EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 15153/89
Vereinigung Demokratischer
Soldaten Österreichs and
Berthold Gubi
against
Austria
REPORT OF THE COMMISSION
(adopted on 30 June 1993)
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 7 - 11) . . . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12 - 16). . . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17 - 39). . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17 - 32). . . . . . . . . . . . . . . . . . . . . . . 3
B. The relevant domestic law
(paras. 33 - 39). . . . . . . . . . . . . . . . . . . . . . . 6
III. OPINION OF THE COMMISSION
(paras. 40 - 130) . . . . . . . . . . . . . . . . . . . . . . 8
A. Complaints declared admissible
(para. 40). . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. Points at issue
(para. 41). . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. The alleged violation of the
first applicant's Convention rights
(paras. 42 - 98). . . . . . . . . . . . . . . . . . . . . . . 9
I. Article 10 of the Convention
(paras. 42 - 86) . . . . . . . . . . . . . . . . . . . . 9
a. Interference
(paras. 43 - 51) . . . . . . . . . . . . . . . . . 9
b. Justification
(paras. 52 - 85) . . . . . . . . . . . . . . . . .10
aa. Was the interference "prescribed
by law"? (paras. 52 - 67). . . . . . . . . . .10
bb. Did the interference have a
legitimate aim or aims?
(paras. 68 - 70) . . . . . . . . . . . . . . .13
cc. Could the interference be regarded
as "necessary in a democratic society"?
(paras. 71 - 85) . . . . . . . . . . . . . . .13
CONCLUSION
(para. 86) . . . . . . . . . . . . . . . . . . . . . . .15
II. Article 13, in conjunction with Article 10,
of the Convention
(paras. 87 - 93) . . . . . . . . . . . . . . . . . . . .15
CONCLUSION
(para. 94) . . . . . . . . . . . . . . . . . . . . . . .16
III. Article 14, in conjunction with Article 10,
of the Convention
(paras. 95 - 97) . . . . . . . . . . . . . . . . . . . .16
CONCLUSION
(para. 98) . . . . . . . . . . . . . . . . . . . . . . .17
D. The alleged violation of the
second applicant's Convention rights
(paras. 99 - 124) . . . . . . . . . . . . . . . . . . . . . .17
I. Article 10 of the Convention
(paras. 99 - 113). . . . . . . . . . . . . . . . . . . .17
a. Interference
(para. 99) . . . . . . . . . . . . . . . . . . . .17
b. Justification
(paras. 100 - 112) . . . . . . . . . . . . . . . .17
aa. Was the interference "prescribed
by law"?
(paras. 100 - 103) . . . . . . . . . . . . . .17
bb. Did the interference have a legitimate
aim or aims?
(para. 104). . . . . . . . . . . . . . . . . .17
cc. Could the interference be regarded as
"necessary in a democratic society"?
(paras. 105 - 112) . . . . . . . . . . . . . .18
CONCLUSION
(para. 113). . . . . . . . . . . . . . . . . . . . . . .19
II. Article 13, in conjunction
with Article 10, of the Convention
(paras. 114 - 122) . . . . . . . . . . . . . . . . . . .19
CONCLUSION
(para. 122). . . . . . . . . . . . . . . . . . . . . . .20
III. Article 14, in conjunction
with Article 10, of the Convention
(paras. 123 - 124) . . . . . . . . . . . . . . . . . . .20
CONCLUSION
(para. 124). . . . . . . . . . . . . . . . . . . . . . .20
E. Recapitulation
(paras. 125 - 130). . . . . . . . . . . . . . . . . . . . . .20
DISSENTING OPINION OF SIR BASIL HALL JOINED BY
MM. G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK AND B. MARXER . . . . . . . . . .21
DISSENTING OPINION OF MR. MARTINEZ JOINED BY MR. REFFI. . . . . . .22
DISSENTING OPINION OF MM. J.-C. SOYER AND H.G. SCHERMERS. . . . . .23
APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .22
APPENDIX II: DECISION ON THE ADMISSIBILITY OF THE APPLICATION .23
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 first applicant is a private association of soldiers under
Austrian law and has its seat in Vienna. The first applicant edits the
military journal "Igel", which publishes information for soldiers and
critical reports about problems concerning soldiers in general,
concerning particular situations or events in military barracks as well
as comments on other political matters.
3. The second applicant, born in 1958, is an Austrian national and
resident in Vienna. At the relevant time he was a soldier and member
of the first applicant.
4. Both applicants are represented by Mr. G. Lansky, a lawyer
practising in Vienna.
5. The application is directed against Austria. The Government were
represented by their Agent, Ambassador H. Türk, then Head of the
International Law Department at the Federal Ministry of Foreign
Affairs.
6. The application concerns the applicants' complaints under
Article 10 of the Convention about the prohibition on the distribution
of the military journal "Igel" in the area of Austrian military
barracks, and their related complaints under Articles 13 and 14 of the
Convention.
B. The proceedings
7. The application was introduced on 12 June 1989 and registered on
21 June 1989.
8. On 27 May 1991 the Commission decided to communicate the
application and to invite the respondent Government to submit written
observations on its admissibility and merits.
9. After an extension of the time-limit, the Government's
observations were submitted on 22 October 1991. The applicants
submitted their observations in reply on 27 January 1992, also after
an extension of the time-limit.
10. On 6 July 1992 the Commission declared the application
admissible.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement of the case. Active consultations with the parties took
place between 10 July 1992 and 6 January 1993. The Commission now
finds that there is no basis on which such a settlement can be
effected.
C. The present Report
12. 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
S. TRECHSEL
E. BUSUTTIL
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
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
13. The text of this Report was adopted on 30 June 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.
14. 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.
15. 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.
16. 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
17. On 27 July 1987 the first applicant applied to the Federal
Ministry of Defence (Bundesministerium für Landesverteidigung) for
permission to distribute its military journal "Igel" in the area of
Austrian military barracks.
18. As far as the military journal "Igel" is concerned, the
Commission received copies of the issues Nos. 1, 2, 3 and 4 published
in 1987, Nos. 1, 2 and 3/4 published in 1988 and No. 4 published in
1988/89. The journal had as a sub-title "The NEW journal for soldiers"
("Die NEUE Soldaten-zeitung"), its symbol was a hedgehog with a spiky
helmet, showing its teeth. The journal addressed soldiers as a circle
of readers and its contents accordingly touched particularly on
questions relating to the armed forces, the military service and the
military life.
19. Some of the matters discussed in the said issues were the demands
for abolition of the curfew, the limitation of working time of the
armed forces to forty hours per week, the limitations on rules
regarding the hair-cut of conscripts, the recruitment of women for
military service, the influence of good connections on transfers. It
contained information for new conscripts relating to their rights in
the armed forces, and references to proceedings before the Austrian
Constitutional Court (Verfassungsgerichtshof) which led to the
abolition of the military arrest and detention. Repeatedly, the first
applicant published critical reports and complaints about alleged
shortcomings in different military barracks, or criticism concerning
public statements of military superiors. There were also reports on
meetings of the European Movement of Soldiers and extracts quoted from
other publications. The journal further served to inform about the
aims and the work of the first applicant. The various publications
were frequently accompanied by satirical photographs or drawings.
20. The Austrian military services issued internal rules on the
distribution of non-official publications in the area of military
barracks. A circular of the Federal Ministry of Defence, Vienna Army
Headquarters (Armeekommando), of 14 March 1975 instructs commanders to
take preventive measures as regards publications with negative ideas
concerning the military service ("negatives wehrpolitisches Gedanken-
gut") or unjustified attacks on the Austrian armed forces, and, inter
alia, to prohibit the distribution and posting of such publications.
A circular of the Army Corps II Headquarters (Korpskommando II) of
17 December 1987 instructed commanders to amend the existing barracks
regulations (Kasernordnung) to the effect that it was prohibited to
distribute or post any non-official publications in the area of
military barracks without permission by the commander of the barracks
concerned. General permissions for the distribution of military
journals may be granted by the Federal Ministry of Defence.
21. The first applicant's request of July 1987 was not formally
decided upon.
22. According to replies of the Federal Minister of Defence of
14 June 1988 to questions raised in this context by members of
Parliament, the military journals "Miliz-Impuls" and "Visier", edited
by private associations, were alternately joined with the official
information bulletin of the Federal Ministry of Defence "Miliz-Infor-
mation" and distributed to all militia soldiers. For this purpose, the
necessary number of copies of the two military journals were bought by
the Federal Ministry of Defence. The Minister also stated that the
Ministry of Defence was examining to what extent other publications
with a positive attitude to military defence could be supported.
However, activities directed against the interests of military defence
would not be supported.
23. According to a further reply of 10 May 1989 to questions of
members of Parliament, the Federal Ministry of Defence was not prepared
to permit the distribution of the military journal "Igel" to the armed
forces. Under S. 46 para. 3 of the Military Act (Wehrgesetz) of 1978,
the Minister stated, members of the armed forces had the right to
receive information about political matters from general sources. They
could buy, or have delivered by post, any publication. Within military
barracks, however, only such publications could be distributed which
showed a minimum of identification with the constitutional duties of
the Army, were free from party-political contents and were favourable,
or at least not unfavourable, to the reputation of the Army. Critical
publications, for example the journal "hallo" edited by the youth
organisation of the trade union, would not be excluded from
distribution, if they satisfied the above criteria. Having regard to
these criteria, the request of the first applicant could, for the time
being, not be granted. The Minister referred to S. 79 of the
Constitution (Bundesverfassungs-gesetz), S. 44 para. 1 and S. 46 of the
Military Act, S. 116 of the Penal Code (Strafgesetzbuch) and S. 3
para. 1 of the Service Regulations (Allgemeine Dienstvorschriften) as
the legal basis for a decision on the distribution of journals.
24. On 29 December 1987 the second applicant distributed copies of
the military journal "Igel", issue No. 3/87, in the area of the
Schwarzenberg barracks in Vienna. His superior R. ordered him to stop
this distribution.
25. The issue 3/87 contained in its article on the cover page a
discussion on military drill. The editorial set out the aim of the
journal to further the interests of conscripts in co-operation with the
cadre, on the basis of common interests and mutual respect. A report
about military complaint proceedings brought by the second applicant
followed. A leading article discussed militia system principles in the
Austrian Army. There was one page of quotations from articles
published in other newspapers, and a report on the 20th congress of
young members of the Austrian Trade Union (Österreichischer
Gewerkschaftsbund). On one further page, the first applicant informed
about its aims and demands in the interests of conscripts. The last
report related to a radio feature of the Austrian broadcast which had
taken up complaints lodged by one conscript about a reduction of his
daily allowance in compensation for allegedly lost material.
26. On 12 January 1988 the second applicant was instructed by another
superior about the general regulations of 1975 and 1987 as well as the
barracks regulations of the Schwarzenberg barracks of 4 January 1988
which prohibited the distribution and posting of publications in the
area of military barracks without permission of the commander.
27. On 22 January 1988 the second applicant filed a complaint
(Beschwerde) with the Military Complaints Board (Beschwerdekommission
in militärischen Angelegenheiten) at the Federal Ministry of Defence
about the order of his superior R. and the above regulations.
28. On 7 April 1988 the Complaints Division (Beschwerdeabteilung) of
the Federal Ministry of Defence, in accordance with the recommendation
of the Military Complaints Board of 22 March 1988, dismissed the
applicant's complaint of 22 January 1988.
29. The Complaints Division found in particular that the order of the
applicant's superior was based on the instructions of the Army Corps II
Headquarters. Article 5 of the Basic Constitutional Act (Staatsgrund-
gesetz) guaranteed the property and also applied to legal persons of
public law, and thus to the Austrian Federation as the owner of the
real estate on which the Schwarzenberg barracks were situated. The
instructions of the Army Corps II Headquarters were based on Article 5
of the Basic Constitutional Act, S. 19 of the Service Regulations and
S. 13 of the Military Act. The contents and limits of the right to
freedom of expression under Article 13 of the Basic Constitutional Act
were prescribed by, inter alia, the Military Act as regards the duty
of secrecy (S. 17 of the Military Act) and the duty of obedience (S. 44
of the Military Act). Such restrictions followed from the particular
relationship in the armed forces in which the superiors exercise
authority (besonderes Gewaltverhältnis). Compliance with the order not
to distribute or post publications without permission by the commander
therefore constituted one of the applicant's duties as a soldier.
30. On 26 September 1988 the Constitutional Court refused to admit
the second applicant's complaint about the order of 29 December 1987
and the ensuing proceedings. The Constitutional Court found that the
complaint did not raise any particular issues under constitutional law
and that the matter was not excluded from the competence of the
Administrative Court. The decision was served on 12 December 1988.
31. As regards the question of competence in these matters, the
applicants' representative submitted a decision of the Administrative
Court of 19 January 1988 declaring, in another case, a complaint about
a decision of the Complaints Division at the Federal Ministry of
Defence inadmissible. The Administrative Court, in its reasoning,
noted that the above complaint had been transferred by the
Constitutional Court and that there was a divergence in the case-law
of these two Courts on the question whether the decision of the
Complaints Division was a formal decision subject to appeal.
32. Furthermore, on 26 September 1988 the Constitutional Court
quashed a disciplinary punishment imposed upon the applicant on
5 February 1988 regarding the distribution of journals on
29 December 1987. The Constitutional Court considered that the
regulations of the Vienna Army Headquarters of 1975 and of the Army
Corps II Headquarters of 1987 had been addressed to superior military
institutions. They had not been binding upon the second applicant.
The Schwarzenberg barracks regulations had only been amended in
January 1988, i.e. after the incident on 29 December 1987.
B. The relevant domestic law
33. S. 79 of the Federal Constitution (Bundesverfassungsgesetz) lays
down the general duties of the Austrian armed forces.
34. SS. 44 to 46 of the Military Act (Wehrgesetz), in the version in
force at the relevant time, govern the duties and rights of the
soldiers.
35. S. 44 para. 1 of the Military Act prescribes that the duty to
serve in the Army obliges the soldiers to support the Army in its
tasks, and to refrain from any act which might harm the reputation of
the Army. S. 44 para. 4 entitles every soldier to put forward
requests, raise objections and complain about unlawful acts; such
complaints are decided upon by the Complaints Division at the Federal
Ministry of Defence upon recommendation by the Military Complaints
Board (S. 6 para. 4). According to S. 46 the Army must be kept free
from any party-political activities; soldiers have the same political
rights as other citizens; party-political activities during the service
and in the military area are prohibited, except personal information
about political matters from generally accessible sources.
36. The Service Regulations of the Federal Army (Allgemeine
Dienstvorschriften für das Bundesheer - Bundesgesetzblatt 43/1979)
regulate in detail the military service in the Austrian armed forces.
They are enacted by the Austrian Ministry of Defence under S. 13 of the
Military Act. As regards the general duties of soldiers, S. 3 states
in particular that the soldier must always be prepared to do his
service, and has to refrain from any act which might harm the
reputation of, or the trust of the public in, the Austrian Army.
Having regard to his task of defending his country, the soldier has a
particular relationship of loyalty to the Republic of Austria, which
requires discipline, comradeship, obedience, vigilance, bravery and
secrecy. S. 17 provides for the duties of persons liable to military
service, including a particular duty of secrecy. Under S. 19 para. 2
the commanders of military barracks have to take the necessary measures
to ensure the military order and security. According to S. 19 para. 3
the commanders issue, within their competence under S. 19 para. 2,
barracks regulations (Kasernordnung), which relate inter alia to the
access to the area of military barracks. These regulations are
available at the barracks secretariats.
37. As stated above (at para. 20), a circular of the Federal Ministry
of Defence, Vienna Army Headquarters (Armeekommando), of 14 March 1975
instructed commanders to take preventive measures as regards
publications with negative ideas concerning the military service
("negatives wehrpolitisches Gedankengut") or unjustified attacks on the
Austrian armed forces, and, inter alia, to prohibit the distribution
and posting of such publications. A circular of the Army Corps II
Headquarters (Korpskommando II) of 17 December 1987 instructed
commanders to amend the existing barracks regulations (Kasernordnung)
to the effect that it was prohibited to distribute or post any
non-official publications in the area of military barracks without
permission by the commander of the barracks concerned. On
4 January 1988 the Schwarzenberg barracks regulations were amended to
the effect that, without permission by the commander, the sale or
distribution free of charge or posting of any non-official publications
in the area of the military barracks was prohibited.
38. Under S. 116 of the Penal Code (Strafgesetzbuch) defamation or
insult of, inter alia, the Austrian armed forces is punishable.
39. The competence of the Constitutional Court (Verfassungsgerichts-
hof) to receive complaints about the violation of constitutionally
guaranteed rights is laid down in S. 144 para. 1 of the Federal
Constitution, and relates to complaints against formal decisions of
administrative authorities or complaints concerning the exercise of
direct administrative authority and coercion against a particular
individual (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und
Zwangsgewalt gegen eine bestimmte Person).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
40. The following complaints were declared admissible:
- the first applicant's complaint that the prohibition on the
distribution of its military journal "Igel" in the area of
Austrian military barracks, in particular the failure of the
Federal Ministry of Justice to grant its request for permission
to distribute its military journal in this area, violated its
freedom of expression;
- the first applicant's complaint that it did not have an effective
remedy under Austrian law to complain about the failure of the
Federal Ministry of Defence to decide upon the above request;
- the first applicant's complaint that the practice of the Federal
Ministry of Defence as regards the grant of permission for
distribution and the financial support of some military journals
discriminated against the first applicant for political reasons;
- the second applicant's complaint that the order of
29 December 1987 to stop the distribution of the journal "Igel"
in the area of the Schwarzenberg Barracks and the subsequent
warning, referring to the prohibition on unauthorised
distribution of publications under the Barracks Regulations,
violated his right to freedom of expression;
- the second applicant's complaint that he did not have an
effective remedy under Austrian law to complain about the above
order and instruction;
- the second applicant's complaint about discrimination for
political reasons.
B. Points at issue
41. Accordingly, the issues to be determined are:
- whether, with regard to the first applicant, there has been a
violation of Article 10 (Art. 10) of the Convention;
- whether, with regard to the first applicant, there has been a
violation of Article 13, in conjunction with Article 10,
(Art. 13+10) of the Convention;
- whether, with regard to the first applicant, there has been a
violation of Article 14, in conjunction with Article 10,
(Art. 14+10) of the Convention;
- whether, with regard to the second applicant, there has been a
violation of Article 10 (Art. 10) of the Convention;
- whether, with regard to the second applicant, there has been a
violation of Article 13, in conjunction with Article 10,
(Art. 13+10) of the Convention;
- whether, with regard to the second applicant, there has been a
violation of Article 14, in conjunction with Article 10,
(Art. 14+10) of the Convention.
C. The alleged violation of the first applicant's Convention rights
I. Article 10 (Art. 10) of the Convention
42. Article 10 (Art. 10) of the Convention provides, so far as
relevant:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, for the prevention of
disorder and crime, ... for the protection of the reputation or
rights of others, ..."
a. Interference
43. The respondent Government maintain that the prohibition on the
distribution of the journal "Igel" in the area of Austrian military
barracks does not interfere with the first applicant's right to freedom
of expression under Article 10 (Art. 10). They consider that the
State, in this respect, exercises private property rights as the owner
of the estates where the barracks are situated.
44. The Commission recalls that, according to Article 1 (Art. 1) of
the Convention, the High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined in the
Convention. This undertaking extends to all persons under their actual
authority and responsibility (cf. No. 6780/74 & No. 6950/75,
Dec. 26.5.76, D.R. 2 p. 125; Stocké v. Germany, Comm. Report 12.10.89,
Series A no. 199, p. 24, para. 166).
45. The Convention thus applies in principle also to the armed
forces, even though the particular characteristics of military life and
its effects on the situation of individual members have to be taken
into account (cf., Eur. Court H.R., Engel and Others judgment of
8 June 1976, Series A no. 22, p. 23, para. 54).
46. Furthermore, the Convention does not operate any distinction
between the functions of a Contracting State as holder of public power
and its responsibilities in private law relations with individuals.
The Court thus found Article 11 binding upon the "State as employer",
whether the latter's relations with its employees were governed by
public or private law (Eur. Court H.R., Swedish Engine Drivers' Union
judgment of 6 February 1976, Series A no. 20, p. 14, paras. 36-37;
Schmidt and Dahlström judgment of 6 February 1976, Series A no. 21,
p. 15, paras. 32-33).
47. The Commission considers that a Contracting State, in the area
of its real estate, remains bound by its undertaking to secure the
rights and freedoms guaranteed in the Convention (cf. No. 8010/77,
Dec. 1.3.79, D.R. 16 p. 101, as regards school premises), in particular
where such property is used for public purposes, as in the present
case.
48. Article 10 (Art. 10) guarantees the right to freedom of
expression including, inter alia, the freedom to impart information and
ideas without interference by public authority. Any interferences -
formalities, conditions, restrictions or penalties - contravene
Article 10 (Art. 10) of the Convention, if they are not justified under
Article 10 para. 2 (Art. 10-2), as being prescribed by law, pursuing
a legitimate aim and being necessary in a democratic society for the
said aim.
49. In the present case, the Austrian rules on the distribution of
non-official publications in the area of military barracks, the
corresponding army circulars and barracks regulations prohibited the
first applicant from distributing its military journal "Igel" in the
area of Austrian military barracks. The Federal Ministry of Defence
did not grant the first applicant's request of 27 July 1987 for a
special permission in this respect.
50. The Commission notes that no restrictions were placed upon the
distribution of the military journal "Igel" outside the area of
Austrian military barracks where members of the armed forces could buy
it, and have it delivered by mail. However, the first applicant edited
a periodical with a special range of subjects addressing the members
of the Austrian armed forces. The above prohibition restricted the
first applicant's sphere of action and impeded its access to the target
group of the information and opinions published in its journal.
51. In these circumstances, the Commission finds that the above
prohibition constitutes an interference with the first applicant's
right, as guaranteed under Article 10 para. 1 (Art. 10-1). The
Commission must, therefore, examine whether this interference is
justified under Article 10 para. 2 (Art. 10-2).
b. Justification
aa. Was the interference "prescribed by law"?
52. The first applicant maintains that the prohibition on the
distribution of its journal was not prescribed by law. According to
the first applicant, the Military Act did not cover the prohibition on
the distribution of the journal "Igel" which did not pursue party-
political aims. The barracks regulations were not published in the
official Gazette and could not be regarded as law.
53. The Government submit that the prohibition on distribution of
periodicals, including the journal edited by the first applicant, in
the area of Austrian military barracks was based on the Schwarzenberg
barracks regulations, which were issued in accordance with S. 19
para. 2 of the Service Regulations. They also refer to S. 44 para. 1
and S. 46 of the Military Act (in the version in force at the time in
question). Furthermore they state that S. 116 of the Penal Code
extends to defamation or insult regarding the armed forces.
54. The Government further contend that, according to the practice
of the Ministry of Defence, applying these rules, no distribution of
such periodicals could be permitted, if their contents partly or as a
whole were directed against the aims of military defence, or hindered
the armed forces in the execution of their tasks, or contained attacks
against the armed forces or publicly insulted them. They consider that
the contents of the military journal edited by the first applicant were
such as to lower the armed forces in public esteem and to undermine
military discipline.
55. The Commission recalls that the interference with the right
protected by Article 10 para. 1 (Art. 10-1) must have some basis in
domestic law, which itself must be accessible to the person concerned
and be formulated with sufficient precision to enable the individual
to foresee its consequences for him (Eur. Court H.R., Sunday Times
judgment of 26 April 1979, Series A no. 30, p. 30, para. 47 and p. 31,
para. 49; Barthold judgment of 25 March 1985, Series A no. 90, p. 21,
para. 45; Müller and Others judgment of 24 May 1988, Series A no. 133,
p. 20, para. 29; mutatis mutandis, Kruslin judgment of 24 April 1990,
Series A no. 176-A, p. 20, para. 27; Huvig judgment of 24 April 1990,
Series A no. 176-B, p. 52, para. 26).
56. The Commission notes that the barracks regulations of the
Schwarzenberg military barracks, as amended in January 1988, prohibited
the distribution and posting of publications in the area of military
barracks without permission of the commander.
57. However, the Commission is not called upon to determine whether
barracks regulations constitute "law" within the meaning of Article 10
para. 2 (Art. 10-2) as the amendment at issue was passed only six
months after the first applicant's request to the Federal Ministry of
Defence in July 1988.
58. In this period, the prohibition on the distribution of
periodicals in the area of military barracks and the practice of the
Federal Ministry of Defence governing the granting of a permission for
the distribution of particular periodicals could only be based on S. 44
para. 1 and S. 46 of the Military Act.
59. The Commission considers that these provisions contain general
rules on the duties of soldiers and in particular the prohibition of
party-political activities during the service and in the military area,
which do not directly regulate the distribution of periodicals in the
area of military barracks. Nevertheless, taken together with the
powers conferred upon the commanders of military barracks under S. 19
para. 2 of the Service Regulations, namely to take the necessary
measures to ensure military order and security, they could be regarded
as a legal basis for the prohibition and the corresponding practice of
the Federal Ministry of Defence, as superior authority, to grant
permissions in particular cases only (cf., mutatis mutandis, Kruslin
judgment, loc. cit., pp. 21-22, para. 29; Huvig judgment, loc. cit.,
pp. 53-54, para. 28).
60. As regards the second requirement, the accessibility of the
relevant provisions, the Commission notes that the Military Act and the
Service Regulations were published in the Austrian National Gazette.
The first applicant, an association of soldiers, could, in these
circumstances, adequately acquaint itself with the rules applicable in
this field.
61. The Commission, turning to the third requirement, the law's
foreseeability, recalls that frequently laws, particularly in fields
in which the situation changes according to the prevailing views of
society, are framed in a manner that is not absolutely precise. Their
interpretation and application are questions of practice (Eur. Court
H.R., Barthold judgment, loc. cit.; Müller judgment, loc. cit.; Markt
Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989,
Series A no. 165, pp. 18-19, para. 30). Military rules may be
considered as falling within this category.
62. However, compatibility with the rule of law implies that there
must be a measure of legal protection in domestic law against
arbitrariness. If a law confers discretion on a public authority, it
must indicate the scope of that discretion, although the degree of
precision required will depend upon the particular subject matter (cf.
Eur. Court H.R., Herczegfalvy judgment of 24 September 1992, Series A
no. 244, p. 27, para. 89).
63. The Commission finds that neither of the provisions of the
Military Act and the Service Regulations contain clear principles on
the practice of the Federal Ministry of Defence relating to permissions
to distribute particular periodicals within the area of military
barracks. The army circulars of 1975 and 1987, which refer to
publications with negative ideas about the military service or
unjustified attacks on the Austrian armed forces, though they do not
themselves have the force of law, could, in principle, be taken into
account (Eur. Court H.R., Silver judgment of 25 March 1983, Series A
no. 61, pp. 33-34, para. 88). However, the terms used in these
circulars are in themselves vague.
64. The respondent Government have not drawn the Commission's
attention to any established Austrian case-law on the principles
concerning exceptions to the general prohibition on the distribution
of periodicals in the area of Austrian military barracks.
65. Furthermore, it does not appear that the Federal Ministry of
Defence has adopted a procedure in such cases, which could effectively
limit this discretion, and provide for safeguards against
arbitrariness.
66. In these circumstances it remains doubtful whether the legal
provisions referred to by the Government are sufficiently clear and
precise to be accepted as "law".
67. However, the Commission does not find it necessary to decide this
question, since even assuming compliance with this condition, the
interference with the first applicant's right was not justified under
Article 10 para. 2 (Art. 10-2) for the reasons set out hereafter.
bb. Did the interference have a legitimate aim or aims?
68. The Government submit that the interference complained of served
the purpose of the prevention of disorder. The first applicant does
not agree.
69. The Commission recalls that the concept of "order" as envisaged
by Article 10 para. 2 (Art. 10-2) refers not only to public order or
"ordre public" within the meaning of Article 6 para. 1 (Art. 6-1) and
Article 9 para. 2 (Art. 9-2) of the Convention and Article 2 para. 3
of Protocol No. 4 (P4-2-3) ; it also covers the order that must prevail
within the confines of a specific social group, such as the armed
forces (Eur. Court H.R., Engel and Others judgment, loc. cit., p. 41,
para. 98).
70. The Commission considers that the Austrian regulations underlying
the prohibition on the distribution of periodicals in the area of
military barracks aim at ensuring the military order and security, an
aim stated in S. 19 of the Service Regulations. The interference with
the first applicant's right under Article 10 para. 1 (Art. 10-1) thus
had the aim of prevention of disorder, which is in itself legitimate
under Article 10 para. 2 (Art. 10-2) of the Convention.
cc. Could the interference be regarded as "necessary in a democratic
society"?
71. It remains to be determined whether the interference complained
of could be regarded as necessary in a democratic society in order to
accomplish this aim.
72. The Government, referring to the Court's Engel and Others
judgment (loc. cit.), contend that the prohibition on the distribution
of the journal was necessary in a democratic society for the prevention
of disorder in the area of military barracks. The military journal
Igel did not meet the conditions applied by the Federal Ministry of
Justice in granting permission for distribution in the area of military
barracks. Rather, its contents were likely to disparage the Federal
Army and to undermine military discipline.
73. The first applicant criticises that the respondent Government
make such a general statement without entering into the details of the
publication concerned.
74. The Commission recalls that the adjective "necessary" within the
meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a
"pressing social need". The Contracting States enjoy a margin of
appreciation in determining whether such a need exists, but this goes
hand in hand with a European supervision which is more or less
extensive depending upon the circumstances. The review under the
Convention is confined to the question whether the measures taken on
the national level are, in the light of the case as a whole,
justifiable in principle and proportionate (cf. Eur. Court H.R., Markt
Intern Verlag GmbH and Klaus Beermann judgment, loc. cit., pp. 19-20,
para. 33; Sunday Times (No. 2) judgment of 26 November 1991, Series A
no. 217, pp. 28-29, para. 50). In matters coming within the sphere of
the armed forces, the particular characteristics of military life must
not be disregarded (Eur. Court H.R., Engel and Others judgment, loc.
cit., pp. 41-42, para. 100).
75. In exercising its supervisory function, the Commission has to
bear in mind that freedom of expression constitutes one of the
essential foundations of a democratic society; subject to Article 10
para. 2 (Art. 10-2), it applies 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.
These principles are of particular importance in respect of the press
which has to play the important role as purveyor of information and
public watchdog (Eur. Court H.R., Sunday Times (No. 2) judgment, loc.
cit. p. 29, para. 50; Thorgeir Thorgeirson judgment of 25 June 1992,
Series A no. 239, p. 27, para. 63).
76. The Court, in the Engel and Others judgment, found that having
regard to a somewhat strained atmosphere in the barracks concerned and
the contents of the publication in question, the competent national
court might have had well-founded reasons for considering that Mr. Dona
and Mr. Schul had attempted to undermine military discipline and that
it was necessary for the prevention of disorder to impose the penalty
inflicted in respect of an abusive exercise of their freedom of
expression (Eur. Court H.R., Engel and Others judgment, loc. cit.,
p. 42, para. 101).
77. In the present case, in July 1987, the first applicant requested
the Federal Ministry of Defence for permission to distribute its
military journal "Igel" in the area of military barracks, in exception
to the general prohibition on the distribution of periodicals. The
Federal Ministry of Defence abstained from formally deciding upon this
request. However, as transpired from information given in Parliament
in June 1988 and May 1989, the Federal Ministry of Defence did not
intend to grant the said request, as the journal "Igel" was not
regarded as being in line with the interests of military defence. In
particular, only distribution of those publications could be supported
which showed a minimum of identification with the constitutional duties
of the Army, were free from party-political contents and were
favourable to, or at least did not harm, the reputation of the Army.
78. The Commission observes that, at the domestic level, there is no
decision or statement of the Austrian authorities, in particular the
Federal Ministry of Defence, entering into the nature and contents of
the military journal "Igel". The respondent Government did not
indicate any reason to support its contention that this journal was
likely to disparage the Federal Army and to undermine military
discipline.
79. The Commission, having examined several copies of the military
journal "Igel", in particular the issue 3/87 distributed by the second
applicant in January 1988 in the area of the Schwarzenberg military
barracks, notes that the journal addressed soldiers as a circle of
readers, and accordingly touched particularly on questions relating to
the armed forces, the military service and the military life. The
articles and reports reflect a critical approach to military matters,
their presentation tends to be of a satirical nature. However, its
contents do not appear to be hostile to the Austrian Army, or of a
party-political nature. In particular, there is no indication that the
journal aims at undermining military discipline.
80. In this context, the Commission has considered whether
distribution of the journal "Igel" in the area of military barracks was
likely to cause any organisational problems. It notes in this respect
that two military journals were alternatively joined with an official
information bulletin and distributed to all soldiers by the Federal
Ministry of Defence. The Ministry did not exclude, as a matter of
principle, the distribution of any publications in the area of military
barracks.
81. The purpose of the prohibition on the distribution of periodicals
within the area of military barracks, as indicated in the circulars of
the Federal Ministry of Defence, Vienna Army Headquarters of
14 March 1975, and of the Army Corps II Headquarters of
17 December 1987, was to allow for a control in respect of publications
with negative ideas concerning the military service or unjustified
attacks on the Austrian armed forces. This control is exercised on a
discretionary basis by the Federal Ministry of Defence, so far as
general permissions for distribution of periodicals are concerned.
82. The respondent Government compared the present case to the
circumstances prevailing in the Engel and Others judgment (loc.cit.),
but have not made the Commission aware of any particular disturbances
or tensions within the Austrian Army in general, or the Schwarzenberg
barracks in particular, calling for a prohibition on the distribution
of the journal edited by the first applicant.
83. The Commission finds that, while the first applicant is not
prevented from trading its journal outside the area of military
barracks or sending it to soldiers on the basis of individual
subscriptions, its interest in addressing its specific circle of
readers in the area of military barracks is not negligible.
84. The Commission considers that the reasons advanced by the
Government, especially the objective to prevent, in the area of
military barracks, distribution of publications which might harm the
reputation of the Federal Army, did not justify the prohibition on the
distribution of the military journal "Igel". The exercise of such wide
discretionary powers by the Federal Ministry of Defence is not
consonant with freedom of expression in a democratic society.
85. In these circumstances, the Commission finds that the
interference with the first applicant's right to freedom of expression
was not necessary in a democratic society for the legitimate aim
pursued.
CONCLUSION
86. The Commission concludes by twelve votes to nine that there has
been a violation of Article 10 (Art. 10) in respect of the first
applicant.
II. Article 13, in conjunction with Article 10, (Art. 13+10) of the
Convention
87. The first applicant submits that in the absence of any formal
decision by the Federal Ministry of Defence upon its request of
July 1987 there was no effective remedy, within the meaning of
Article 13 (Art. 13), to complain about the violation of its right to
freedom of expression as guaranteed by Article 10 (Art. 10).
88. The Government limit their submissions on this point to the
contention that the first applicant has no arguable claim to complain
about a violation of Article 13, in conjunction with Article 10
(Art. 13+10).
89. Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
90. In view of the Commission's considerations regarding Article 10
(Art. 10) of the Convention, the first applicant's claim under that
Article must be regarded as arguable on its merits (Eur. Court H.R.,
Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23,
para. 52).
91. Article 13 (Art. 13) guarantees the availability of a remedy at
the national level to enforce the substance of the Convention rights
and freedoms (Eur. Court H.R., Boyle and Rice judgment, loc. cit.).
92. In the present case, the Government have not suggested any remedy
available to the first applicant to complain about the prohibition on
the distribution of its journal, in the absence of a decision by the
Federal Ministry of Defence upon its request of July 1987.
93. In these circumstances, the Commission finds that there was no
effective remedy as regards the first applicant's complaint under
Article 10 para. 1 (Art. 10-1).
CONCLUSION
94. The Commission concludes by twelve votes to nine that there has
been a violation of Article 13, in conjunction with Article 10,
(Art. 13+10) of the Convention in respect of the first applicant.
III. Article 14, in conjunction with Article 10, (Art. 14+10)
of the Convention
95. The first applicant, referring to permissions granted regarding
the distribution of other periodicals, alleges that the prohibition on
the distribution of its military journal amounts to discrimination
against them for political reasons. The Government do not agree.
96. Article 14 (Art. 14) of the Convention states:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
97. The Commission has considered the fact that there have been
exceptions to the general prohibition on the distribution of
periodicals in the area of military barracks in the context of the
first applicant's claim under Article 10 (Art. 10). The Commission
does not find it necessary to consider the issue also under Article 14
(Art. 14).
CONCLUSION
98. The Commission concludes unanimously that no separate issue
arises under Article 14, in conjunction with Article 10, (Art. 14+10)
of the Convention in respect of the first applicant.
D. The alleged violation of the second applicant's Convention rights
I. Article 10 (Art. 10) of the Convention
a. Interference
99. The Commission finds that the order to stop the distribution of
the journal "Igel" on 29 December 1987 and the subsequent instruction
constituted interferences with the second applicant's right to freedom
of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the
Convention. The Commission must, therefore, examine whether this
interference is justified under Article 10 para. 2 (Art. 10-2).
b. Justification
aa. Was the interference "prescribed by law"?
100. The parties refer to their above submissions on the question
whether the prohibition on the distribution of the military journal
"Igel" was prescribed by law (see above paras. 52-54).
101. The Commission recalls that the interference with the first
applicant's right under Article 10 para. 1 (Art. 10-1) was found to
have some basis in Austrian law, namely S. 44 para. 1 and S. 46 of the
Military Act (see above paras. 58-59).
102. The Commission considers that these rules were adequately
accessible.
103. The Commission recalls that, when examining the
justification of the interference with the first applicant's right
under Article 10 para. 1 (Art. 10-1), doubts remained as to whether the
rules referred to by the Government were sufficiently clear and precise
to be accepted as "law". It left this question open, since even
assuming compliance with the condition of lawfulness, the interference
was not justified under Article 10 para. 2 (Art. 10-2) (see above
paras. 61-67). The Commission takes the same approach as regards the
second applicant's complaint under Article 10 (Art. 10).
bb. Did the interference have a legitimate aim or aims?
104. The interference with the second applicant's right under
Article 10 para. 1 (Art. 10-1) had the aim of prevention of disorder,
which is in itself legitimate under Article 10 para. 2 (Art. 10-2) of
the Convention.
cc. Could the interference be regarded as necessary in a democratic
society?
105. It remains to be determined whether the interference complained
of was necessary in a democratic society in order to accomplish this
aim.
106. The Commission, having regard to the above-mentioned case-law on
the test of necessity (see above paras. 74-76), notes that on
29 December 1987 the second applicant was ordered by one of his
military superiors to stop the distribution of copies of the journal
"Igel", issue 3/87, in the area of the Schwarzenberg military barracks.
On 12 January 1988 he was instructed by another superior on the new
rules governing the distribution of publications in the area of
military barracks.
107. The Commission observes that, at that time, the first applicant
had addressed a request to the Federal Ministry of Defence for a
general permission regarding its journal, which was not formally
decided. Subsequently it became known that the Federal Ministry of
Defence did not intend to grant the said request, as the journal "Igel"
was not regarded as being in line with the interests of military
defence.
108. The Commission, having examined several copies of the military
journal "Igel", in particular the issue 3/87 distributed by the second
applicant, found that the articles and reports reflected a critical
approach to military matters and that their presentation had a tendency
to be of a satirical nature. However, on the whole, its contents did
not appear to be hostile to the Austrian Army, or of a party-political
nature. In particular, there was no indication that the journal aimed
at undermining military discipline. In this context, the Commission
noted that there was no decision at the domestic level analysing
thoroughly the nature and contents of the military journal "Igel".
Furthermore, the Government failed to indicate any reason to support
its contention that this journal was likely to disparage the Federal
Army and to undermine military discipline.
109. It does not appear that distribution of the journal "Igel" would
substantially affect military routine in the Schwarzenberg barracks.
110. The Commission recalls that, in respect of the general
prohibition on the distribution of the journal edited by the first
applicant, it was of the opinion that the exercise of wide
discretionary powers by the Federal Ministry of Defence to prevent
distribution, in the area of military barracks, of any publications
regarded as unfavourable to the reputation of the Federal Army is not
consonant with freedom of expression in a democratic society.
111. The Commission, considering the second applicant's interest in
imparting the information and ideas contained in the journal "Igel" to
the other soldiers serving with him at the Schwarzenberg military
barracks, finds that the reasons adduced by the Government do not
suffice to justify the prohibition complained of.
112. In these circumstances, the Commission finds that the
interference with the second applicant's right to freedom of expression
was not necessary in a democratic society for the legitimate aim
pursued.
CONCLUSION
113. The Commission concludes by 12 votes to 9 that there has been a
violation of Article 10 (Art. 10) in respect of the second applicant.
II. Article 13, in conjunction with Article 10, (Art. 13+10) of the
Convention
114. The second applicant submits that the Complaints Board is an
organisational entity of the Federal Ministry of Defence and as such
not an independent body. The Constitutional Court did not examine the
substance of his complaints.
115. The Government contend that the second applicant's right to lodge
complaints with the Military Complaints Board and the Complaints
Division of the Federal Ministry of Defence, as well as subsequently
with the Constitutional Court, constituted an effective remedy within
the meaning of Article 13 (Art. 13).
116. The Commission notes that the applicant's complaint to the
Military Complaints Board was based on S. 44 para. 4 of the Military
Act according to which every soldier is entitled to put forward wishes,
raise objections and complain about unlawful acts. The Complaints
Board only has the power to give a recommendation in accordance with
S. 6 para. 4 of the Military Act. The complaint is decided upon by the
Federal Ministry of Defence. According to the case-law of the Austrian
Administrative Court, the Federal Ministry of Defence, in rejecting an
appeal, does not take a formal decision against which an appeal lies.
117. The Commission leaves open the question whether the complaint to
the Military Complaints Board and the Federal Ministry of Defence, i.e.
organs within the organisational framework of the armed forces, could
be regarded as an effective remedy within the meaning of Article 13
(Art. 13) (cf., Eur. Court H.R., Silver judgment, loc. cit., p. 42,
para. 113 and p. 43, paras. 115, 116; No. 12573/86, Dec. 6.3.87,
D.R. 51 p. 283).
118. The Commission notes that, pursuant to S. 144 of the
Constitution, the Constitutional Court can examine complaints about
alleged violations of the right to freedom of expression in the context
of the military services and find violations in this respect.
119. The Commission recalls that the effectiveness of a remedy for the
purposes of Article 13 (Art. 13) does not depend on the certainty of
a favourable outcome for the applicant (Eur. Court H.R., Vilvarajah and
Others judgment of 30 October 1991, Series A no. 215, p. 39,
para. 122).
120. The Commission considers that, though in the second applicant's
case, the Constitutional Court actually refused to admit the complaint
on the ground that it did not raise any particular issue under
constitutional law, the complaint proceedings constituted in principle
an effective remedy.
121. In these circumstances, the Commission finds that there was an
effective remedy as regards the second applicant's complaint under
Article 10 para. 1 (Art. 10-1).
CONCLUSION
122. The Commission concludes unanimously that there has been no
violation of Article 13, in conjunction with Article 10, (Art. 13+10)
of the Convention in respect of the second applicant.
III. Article 14, in conjunction with Article 10, (Art. 14+10) of the
Convention
123. The Commission, considering its findings under Article 10
(Art. 10) of the Convention, does not find it necessary to examine
separately the issue of alleged discrimination against the second
applicant on political grounds.
CONCLUSION
124. The Commission concludes unanimously that no separate issue
arises under Article 14, in conjunction with Article 10, (Art. 14+10)
of the Convention in respect of the second applicant.
E. Recapitulation
125. The Commission concludes by twelve votes to nine that there has
been a violation of Article 10 (Art. 10) in respect of the first
applicant (para. 86);
126. The Commission concludes by twelve votes to nine that there has
been a violation of Article 13, in conjunction with Article 10,
(Art. 13+10) of the Convention in respect of the first applicant
(para. 94);
127. The Commission concludes unanimously that no separate issue
arises under Article 14, in conjunction with Article 10, (Art. 14+10)
of the Convention in respect of the first applicant (para. 98);
128. The Commission concludes by twelve votes to nine that there has
been a violation of Article 10 (Art. 10) in respect of the second
applicant (para. 113);
129. The Commission concludes unanimously that there has been no
violation of Article 13, in conjunction with Article 10, (Art. 13+10)
of the Convention in respect of the second applicant (para. 122);
130. The Commission concludes unanimously that no separate issue
arises under Article 14, in conjunction with Article 10, (Art. 14+10)
of the Convention in respect of the second applicant (para. 124).
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
(Or. English)
DISSENTING OPINION OF SIR BASIL HALL,
JOINED BY MM. G. JÖRUNDSSON,A.S. GÖZÜBÜYÜK AND B. MARXER
1. I do not share the view of the majority of the Commission that
there was a violation of Article 10 of the Convention in this case.
2. In the first place, I have considerable doubt whether the right
to impart information without interference by public authorities is to
be interpreted as including a right to distribute written material on
premises belonging to a public authority without permission first
having been obtained. Even if it did, I would not consider there to
have been a violation of Article 10 for the reasons given below.
3. Assuming that the withholding of permission to distribute the
military journal "Igel" (in the second applicant's case taking the form
of an order to cease distribution) constituted a restriction on the
applicants' rights, it was, I consider, justified under paragraph 2 of
Article 10.
4. The restriction was prescribed by law - the Military Act of 1978
and the Service Regulations of the Federal Army of 1979 made under it.
5. The restriction was, as the Government contends, for the
prevention of disorder. The maintenance of order is particularly
important for armed forces.
6. The withholding of permission to distribute the journal "Igel"
was "necessary in a democratic society". Contracting States enjoy a
wide margin of appreciation in assessing to need to regulate the
distribution of periodicals in the area of military barracks and
thereby to maintain military discipline and prevent disorder. In this
sphere, the Commission cannot undertake a re-examination of facts and,
more particularly, substitute its own evaluation as to the contents of
a periodical and its likely impact on military order and discipline for
that of the national military authorities.
7. Bearing in mind that the first applicant is not prevented from
distributing its journal outside the area of military barracks or from
sending it to soldiers on the basis of individual subscriptions, I find
that the prohibition on distribution in the area of military barracks
does not go beyond this margin left to the national authorities.
8. I therefore conclude that there was no violation of either
applicants' rights under Article 10.
9. As to the complaints of violation of Article 14 in conjunction
with Article 10 neither applicant has shown that permission was given
for another publication with similar contents to be distributed. There
was therefore no violation of Article 14 for either applicant.
10. I do not consider that the first applicant has an arguable case
that the association has a right to distribute its journal on military
premises. The second applicant had a remedy for his complaint which he
used. That he was unsuccessful is irrelevant. There was no violation
of Article 13.
(Or. French)
OPINION DISSIDENTE DE MR. MARTINEZ A LAQUELLE SE RALLIE MR. REFFI
A mon grand regret, je ne partage pas l'avis de la Commission.
1. Je ne trouve pas d'ingérence dans la liberté d'expression des
requérants du fait d'interdire à l'intérieur de la caserne une
publication qui met en cause les principes établis dans l'armée
autrichienne.
Il est à signaler que les requérants sont libres de distribuer
la publication dans les rues ou d'autres lieux publics, même dans le
voisinage ou à la porte de la caserne, mais pas à l'intérieur. Dans ces
conditions, l'intérieur de la caserne n'étant pas un lieu public, il
n'y a pas d'ingérence dans les libertés reconnues par l'article 10 de
la Convention.
2. A supposer même qu'il y ait ingérence, à mon avis elle serait
tout même justifiée par le par. 2 de l'article 10. En effet,
l'interdiction de distribuer à l'intérieur de la caserne un journal
attaquant l'organisation et la discipline militaire se justifie pour
la prévention du désordre, et elle n'est nullement disproportionnée à
l'égard de son but.
3. La liberté d'expression n'est pas un droit absolu. Elle ne peut
se déployer dans des endroits qui ne sont pas publics et, moins encore,
pour saper les valeurs qui sont propres à ces endroits. Par exemple,
la distribution d'un pamphlet contre la religion chrétienne à
l'intérieur d'une église ne peut jamais se réclamer comme un droit
accordé par l'article 10 de la Convention dans ce contexte.
Pour ces raisons, je me trouve amené à conclure qu'en l'espèce,
il n'y a pas eu violation de l'article 10 de la Convention.
(Or. English)
DISSENTING OPINION OF MR. J.-C. SOYER AND MR. H.G. SCHERMERS
I do not agree with the majority of the Commission for the
reasons set out by both Mr. Martinez and by Sir Basil Hall.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
_________________________________________________________________
12 June 1989 Introduction of the application
21 June 1989 Registration of the application
Examination of Admissibility
27 May 1991 Commission's decision to invite
the Government to submit observations on
the admissibility and merits of the
application
22 October 1991 Government's observations
27 January 1992 Applicant's observations in reply
6 July 1992 Commission's decision to declare the
application admissible
Examination of the merits
3 April 1993 Commission's consideration of the state of
proceedings
30 June 1993 Commission's deliberations on the
merits, final vote and adoption of
the Report
Full & Egal Universal Law Academy