AS TO THE ADMISSIBILITY OF

                      Application No. 15153/89

                      by VEREINIGUNG DEMOKRATISCHER SOLDATEN

                         ÖSTERREICHS and Berthold GUBI

                      against Austria

      The European Commission of Human Rights sitting in private on

6 July 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 F. ERMACORA

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G.H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

           Mr.   H.C. KRÜGER, Secretary to the Commission,

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 12 June 1989, by

VEREINIGUNG DEMOKRATISCHER SOLDATEN ÖSTERREICHS and Berthold GUBI

against Austria and registered on 21 June 1989 under file No. 15153/89;

      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

A.    The particular circumstances of the present case

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

applicants, may be summarised as follows:

      The first applicant is a private association of soldiers under

Austrian law and has its seat in Vienna.  The first applicant edits the

military journal "Igel", which publishes information for soldiers and

critical reports about problems concerning soldiers in general,

concerning particular situations or events in military barracks as well

as comments on other political matters.

      The second applicant, born in 1958, is an Austrian national and

resident in Vienna.  At the relevant time he was a soldier and member

of the first applicant.

      Both applicants are represented by Mr. G. Lansky, a lawyer

practising in Vienna.

      On 27 July 1987 the first applicant applied to the Federal

Ministry of Defence (Bundesministerium für Landesverteidigung) for

permission to distribute its military journal "Igel" in the area of

Austrian military barracks.  This request has not yet been formally

decided upon.

      The Austrian military services issued internal rules on the

distribution of non-official publications in the area of military

barracks.  A circular of the Federal Ministry of Defence, Vienna Army

Headquarters (Armeekommando), of 14 March 1975 instructed commanders

to take preventive measures as regards publications with negative ideas

concerning the military service ("negatives wehrpolitisches Gedanken-

gut") or unjustified attacks on the Austrian armed forces, and, inter

alia, to prohibit the distribution and posting of such publications.

A circular of the Army Corps II Headquarters (Korpskommando II) of

17 December 1987 instructed commanders to amend the existing barracks

regulations (Kasernordnung) to the effect that it was prohibited to

distribute or post any non-official publications in the area of

military barracks without permission by the commander of the barracks

concerned.  It appears that general permissions for the distribution

of military journals may be granted by the Federal Ministry of Defence.

      According to replies of the Federal Minister of Defence of

14 June 1988 to questions of members of Parliament, the military

journals "Miliz-Impuls" and "Visier", edited by private associations,

were alternately joined with the official information bulletin of the

Federal Ministry of Defence "Miliz-Information" and distributed to all

militia soldiers.  For this purpose, the necessary number of copies of

the two military journals were bought by the Federal Ministry of

Defence.  The Minister also stated that the Ministry of Defence was

examining to what extent other publications with a positive attitude

to military defence could be supported.  However, activities directed

against the interests of military defence would not be supported.

      According to a further reply of 10 May 1989 to questions of

members of Parliament, the Federal Ministry of Defence was not prepared

to permit the distribution of the military journal "Igel" to the armed

forces.  Under S. 46 para. 3 of the Military Act (Wehrgesetz) of 1978,

members of the armed forces had the right to receive information about

political matters from general sources.  They could buy, or have

delivered by post, any publication.  Within military barracks, however,

only such publications could be distributed which showed a minimum of

identification with the constitutional duties of the Army, were free

from party-political contents and were favourable or at least not

unfavourable, to the reputation of the Army.  Critical publications,

for example the journal "hallo" edited by the youth organisation of the

trade union, would not be excluded from distribution, if they satisfied

the above criteria.  Having regard to these criteria, the request of

the first applicant could, for the time being, not be granted.  The

Minister referred to S. 79 of the Constitution (Bundesverfassungs-

gesetz), S. 44 para. 1 and S. 46 of the Military Act, S. 116 of the

Criminal Code (Strafgesetzbuch) and S. 3 para. 1 of the Service

Regulations (Allgemeine Dienstvorschriften) as the legal basis for a

decision on the distribution of journals.

      On 29 December 1987 the second applicant distributed copies of

the military journal "Igel" in the area of the Schwarzenberg barracks.

His superior R. ordered him to stop this distribution.

      On 12 January 1988 the second applicant was instructed by another

superior about the general regulations of 1975 and 1987 as well as the

barracks regulations of the Schwarzenberg barracks of 4 January 1988

which prohibited the distribution and posting of publications in the

area of military barracks without permission of the commander.

      On 22 January 1988 the second applicant filed a complaint

(Beschwerde) with the Military Complaints Board (Beschwerdekommission

in militärischen Angelegenheiten) at the Federal Ministry of Defence

about the order of his superior R. and the above regulations.

      On 26 September 1988 the Constitutional Court (Verfassungs-

gerichtshof) quashed a disciplinary punishment on the ground that the

relevant regulations had not been binding upon the second applicant.

      On 7 April 1988 the Complaints Division (Beschwerdeabteilung) of

the Federal Ministry of Defence, in accordance with the recommendation

of the Military Complaints Board of 22 March 1988, dismissed the

applicant's complaint of 22 January 1988.

      The Complaints Division found in particular that the order of the

applicant's superior was based on the instructions of the Army Corps II

Headquarters.  Article 5 of the Basic Constitutional Act (Staatsgrund-

gesetz) guaranteed the property and also applied to legal persons of

public law, and thus to the Austrian Federation as the owner of the

real estate on which the Schwarzenberg barracks were situated.  The

instructions of the Army Corps II Headquarters were based on Article

5 of the Basic Constitutional Act, S. 19 of the Service Regulations and

S. 13 of the Military Act.  The contents and limits of the right to

freedom of expression under Article 13 of the Basic Constitutional Act

were prescribed by, inter alia, the Military Act as regards the duty

to secrecy (S. 17 of the Military Act) and the duty to obedience (S. 44

of the Military Act).  Such restrictions followed from the particular

nature of the relationship in the armed forces in which the superiors

exercise authority (besonderes Gewaltverhältnis). Compliance with the

order not to distribute or post publications without permission by the

commander therefore constituted one of the applicant's duties as

soldier.

      On 26 September 1988 the Constitutional Court refused to admit

the second applicant's complaint on the grounds that it did not raise

any particular issues under constitutional law and that the matter was

not excluded from the competence of the Administrative Court.  The

decision was served on 12 December 1988.

      The applicants' representative submitted a decision of the

Administrative Court of 19 January 1988 declaring, in another case, a

complaint about a decision of the Complaints Division at the Federal

Ministry of Defence inadmissible.  The Administrative Court, in its

reasoning, noted that the above complaint had been transferred by the

Constitutional Court and that there was a divergence in the case-law

of these two Courts on the question whether the decision of the

Complaints Division was a formal decision subject to appeal.

B.    Relevant domestic law

      S. 79 of the Constitution lays down the general duties of the

Austrian armed forces.

      SS. 44 to 46 of the Military Act govern the duties and rights of

the soldiers.  S. 44 para. 1 prescribes that the duty to serve in the

Army obliges the soldiers to support the Army in its tasks, and to

refrain from anything unfavourable to the reputation of the Army.

S. 44 para. 4 entitles every soldier to put forward requests, raise

objections and complain about unlawful acts; such complaints are

decided upon by the Complaints Division at the Federal Ministry of

Defence upon recommandation by the Military Complaints Board (S. 6

para. 4).  According to S. 46 the Army must be kept free from any

party-political activities; soldiers have the same political rights as

other citizens; party-political activities during the service and in

the military area are prohibited, except personal information about

political matters from generally accessible sources.

      Under S. 116 of the Criminal Code defamation or insult of, inter

alia, the Austrian armed forces is punishable.

      The Service Regulations are issued by the Austrian Government

under powers given under S. 13 of the Military Act, and regulate in

detail the military service in the Austrian armed forces.  As regards

the general duties of soldiers, S. 3 states in particular that the

soldier must always be prepared to do his service, and has to refrain

from anything unfavourable to the reputation of, or the trust of the

public in the Austrian Army.  Having regard to his task of defending

his country, the soldier has a particular relationship of loyalty to

the Republic of Austria, which requires discipline, comradeship,

obedience, vigilance, bravery and secrecy.  S. 17 provides for the

duties of persons liable to military service, including a particular

duty of secrecy.  S. 19 contains rules on the tasks of the commanders

of military barracks and, inter alia, the barracks regulations.

COMPLAINTS

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

that its request of 27 July 1987 to the Federal Ministry of Defence for

permission to distribute its military journal "Igel" in the area of

Austrian military barracks has not been granted.  The first applicant

submits in particular that the prohibition on the distribution of

publications and the practice of granting permissions are not

prescribed by law.  The restrictions as regards its journal "Igel" were

not necessary in a democratic society for one of the reasons mentioned

in Article 10 para. 2.

2.    The first applicant also complains under Article 13, in

conjunction with Article 10, of the Convention, that it does not have

an effective remedy under Austrian law to complain about the failure

of the Federal Ministry of Defence to decide upon the above request.

3.    Furthermore, the first applicant complains under Article 14, in

conjunction with Article 10, of the Convention that the practice of the

Federal Ministry of Defence as regards the grant of permission for

distribution and the financial support of some military journals

discriminate against the applicant association for political reasons.

4.    The second applicant complains under Article 10 of the Convention

that the order of 29 December 1987 to stop the distribution of the

journal "Igel" in the area of the Schwarzenberg Barracks and the

subsequent warning, referring to the prohibition on unauthorised

distribution of publications under the Barracks Regulations, violated

his right to freedom of expression.

5.    Moreover, the second applicant complains under Article 13, in

conjunction with Article 10, of the Convention that he did not have an

effective remedy under Austrian law to complain about the above order

and instruction.  He considers in particular that, having regard to the

case-law of the Administrative Court, he could not have obtained relief

before that Court.  Furthermore, the Constitutional Court did not give

any reasons as to the constitutional issues raised in his complaint.

6.    Finally, the second applicant complains under Article 14, in

conjunction with Article 10, of the Convention about discrimination for

political reasons.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 12 June 1989 and registered on

21 June 1989.

      On 27 May 1991 the Commission decided to communicate the

application and to invite the respondent Government to submit written

observations on its admissibility and merits.

      After an extension of the time-limit, the Government's

observations were submitted on 22 October 1991.  The applicants

submitted their observations in reply on 27 January 1992, also after

an extension of the time-limit.

THE LAW

      The applicants complain under Article 10 (Art. 10) of the

Convention about the prohibition on the distribution of the military

journal "Igel" in the area of Austrian military barracks, and the

second applicant in particular about the order of 29 December 1987 to

stop the distribution of the journal "Igel" in the area of the

Schwarzenberg Barracks and the subsequent warning.  Both applicants

also complain under Article 13, in conjunction with Article 10

(Art. 13+10), that they did not have an effective remedy under Austrian

law to complain about the above matters.  Moreover, they complain under

Article 14, in conjunction with Article 10 (Art. 14+10), about

discrimination against them for political reasons.

      The Government maintain that the prohibition on the distribution

of the journal "Igel" in the area of Austrian military barracks does

not interfere with the first applicant's right to freedom of expression

under Article 10 (Art. 10).  They consider that the Federal Government,

in this respect, exercises private property rights as the owner of the

estates where the barracks are situated.  Furthermore, the Government

submit that, assuming there was interference, it was prescribed by law

and necessary in a democratic society for the prevention of disorder.

In particular they contend that the contents of the journal "Igel" were

likely to disparage the Federal Army and to undermine military

discipline.

      The Government further contend that the first applicant has no

arguable claim to complain about a violation of Article 13, in

conjunction with Article 10 (Art. 13+10).

      As regards the second applicant's complaints, the Government

contend that, while the order to stop the distribution of the journal

"Igel" on 29 December 1987 and the subsequent warning constituted

interferences with his right to freedom of expression, they were

justified under Article 10 para. 2 (Art. 10-2).  They also consider

that the second applicant's possibility to lodge complaints with the

Military Complaints Board and the Complaints Division of the Federal

Ministry of Defence, as well as subsequently with the Constitutional

Court, constituted an effective remedy within the meaning of Article

13 (Art. 13).

      Finally, the Government submit that there was no discrimination

against the applicants contrary to Article 14 (Art. 14).

      The Commission finds that the applicants' complaints raise

difficult questions of fact and of law which require an examination of

the merits.  The application is therefore not manifestly ill-founded

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

No other ground for declaring it inadmissible has been established.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION ADMISSIBLE,

      without prejudging the merits of the case.

Secretary to the Commission                 President of the Commission

      (H.C. Krüger)                               (C.A. Nørgaard)