Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23953/94

by Rudolf REISS

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 11 March 1994 by

Rudolf REISS against Austria and registered on 25 April 1994 under file

No. 23953/94;

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 applicant is an Austrian national, born in 1952, and residing

in Vienna. Before the Commission he is represented by Mr. G. Grone,

a lawyer practising in Vienna.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant is the owner of a bar in Vienna, its customers

being mainly male homosexuals. Customers seeking entrance to the bar

have to ring at the door, minors under 18 years are not admitted.

Following an anonymous letter received by the police in October

1991, three police officers entered the applicant's bar on 21 November

1991 and seized a homosexual pornographic video cassette which was

shown on a video monitor as well as several similar video cassettes.

On 14 May 1992 the applicant was heard by the Investigating Judge

(Untersuchungsrichter). He stated that, following the wishes of his

customers, he had started in November 1991 to show homosexual films.

On 21 November 1991 he had not been present at his bar. An

acquaintance had brought the video cassettes to the bar and had

deposited them there for the applicant. The applicant wanted to see

the video cassettes before deciding whether to show them. However, one

of his employees had put one of the cassettes into the video recorder

without further reflection.

On 15 May 1992 the Vienna Public Prosecutor's Office

(Staatsanwaltschaft) charged the applicant under Section 1 of the

Pornography Act. This provision provides, inter alia, that everyone

who, for pecuniary profit, produces, publishes or keeps for

distribution obscene films or shows them in public, is liable to

punishment by imprisonment of up to one year or a fine of up to 360

daily rates.

On 22 September 1992 the trial against the applicant, who was

assisted by counsel, took place before the Vienna Regional Court

(Landesgericht).

The Regional Court heard the applicant and one of the applicant's

employees, M.G.A., and R.U. as witnesses. The applicant stated that

homosexual pornographic videos had never been shown in his bar. On

21 November 1991 he had not been at the bar while an acquaintance of

his had deposited several video cassettes there for him. One of his

employees had shown one of the videos. Witness M.G.A. stated that he

had shown the video cassette seized out of pure curiosity. R.U. stated

that he had brought several video cassettes on the relevant day to the

applicant's bar because he had thought that they might interest the

applicant.

At the trial the prosecution and defence agreed that the video

cassettes need not be shown in court. The Regional Court read out the

police report on the seizure of the video cassettes at the applicant's

premises. The applicant did not object thereto.

On the same day the Regional Court convicted the applicant of the

offence under Section 1 of the Pornography Act and sentenced him to a

fine of 40 daily rates of 300 AS each and 20 days of imprisonment in

default.

The Regional Court found that the applicant had shown in his bar

pornographic homosexual video cassettes for pecuniary profit. It did

not accept his defence that no such video cassettes were ever shown

there and that the video cassette seized on 21 November 1991 was shown

by mistake by one of his employees without the applicant's consent.

It found that this version was contradicted by the applicant's own

admissions before the Investigating Judge, namely that he had started

in November 1991 to show homosexual films. The Regional Court had also

regard to the fact that the police investigations were triggered off

by an anonymous letter received by the police in October 1991. As

regards the statements of the witnesses M.G.A. and R.U., the Regional

Court did not find them plausible.

On 5 February 1993 the applicant appealed against the Regional

Court's judgment. He attacked the court's assessment of evidence and

complained that no witness for the prosecution had been heard.

On 5 April 1993 the Vienna Court of Appeal (Oberlandesgericht),

after a public hearing, dismissed the appeal. The Court of Appeal

found that the alleged failure to hear witnesses for the prosecution

did not constitute one of the grounds of nullity listed exhaustively

in the Code of Criminal Procedure (Strafprozeßordnung). It found

further that the Regional Court had assessed the evidence correctly.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that the criminal proceedings against him were unfair in that no

witnesses for the prosecution were heard by the court.

2. He complains further under Article 8 of the Convention that his

conviction under the Pornography Act violated his right to respect for

his private life.

THE LAW

1. The applicant complains that the criminal proceedings against him

were unfair in that no witnesses for the prosecution were heard by the

court. He invokes Article 6 para. 1 (Art. 6-1) of the Convention.

As far as relevant, this provision reads as follows:

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

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

by an independent and impartial tribunal established by

law. ..."

The essence of the applicant's submissions seems to be that the

Regional Court, when convicting him, based its findings on insufficient

evidence.

It was not disputed at the trial that on 21 November 1991 a

homosexual pornographic video cassette was shown in the applicant's bar

and that similar video cassettes were found there. The applicant's

submission at the trial was that this video cassette was shown by

mistake by one of his employees. However, the Regional Court

considered that this statement and statements of two witnesses for the

defence were not plausible and contradicted the applicant's previous

statement before the Investigating Judge. Moreover, at the trial the

prosecution and defence agreed that the video cassettes need not be

shown in court and the applicant did not object to the Regional Court

reading out the police report on the seizure of the video cassettes at

the applicant's premises.

The Commission therefore finds that the Regional Court based its

judgment on the assessment of the evidence it had before it and drew

its conclusions therefrom. Whether these conclusions involved an error

of fact or law is an issue which the Commission cannot determine, as

it is not competent to deal with an application alleging that errors

of law or fact have been committed by domestic courts except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention (see e.g. No.

458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.

8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18

pp. 31, 45; No. 21283/93, Dec. 5.4.94, D.R. 77-A p. 81).

Under such circumstances there is no appearance of a violation

of the applicant's right to a fair trial under Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is manifestly

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

Convention.

2. The applicant complains further under Article 8 para. 1

(Art. 8-1) of the Convention that his conviction under the Pornography

Act violated his right to respect for his private life.

Article 8 (Art. 8) of the Convention reads as follows:

"Everyone has the right to respect for his private and

family life, his home and his correspondence."

The Commission observes that the applicant did not raise this

complaint in his appeal to the Court of Appeal. The question therefore

arises whether the applicant has complied with Article 26 (Art. 26) of

the Convention according to which the Commission may only deal with a

matter after all domestic remedies have been exhausted according to the

generally recognised rules of international law. However, the

Commission need not determine this issue since this complaint is, in

any event, inadmissible for the following reasons.

The Commission recalls the Niemietz case, which concerned a

search by the police of a lawyer's office, where the European Court of

Human Rights found that it is consonant with the essential object and

purpose of Article 8 (Art. 8) of the Convention, namely to protect the

individual against arbitrary interference by the public authority, to

interpret the words "private life" and "home" as including certain

professional or business activities or premises (Eur. Court H.R.,

Niemietz judgment of 16 December 1992, Series A no. 251-B, p. 34,

para. 31).

While business premises therefore enjoy to a certain extent the

protection of Article 8 (Art. 8) of the Convention, regard must

nevertheless be had in this respect to the nature of such premises, the

business activities exercised therein and the nature of the alleged

interference.

In the present case the applicant is the owner of a bar in Vienna

whose customers are mainly male homosexuals. The bar is accessible to

the public, although subject to certain control. At least on

21 November 1991 a homosexual pornographic video cassette was shown in

the bar and similar video cassettes were found there. On 22 September

1992 the applicant was convicted by the Vienna Regional Court under the

Pornography Act of showing publicly obscene video cassettes for making

profit.

The Commission finds it difficult to accept that the showing of

the video cassettes at issue on the applicant's premises in his absence

formed part of his private life or of a business activity which cannot

be separated therefrom. The mere fact that an offence was committed

on premises which for certain purposes could be considered as belonging

to the sphere of the applicant's private life or constituting his home

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention,

is not in itself sufficient to render his conviction for such an

offence an interference with the rights protected by Article 8

(Art. 8) of the Convention. In this respect, the Commission considers

it decisive that the offence the applicant was convicted of, namely the

public showing of obscene video cassettes for the purpose of profit

making, by its nature had nothing to do with the applicant's own

private life or home.

In short, having regard to the specific circumstances of the

present case, the Commission cannot find that the applicant's

conviction under the Pornography Act constitutes an interference with

his right to respect for his private life or his home as guaranteed by

Article 8 para. 1 (Art. 8-1) of the Convention.

It follows that also this part of the application is manifestly

ill-founded within 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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REISS v. AUSTRIA

REISS v. AUSTRIA

LEXI