Information Note on the Court’s case-law
December 1994
Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria - 15153/89
Judgment 19.12.1994
Article 10
Refusal of Minister for Defence to have a magazine (der Igel) distributed to servicemen and prohibition imposed on a conscript preventing him from distributing it in his barracks: violations
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 10 OF THE CONVENTION
A.The first applicant
1. Whether there was an interference
Authorities had effected themselves distribution on a regular basis of private military periodicals; responsibility of respondent State under Article 10 was consequently engaged.
Of all the periodicals for servicemen, only der Igel had not been allowed access to this type of distribution - Minister for Defence's refusal to remedy this situation had constituted interference with the exercise by first applicant of its right to impart information and ideas.
2. Whether the interference was justified
(a) "Prescribed by law"
Relevant provisions of military law could not strictly constitute legal basis of minister's action as minister had not taken formal decision, but he had followed them.
As far as military discipline is concerned, it may be necessary for authorities to formulate rules more broadly, but such rules must afford sufficient protection against arbitrariness and make it possible to foresee consequences of their application.
In this instance there had been sufficient legal basis - first applicant had had access to the rules in question and could have been expected to have been aware of the possibility that minister might regard himself as bound to refer to them in relation to it.
(b) Legitimate aim
Maintenance of order in the armed forces.
(c) "Necessary in a democratic society"
Freedom of expression also applicable to "information" or "ideas" that offend, shock or disturb - protection of Article 10 extends to members of armed forces, but legal rules designed to prevent the undermining of military discipline necessary.
Refusal to have der Igel distributed by army had considerably reduced its chances of increasing its readership among service personnel - could only have been justified by imperative necessities.
Threat to discipline and effectiveness of army: allegation not substantiated as issues of magazine submitted in evidence had not overstepped the bounds of mere discussion of ideas.
Friction in Schwarzenberg barracks: not sufficiently serious to justify decision whose effects had extended to all the military premises on the national territory.
In sum, minister's refusal had been disproportionate.
Conclusion: violation (six votes to three).
B.The second applicant
1. Whether there was an interference
Not in dispute.
2. Whether the interference was justified
(a) "Prescribed by law"
If need be having sought appropriate advice, applicant had been in a position to foresee, to a degree that was reasonable in the circumstances of the case, possibility that such a ban would be imposed on him.
(b) Legitimate aim
Maintenance of order in armed forces.
(c) "Necessary in a democratic society"
Articles in relevant issue had not called into question duty of obedience or purpose of service in armed forces - no serious threat to military discipline - measure in question disproportionate.
Conclusion: violation (eight votes to one).
II.ARTICLE 13 OF THE CONVENTION
A.The first applicant
Complaint under Article 10 had been "arguable" - it had not been shown that possible remedies cited by Government would have been effective.
Conclusion: violation (six votes to three).
B.The second applicant
Effectiveness of a remedy does not depend on certainty of favourable outcome - appeal to Constitutional Court had satisfied requirements of Article 13.
Conclusion: no violation (unanimously).
III.ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 10
In view of above findings, unnecessary to examine this complaint.
Conclusion: unnecessary to examine complaint (unanimously).
IV.ARTICLE 50 OF THE CONVENTION
A. Damage
1. Pecuniary damage
Claim unfounded.
2. Non-pecuniary damage
Finding of a violation afforded sufficient just satisfaction.
B.Costs and expenses
Sum to be reimbursed assessed on equitable basis.
Conclusion: respondent State to pay applicants specified sum (unanimously).
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This summary by the Registry does not bind the Court.
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