Information Note on the Court’s case-law 15

February 2000

Schimanek v. Austria (dec.) - 32307/96

Decision 1.2.2000 [Section I]

Article 10

Article 10-1

Freedom of expression

Conviction for being involved in activities inspired by the National Socialist ideology: inadmissible

Article 7

Article 7-1

Criminal offence

Foreseeability of offence defined by law as “activities inspired by National Socialist ideas”: inadmi ssible

Article 17

Destruction of rights and freedoms

Conviction for being involved in activities inspired by the National Socialist ideology: inadmissible

The applicant was arrested on suspicion of having been involved in activities inspired by the National Socialist ideology. The Assize Court convicted him on the basis of section 3a § 2 of the National Socialism Prohibition Act and sentenced him to fifteen years’ imprisonment. It was established that the applicant, as leader of a pro-Nazi group, had been involved in the recruitment of new members and had organised meetings where the Third Reich was glorified and the existence of the systematic killing by the use of toxic gas in concentration camps was denied. He was also found to have contributed to the distribution of pamphlets promoting this ideology. Upon the applicant’s plea of nullity and appeal against sentence, the Supreme Court confirmed the convictio n while reducing the sentence to eight years’ imprisonment in view of confessions he had made at the trial.

Inadmissible under Article 3: The Convention does not in general provide a basis for contesting the length of a sentence lawfully imposed by a compe tent court. Only in exceptional circumstances will the length of a sentence raise doubts as to its compatibility with this Article. In the present case, the applicant was found guilty of a serious political offence, namely of having played an active role i n an association which aimed at, inter alia , undermining the autonomy and independence of the Austrian Republic or subverting public order by the promotion of National Socialist ideas. Having regard to the careful examination of the applicant’s sentence by the Supreme Court, there were no circumstances that could raise doubts as to the length of the prison sentence: manifestly ill-founded.

Inadmissible under Article 7: When using the broad notion of “activities inspired by National Socialist ideas” in secti on 3a § 2 of the Prohibition Act the legislator’s intention was to outlaw all National Socialist activities. Moreover, the scope of the provision is limited to the National Socialist concept as a historical ideology, frequently referred to in Austria and e lsewhere, which can be considered to be a sufficiently precise concept. Finally, the case-law and doctrine in Austria have developed further criteria making the applicable law sufficiently accessible and foreseeable and enabling the jury to distinguish cle arly between the applicant’s activities and those which could not be considered as National Socialist activities: manifestly ill-founded.

Inadmissible under Article 10: The prohibition against activities involving the expression of National Socialist ideas is prescribed by Austrian law and, in view of the historical past forming the immediate background of the Convention itself, can be justified as bein g necessary in a democratic society in the interests of national security and territorial integrity as well as for the prevention of crime. Section 3a (2) of the Prohibition Act prohibits the founding or leading of groups which aim at undermining public or der or the autonomy or independence of the Austrian Republic through its members’ activities which echoed National Socialist precepts. The applicant was found guilty of having held a leading position within such a group. National Socialism is a totalitaria n doctrine incompatible with democracy and human rights and hence its adherents pursue aims of the kind referred to in Article 17. Therefore, the applicant’s conviction was necessary in a democratic society: manifestly ill-founded.

© Council of Europe/Eur opean Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes