Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24398/94

by Friedrich REBHANDL

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 June 1994 by

Friedrich REBHANDL against Austria and registered on 15 June 1994 under

file No. 24398/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted by the applicant, may be

summarised as follows.

The applicant, born in 1921, is an Austrian national and resident

at Schalchen. In the proceedings before the Commission he is

represented by Mr. H. Schaller, a lawyer practising in Traiskirchen,

Austria.

A. Particular circumstances of the case

On 4 May 1991 the Salzburg Public Prosecutor's Office

(Staatsanwaltschaft) drew up a bill of indictment against the

applicant. He was accused of having distributed between 1988 and 1990

the periodical "Der Volkstreue", which, having regard to the contents

of the various issues of this periodical, constituted National

Socialist activities (Betätigung im nationalsozialistischen Sinne)

under S. 3 g of the National Socialism Prohibition Act (Verbotsgesetz),

and of having exercised an undue influence on pending court proceedings

(verbotene Einflußnahme auf ein Strafverfahren) within the meaning of

S. 23 of the Media Act (Mediengesetz).

On 1, 2 and 24 April 1992 the trial took place before the Court

of Assizes of the Salzburg Regional Court (Landesgericht) sitting with

a jury (Geschwornengericht).

At the hearing of 2 April 1992 the applicant's defence counsel

lodged several requests for the further taking of evidence in order to

prove that under the Nazi regime no gas chambers for the killing of

Jews had existed. These requests were rejected by the Court of Assizes

in accordance with the relevant case-law of the Austrian Supreme Court

(Oberster Gerichtshof) on the ground that the killing of people in the

concentration camps - by gassing or shooting and cremation - were a

fact of common knowledge (notorische Tatsache). In any event, a

historical expert had been heard on these matters.

At the hearing on 24 April 1992, the Court put two questions to

the jury. The first question related to the offence of having pursued

National Socialist activities in that he had distributed the periodical

"Der Volkstreue", issues 2/88, 4/88, 2/89, 3/90. In this respect, the

jury's attention was drawn to specific articles published in the

periodical which denied the unlawfulness of the Austrian annexation and

glorified this annexation and Hitler and other National Socialists;

which denied the existence of the Austrian nation, the existence of the

National Socialist concentration camps and the murder of millions of

Jews, the moral and legal justification of the Nuremberg Trials and the

German responsibility for the Second World War; which stated that the

Jews had declared a financial and economic war against Germany,

contained propaganda for a party with a program similar to that of the

National Socialist Party and incited to hatred against the Jews,

respectively. The second question related to the offence of having

exercised an undue influence on the criminal proceedings pending

against him in that he had criticised the opinion delivered by the

historic expert at the trial in the context of an article in the

periodical "Der Volkstreue".

The jury, by a unanimous verdict, found the applicant guilty of

the offences of having pursued National Socialist activities and of

having exercised an undue influence on the criminal proceedings pending

against him.

The Court of Assizes convicted the applicant thereupon of the

offences under S. 3 g of the National Socialism Prohibition Act and

under the Media Act and sentenced him to one year's imprisonment and

further imposed a fine of AS 900. The sentences were suspended on

probation.

The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde)

and an appeal against sentence (Berufung). The Public Prosecutor's

Office also lodged an appeal against sentence.

On 10 December 1993 the Supreme Court dismissed the applicant's

plea of nullity. It increased the sentence imposed upon the applicant

to one and a half year's imprisonment and a fine of AS 2,700, whereby

the execution of part of the sentence, namely one year's imprisonment,

was suspended on probation.

In its decision, the Supreme Court confirmed the findings of the

Court of Assizes. It dismissed in particular the procedural complaints

concerning the refusal of the applicant's requests for the further

taking of evidence. The Supreme Court observed that the "mass murder

under the National Socialist regime" and "other National Socialist

crimes against humanity" formed part of the legal definition of the

offence under S. 3 h of the National Socialist Prohibition Act, in

force as from March 1992, and therefore constituted - ex lege - facts

which did not require any further proof. The other requests either

related to facts of common knowledge or were irrelevant in the

circumstances.

As regards the fixing of the prison sentence, the Supreme Court

found that, weighing all circumstances, the prison sentence in respect

of the offence under S. 3 g of the National Socialist Prohibition Act

could not be fixed at the low end of the range of punishment. The same

considerations applied as regards the fine.

The judgment was served on 11 January 1994.

B. Relevant domestic law

S. 3 g of the National Socialist Prohibition Act (Verbotsgesetz),

as amended regarding the range of punishment in March 1992, provides

as follows:

"Wer sich auf andere als die in den §§ 3 a bis 3 f bezeichnete

Weise im nationalsozialistischen Sinne betätigt, wird, sofern die

Tat nicht nach einer anderen Bestimmung strenger strafbar ist,

mit Freiheitsstrafe von einem bis zu zehn Jahren, bei besonderer

Gefährlichkeit des Täters oder der Betätigung bis zu 20 Jahren

bestraft."

Whoever performs activities inspired by National Socialist ideas

in a manner not coming within the scope of SS. 3 a to 3 f shall

be liable to punishment by a prison sentence between one and ten

years, and, if the offender or his activity is particularly

dangerous, by a prison sentence of up to 20 years, unless the

activity is punishable under a different provision stipulating

a more serious sanction."

According to S. 3 h of the Prohibition Act, anyone who, in

particular in public media, denies, grossly minimises, approves or

justifies the "mass murder under the National Socialist regime"

("nationalsozialistischer Völkermord") or other "National Socialist

crimes against humanity" ("nationalsozialistische Verbrechen gegen die

Menschlichkeit"), is also punishable pursuant to S. 3 g.

COMPLAINTS

1. The applicant complains under Article 6 para. 3 (d) of the

Convention about the alleged unfairness of the criminal proceedings

against him. The applicant considers in particular that his requests

to take evidence as to the truth of the incriminated publications were

unduly dismissed. He challenges the courts' findings that the

existence of gas chambers used for mass murder in the Nazi

concentration camps were historical facts and therefore common

knowledge which did not call for a further taking of evidence.

2. The applicant further complains under Article 3 of the Convention

about the range of punishment under S. 3 g of the National Socialist

Prohibition Act as such. He also considers that, taking into account

his wife's state of health, his sentence of one year and six months'

imprisonment, only one year being suspended on probation, amounts to

inhuman treatment.

3. Moreover, the applicant complains that his conviction by the

Court of Assizes on 24 April 1992, as partly amended by the Supreme

Court on 10 December 1993, violates his right to freedom of expression

under Article 10 of the Convention. He considers that statements

relating to historical events should not be punishable.

THE LAW

1. The applicant complains about the alleged unfairness of the

criminal proceedings against him. The applicant considers in

particular that his requests to take evidence as to the truth of the

incriminated publications were wrongly dismissed. He challenges the

courts' findings that the existence of gas chambers used for mass

murder in the Nazi concentration camps were historical facts and

therefore common knowledge which did not call for a further taking of

evidence. He invokes Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention.

Article 6 (Art. 6), as far as relevant, provides as follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him;

..."

The Commission finds no indication that the applicant, assisted

by counsel, could not duly present his arguments in defence or could

not effectively exercise his defence rights.

As regards his complaints about the taking and assessment of

evidence, the Commission recalls that as a general rule, it is for the

national courts to assess the evidence before them as well as the

relevance of the evidence which the defendants seek to adduce. More

specifically, Article 6 para. 3 (d) (Art. 6-3-d) leaves it to them,

again as a general rule, to assess whether it is appropriate to call

witnesses, in the "autonomous" sense given to that word in the

Convention system; it does not require the attendance and examination

of every witness on the accused's behalf (cf., Eur. Court H.R.,

Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89;

Vidal judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para.

33).

The Commission notes that the Court of Assizes, in the course of

the trial, dismissed the applicant's requests for the taking of further

evidence, finding that the killing of people in the concentration camps

- by gassing or shooting and cremation - were a fact of common

knowledge. In this respect, the Court of Assizes referred to the case-

law of the Austrian Supreme Court. The Supreme Court, in its decision

of 10 December 1993, confirmed the findings of the first instance court

and also observed that the existence of mass murder in the gas chambers

of National Socialist concentration camps and other National Socialist

crimes against humanity were constituent elements of a further offence

under the National Socialist Prohibition Act and - ex lege - did not

require any taking of evidence.

In these circumstances, the Commission finds no sufficient

grounds to conclude that the decision to dismiss the applicant's

requests to take further evidence was incompatible with Article 6

(Art. 6) (cf., No. 9235/81, Dec. 16.7.82, D.R. 29 p. 194).

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant further complains under Article 3 (Art. 3) of the

Convention about the range of punishment under S. 3 g of the National

Socialist Prohibition Act as such. He also considers that, taking into

account his wife's state of health, his sentence of one year and six

months' imprisonment, only one year being suspended on probation,

amounts to inhuman treatment.

The Commission recalls that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(Art. 3). The assessment of this minimum is relative and must take

account of all the circumstances of the case, including the duration

of the treatment, its physical and mental effects and, in some cases,

the sex, age and state of health of the person subjected to it (e.g.

Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January

1978, Series A no. 25, p. 65, para. 162). In order for a punishment

to be degrading and in breach of Article 3 (Art. 3), the humiliation

or debasement involved must attain a particular level and must in any

event be other than the usual element of humiliation associated with

imprisonment after a criminal conviction. Such an examination is also

relative and depends on all the circumstances of the case and, in

particular, on the nature and context of the punishment itself and the

manner and method of its execution (Eur. Court H.R., Tyrer judgment of

25 April 1978, Series A no. 26, p. 15, para. 30).

The Commission notes that the applicant was convicted by the

Austrian Courts of an offence with a statutory punishment to a prison

term between one and ten years, in particularly aggravating

circumstances up to 20 years. The Supreme Court, weighing all

circumstances, sentenced the applicant to one and a half year's

imprisonment, one year thereof being suspended on probation.

The Commission finds no appearance that the sentence of

imprisonment imposed upon the applicant would go beyond the threshold

set by Article 3 (Art. 3) of the Convention.

Consequently, this part of the application is likewise manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).

3. Moreover, the applicant complains that his conviction by the

Court of Assizes on 24 April 1992, as partly amended by the Supreme

Court on 10 December 1993, of an offence under the National Socialist

Prohibition Act violates his right to freedom of expression under

Article 10 (Art. 10) of the Convention.

Article 10 (Art. 10), as far as relevant, provides:

"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 ...

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 or crime, ... for the protection of the reputation

or rights of others ..."

The Commission considers that the impugned measure was an

interference with the applicant's exercise of his freedom of

expression. Such interference is in breach of Article 10 (Art. 10),

unless it is justified under paragraph 2 of Article 10 (Art. 10-2),

i.e. it must be "prescribed by law", have an aim or aims that is or are

legitimate under Article 10 para. 2 (Art. 10-2) and be "necessary in

a democratic society".

The interference was "prescribed by law", namely the relevant

provisions of the National Socialist Prohibition Act.

The interference also pursued a legitimate aim under the

Convention, i.e. "the prevention of disorder and crime" and the

"protection of the reputation or rights of others". It remains to be

ascertained whether the interference can be regarded as having been

"necessary in a democratic society".

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 have a certain margin

of appreciation in assessing whether and to what extent an interference

is necessary, but this margin goes hand in hand with a European

supervision. Thus the measures taken at national level must be

justifiable in principle and proportionate (cf. Eur. Court H.R.,

Observer and Guardian judgment of 26 November 1991, Series A no. 216,

pp. 29-30, para. 59).

The Commission finds that the provisions of the National

Socialist Prohibition Act, and their application in the present case,

aimed to secure the peaceful coexistence of the population in Austria.

The Commission therefore has also had regard to Article 17 (Art. 17)

of the Convention. This provision reads as follows:

"Nothing in this Convention may be interpreted as implying for

any State, group or person any right to engage in any activity

or perform any act aimed at the destruction of any of the rights

and freedoms set forth herein or at their limitation to a greater

extent than is provided for in the Convention."

Article 17 (Art. 17) accordingly prevents a person from deriving

from the Convention a right to engage in activities aimed at the

destruction of any of the rights and freedoms set forth in the

Convention, inter alia the right to freedom of expression under

Article 10 (Art. 10) (cf. No. 12194/86, Dec. 12.5.88, D.R. 56 p. 205;

No. 21318/93, Dec. 2.9.94, not published; No. 21128/92, Dec. 11.1.95,

D.R. 80-A p. 94; No. 25096/94, Dec. 6.9.95, not published).

As regards the circumstances of the present case, the Commission

notes the findings of the Court of Assizes concerning the contents of

the periodical distributed by the applicant and the publications

contained therein.

The Commission finds that the applicant's publications ran

counter one of the basic ideas of the Convention, as expressed in its

preamble, namely justice and peace, and further reflect racial and

religious discrimination. The public interests in the prevention of

crime and disorder in the Austrian population due to offences under the

National Socialist Prohibition Act, and the requirements of protecting

their reputation and rights, outweigh, in a democratic society, the

applicant's freedom to distribute publications denying in particular

the existence of the gassing of Jews in the concentration camps under

the Nazi regime and the further incriminated publications relating to

the National Socialist regime (see also No. 9235/81, Dec. 16.7.82, D.R.

29 p. 194; No. 25096/94, Dec. 6.9.95).

In these circumstances, there were relevant and sufficient

reasons for the applicant's conviction. The judgment of the Court of

Assizes at the Salzburg Regional Court of 22 April 1992, as confirmed

and partly amended by the Supreme Court on 10 December 1993, can be

considered therefore, "necessary in a democratic society" within the

meaning of Article 10 para. 2 (Art. 10-2) of the Convention.

Accordingly, there is no appearance of a violation of the applicant's

right under Article 10 (Art. 10) of the Convention.

It follows that this part of the application is also manifestly

ill-founded with the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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REBHANDL v. AUSTRIA

REBHANDL v. AUSTRIA

LEXI