DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

In this case I have not found a violation of Article 10 (art. 10) of the Convention, or of Article 13 (art. 13).

With regard to the first applicant, I agree with the opinion of Mr Matscher joined by Mr Bernhardt.

In respect of the second applicant, Mr Gubi , I would make the following remarks:

In paragraph 36 of the judgment the Court makes what appears to me to be the obvious point that "the proper functioning of the army is hardly imaginable without legal rules designed to prevent servicemen from undermining military discipline ...". Certain restrictions were undoubtedly imposed on Mr Gubi when he was ordered by an officer to stop distributing the magazine der Igel in his barracks. However, these restrictions were limited to his conduct within the barracks. They did not affect the distribution of this publication in any other way. Applying the principle of proportionality, I have, unlike the Court, found that the Austrian officer acted within the permissible boundaries of Article 10 (art. 10) in issuing the said order to Mr Gubi .

PARTLY DISSENTING OPINION OF JUDGE MATSCHER, JOINED BY JUDGE BERNHARDT

(Translation)

I agree with the finding of a violation as regards the second applicant but not as regards the first applicant.

The latter complained that there had been a violation of Article 10 (art. 10) of the Convention on account of the refusal of the Minister for Defence to include the magazine der Igel in the list of periodicals distributed by the army. Article 10 (art. 10) protects the freedom of expression and information but does not guarantee publications a right to be distributed by the public authorities. The "official" distribution of the journal in question would have amounted in a way to identifying at least implicitly with the content of the magazine, which, in my view, the relevant military authorities could not be expected to do.

It was, moreover, entirely open to the conscripts who were interested in reading the magazine to subscribe to it, to have it mailed to them privately or to buy it when they went outside the barracks, which they did virtually every day, and bring it back to the barracks. In addition, the first applicant could send the magazine free of charge to the conscripts either at the barracks or at their private address. The requirements of Article 10 (art. 10) were in this manner fully complied with in relation to the applicant association.

In these circumstances, as regards the first applicant there was no interference with the right protected under Article 10 (art. 10); it follows that there could likewise be no breach of Article 13 (art. 13) in relation to it.

[*]  The case is numbered 34/1993/429/508.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 302 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.