Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21318/93

by Walter OCHENSBERGER

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 13 January 1993

by Walter OCHENSBERGER against Austria and registered on

3 February 1993 under file No. 21318/93;

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 citizen, born in 1941 and resident

in Sibratsgfäll (Vorarlberg). Before the Commission he is represented

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

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

summarised as follows.

A. Particular circumstances of the case

On 30 May 1991 the Feldkirch Public Prosecutor's Office drew up

a bill of indictment in which he accused the applicant of having

edited, published and distributed in 1989 and 1990 articles in the

periodical "Sieg-AJ-Pressedienst", which, having regard to the contents

of these articles, constituted National Socialist activities

(Betätigung im nationalsozialistischen Sinne) under Section 3g of the

National Socialism Prohibition Act (Verbotsgesetz).

On 29 November and 9 December 1991 the trial against the

applicant took place before the Court of Assizes of the Feldkirch

Regional Court sitting with a jury (Geschwornengericht).

According to the transcript of the hearing of 29 November 1991

the Public Prosecutor, with the agreement of the defence, marked

certain parts of the incriminated articles with red ink which were then

read out in court. Copies of the marked issues of the periodical

concerned were distributed to the members of the jury.

At the same court hearing the applicant's lawyer also made

numerous requests for the taking of evidence. He proposed that the

Court of Assizes should obtain reports by experts in contemporary

history, theology, ethnology, anthropology, ecology, journalism and

economic history. These expert opinions should prove the truth of the

incriminated articles, in particular on the dangers of uncontrolled and

unrestrained immigration for the local population and its ethnic

purity, on systematic malpractice of Jews in the United States, on the

guilt for causing the Second World War and on the purpose and operation

of concentration camps by the Third Reich. These requests were

rejected by the bench of the Court of Assizes which found that they

were phrased too generally to allow the taking of specific evidence

and, in any event, concerned matters of legal qualification involving

value judgments for which the opinions of the requested experts were

irrelevant. Moreover, in respect of historical facts, the evidence

requested by the applicant concerned matters of common knowledge in

regard to which evidence need not be taken.

On 9 December 1991 the Court of Assizes convicted the applicant

of the offence under Section 3g of the National Socialist Prohibition

Act and sentenced him to three years' imprisonment.

The Court of Assizes found that in 1989 and 1990 the applicant

had engaged in National Socialist activities by having edited,

published and distributed articles and contributions in the periodical

"Sieg-AJ-Presse-Dienst" specified in the judgment. These articles and

contributions, as apparent from their lay-out, presentation, pictures

and contents, had incited people to racial hatred, antisemitism and

xenophobia, glorified the Germanic race in a biased manner and denied

the sovereignty of Austria. They also presented in a biased and

propagandist manner the actions and aims of the Third Reich dominated

by Adolf Hitler, in particular by justifying the installation of

concentration camps in the territory of the Third Reich and in the

territories occupied in the course of the Second World War, by

minimising the killings therein and by putting the blame for those

killings on the allied powers. As regards the editing, publishing and

distribution of further articles specified in the judgment, the Court

of Assizes acquitted the applicant of the offence under Section 3g of

the National Socialist Prohibition Act.

On 17 July 1992 the Supreme Court (Oberster Gerichtshof)

dismissed the applicant's plea of nullity but granted his appeal and

reduced the sentence to two years' imprisonment.

As regards the applicant's argument that his conviction exceeded

the bill of indictment, the Supreme Court noted that the Public

Prosecutor in his bill of indictment had stated that the entire

contents of the incriminated articles were the subject of the charge,

that at the trial he had marked particular passages which had been read

out in court and that the judgment referred to the entire articles.

The Supreme Court found that the Public Prosecutor could not be deemed

to have partly abandoned the charge against the applicant since he had

made no such unequivocal statement, either expressly or implicitly, at

the trial. As was apparent from the transcript of the hearing, the

purpose of marking and reading out in court certain passages of the

incriminated articles was to show the opinion of their authors by

pointing to salient examples.

The Supreme Court also found that the Court of Assizes had acted

correctly when it refused to take the evidence proposed by the

applicant.

It found, in particular, that the applicant's request for expert

reports on ethnology, anthropology, ecology, contemporary history and

journalism, in order to prove that all the dangers foreseen by the

applicant in an uncontrolled immigration policy in fact caused serious

prejudice to the local Austrian population, was irrelevant to the

allegation of incitement to racial hatred. Moreover, the request for

expert reports on American contemporary and economic history, to prove

that the description of malpractices of Jews in the United States was

based on concrete facts, was also irrelevant to this accusation.

The requested expert opinion on contemporary history, to prove

that the articles concerning the concentration camps were true, had no

relevance for the allegations that the applicant had incited people to

racial hatred, had presented in a biased and propagandist way the acts

of violence, in breach of human rights, which had been committed by the

National Socialist regime, and had minimised the killings in the

concentration camps.

The further requests for evidence to prove that the demand for

the "Anschluss" of Austria to the German Reich, and the claim that

antisemitsm and the fight against large scale immigration were not part

of the typical National Socialist ideology, were also irrelevant to the

charge. It was common knowledge, requiring no evidence, that anti-

semitism was not an exclusive idea of National Socialism and that there

had been demands for the "Anschluss" immediately after the First World

War.

With respect to the further request for an expert report on an

aspect of contemporary German history, the applicant had failed to

indicate why such an opinion was necessary.

As regards the applicant's sentence, the Supreme Court noted that

meanwhile the statutory range of punishment had been reduced, and found

that, in view of this development in the law, the applicant's sentence

had also to be reduced.

B. Relevant domestic law

Section 3g of the National Socialist Prohibition Act

(Verbotsgesetz) reads as follows:

"Whoever performs activities inspired by National Socialist ideas

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

be liable to punishment by a prison sentence between 5 and 10

years, and if the offender or his activity is particularly

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

is punishable under a different provision stipulating a more

serious sanction. The court may also pronounce the forfeiture

of property."

By an amendment which entered into force on 20 March 1992, the

range of punishment was amended from 5 to 10 years to 1 to 10 years.

COMPLAINTS

1. The applicant complains under Article 10 of the Convention that

his conviction for National Socialist activities violated his right to

freedom of expression. He submits that, in a non-totalitarian

democratic State based on the rule of law, political activities like

his should not be liable to punishment and that the provisions on

prohibition against activities involving the expression of National

Socialist ideas were not sufficiently precise.

2. The applicant also complains about the alleged unfairness of the

criminal proceedings conducted against him. He submits that the

defence was gravely misled on the actual contents of the charge against

him. While the Public Prosecutor in his bill of indictment initially

stated that the entire contents of the articles concerned were the

subject of the charge, he had at the trial, on 29 November 1991,

reduced the charge to specific passages in these articles.

Nevertheless, the judgment referred again to the entire articles. The

applicant further submits that the Court of Assizes refused to take

certain expert evidence proposed by the defence and refers in this

respect to the whole of his plea of nullity to the Supreme Court. He

relies on Article 6 para. 3 (a) and (d) of the Convention.

THE LAW

1. The applicant complains under Article 10 (Art. 10) of the

Convention that his conviction for National Socialist activities

violated his right to freedom of expression.

Article 10 (Art. 10) of the Convention, as far as material to the

case, reads as follows:

"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 and regardless of frontiers. ...

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

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

The Commission notes the applicant's conviction for having

edited, published and distributed various articles and finds,

therefore, that there has been an interference with the applicant's

freedom of expression within the meaning of Article 10 para. 1

(Art. 10-1) of the Convention. Such interference entails a breach of

Article 10 (Art. 10) unless it is justified under the second paragraph

of Article 10 (Art. 10).

The Commission observes that the applicant's conviction was based

on Section 3g of the National Socialism Prohibition Act and was,

therefore, "prescribed by law" within the meaning of Article 10 para.

2 (Art. 10-2) of the Convention.

The Commission refers to its previous case-law in which it has

held that "the prohibition against activities involving the expression

of National Socialist ideas is both lawful in Austria and, in view of

the historical past forming the immediate background of the Convention

itself, can be justified as being necessary in a democratic society in

the interests of national security and territorial integrity as well

as for the prevention of crime. It is therefore covered by Article 10

para 2 (Art. 10-2) of the Convention" (No. 12774/87, Dec. 12.10.89,

D.R. 62 p. 216, at p. 220).

The Commission also refers to Article 17 (Art. 17) of the

Convention which reads as follows:

"Nothing in this Convention may be interpreted as implying

for any State, group of 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."

In respect of this provision the Commission has previously held

that it "covers essentially those rights which will facilitate the

attempt to derive therefrom a right to engage personally in activities

aimed at the destruction of any of the rights and freedoms set forth

in the Convention. In particular, the Commission has found that the

freedom of expression enshrined in Article 10 (Art. 10) of the

Convention may not be invoked in a sense contrary to Article 17

(Art. 17)" (No. 12194/86, Dec. 12.5.88, D.R. 56 p. 205, at p. 209).

As regards the circumstances of the present case, the Commission

particularly notes the findings of the Court of Assizes that the

applicant's publications incited the reader to racial hatred,

antisemitism and xenophobia. Consequently, the Commission finds that

the applicant is essentially seeking to use the freedom of information

enshrined in Article 10 (Art. 10) of the Convention as a basis for

activities which are contrary to the text and spirit of the Convention

and which, if admitted, would contribute to the destruction of the

rights and freedoms set forth in the Convention (cf. loc. cit.

No. 12194/86).

Under these circumstances the Commission concludes that the

interference with the applicant's freedom of expression can be

considered as "necessary in a democratic society" within the meaning

of Article 10 para. 2 (Art. 10-2) 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 also complains of alleged unfairness in the

criminal proceedings against him. He submits that the defence was

gravely misled about the actual contents of the charge against him and

that the Court of Assizes refused to take certain expert evidence

proposed by the defence. He invokes Article 6 para. 3 (a) and (d)

(Art. 6-3-a, 6-3-d) of the Convention.

The relevant part of Article 6 (Art. 6) of the Convention reads

as follows:

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

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

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him; ...

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 recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention are specific

aspects of the general concept of a fair trial set forth in paragraph

1 of the Article. Accordingly, the Commission will examine the

applicant's complaints under the two provisions taken together and in

the light of the proceedings considered as a whole (see Eur. Court

H.R., Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12,

para. 31).

As regards the nature and content of the charge against the

applicant, the Commission finds that the applicant has not shown that

the defence was misled by the prosecution in the present case. In this

connection the Commission has had regard to the findings of the Supreme

Court concerning the indictment and the marking of particularly

relevant passages in the publication in question with the agreement of

the applicant's counsel.

Insofar as the applicant complains that his requests for the

taking of evidence were not granted, the Commission recalls that paras.

1 and 3 (d) of Article 6 (art. 6-3-d) do not grant the defence an

absolute or unlimited right to have expert testimony taken. It is

primarily the task of the domestic courts to decide on the relevance

of the evidence proposed (cf. No. 10486/83, Dec. 9. 10.86, D.R. 49 p.

86, at p. 102).

In this respect, the Commission notes that in the present case

the Court of Assizes rejected the applicant's requests because they

involved matters which were either of common knowledge or irrelevant

to the proceedings. The Commission finds that the reasons given by the

Court of Assizes, and confirmed by the Supreme Court, were neither

arbitrary nor unfair.

The Commission concludes that there is no evidence in the present

case that the applicant's defence rights were impaired.

It follows that this part of the application is also 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) (A. WEITZEL)

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OCHENSBERGER v. AUSTRIA

OCHENSBERGER v. AUSTRIA

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