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.