THE FACTS

The facts of the case, as submitted by the applicant company, may be

summarised as follows:

The applicant, a publishing firm in F., Federal Republic of Germany,

is represented before the Commission by Dr. H., a barrister in Vienna.

On .. March 1971 the Regional Court (Landesgericht) of Innsbruck

confiscated (für verfallen erklärt) at the request of the Public

Prosecutor a book and several prospectuses which the applicant had

tried to send to a person in Austria. The book was entitled "The

lascivious pastor's wanton niece". The Court found that the importation

into Austria of these publications was a crime within the meaning of

Article 1 (1) (b) and (c) of an Act of 31 March 1950 concerning the

suppression of obscene publications and the protection of minors

against the dangers of immorality (Gesetz betr. Bekämpfung unzüchtiger

Veröffentlichungen und den Schutz der Jugend gegen sittliche

Gefährdung, also called Pornographiegesetz) The Article provides inter

alia that a person who, in order to make a profit, imports and

distributes obscene (unzüchtig) publications is guilty of a crime.

Referring to various pages of the book, the Court stated that the

publications in question portrayed or described sexual acts in a manner

which seriously violated generally accepted notions of decency and

morality (gegen das allgemeine Scham- und Sittlichkeitsgefühl grob

verstoßend). The descriptions were, according to the Court, not

justified as being of artistic or scientific nature. The pornographic

content was, in the opinion of the Court, the primary purpose of the

book and any story linked therewith merely incidental. The Court

concluded that according to Article 42 of the press law (Pressegesetz)

the publications had to be confiscated as it was not possible to

prosecute the offender in Austria.

The applicant's plea of nullity (Nichtigkeitsbeschwerde) against the

Regional Court's decision was rejected by the Supreme Court (Oberster

Gerichtshof) on .. December 1971. It appears that the Attorney General

(Generalprokurator) pleaded in favour of the applicant. The Supreme

Court, however, confirmed the findings of the Regional Court. Citing

various passages from the book and the applicants prospectus as

example, the Court was of the opinion that the representations and the

descriptions of sexual acts in the book, as well as in the prospectus,

were destined to incite sexual desires and were of no literary value.

The story of the book was in the opinion of the court a mere pretext

for the accumulation of obscene scenes.

The Court stated that even if no action was taken against publishers

of magazines, although certain magazines likewise contain obscene

articles, this was of no importance in the applicants' case as it

depends on the Public Prosecutor to institute proceedings or not.

The Supreme Court's decision was allegedly served on the applicant's

lawyer on .. February 1972.

Complaints

The applicant complains of the above-mentioned decisions alleging that

they constitute a violation of Article 10 (1) of the Convention. The

applicant is aware that the right to freedom of expression is subject

to limitations as is provided in paragraph 2 of Article 10 of the

Convention. In their opinion, however, the Austrian courts have wrongly

interpreted the Pornography Act, i.e. the term "obscene" (unzüchtig)

contained therein and have thereby exceeded the limitations. The

applicant argues that moral is an ethical value which changes with the

time, e.g. a photo of a naked woman on the front page of a periodical

would have shocked people in 1950 while nowadays such representations

are frequent and commonly tolerated. Therefore, their plea of nullity

was allegedly supported by the Attorney General who argued that the

theme obscenity (Unzüchtigkeit) had changed its meaning and now only

applied to pornography which was "unbearably repulsive" (unerträglich

abstoßend), e.g. intercourse with animals or among children.

The question as to whether pornography has an artistic value or not

can, in the opinion of the application, not depend on legal standards

but only on the taste and the mentality of each individual. They point

out that sex education in schools is obligatory in some States and

discussed in others, that sexual intercourse is shown in films which

- also in Austria - attract a large number of spectators, and that in

Sweden and Denmark there is no restriction with regard to pornography

while it cannot be said that this resulted in a decline of morals.

The applicant concludes that one also has to respect the right of those

who are interested in pornography as a form of information.

THE LAW

The applicant has alleged that the confiscation of their book violated

their right to receive and impart information as guaranteed by Article

10 (1) (Art. 10-1) of the Convention.

The exercise of this right may however, be subjected to such

restrictions as are prescribed by law and are necessary in a democratic

society for the protection of health or morals (Article 10 (2)

(Art. 10-2)). The restriction in the present case was the application

by the Austrian Supreme Court, on final appeal, of the Act of 31 March

1950 to a book published by the applicant.

In respect of the application of the Act in the present case, the

Commission does not consider it necessary to examine in detail the

actual contents of the book in question as the Supreme Court's decision

which the applicant has submitted, cites various passages from it, and

finds that they at least were not justified as having artistic or

scientific purposes. Further, the applicant has not presented to the

Commission any evidence sufficient to contradict that finding, and the

title of the book speaks for itself.

The Commission therefore finds that the Regional Court of Innsbruck and

the Supreme Court have not applied to the book the restrictions

contained in the Act 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).

An examination by the Commission of this complaint as it has been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and in particular in the above Article.

It follows that the application is manifestly ill-founded within the

meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

For these reasons the Commission DECLARES THIS APPLICATION

INADMISSIBLE.