THE FACTS
Whereas the facts presented by the Applicant may be summarised as
follows:
1. The first Applicant is a German citizen living in A, and the second
Applicant is a trade organisation (of which X is a member) with
headquarters in B which, in view of the importance of the issues,
supports X's application (Nebenintervenient). They are both represented
by Dr. Y, a barrister in Vienna.
2. X is a wholesale newsagent in A where he is owner-manager of the
firm "Pressevertrieb X". He supplies a considerable clientèle of
shopkeepers and stallholders with various periodicals obtained from
publishers. The nature of his business necessitates the prompt delivery
of the periodicals to the retailers. To do this, X has built up an
organisation comprising some 80 employees and several delivery vans.
In the Federal Republic of Germany, printed matter is not subject to
censorship; its sale, distribution and advertisement are, however,
restricted by the Act of 9th July 1953, BGBl. I. Seite 377 governing
the circulation of publications liable to corrupt the young. This Act
requires that such publications, including especially those of an
indecent nature and such as glorify crime, war and race hatred, shall
be entered in a list and their entry notified to the public (Section
I). The decision regarding their entry in the list rests with a branch
of the Executive, the Federal Inspection Office in Bonn, whose members
are appointed by the Federal Minister of the Interior and the
Governments of the Länder and are not bound by instructions (Sections
8 et seq.). Administrative court procedure provides for appeal against
a decision of the Inspection Office (Section 20).
As soon as the entry of the publication in this list has been notified,
it may not be offered for sale or made accessible to any person under
18 (Section 3), nor may it be sold, distributed or lent either by
dealers outside business premises or by door-to-door salesmen (Section
4). After notification of its entry in the list, advertising of the
publication by displaying it in a shop window, inside a shop, or in any
other generally accessible place, by poster, newspaper or postal
advertisement, or by any other method is prohibited. Announcements in
trade journals are permissible (Section 5). Where there is manifestly
a high degree of liability to corrupt the young, the publication in
question is subject to the restrictions laid down in Sections 3 to 5
without the requirement of entry in the list of public modification
(Section 6). Infringements of the provisions of Sections 3 to 6 are
punishable under Section 21 by up to one year's imprisonment and fines.
Ordinary law courts are competent to try such cases.
Under the Act, therefore, the subject covered is made the concern of
the administration - more precisely of the Federal Administration, and
two concepts are created: the wider concept embodied in Section 1,
"publications liable to corrupt the young", and the narrower concept
of Section 6, "publications manifestly liable to corrupt the young".
The sale of the former category outside business premises which the
customer is not in the habit of entering - e.g. kiosks, as in the case
in question - is prohibited only if they were entered in the list of
prohibited publications referred to in Section 1; the sale of the
latter in such premises, however, is prohibited even before their entry
in this list. It is surely obvious that a publication which is
"manifestly liable to corrupt the young" is also "liable to corrupt the
young" and, as such, must be entered in the list in accordance with
Section 1, and that the provision in Section 6 applies only to flagrant
cases in which there has not been time to enter the publication in the
"prohibited" list.
X was fined once before under Section 21 - in his opinion, unjustly -
for contravening the regulations contained in Section 6. He maintains
that he was convicted only because the Bavarian courts interpret the
conception "manifestly liable to corrupt the young" with a liberality
bordering on prudery. In order to avoid any danger of further
prosecution, he instructed his senior employees always to examine
periodicals prior to their distribution to ensure that their content
was not "manifestly liable to corrupt the young" and, if in doubt, to
show them to him. He did, in fact, withhold a number of publications
from distribution to kiosks, although they were not subsequently
entered in the list provided for in Section 1.
3. In November 1956, X delivered to his regular customers, including
several kiosks, Number 7 of the publication "Das Journal Capriccio",
issued by Pressebuch W. Hermann & Co., Publishers, Hamburg. This
publication was described by the Public Prosecutor's Office as
"manifestly liable to corrupt the young" on the grounds that seven of
its illustrations were likely to "considerably overexcite and misdirect
the sexual fantasy of adolescents". The District Court of A endorsed
this opinion and sentenced X on ... 1957 to a fine of DM 50 for
offences under Section 6 in conjunction with Sections 4 and 21 of the
above Act.
X protested against this sentence which was thereby rendered void and
a court hearing was fixed. At the public hearing of ... 1957, X
declared that his employees had not shown him the publication prior to
its distribution, but even if they had done so, he would still have had
it distributed to the kiosks, for he did not consider it as being in
any way harmful to the morals of young persons, let alone "manifestly
liable to corrupt". The Bavarian Public Prosecutor's Office, it seemed,
was alone in regarding it as such, since no objection had ever been
raised to the publication in any other Federal Land.
Viewed objectively, the publication was not "manifestly liable to
corrupt the young"; he offered the following evidence in support of
this: the opinions of Father S, Chaplain of the Secondary School
Hostel, C, of ... 1957, and of Frau Dr. T, psychologist at the ...
institut of ... 1957, neither of whom thought the publication likely
to corrupt the young, the opinion of a certain Frau U, of ... 1957,
who, as a mother, did not consider the publication as dangerous to the
morals of young persons, and finally, the verdict of the Federal
Inspection Office (Sections 8 et seq.), of ... 1957, which declined
to include the publication in the list provided for in Section 1.
On ... 1957, the District Court of A found X guilty of negligence under
Sections 4, 6 and 21 and imposed a fine of DM 30. In the grounds given
for this verdict, it was stated that the publication was manifestly
highly prejudicial to the morals of young persons, that it was devoid
of any artistic or literary value and merely displayed the physical
charms of film stars, while the text dwelt on the love affairs of fils
stars whom adolescents frequently idolised and imitated. The decision
of the Inspection Office of ... 1957 not to include the publication
in the "prohibited" list provided for in Section 1 was not binding on
the Court. Further evidence adduced by X was ignored by the Court. In
determining the penalty, it took into account against X a previous
conviction under the same section of the regulations and the fact that
the publication was of a type likely "to be read clandestinely by
adolescents", and in his favour the absence of evidence of any concrete
harm having been caused.
Both the Public Prosecutor's Office and X appealed from this judgment.
The Public Prosecutor's Office moved that X be charged, not with
negligence, but with a deliberate breach of the regulations under
Section 4 et seq. X, on the other hand, demanded his acquittal and
again submitted the evidence passed over by the Court of first
instance. He argued that he could not, as a newsagent, be expected to
be a severer judge of the morality of the content of a periodical than
a Minorite priest, a child psychologist or a mother. It was unjust to
apply a standard, designed only for swift intervention in exceptional,
difficult cases, to a publication which the competent authority (the
Inspection Office in Bonn) had not judged prejudicial to the morals of
young persons, and declare it manifestly highly prejudicial and
prosecute a newsagent for not applying criteria which, among all the
Public Prosecutors'Offices in Germany, the Bavarian one alone seemed
to have adopted.
The Regional Court of A heard both appeals - X's and that of the
Public Prosecutor - on ... 1957. At the request of the Prosecutor, it
called in an expert who expressed the view that, while the
illustrations originally objected to in the publication could not -
with the exception of one which on closer inspection appeared obscene
- be said to be manifestly highly prejudicial to young persons, a
careful perusal revealed that many passages in the text were. The Court
refused X's request to hear a second expert and to rectify the
expert's statement on the basis of the tape-recordings submitted.
By a decision of ... 1957, the Regional Court rejected both appeals and
upheld the fine of DM 30 imposed on X as being "commensurate with the
guilt of the accused and adequate as a penalty and deterrent".
In the grounds given for the judgment, the Court devotes 12 pages to
describing a number of illustrations and passages in the publication.
It found only two of the incriminated illustrations likely to have a
corrupting influence on young persons:
a colour photograph of the film star Lana Turner who, dressed as
an oriental dancer, behind a gossamer-thin curtain, "seemed to be
looking straight at the reader and beckoning to him"; the veil-like
curtain "threw into relief rather than concealed the charms of the
lower part of the body";
a picture of the film star Mamie van Doren as a "tap dancer in a
sleeveless blouse, satin briefs, net stockings and evening shoes; the
tight-fitting briefs seemed to emphasise the contours of the female sex
organs, particularly the vulva". Until the expert drew their attention
to it, this fact has "escaped the notice of the members of the Court,
particularly since there did not seem, at first glance, to be anything
in the picture to make it harmful to the morals of young persons". A
careful examination of it, however, left the Court no longer in any
doubt as to the "highly licentious nature of the picture, even though
it had to be admitted that many adolescents would not look at the
picture closely enough to notice the detail in question and hence be
aware of the obscenity of the picture as a whole".
The Court went on to state that while "the illustrations in general"
could not be said to be manifestly liable to corrupt the young,
nevertheless parts of the text described the"extravagance, frivolity,
looseness and profligacy" of filmstars' lives, and thus presented a
grave danger to adolescents who were much more prone than adults to
seek models to imitate and emulate. Hence the risk that they might
choose such a way of life as an ideal to strive after. The Court
considered that, since the text and illustrations belonged together -
"on this one point the Court could not agree with the expert" - the
entire publication was manifestly liable to corrupt the young. The
publication should have been examined either by X himself or by some
of his employees; in which case they could not have failed to recognise
the danger to young readers and should not have distributed the
magazine to kiosks. The defence's arguments that the provision of
Section 6 was not applicable in this instance because it was designed
only for rapid intervention in particularly serious cases, was
unfounded, for it was "not the intention of the legislator to take the
decision in a normal case out of the hands of the State organs of
justice and transfer it to other organisations". No mention of the
opinions submitted as evidence by X was made by the Court in this
judgment either.
X applied to the Court of Appeal of A for a review of the Regional
Court's decision, basing his plea on a number of points of law,
including the following:
(a) improper application of the provision of Section 6 due to the fact
that the publication - which was not subsequently included in the list
of publications prohibited under Section 1 as "prejudicial to young
persons" - was pronounced "manifestly liable to corrupt the young", in
accordance with what were not generally accepted criteria, and this
only after a careful study,and that a criminal charge was brought
against X for distributing it;
(b) violation of the right of the defence to the admission and
consideration of evidence submitted by it as proof of the accused's
innocence;
(c) violation of the right of the defence to an explanation by the
Court of why a newsagent should be a severer judge of the corruptive
nature of a publication than a chaplain in charge of the spiritual
welfare of young people, a qualified child psychologist or the
competent Office.
The Criminal Appeals Senate of the Court of Appeal reviewed the case
at a public hearing on ... 1959 and rejected the appeal by its decision
of ... 1959.
X appealed to the Federal Constitutional Court in Karlsruhe against
this decision, but the Federal Constitutional Court rejected X's appeal
in a decision taken at a non-public hearing on ... 1961. In the grounds
given in accordance with Section 24 of the Basic Law (Federal
Constitution Act), it is stated that the Court could find no evidence
of any violation of X's constitutionally guaranteed rights in the
criminal proceedings described above. With regard to the alleged
violation of the rights safeguarded in the Human Rights Convention, the
Court states:
"The reference to the Human Rights Convention is pointless, since an
appeal to a constitutional court on the grounds of its violation cannot
be supported."
4. Whereas the Applicant alleges:
1. violation of the right safeguarded in Article 6, paragraphs (1) and
(3), of the Convention in that, in the criminal proceedings which began
in the Regional Court of A, the evidence adduced by him was not
admitted or his arguments heeded, and that the judgment issued against
him was based on biased evidence, assertions which conflicted with the
case-file and an arbitrary application of the law;
2. violation of freedom of the press safeguarded by Article 10 of the
Convention, in that the obligation was imposed on him, a newsagent, to
censor publications in accordance with criteria alien to both the
competent administrative organ and a democratic society;
3. violation of his rights safeguarded in Articles 7, paragraph (1),
5, paragraph (1) and 14, of the Convention, in that he was convicted
in Bavaria for an act which is not expressly defined as punishable
under the general law applicable to all the Federal Länder and which
is regarded as legal in the rest of the Federal territory where, though
committed repeatedly, it has never been punished;
4. violation of his right safeguarded in Article 13 of the Convention,
in that the judicial authorities to which he had applied in the
prescribed manner - the last of these being the Federal Constitutional
Court - failed to submit his appeal to appropriate examination and
based their decisions on speculative, manifestly incorrect assumptions,
or refused to give a proper legal verdict.
THE LAW
As regards the alleged violation of Article 6, paragraphs (1) and
(3) (Art. 6-1, 6-3) of the Convention.
Whereas, during the proceedings before the District Court of A, the
first Applicant availed himself of the possibility of submitting in
evidence written statements by three private persons supporting his own
submissions in defence;
Whereas, during the proceedings on appeal he unsuccessfully requested
the permission of the Regional Court of A to call a counter-expert to
refute the evidence of the expert appointed by the Court at the request
of the Public Prosecutor;
Whereas Article 6, paragraph (3) (d) (Art. 6-3-d) provides that
"everyone charged with a criminal offence has the right ... to examine
or have examined witnesses against, and to obtain the attendance and
examination of, witnesses on his behalf under the same conditions as
witnesses against him."
Whereas, in its decisions on the admissibility of Application Number
1290/61 (M. v. Austria) the Commission considered that "the calling of
experts as witnesses is covered by the terms of Article 6, paragraph
(3) (d) (Art. 6-3-d) of the Convention";
Whereas, however, the Commission has held in several decisions (Number
617/59 - Hopfinger v. Austria - Yearbook III, page 370 - and Number
753/60 - E. v. Austria - ibidem page 310) that "this provision does not
allow the accused to call everyone, in particular persons who are not
in a position to assist by their statements in elucidating the truth;
whereas, in other words, paragraph (3) (d) (Art. 6-3-d) does not
prohibit the Court from refusing to summon persons who cannot be
'witnesses on his behalf' within the meaning of that same paragraph";
Whereas the Regional Court of A had in the case-file the written
statements of three witnesses on behalf of the Applicant as well as the
evidence of an expert which it had itself appointed; whereas the Court
thus considered that the evidence before it was adequate for it to
reach a decision without calling the expert proposed by the Applicant;
whereas the Applicant has not shown that the Court in so evaluating the
evidence acted in violation of the rights guaranteed to the Applicant
in paragraph (3) (d) (Art. 6-3-d) or in a wider notion of a "fair
trial" embodied in paragraph (1) of Article 6 (Art. 6-1) whereas
therefore this part of the Application is manifestly ill-founded and
must be rejected in accordance with Article 27, paragraph (2) (Art.
27-2) of the Convention.
As regards the alleged violation of Article 10 (Art. 10) of the
Convention;
Whereas the Commission has frequently held in cases in which a public
authority is shown to have interfered with the rights or freedoms
guaranteed by the Convention that the Commission has not only the right
but also the duty to examine the question whether such interference
either by legislation or otherwise complies with terms of the relevant
provisions of the Convention; whereas it has further held in
considering this question both generally and with particular reference
to Article 10, paragraph (2), (Art. 10-2), that a State is given a
certain margin of appreciation in determining the limits that may be
placed on freedom of expression; whereas in this respect the Commission
refers to its decision on the admissibility of Application Number
753/60 (see above);
Whereas the first Applicant was sentenced under Sections 4, 6 and 21
of the Act of 9th July 1953 on the circulation of publications liable
to corrupt the young; whereas the Commission finds that these
provisions in no way exceeded the above margin of appreciation and
constitute restrictions on the freedom of expression such as are
authorised under paragraph (2) of Article 10 (Art. 10-2) since they are
provided for by law and represent measures necessary "for the
protection of morals" of young persons;
Whereas, in respect of the application of the provisions to the
Applicant, the Commission on the general evidence before it and without
considering it necessary to examine the actual contents of the
publication in question, finds that the Regional Court of A and the
Court of Appeal of A have not applied these restrictions on the right
to receive and impart information in a manner contrary to the
provisions of the Convention and in particular to Article 10 (Art. 10);
whereas it follows that this part of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2) of the Convention.
As regards the alleged violations of Articles 5, 7 and 14
(Art. 5, 7, 14) of the Convention;
Whereas an examination of the case as it has been submitted, including
an examination made ex officio, does not disclose any appearance of a
violation of the rights and freedoms set forth in the Convention and
in particular in the Articles invoked by the Applicant; whereas, it is
true that no prosecutions for similar offences took place in other
parts of the Federal territory to which the Act of 9th July 1953
applies; whereas, however, the appreciation by the authorities of the
terms "liable to corrupt" and "manifestly liable to corrupt" may
inevitably vary according to the different standards and conditions in
other parts of the Federal territory; whereas such difference in
appreciation may well result in a difference in the application of the
provisions of the Act by the authorities but does not thereby
constitute a discrimination in its application within the meaning of
Article 14 (Art. 14);
Whereas it follows that this part of the Application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2) of the Convention.
As regards the alleged violations of Article 13 (Art. 13) of the
Convention;
Whereas it is to be observed that the effective remedy before a
national authority which is guaranteed to everyone under Article 13
(Art. 13) of the Convention relates exclusively to a remedy in respect
of a violation of one of the rights and freedoms set forth in the
Convention; and whereas, the first Applicant not having established
any violation of Articles 5, 6, 7, 10 or 14 (Art. 5, 6, 7, 10 or 14)
of the Convention, there is no basis for the Application of Article 13
(Art. 13) to the present case; whereas the Commission in this respect
refers to its decisions on the admissibility of Applications Number
472/59 (W. v. the Federal Republic of Germany - Yearbook III, page 206)
and Number 912/60 (W. v. Sweden); whereas it follows that this part of
the Application is manifestly ill-founded and must be rejected in
accordance with Article 27, paragraph (2) (Art. 27-2) of the
Convention;
Now therefore the Commission declares this application inadmissible.