful and that it pursued a legitimate aim.  But I am

also of the opinion that it was necessary in a democratic society.  In

the Müller and Others judgment, quoted by the majority of the

Commission, the European Court of Human Rights has confirmed that, in

determining the necessity, the Contracting States have a certain margin

of appreciation in determining whether a pressing social need exists

(loc. cit. p. 21, para. 32).  In exercising their supervisory

jurisdiction, the Convention organs cannot confine themselves to

considering the impugned court decisions in isolation but "must look

at them in the light of the case as a whole".  They must "determine

whether the interference at issue was 'proportionate to the legitimate

aim pursued' and whether the reasons adduced by the ... courts to

justify it are 'relevant and sufficient'"(ibid.).  In the same judgment

the Court has recognised that artists and those who promote their work

"are certainly not immune from the possibility of limitations as

provided for in paragraph 2 of Article 10.  Whoever exercises his

freedom of expression undertakes, in accordance with the express terms

of that paragraph, 'duties and responsibilities'; their scope will

depend on his situation and the means he uses" (loc. cit. p. 22,

para. 34).  With regard to "morals" the Court noted that there was no

uniform European conception: "The view taken of the requirements of

morals varies from time to time and from place to place, especially in

our era, characterised as it is by a far-reaching evolution of opinions

on the subject.  By reason of their direct and continuous contact with

the vital forces of their countries, State authorities are in principle

in a better position that the international judge to give an opinion

on the exact content of these requirements as well as on the

'necessity' of a 'restriction' or 'penalty' intended to meet them"

(loc. cit. p. 22, para. 35).

     Applying the above criteria to the present case concerning

religion I note that the main subject of the film was Panizza's play

as put on the stage in Rome, which ridiculed and attacked in a vehement

manner God the Father, Christ, Mary and the Eucharistic ceremony.  It

is true that, by showing the play as a story within the story of the

criminal proceedings against the author, some distance was created as

to the anti-religious criticism of the play and the form of its

presentation.  However, the scenes of the film concerning the criminal

proceedings against the author could also be understood as reinforcing

this criticism.  I think that the film as a whole, and in particular

the presentation of Jesus Christ, could seriously offend the feelings

of believing Christians both by the language used and the pictorial

illustration.  Access to the cinema on the date of the planned

projection of the film in Innsbruck was not restricted, and therefore

it was not unreasonable for the Regional Court of Innsbruck to refer

to the likely reaction of average people.

     The majority refers to showings of the play of Panizza's

"Liebeskonzil" at the Innsbruck Landestheater which were discussed in

the press and not subject to any public interference.  However, the

film differs from the play in its presentation and acting.  The film's

version of Jesus Christ as a mentally deficient  and voluptuous young

man who approaches Mary in a sexual way cannot be justified as

satirical.  It is out of any proportion as an attack against religious

feelings and the common understanding of the image of Jesus Christ

prevailing in countries where the majority of peoples belong, at least

formally, to the Christian religion - an image which has prevailed over

centuries in objects of art and in the public life of the society in

the Tyrol.  The presentation of Jesus Christ in the film as announced

would have violated the rights of others who believe in Jesus Christ.

     Therefore, I am convinced that the seizure of the film in

Innsbruck was justified as a temporary measure applied in Tyrol.  An

abhorrent picture of Jesus Christ, presented as planned in a community

like Innsbruck, would have disregarded both the rights of others and

those responsibilities and duties under which freedom of expression is

guaranteed.  In this respect, therefore, the Austrian judicial

authorities have not exceeded their margin of appreciation as

recognised by the Convention organs.

           DISSENTING OPINION of Mr. H.G. SCHERMERS

     With much of the Commission's report I can agree, but not with

the conclusion on the margin of appreciation a state must have in this

kind of cases.

     One is free not to believe in God, but if one does not believe

in God one cannot make a film about Him.  A film of this kind is either

an effort to deny, or to ridicule, other people's belief or is at least

using other people's belief as a theme.  Inevitably, this kind of film

effects the freedom of religion of others.

     Religion does not play the same role in every society in Europe.

The protection which a State may, or must, grant to religion therefore

varies from place to place.  Much should be left to the discretion of

national, or even local authorities.

     The film has a strong satirical undertone (para. 71 of the

Report).  The reception of satirical art also varies from place to

place.  Some communities are used to satire as a way of expression,

others are not.  Again, because of the different effect of satire, its

permissibility as an excuse for otherwise blasphemous expressions

should be left to member states or local authorities.

     I find it difficult to accept a general European notion of

blasphemy.  Like many words this word should be read in the context of

the cultural tradition of the community concerned.  It may well be that

the same expression is blasphemous in one community and not so in

another.

     I agree with the majority of the Commission that Article 10 is

applicable to the case, but in my opinion Article 10, para. 2,

justifies the interference.  It was prescribed by law (see para. 61)

and it served a legitimate aim (see para. 63).  As to the question

whether the restriction was necessary in a democratic society

(see paras. 64 - 78) opinions may differ.  The Austrian courts

concluded that for the community concerned the restriction was

necessary.  In my opinion the circumstances of this case sufficiently

justify them to so conclude.  Therefore, I find no violation of the

Convention.

          PARTLY DISSENTING OPINION of Mrs. J. LIDDY

     I have had the benefit of reading Mr. Ermacora's partly

dissenting opinion, with which I am in broad agreement.

     The fair descriptions of the film he gives and the considerations

he puts forward in that opinion have, however, led me to the conclusion

that the seizure answered a pressing social need for the "prevention

of disorder" in the locality at the relevant time, rather than being

necessary for the protection of the "right of others".  The risk of

outraged protests, demonstrations or other disturbances in Innsbruck

at the relevant time outweighed the interest in giving an audience to

a film that conveyed a high degree of intolerance and contempt for the

religious convictions of others.

     On the other hand, even allowing for the margin of appreciation,

the permanent forfeiture of the film was not necessary for the

protection of disorder and I have voted with the majority on this

issue.

APPENDIX I

                    HISTORY OF PROCEEDINGS

Date                     Item

_________________________________________________________________

6.10.1987                Introduction of the application

2.12.1987                Registration of the application

A.   Examination of Admissibility

5.3.1990                 Commission's decision to invite the

                         Government to submit observations on the

                         admissibility and merits of the application

                         and a copy of the film

25.5.1990                Government's observations

5.7.1990                 Applicant's observations in reply

12.10.1990               Submission of a copy of the film

7.1.1991                 Commission's decision to appoint a

                         delegation to attend a screening of the

                         film

15.1.1991                Screening of the film before the delegation

16.1.1991 )              Delegation's deliberations and report to

17.1.1991 )              the Commission

12.4.1991                Commission's decision to declare the

                         application admissible and to view the film

                         in plenary session

B.   Examination of the merits

5.7.1991                 Screening of the film before the full

                         Commission in the presence of the parties'

                         representatives

5.11.1992                Receipt of further observations from

                         applicant association

7.1.1993                 Commission's deliberations on the merits

                         and final votes

14.1.1993           Adoption of the Report

                         APPENDIX III

      Summary of the contents of the film taken from the

       Regional Court's trial record of 10 October 1986

     The film begins with a curtain raiser on the life of the author

Oscar Panizza.

Act I:

     Scenes from Panizza's trial.  As the prosecuting lawyer addresses

the court bells can be heard in the background.

Act II:

     Takes place in heaven.  An angel, the dead soul of a 14 year-old

girl who has committed suicide tells how she was sold by her mother for

carnal purposes and was thereby destroyed.  The cherubim present and

other dead souls find this tale diverting.

     God the Father is brought on, propped up by two angels.  He is

portrayed as an infirm old man, spitting, burping, bellowing and

calling upon God.  He summons his heavenly messengers to report on

conditions on earth.

Act III:

     The heavenly messengers report on conditions on earth, for

example in Italy: "Colossal penises are borne through the streets as

deities, surrounded by maidens dancing, and worshipped as all-powerful

idols.  And in Church I saw your priest rutting in front of the altar

with a whore"."

     On hearing this, God the Father cries, "I shall destroy them

all!".  Yet because of his age he is no longer able to do so and has

Mary the Mother of God and the Son of God summoned.  As they appear a

church choir sings Ave Maria in the background.  A white dove also

appears, which lands on the head of God the Father.

     The Son of God is portrayed as a Mummy's boy of low intelligence,

who can only babble and repeat what God the Father has said.  According

to the angels, he is "wounded" in the hands and feet.  The Holy Family

begins to deliberate how to punish mankind.

     God the Father: "A slough full to the brim with sinful men, who

shamelessly undo their clothes and mate like wild animals, knowing no

bounds ... for that the wrath of God shall fall upon them!"

     The Virgin Mary: "If we don't let them fuck, they'll hang

themselves from the next tree".  God's wrath increases: "I wish to

trample them underfoot, to dash them to pieces, to tear them limb from

limb, to grind them to powder in the mills of my wrath".

Act IV:

     The celebration of the Eucharist is mocked on a grand scale.  The

Son of God says, "They eat me and become healthy again, free from sin

and wickedness.  And we are destroyed all the more.  First those below

stuff themselves full of sin, to bursting point, then they consume me

and prosper.  They become rich and free from sin."

     In a scene opposing above "heaven" and below "earth" the Holy

Family sees the Pope as the image of God the Father amongst other

things in a circle of naked nuns.  They are dismayed and call in the

Devil to help.  God the Father is at first incapable of parleying with

the Devil and asks the Son of God to do so, but Jesus breaks down,

calling out "Mummy".

     The Virgin Mary then undertakes to persuade the Devil to help,

using her womanly wiles.  She offers herself to him.  "Dear friend, we

need your help.  It is not necessary for anyone to know that you, dear

friend, have stuck your tail in this matter".

Act V:

     A degree of erotic tension arises between the Virgin Mary and the

Devil, causing the Son of God to call out helplessly, "Daddy, Daddy".

     The Devil suggests inflicting syphilis on mankind, so that man

and woman will infect each other.  The Holy Family agrees, so long as

mankind remains "capable of redemption" and "in need of salvation" and

is not destroyed utterly.

     The task still appears too complicated to the Devil, whereupon

God the Father himself attempts to persuade him to accept the task.

He crawls on the floor in front of the Devil, hauls himself upright on

him and exchanges a deep kiss with him.  During this time, the Son of

God attempts to fondle and kiss his mother's breasts.  She lets him do

so.

     The Devil finally accepts the task.  The Virgin Mary is thrilled

with the way the Devil describes how he will accomplish the task.  She

asks how the Devil is and asks after his grandmother and his boys.  His

acceptance is celebrated with a banquet, to the sound of bells.  God

the Father, the Virgin Mary and Jesus applaud the Devil.

Act VI:

     The Devil complains that those above get away with everything and

those below with nothing.  They only call upon him when they need help.

He takes himself off to Hell to seek a poison which will not destroy

mankind totally but will drive men mad.  "It has to be a fine,

insidious, slow-acting poison, which will affect man's descendants

after him.  The poison also has to issue from the summit of delight,

from the pleasures of love, from the most innocent and most exquisite

bliss, from the ecstasy of love ...."

Act VII:

     Whilst the Devil is seeking the poison, the Virgin Mary whiles

away the time by having a lewd tale read to her.  She urges the reader

to come "to the point" and there is no doubt she means the sexual act.

Act VIII:

     The Devil finally finds the embodiment of evil in the person of

Salome.  His mating with her produces "his daughter", who is to spread

syphilis amongst mankind.

     The Devil presents his daughter to Mary the Mother of God.  The

Virgin Mary, jealous of the girl's beauty, first shows anger at the

Devil's disrespectful mode of address.  "What did you say!  Eternal

Virgin!  Get it into your head, you arsehole, it is Most Blessed Mother

of God.  Honour where honour is due!"  The Virgin Mary does not believe

that this pure, lovely creature will bring mankind to an abject end.

However, the Devil sends his daughter forth, first to the Pope's Court,

then to monasteries and nunneries and finally to the rest of humanity.

Act IX:

     Court scene as in Act I.  Panizza is sentenced.  In his speech

in his own defence he says, "Accursed be he who calls upon you, shall

we say, to digest thoughts.  You butcher him in the most gruesome

manner.  Thus your revenge is complete.  Unless he were to become a

Catholic!  If someone crawled with you to the Cross, if someone went

through all that with you, then he was allowed to do anything,

anything, anything, just anything!"

 

Full & Egal Universal Law Academy