Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12774/87

by B.H., M.W., H.P. and G.K.

against Austria

The European Commission of Human Rights sitting in private

on 12 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. C.L. ROZAKIS

L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 10 December

1986 by B.H., M.W., H.P. and G.K. against Austria and registered on 25

February 1987 under file No. 12774/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated on 5 July and 12 October 1989;

Decides as follows:

THE FACTS

The applicants, Austrian citizens born in 1951, 1958, 1958 and

1950 respectively, reside in Vienna. All are respresented by the

first applicant who has lodged two previous applications with the

Commission (No. 8514/79 rejected on 16 October 1980 and No. 9905/82

rejected on 15 March 1984).

The facts submitted may be summarised as follows.

The applicants complain of Assize Court (Geschworenengericht)

proceedings taken against them and other persons under the National

Socialism Prohibition Act (Verbotsgesetz). The investigation started

in 1978, and the indictment was preferred in February 1983. The trial

before the Regional Criminal Court (Landesgericht für Strafsachen) of

Vienna opened in October 1983. On 2 April 1984 each of the applicants

was convicted of one or more offences under Section 3g of the above

Act. They received conditional prison sentences of 9, 3, 18 and 12

months respectively.

Section 3g para. 1 provides:

(German)

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

Weise im nationalsozialistischen Sinne betätigt, wird,

sofern die Tat nicht nach einer anderen Bestimmung strenger

strafbar ist, mit Freiheitsstrafe von 5 bis 10 Jahren, bei

besonderer Gefährlichkeit des Täters oder der Betätigung bis

zu 20 Jahren bestraft. Auch kann auf Vermögensverfall erkannt

werden."

(Translation)

"Whoever performs activities inspired by National Socialist

ideas in a manner not coming within the scope of Sections 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."

As provided for in the Code of Criminal Procedure

(Strafprozessordnung) in regard to Assize Court proceedings, the

judgment was not reasoned. In view of the detailed questions put to

the jury (Geschworenen) it appears that the applicants were found

guilty of various acts, performed by them in connection with their

membership and leading functions in right wing political organisations

called "Aktion Neue Rechte" (ANR) and "Nationalistischer Bund

Nordland" (NBN), which constituted activities inspired by National

Socialist ideas. These activities included, inter alia, the

preparation and promotion of certain publications (such as pamphlets

suggesting that the killing of six million jews by the Nazis was a

lie; the ANR party programme based on biological differences between

individuals, peoples and races, the principle of elitarianism, the

national unity of the German nation in its "Lebensraum" as a whole,

including "foreign occupied territories", rejection of the concept of

an "Austrian nation" and recognition of the German character of this

territory; publications calling for a boycott of the Austrian national

holiday which was described as a hypocritical exercise, while the

State Treaty was referred to as the "Diktat" of Vienna and the

prohibition of Anschluss as being null and void and contrary to the

right of self-determination; publications calling for the celebration

of the day of German unity in Austria and describing the concept of an

Austrian nation as a lie; proposals to introduce typical Nazi songs

and Nazi titles in the ANR, etc.). They further included the

participation in certain demonstrations (inter alia celebration of the

90th birthday of Hitler in Braunau, organisation of a demonstration

against the Austrian State Treaty, holding of paramilitary exercises,

use of uniforms remindful of Nazi outfits and shouting of Nazi paroles

such as "Sieg Heil", "Rotfront verrecke").

The presiding judge had in his legal instructions to

the jury stated that Austria had made a reservation concerning the

compatibility of the Prohibition Act with Articles 10 and 11 of the

Convention. The legal instructions also listed examples of acts

coming within the scope of Section 3g, in order to provide guidance to

the jury in view of the broad wording of this provision. A voluminous

expert opinion on affinities between ANR and NBN activities and

National Socialist ideology, which had been prepared during the

investigation, was, however, not used at the trial.

The Supreme Court (Oberster Gerichtshof) confirmed the above

convictions on 25 June 1986 while reducing the sentence of the third

applicant to fifteen months. It rejected, in particular, the

applicants' pleas of nullity (Nichtigkeitsbeschwerden) by which they

had challenged the composition of the Assize Court (alleged bias of a

juror), the expert opinion to which the indictment referred (alleged

bias of the expert and one-sidedness of the opinion), the refusal to

hear further experts at the trial, the formulation of the questions to

the jury (allegedly partly prejudicial to the defence and partly not

sufficiently precise) and of the legal instructions given to the jury

(allegedly wrong information concerning an Austrian reservation to the

Convention and prejudicial examples of acts coming within the scope of

Section 3g of the Prohibition Act), the late transmission of the trial

transcript to the defence (as interference with the applicant's rights

of defence, in particular as regards their appeals) and finally the

order imposing the entire costs of proceedings on the applicants

although they had partially been acquitted.

COMPLAINTS

The applicants allege violations of their rights under

Articles 6, 7, 10, 14, and 18 of the Convention.

THE LAW

1. The Commission has first examined the applicants' complaints

under Articles 7, 10, 14 and 18 (Art. 7, 10, 14, 18) of the Convention

concerning the legal basis of their conviction.

Article 7 para. 1 (Art. 7-1) of the Convention provides:

"1. No one shall be held guilty of any criminal offence

on account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed."

The applicants submit that Section 3g of the National

Socialism Prohibition Act is not a valid norm of Austrian law. It

was enacted in an unlawful procedure and abrogated by subsequent

constitutional legislation, including Article 10 (Art. 10) of the Convention.

Moreover Section 3g is not sufficiently precise to serve as a basis

for a criminal conviction. Its broad wording allows arbitrary

application to acts not inspired by National Socialist ideology, but

by German nationalist thinking compatible with the Austrian democratic

system. There has thus been a violation of Article 7 para. 1 (Art.7-1)

of the Convention.

The Commission notes, however, that the Austrian Supreme Court

confirmed the continued validity and the constitutionality of Section

3g of the Prohibition Act, which is primarily a question of internal

law. The Commission finds that this decision is neither arbitrary nor

unreasonable. It here observes that in the Austrian State Treaty of

1955 Austria undertook to maintain its legislation outlawing National

Socialist activities. As regards the alleged lack of precision of

Section 3g, it is true that the reference to "activities inspired by

National Socialist ideas" is rather vague. However, the legislator

intended to outlaw any kind of National Socialist activities. The

scope of the provision is limited to National Socialism as a

historical ideology, frequently referred to in Austria and elsewhere.

This is a sufficiently precise concept which allows distinctions to be

drawn from other types of nationalist thinking. The Commission notes

that the case-law and legal doctrine in Austria have developed further

criteria making the applicable law sufficiently accessible and

foreseeable. Thus the jury in the present case was also able to

distinguish between activities of the applicants which could and which

could not be regarded as being inspired by National Socialist ideas.

The Commission therefore finds no appearance of a violation of

Article 7 (Art. 7) of the Convention. This part of the application is

therefore manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicants claim that Section 3g, as applied in their

case, unjustifiedly interfered with their freedom of expression

guaranteed by Article 10 (Art. 10) of the Convention in that it provided a

disproportionate sanction for the expression of certain opinions, in

particular on historical facts which should be discussed freely in a

democratic society. The applicants also complain of discrimination,

contrary to Article 14 (Art. 14) of the Convention, on account of their being

Austrians attached to German nationalism, and state that similar

sanctions are not provided for those who deny, minimize or defend

communist crimes or war crimes of the Allied Powers. Finally, they

invoke Article 18 (Art. 18) of the Convention, claiming that the

restrictions of their freedom of expression were applied for other

purposes than authorised by the Convention, namely in order to

suppress German nationalist thinking and publications which were not

forbidden.

However, the Commission finds no indication of a violation of

these provisions. The prohibition against activities involving 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.

Insofar as National Socialist activities are treated

differently in Section 3g from those of other political groups, this

has an objective and reasonable justification in the historical

experience of Austria during the National Socialist era, her treaty

obligations, and the danger which activities based on National

Socialist thinking may constitute for the Austrian society. The

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

provides that nothing in the Convention shall be interpreted as

implying for any group or person any right to engage in any activity

aimed at the destruction or limitation of the Convention rights (cf.

No. 12194/86, Kühnen v. Federal Republic of Germany, Dec. 12.5.88,

to be published in D.R.). The Commission notes that National

Socialism is a totalitarian doctrine incompatible with democracy and

human rights and that its adherents undoubtedly pursue aims of the

kind referred to in Article 17 (Art. 17). There is therefore no

appearance of discrimination contrary to Article 14 (Art. 14) of the

Convention.

Insofar as the applicants finally allege that, contrary to

Article 18 (Art. 18) of the Convention, the restriction of their freedom of

expression pursued other purposes than those provided for in the

Convention, the Commission finds no indication that they were actually

convicted of anything but activities inspired by National Socialist

ideas. This also applies to the promotion of publications for which

the applicants were convicted.

The applicants' complaints based on Articles 10, 14 and 18

(Art. 10, 14, 18) of the Convention are therefore manifestly

ill-founded.

3. The applicants finally allege violations of Article 6 (Art. 6)

of the Convention which, insofar as relevant, reads as follows:

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

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

a reasonable time by an independent and impartial tribunal

established by law. ...

3. Everyone charged with a criminal offence has the

following minimum rights:

...

(b) to have adequate time and facilities for the

preparation of his defence;

...

(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 applicants first submit that, contrary to Article 6

para. 1 (Art. 6-1), the Assize Court was not impartial. One member of

the jury allegedly belonged to a trade union organisation which had

called for a ban of the ANR. However, the applicants' challenge of

this juror was rejected as having been raised out of time and, in any

event, as being unsubstantiated. The Commission finds no evidence of

bias on the part of this juror. It is further alleged that the jury

as a whole was improperly influenced by a press campaign against the

applicants in which the presiding judge participated. However, the

applicants did not challenge the presiding judge nor the jury on this

ground and there is again no evidence that the Court or any of its

members were biased.

It is also submitted that the jury was improperly influenced

by a one-sided expert opinion, prepared by a professor whose superiors

had been engaged in activities against the ANR. However, the expert

opinion in question was prepared during the investigation and only

used by the prosecution when preparing the indictment; it was not put

before the jury and therefore could neither have influenced its

impartiality nor the fairness of the trial. The applicants complain

that at the trial no further expert opinions were obtained, as

requested by the fourth applicant. However, as the first expert

opinion was not laid before the Court, there was no unequal treatment

of the defence and the prosecution in this respect. Moreover, Article 6

para. 1 read in conjunction with para. 3 (d) (Art. 6-1+6-3-d)

of the Convention, does not give the defence an absolute right to the

hearing of specific expert evidence. The Commission considers that

in the present case the refusal of additional expert evidence was

justified in the circumstances.

The applicants then complain that the trial was unfair because

some questions to the jury were imprecise, others suggestive. However,

the Commission finds nothing in the questions which would allow the

conclusion that the trial was unfair.

The applicants also challenge as unfair the legal instructions

given to the jury by the presiding judge. They allege that the

examples given to illustrate the scope of Section 3g of the

Prohibition Act corresponded to the charges and therefore implied a

finding of their guilt. However, in view of the broad wording of

Section 3g, the Commission accepts that it could reasonably be

regarded as necessary to provide guidance to the jury by way of

illustrative examples tailored towards the facts of the concrete case.

The presiding judge did not simply present the various acts included in

the indictment as constituting behaviour punishable under Section 3g.

As observed by the Supreme Court, the examples were taken from

previous case-law of the Austrian courts and left it to the jury to

judge which elements should be regarded as decisive for determining

the charge. The jury in fact did not follow the indictment on all

points and made a number of distinctions. Viewed as a whole, the

trial therefore does not appear unfair.

The applicants further complain that the presiding judge

wrongly stated that Austria had made a reservation to Articles 10 and

11 (Art. 10, 11) of the Convention concerning the Prohibition Act.

The Supreme Court considered this as irrelevant as in any event the

provisions of the Prohibition Act were covered by the exceptions in

paragraph 2 of each of these Articles. The Commission shares this

view and finds no unfairness in this respect.

The applicants also regard it as unfair that the costs were

imposed on them although they were partially acquitted. However, this

order did not render the proceedings unfair either.

The applicants complain that the trial record was served upon

them late, thus impairing their rights of defence in that they could

not ask for corrections before the verdict of the jury and were

hampered in the preparation of their appeals. However, the Commission

finds no unfairness of the trial in this respect and notes that the

applicants submitted voluminous pleas of nullity and appeals to the

Supreme Court. It also finds no appearance of a violation of the

applicants' rights under Article 6 para. 3 (b) (Art. 6-3-b).

The applicants finally complain of the length of the

proceedings, including those on appeal, and observe that the

prosecution knew the ANR party programme since 1976. The Commission

notes that the investigation apparently commenced in 1978. The

applicants were tried five years later, between October 1983 and

April 1984. The appeal proceedings lasted more than two years until

June 1986. The total length of the proceedings - altogether some

eight years - is therefore considerable. However, the case was

complicated and involved nine defendants, most of whom were accused of

several offences, extending over a long period. The offences

concerned a complex behaviour consisting in numerous individual acts.

Several searches were carried out and many witnesses heard, in

particular during the investigation in which a voluminous expert

opinion was also obtained. The trial extended over several months,

the judgment runs to 97 pages, the Supreme Court decision to 80 pages.

Taking all circumstances duly into account, the Commission is

satisfied that the length of the proceedings did not exceed the

"reasonable time" provided for in Article 6 para. 1 (Art. 6-1) of the

Convention.

The applicants' complaints under Article 6 (Art. 6) of the Convention

are therefore equally manifestly ill-founded.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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H., W., P. AND K. v. AUSTRIA

H., W., P. AND K. v. AUSTRIA

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