P. INSTITUT v. AUSTRIA



                      AS TO THE ADMISSIBILITY OF

                      Application No. 13470/87

                      by P. Institut

                      against Austria

        The European Commission of Human Rights sitting in private

on 12 April 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

                  B. MARXER

             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 6 October 1987

by P. Institut against Austria and registered

on 2 December 1987 under file No. 13470/87;

        Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

        Having regard to the Commission's decision of 5 March 1990 to

give notice of the application to the respondent Government and to

invite them to submit observations in writing on the admissibility and

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

        Having regard to the Government's observations of 25 May 1990

and the applicant's observations in reply of 5 July 1990;

        Noting that the film was submitted to the Commission on

12 October 1990;

        Having regard to the Commission's decision of 7 January 1991

to appoint a delegation to attend a screening of the film;

        Having regard to the delegation's report of 16 January 1991;

        Having deliberated on 17 January and 12 April 1991;

        Decides as follows:

THE FACTS

        The applicant, P. Institut Verein für audiovisuelle

Mediengestaltung, 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. It runs a cinema in

Innsbruck and complains of the seizure and subsequent forfeiture of a

German film which it intended to show there on 13 May 1985 at 22.00h.

The film in question had earlier been shown in Vienna and apparently

also in Graz without provoking any intervention by the authorities

(see below).

        The facts submitted may be summarised as follows.

        The film in question, "Das Liebeskonzil" (The Council of Love)

by Werner Schroeter, is based on a theatre play by Oskar Panizza of

1884 which after its first performance gave rise to criminal

proceedings against the author before the Regional Court of Munich.

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.  To this end 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.  In its judgment of 10 October 1986

the Regional Court (Landesgericht) of Innsbruck found that the scenes

of the film showing the play "depicted God the Father as a senile and

impotent fool, Christ as a cretin, and his mother, Mary, as a

lascivious lady, and ridiculed the Eucharistic ceremony".

        Before the film was to be shown in Innsbruck, the public

prosecutor on 10 May 1985 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 (Herabwürdigung

religiöser Lehren) under Section 188 of the Penal Code

(Strafgesetzbuch).  On 12 May, 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 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.

        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.

        On 24 October 1985 the criminal proceedings against the

applicant association's manager were dropped 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.  A trial took place before a single judge of the

Innsbruck Regional Court on 10 October 1986.  At the trial, the film

was shown again.  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.

        The forfeiture 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 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.

        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, 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.

        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 17 (a) of the Basic Law.  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 rights in the film which belonged to the distribution

firm.

        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).  The Attorney

General made investigations which revealed that the film had been

shown in Vienna in 1984 and that already at that time preliminary

investigations had been made under Section 36 of the Media Act.  It

had been noted that the contents of the film objectively constituted

the offence of disparaging religious precepts, but no request for the

seizure of the film had been made because it had no longer been on the

programme of the Vienna cinema concerned and it had not been clear

whether a copy of the film was still in Austria.  The investigations

also concerned the manner in which the showing of the film had been

announced in Innsbruck.  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).

COMPLAINTS

        The applicant association submits that the seizure and

forfeiture of the film violated its right to freedom of expression,

including the right to receive and impart information and ideas, as

guaranteed by Article 10 of the Convention.  This interference was not

justified under Article 10 para. 2 in that it was not "prescribed by

law" (the Regional Court's interpretation of Section 188 of the Penal

Code being unconstitutional) nor "necessary in a democratic society to

protect the rights of others".

PROCEEDINGS

        The application was introduced on 6 October and registered on

2 December 1987.

        On 5 March 1990 the Commission decided, pursuant to Rule 42

para. 2 (b) of its Rules of Procedure (former version), to give notice

of the application to the respondent Government and to invite the

parties to submit observations on its admissibility and merits; the

Commission further requested the Government to submit a copy of the

confiscated film.

        The Government submitted their observations within the time

limit fixed for this purpose, on 25 May 1990.  The applicant

association replied on 5 July 1990.  On 12 October 1990 the Government

submitted a copy of the confiscated film to the Commission.

        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.

        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.

THE LAW

        The applicant association complains of the seizure and

forfeiture of the film "Das Liebeskonzil" which it had intended to

show in its cinema.  It invokes its right to freedom of expression, as

guaranteed by Article 10 (Art. 10) of the Convention, which 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."

        The Commission must examine under the first sentence of

Article 10 para. 1 (Art. 10-1) whether the seizure and forfeiture of

the film in question constituted an interference with the applicant

association's rights.

        The Government submit that the applicant association is not

entitled to bring an application with respect to these measures

because the contents of the film were not an expression of its own

opinion.  The applicant association contests this, claiming that there

has been an interference with its right to purvey an artistic work.

        In the Commission's opinion the scope of Article 10 (Art. 10)

of the Convention is not limited to the expression of one's own views.

Everyone who wishes to impart to others information or ideas from

whatever source can invoke this provision.  Also a cinema enterprise

which wishes to show a particular film as part of its programme is

therefore protected by Article 10 (Art. 10).  In the present case the

applicant association was prevented from showing the film in question

in its cinema as a consequence of its seizure and subsequent

forfeiture.  It is true that the applicant association was not itself

a party to the domestic proceedings.  However, it was in substance

affected by the result of these proceedings and can therefore claim to

have been a victim, within the meaning of Article 25 (Art. 25) of the

Convention, of a violation of its rights under Article 10 (Art. 10) of

the Convention.

        The Government next submit that the six-months time limit

provided for in Article 26 (Art. 26) of the Convention has not been

complied with.  They claim that the applicant association was only

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

forfeiture.  The proceedings on the seizure were terminated by the

decision of the Innsbruck Court of Appeal of 30 July 1985 and the

applicant association or its manager were not parties to the

subsequent proceedings on the forfeiture of the film under Section 33

of the Media Act, which according to the Government concerned only the

owner of the film rights, i.e. the distribution firm.  This was

confirmed by the Court of Appeal's decision of 25 March 1987.

        The applicant association claims that it was affected not only

by the seizure of the film, but also its forfeiture.  In this respect

it observes that its manager was treated as a party to the forfeiture

proceedings at least in first instance, and that it was only by the

Court of Appeal's final decision of 25 March 1987 that he was denied

party status.  In any event it was only by this decision that the

substantive justification of the prohibition to show the film was

finally determined under Austrian law.  The applicant association

therefore considers that the six-months time limit must be

calculated from the date of this decision.

        The Commission notes that according to the Court of Appeal's

earlier decision of 30 July 1985 the seizure of the film was expressly

described as a "provisional measure" based on a "suspicion" of a

criminal offence which did not presuppose a final decision on the

question whether the contents of the film actually constituted such an

offence.  The Court of Appeal held that "at this stage of the

proceedings" it was therefore not necessary to deal with all the

aspects of the case such as the subjective elements of the offence.

        In these circumstances the Commission considers it justified

to regard the forfeiture case as a further stage of the same

proceedings.

        The Commission therefore finds that the Court of Appeal's

decision of 25 March 1987 must be regarded as the final domestic

decision within the meaning of Article 26 (Art. 26) of the Convention

in the applicant association's case.  As the association lodged the

application on 6 October 1987, i.e. less than six months after the

final decision, the application cannot be rejected as having been

filed out of time.

        The Government admit that, as such, the seizure and subsequent

forfeiture of the film constituted interferences by public authorities

with the exercise of the right of freedom of expression.  As these

interferences also affected the applicant association's rights under

Article 10 para. 1 (Art. 10-1) of the Convention, it is necessary to

examine their possible justification under Article 10 para. 2

(Art. 10-2).

        The Government claim that the interferences in question were

fully justified under this provision.  They were "prescribed by law"

being based on the relevant provisions of the Media Act in conjunction

with Section 188 of the Austrian Penal Code and Article 17 (a) of the

Basic Law on the Rights of Citizens.  They also pursued legitimate

aims covered by Article 10 para. 2 (Art. 10-2), namely the protection

of morals and the protection of the rights of others.  Finally the

measures were "necessary in a democratic society" having regard to the

duties and responsibilities which the exercise of the freedom of

expression carries with it.  In this latter respect the Government

refer to the reasons of the domestic court decisions and the reasons

of the Attorney General's ruling to refuse a plea of nullity for

safeguarding the law.  They claim that these reasons were relevant and

sufficient to justify the restriction of the applicant association's

freedom of expression, which in their submission was proportionate to

the aims pursued (including the protection of religious freedom

enshrined in Article 9 (Art. 9) of the Convention) and did not

transgress the State's margin of appreciation.  In this context the

Government also refer to the Eur.  Court H.R. Müller and Others

judgment of 24 May 1988, Series A No. 133.

        The applicant association submits that the measures complained

of were not "prescribed by law" as the relevant provisions of the

Media Act and of the Penal Code were given an unconstitutional

interpretation.  The applicant association furthermore contests that

the interference was necessary in a democratic society for the

protection of morals or for the protection of the rights of others.

The prohibition to show the film was disproportionate as nobody was

compelled to see the film and as the announcement of the programme

could not give rise to any sensational expectations.  The applicant

association's cinema addressed a qualified public and therefore the

Court was not justified to refer to the opinion of the average

population.  Moreover, the Court had failed to take into account the

distance created by showing Panizza's play only in the context of the

criminal proceedings against the author.  It must be possible in a

democratic society to show to an interested public also shocking or

provocative works of art.

        The Commission has taken note of the parties' submissions.  It

finds that the case raises complex issues concerning the

interpretation of Article 10 (Art. 10) of the Convention which require

to be determined on the merits.  The application therefore cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention.

        For these reasons, the Commission, by a majority

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case.

Secretary to the Commission         President of the Commission

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

 

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