AS TO THE ADMISSIBILITY OF
Application No. 23953/94
by Rudolf REISS
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 11 March 1994 by
Rudolf REISS against Austria and registered on 25 April 1994 under file
No. 23953/94;
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 national, born in 1952, and residing
in Vienna. Before the Commission he is represented by Mr. G. Grone,
a lawyer practising in Vienna.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant is the owner of a bar in Vienna, its customers
being mainly male homosexuals. Customers seeking entrance to the bar
have to ring at the door, minors under 18 years are not admitted.
Following an anonymous letter received by the police in October
1991, three police officers entered the applicant's bar on 21 November
1991 and seized a homosexual pornographic video cassette which was
shown on a video monitor as well as several similar video cassettes.
On 14 May 1992 the applicant was heard by the Investigating Judge
(Untersuchungsrichter). He stated that, following the wishes of his
customers, he had started in November 1991 to show homosexual films.
On 21 November 1991 he had not been present at his bar. An
acquaintance had brought the video cassettes to the bar and had
deposited them there for the applicant. The applicant wanted to see
the video cassettes before deciding whether to show them. However, one
of his employees had put one of the cassettes into the video recorder
without further reflection.
On 15 May 1992 the Vienna Public Prosecutor's Office
(Staatsanwaltschaft) charged the applicant under Section 1 of the
Pornography Act. This provision provides, inter alia, that everyone
who, for pecuniary profit, produces, publishes or keeps for
distribution obscene films or shows them in public, is liable to
punishment by imprisonment of up to one year or a fine of up to 360
daily rates.
On 22 September 1992 the trial against the applicant, who was
assisted by counsel, took place before the Vienna Regional Court
(Landesgericht).
The Regional Court heard the applicant and one of the applicant's
employees, M.G.A., and R.U. as witnesses. The applicant stated that
homosexual pornographic videos had never been shown in his bar. On
21 November 1991 he had not been at the bar while an acquaintance of
his had deposited several video cassettes there for him. One of his
employees had shown one of the videos. Witness M.G.A. stated that he
had shown the video cassette seized out of pure curiosity. R.U. stated
that he had brought several video cassettes on the relevant day to the
applicant's bar because he had thought that they might interest the
applicant.
At the trial the prosecution and defence agreed that the video
cassettes need not be shown in court. The Regional Court read out the
police report on the seizure of the video cassettes at the applicant's
premises. The applicant did not object thereto.
On the same day the Regional Court convicted the applicant of the
offence under Section 1 of the Pornography Act and sentenced him to a
fine of 40 daily rates of 300 AS each and 20 days of imprisonment in
default.
The Regional Court found that the applicant had shown in his bar
pornographic homosexual video cassettes for pecuniary profit. It did
not accept his defence that no such video cassettes were ever shown
there and that the video cassette seized on 21 November 1991 was shown
by mistake by one of his employees without the applicant's consent.
It found that this version was contradicted by the applicant's own
admissions before the Investigating Judge, namely that he had started
in November 1991 to show homosexual films. The Regional Court had also
regard to the fact that the police investigations were triggered off
by an anonymous letter received by the police in October 1991. As
regards the statements of the witnesses M.G.A. and R.U., the Regional
Court did not find them plausible.
On 5 February 1993 the applicant appealed against the Regional
Court's judgment. He attacked the court's assessment of evidence and
complained that no witness for the prosecution had been heard.
On 5 April 1993 the Vienna Court of Appeal (Oberlandesgericht),
after a public hearing, dismissed the appeal. The Court of Appeal
found that the alleged failure to hear witnesses for the prosecution
did not constitute one of the grounds of nullity listed exhaustively
in the Code of Criminal Procedure (Strafprozeßordnung). It found
further that the Regional Court had assessed the evidence correctly.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that the criminal proceedings against him were unfair in that no
witnesses for the prosecution were heard by the court.
2. He complains further under Article 8 of the Convention that his
conviction under the Pornography Act violated his right to respect for
his private life.
THE LAW
1. The applicant complains that the criminal proceedings against him
were unfair in that no witnesses for the prosecution were heard by the
court. He invokes Article 6 para. 1 (Art. 6-1) of the Convention.
As far as relevant, this provision reads as follows:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law. ..."
The essence of the applicant's submissions seems to be that the
Regional Court, when convicting him, based its findings on insufficient
evidence.
It was not disputed at the trial that on 21 November 1991 a
homosexual pornographic video cassette was shown in the applicant's bar
and that similar video cassettes were found there. The applicant's
submission at the trial was that this video cassette was shown by
mistake by one of his employees. However, the Regional Court
considered that this statement and statements of two witnesses for the
defence were not plausible and contradicted the applicant's previous
statement before the Investigating Judge. Moreover, at the trial the
prosecution and defence agreed that the video cassettes need not be
shown in court and the applicant did not object to the Regional Court
reading out the police report on the seizure of the video cassettes at
the applicant's premises.
The Commission therefore finds that the Regional Court based its
judgment on the assessment of the evidence it had before it and drew
its conclusions therefrom. Whether these conclusions involved an error
of fact or law is an issue which the Commission cannot determine, as
it is not competent to deal with an application alleging that errors
of law or fact have been committed by domestic courts except where it
considers that such errors might have involved a possible violation of
any of the rights and freedoms set out in the Convention (see e.g. No.
458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.
8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18
pp. 31, 45; No. 21283/93, Dec. 5.4.94, D.R. 77-A p. 81).
Under such circumstances there is no appearance of a violation
of the applicant's right to a fair trial under Article 6 para. 1
(Art. 6-1) 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 complains further under Article 8 para. 1
(Art. 8-1) of the Convention that his conviction under the Pornography
Act violated his right to respect for his private life.
Article 8 (Art. 8) of the Convention reads as follows:
"Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission observes that the applicant did not raise this
complaint in his appeal to the Court of Appeal. The question therefore
arises whether the applicant has complied with Article 26 (Art. 26) of
the Convention according to which the Commission may only deal with a
matter after all domestic remedies have been exhausted according to the
generally recognised rules of international law. However, the
Commission need not determine this issue since this complaint is, in
any event, inadmissible for the following reasons.
The Commission recalls the Niemietz case, which concerned a
search by the police of a lawyer's office, where the European Court of
Human Rights found that it is consonant with the essential object and
purpose of Article 8 (Art. 8) of the Convention, namely to protect the
individual against arbitrary interference by the public authority, to
interpret the words "private life" and "home" as including certain
professional or business activities or premises (Eur. Court H.R.,
Niemietz judgment of 16 December 1992, Series A no. 251-B, p. 34,
para. 31).
While business premises therefore enjoy to a certain extent the
protection of Article 8 (Art. 8) of the Convention, regard must
nevertheless be had in this respect to the nature of such premises, the
business activities exercised therein and the nature of the alleged
interference.
In the present case the applicant is the owner of a bar in Vienna
whose customers are mainly male homosexuals. The bar is accessible to
the public, although subject to certain control. At least on
21 November 1991 a homosexual pornographic video cassette was shown in
the bar and similar video cassettes were found there. On 22 September
1992 the applicant was convicted by the Vienna Regional Court under the
Pornography Act of showing publicly obscene video cassettes for making
profit.
The Commission finds it difficult to accept that the showing of
the video cassettes at issue on the applicant's premises in his absence
formed part of his private life or of a business activity which cannot
be separated therefrom. The mere fact that an offence was committed
on premises which for certain purposes could be considered as belonging
to the sphere of the applicant's private life or constituting his home
within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention,
is not in itself sufficient to render his conviction for such an
offence an interference with the rights protected by Article 8
(Art. 8) of the Convention. In this respect, the Commission considers
it decisive that the offence the applicant was convicted of, namely the
public showing of obscene video cassettes for the purpose of profit
making, by its nature had nothing to do with the applicant's own
private life or home.
In short, having regard to the specific circumstances of the
present case, the Commission cannot find that the applicant's
conviction under the Pornography Act constitutes an interference with
his right to respect for his private life or his home as guaranteed by
Article 8 para. 1 (Art. 8-1) of the Convention.
It follows that also this part of the application is 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy