CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 décembre 1963

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is an Austrian citizen, born in ... and living in A.   From a document submitted by the Applicant, it appears that, on ... 1960, he was convicted on charges of neo-Nazi activities and sentenced to 9 months' imprisonment by the Regional Court (Landesgericht) of A.   The conviction was based on Article 3 g of the Constitutional Act concerning the Interdiction of the NSDAP (Verfassungsgesetz über das Verbot der NSDAP), which deals with "National-Socialist activities" ("Betätigung im nationalsozialistischen Sinne").   The Applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) alleging violations of Article 345, paragraph (1), Nos. 6, 8 and 11 of the Code of Criminal Procedure (Strafprozessordnung) and the Office of the Public Prosecutor (Staatsanwaltschaft) lodged an appeal (Berufung) demanding an increase of his sentence.   On ... 1962 the Supreme Court (Oberster Gerichtshof) examined the plea of nullity in a public session in the presence both of counsel for the defence and a representative of the Attorney-General (Generalprokuratur). The Court dismissed the plea of nullity. It then examined the appeal in camera and, after "hearing" the Office of the Attorney-General (Generalprokuratur), dismissed the appeal also.   The Applicant complains that he was wrongly convicted. He submits that the penal provision applied was vague, and that the findings of the Regional Court, while referring generally to his participation in several youth organisations, did not indicate any particular acts which were found to be National-Socialist activities.   The Applicant alleges violations of Article 6, paragraphs (2) and (3), subparagraph (b), Articles 9, 10 and 14 of the Convention.   Proceedings before the Commission   A group of three members authorised by the Commission to proceed under Article 45, paragraph (3), subparagraph (b) of the Rules of Procedure, considered the Application on 24th May 1963 and decided that the Respondent Government should be invited to submit its observations on the admissibility of the Application and, in particular, on the exact manner in which the Attorney-General participated in the proceedings on the appeal before the Supreme Court.   The Application was accordingly communicated to the Respondent Government which, under cover of a letter dated 11th June 1963, replied that the Attorney-General was not present at the session in camera where the appeal was deliberated upon by the judges of the Supreme Court; that he had merely expressed in writing the opinion that the appeal of the Public Prosecutor was well-founded.   On 20th June 1963, the Commission decided   (1) to declare inadmissible, as being manifestly ill-founded, that part of the Application which related to the question of "equality of arms" (Waffengleichheit) before the Supreme Court;   (2) to adjourn its consideration of the remainder of the Application and to invite the Respondent Government to submit further observations on its admissibility.   Under cover of a letter dated 28th August 1963, the Respondent Government submitted the following observations:   "Before a Jury at the Regional Criminal Court (Landesgericht für Strafsachen) of A on ... 1960 X was convicted under Section 3 g VG (Verbotsgesetz - Interdiction Act) and sentenced to 9 months' severe imprisonment (schwerer Kerker), with the additional penalty of 3 nights sleeping hard" ("hartes Lager"), for engaging in National-Socialist activities, in that, from about 1952 onwards, he was training adviser (Schulungsreferent) of the "League of Young Patriots" ("Bund Heimattreuer Jugend"), leading member of the "Vienna League of Young Patriots" ("Bund Heimattreuer Jugend Wien") and of the "Vienna Storm Youth" ("Wiener Sturmjugend"), Federal Leader (Bundesführer) of the "Federation of National Youth Leagues of Austria" ("Arbeitsgemeinschaft Nationaler Jugendbünde Österreichs") and the "Federation of National Youth Associations of Austria" ("Arbeitsgemeinschaft Nationaler Jugendverbände Österreichs") and First Spokesman (Erster Sprecher) of the "National Youth Associations' Fellowship Union" ("Kameradschaftsring Nationaler Jugendverbände").   X's plea of nullity (Nichtigkeitsbeschwerde) and appeal (Berufung) against this judgment was dismissed on ... 1962 by decision ... of the Supreme Court (Oberster Gerichtshof) on the ground that the functions exercised by him had a National Socialist bias.   With regard to the Applicant's contention that the provision of Section 3 g VG is too vague and hence incompatible with Articles 9, 10 and 14 of the European Convention on Human Rights, we submit as follows:   According to Article 9 of the Convention, everyone has the right to freedom of thought, conscience and religion;   freedom to manifest one's religion or beliefs is subject only to such limitations as are prescribed by law and "are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".   According to Article 10, of the Convention, everyone has the right to freedom of expression. "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security ...".   The Applicant's allegation that the penal provision in Section 3 g VG is vague, is presumably to be understood as meaning that the offence defined therein, by its alleged lack of precision, admits of such broad interpretation that the limitations it imposes on the freedoms guaranteed by the Convention are severer than is necessary in a democratic society;   in other words, the alleged vagueness of the provision enables it to be applied also to modes of conduct whose repression is not indispensable in a democratic society in the interests of national security etc.   There is no other sense in which the clause's alleged vagueness could constitute a breach of the Human Rights Convention, since precision in the definition of an offence is not required by the Convention as an end in itself. The German text of Article 9 reads (in a literal translation): "limitations other than those prescribed by law", that is to say it does not refer to the precision of these limitations, whereas Article 10 (German version) reads: "... certain formalities prescribed by law ... which are necessary in a democratic society", but the word "certain" ("bestimmte") here could just as easily be replaced by the word "such" ("solche") as in the English text of Article 10, paragraph (2), which reads: "... may be subject to such (!) ... as are prescribed by law ...". The word "certaines" in the French text corresponds to the German word "bestimmte" in the sense of "solche".   As to the alleged vagueness of the provision itself and, in particular, the contention that it admits of a wider interpretation and application than is admissible under the Convention on Human Rights, we have the following observations to make:   In his "Manual on the Austrian Penal Code" ("Lehrbuch des österreichischen Strafgesetzes"), Volume II, page 355, RITTLER seems at first sight to endorse the Applicant's assertion when he refers to Section 3 g VG as a "penal provision of the utmost vagueness and limitless scope, a provision in which the nature of the offence is by no means clearly defined (ohne Tatbild) and which offers none of the guarantees of a constitutional state". But this appears to be an exaggeration. True, the conception of the offence is wide, but it is not limitless.   Convinced of the danger of a revival of National Socialism, the legislator deemed it essential, in addition to specifying a number of offenses, to insert a general clause providing for the punishment of any "activity" of a National Socialist nature. The punishment of "disloyal sentiments" under Section 3 g VG is thus precluded from the very start (see RITTLER op. cit., page 344). Moreover, as is clear from the fact that Section 3 g VG provides for a severer penalty "in the case of special danger", the normal penalty is imposed only for dangerous activities, so that the provision does not cover petty offenses. The scope of the clause is further defined by the fact that the expression "activities of a National Socialist nature" can be understood only in the sense of a pattern of behaviour (komplexes Handeln) and consequently does not cover individual acts (see Decision of the Supreme Court ...). Furthermore, activities can properly be described as being of a National Socialist nature only when they are the manifestation of "typical National Socialist ideas" (see Section 1 Rechts-Überleitungsgesetz). RITTLER's question (Volume II, page 355), whether the organisation of winter relief work (Winterhilfswerk) or the creation of the institution such as "Kraft durch Freude" ("strength through joy") in an industrial undertaking fall under the terms of the provision, must consequently be answered in the negative;   such institutions are not the outward manifestation of a typical National Socialist way of thinking. Hence actions, which, though customary during the period of National Socialist domination, do not run counter to the spirit of a democratic social order - insofar as they are not characterised by some typical essential feature - must remain outside the scope of Section 3 g VG.   Finally, Section 3 g VG is limited by the exclusion of the actions defined in Sections 3 (a) to 3 (f) VG,   since it includes the phrase: "in ways other than that mentioned in Sections 3 (a) to 3 (f) ("auf andere als die in den Seiten 3 a bis 3 f bezeichnete Weise"). Viewed in this light, the scope of Section 3 g VG, though wide, is nevertheless sufficiently delimited.   The question remains to be considered whether the repression of all modes of conduct covered by Section 3 g VG is necessary (indispensable) in a democratic society in the interests of public safety and/or national security, etc. The Austrian legislator, convinced of the danger which National Socialism presents for the social order, answered this question in the affirmative and it is scarcely to be supposed that the European Commission of Human Rights, whose duty it is, after all, to preserve this democratic order in the European States, will disagree with him.   The Applicant finally alleges violation of Article 14 of the Convention which states that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as ... political or other opinion ... .   This provision in no way precludes the limitation, in the ways enumerated in Articles 9 and 10, of the freedoms set forth therein in cases where the conduct affected by the limitation is the manifestation of particular political opinions, otherwise no State could forbid incitement to political murder. What Article 14 says is merely that the enjoyment of the rights and freedoms safeguarded in the Convention shall not be impaired on the subjective grounds listed in Article 14, but only on the grounds enumerated in the Convention, for instance in Articles 9 and 10. We would also point out in this connection that, by retaining the provision embodied in Section 3 g VG, Austria is fulfilling an obligation contracted under Article 10 of the State Treaty.   X, who was detained from ... 1960 to ... 1960 and from ... 1960 to ... 1960, appointed Dr. Z, barrister, as his defence counsel. On ... 1960 X was served with a copy of the indictment against which he filed a protest, but withdrew it on ... 1960. On ... 1960 he was summoned to appear at the main hearing fixed for ... 1960.   In view of these considerations and the fact that he was free at all times to confer with his counsel during visiting hours, his right to adequate time and facilities for the preparation of his defence was manifestly in no way prejudiced. Hence it is evident that the allegation of a violation of Article 6, paragraphs (2) and (3), sub-paragraph (b), of the Convention is also unfounded!"   On 3rd September 1963, on the instructions of the President of the Commission, the Government's observations of 28th August 1963 were sent to the Applicant who was invited to submit his reply before 19th September 1963.   Under cover of a letter dated 10th September 1963, the Applicant submitted the following reply:   "The Respondent Government confirms that I was convicted on account of my activity as a training adviser (Schulungsreferent) etc. etc., although it was explicitly stated both during the trial and in the Judgment of the Supreme Court that the exercise of the function as such is not punishable (indeed, other co-accused performing the same function were acquitted). It is also asserted (just as before the Supreme Court) that this activity had a National Socialist bias. Once again, this is an empty allegation backed by no proof. Such proof was never sought nor was it furnished. I was arrested for publishing an article (see detention order of ... 1960) calling for a united front against the growing communist infiltration in Austria (title:   "Unite!). I was also accused in the indictment of acting within the meaning of Section 3 g VG, because I "held club meetings" ("Heimabende abhielt") and because the youth groups I belonged to had "flags and pennants" ("Fahnen und Wimpel").   All the other allegations were equally vague. In no case was I accused of a specific National Socialist action, nor was such action ever proved. I repeatedly pointed out, for example, that I never even held a number of the offices mentioned and that, for instance, First Spokesman of the National Youth Associations' Fellowship Union is an honorary office in a West German association, which does not exist in Austria at all, but is naturally permitted in West Germany.   The repression of certain modes of conduct (namely, the free expression of opinion, orally and in writing), by application of Section 3 g VG, could be dispensed with in a democratic society. National Socialism and, in particular, any efforts aimed at destroying democratic institutions must naturally be resisted. I have never given any support to such efforts, nor has it ever been claimed or proven that I did. I have at all times - before my arrest, during my trial and subsequently - made it perfectly clear that I dislike National Socialism because I abhor any restriction of personal freedom and freedom of expression. I can truthfully say that I would have supported National Socialism, if I had held (of hold) such convictions, in the same unequivocal manner as I condemn the practices employed by the Austrian judicial authorities against persons who hold different political opinions.   It is not necessary, in my view, for the Convention on Human Rights to give any precise definition of an offence for the specific purpose of excluding the right to free expression of political opinions. For the moment a political movement is directed at destroying the safeguarded human rights, it cannot be protected by them. This does not in any way apply to my behaviour. Quite the contrary.   The quotations from RITTLER, which I did not know of, hit the nail on the head. They are not an exaggeration. When "Winterhilfswerk" (winter relief work) is cited as an example and it is explained that this, of course, is not a National Socialist activity, I consider that statement a downright mockery, when I think that I was sentenced to 6 months' severe imprisonment at my first trial for the republication of an article previously published in Germany unopposed, containing the two slogans: "Gemeinnutz geht vor Eigennutz" (service not self) and "Gesunder Bauer auf gesundem Acker" (literally, healthy farmer on healthy land). Be that as it may, at least I knew then why I was convicted (namely, on account of the article), but to this day I still do not know why I was convicted at the last trial, since the exercise of my functions - which alone was mentioned in the questions put to the jury and in the judgment - is not punishable. Practically every subsequent sentence in the Austrian Government's statement is totally at variance with the facts. Apart from the fact that I am firmly convinced that anyone founding a "Winterhilfswerk" under that name would immediately be arrested under Section 3 g VG, I find the following sentence particularly noteworthy: "Moreover, ... that the normal penalty is imposed only for 'dangerous' activities, (so that) the provision does not cover petty offenses".   The conception 'dangerous' surely requires no explanation;   I understand the word to apply - roughly - to any action which endangers a person, a State or a society. It is a puzzle to me how I can be held to have acted dangerously simply by writing articles - containing, of course, no incitement to bloodshed, but merely asking for freedom to hold opinions - or by training youth groups, whose members patterned their lives on the boy-scout movement, but with a national bias - there was never any question of training or using them for acts of terror etc. But to continue: When someone, and particularly a youth, paints a swastika on a wall, surely that is a petty offence. Nevertheless (there were such cases), these scribblers were brought to trial under Section 3 g VG - within the meaning of Section 3 g possibly even rightly so, for, if 3 g is thus to be interpreted, they conducted their National-Socialist activities in ways "other than that mentioned in Sections 3 a to 3 f VG." - But how can even the semblance of a reproach be levelled against me?   As to the phrase: "insofar as they are not characterised by some typical essential feature at least one such 'typical essential feature', ought to have come to light and been identified during my trial. Perhaps it will be argued that they were too numerous to identify, but I am certain it will not be, because this simply is not true, but supposing it were ...: Does not every Court in the world take the trouble to convict a thief, for instance, for all the offenses that come to light and give an exact account of them down to the last half penny?   I harbour no doubts about the danger of National Socialism;   all the more reason, therefore, for not supporting it. It is perfectly understandable that the State should take steps to combat it in the event of 'dangerous activities' (see the examples given in Sections 3 a to 3 f VG). But I have never engaged in any - let alone dangerous - activities, nor was it ever alleged that I had, although that was the ground for my conviction.   The assertion that the State must limit human rights, otherwise it could not forbid political murder, is, in my opinion, grotesque. No such finding is necessary, particularly since there is no act whatsoever, whose punishment is provided for in the Civil Code and which can be camouflaged as "political". - But that is the whole point: I find no mention of even one reason, one activity or one act that I have committed that is contrary to the spirit or the letter of the Convention on Human Rights.   Austria states that it has an obligation under the State Treaty to resist National Socialism. This end can also be served by the clearly and precisely worded Sections 3 a and 3 f VG. But it also contracted the obligation to safeguard democracy in Austria and to a democracy belongs the right to express one's opinions and convictions freely (a right also granted lawfully to Communists who are hardly champions of these principles). Now Section 3 g VG which - to quote RITTLER, who up till now was unfortunately unknown to me - "offers none of the guarantees of a constitutional State", is in direct contradiction to this obligation.   I was detained from ... to ... 1960, till I received my indictment. Naturally I was so indignant at the content that I immediately filed a protest. So that my situation can be understood, I must explain that around this time my wife lost her home and gave birth to her second child. I was anxious, therefore, that my trial should come up at least before Christmas. My counsel consequently advised me to withdraw my protest in order not to hold up the proceedings. The trial in fact took place on ... and I was released on ..., that is to say ... days before Christmas. I have no evidence, but I can quote at least 30 similar cases to show that persons detained under Section 3 g pending investigation are kept in custody a very long time, because in most cases they are later acquitted. I already mentioned in my first Application the case of a man who spent, in all, 36 months in prison pending investigation and was acquitted after three trials but did not receive a penny by way of compensation. Knowing this - after all, I was in prison for 11 months and was heard only 8 times - I was anxious to avoid delaying proceedings.   With regard to the impeding of my defence I have this to say: It is claimed that I was free to confer with my counsel at any time. That is true. Only, I cold not afford a counsel for I had no money. I was glad, therefore, when two gentlemen put themselves at my disposal free of charge (one of them, incidentally, was a Socialist municipal councillor who interceded on my behalf out of indignation at my arrest), and so I could not make too great demands on them.   Furthermore, throughout the entire period of my detention, I was in a cell with criminals (my requests to be moved to an individual cell was rejected) and I was refused stationery and writing materials, not to mention books or documents. That, in my view was a very considerable impediment to my defence.   I should like to say, in conclusion, that what this Application is designed to achieve is not my rehabilitation, for the months I spent in prison and the suffering caused to my family cannot be undone and I have never considered myself a criminal. What I seek is the right to freedom of expression. For - it may be annoying - I have a mind of my own and would like to be able to say what I think. In the circumstances obtaining in Austria as a result of Section 3 g VG, this is, however, scarcely possible without running the risk of imprisonment. But, in addition, I should like to be accused of a specific crime, so that I can furnish evidence to disprove it and obtain a retrial of my case. I beg you to help me in this".   THE LAW   Whereas, in regard to the Applicant's complaint that the penal provision applied in his case was so vague as to constitute a violation of the Convention, the Commission finds that the terms of the charge drafted against him under Article 3 g of the Interdiction Act created a justifiable offence consistent with the Convention; whereas, although the Applicant himself has not specified the exact provisions of the Convention on which he relies in this respect, the Commission has had regard to Article 6, paragraph (1) (Art. 6-1) being generally "fair hearing" to a person charged with a criminal offence, and to Article 6, paragraph (3), subparagraph (a) (Art. 6-3-a) guarantees to an accused person the right to be informed promptly and in detail of the nature and cause of the accusation against him; whereas the Commission has equally had regard to the provision of Article 7 (Art. 7) as however, there is no appearance of a violation of any of the rights and freedoms set forth in the Convention and in particular in these Articles; whereas it follows that this part of the Application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2),(Art. 27-2) of the Convention;   Whereas the Applicant also complains that the findings of the Regional Court, while referring generally to his participation in several youth organisations, did not specify any particular acts as being National Socialist activities; whereas this complaint was also raised by the Applicant before the Supreme Court; and whereas the Supreme Court held that the findings of the Jury of the Regional Court were sufficiently precise and consistent with Article 345, paragraph (1), Nos. 6, 8 and 11 a, of the Code of Criminal Procedure (Strafprozessordnung) as they indicated the nature of the acts in question, the circumstances in which they were committed and the period during which the acts were perpetrated;   Whereas it further appears from the decision of the Supreme Court that the Presiding Judge of the Regional Court, when directing the Jury, explained that a necessary element under Article 3 g of the Interdiction Act was an intention to undermine democratic government in Austria in order to revive National Socialism, as practised in Austria from 1938 to 1945; whereas, consequently, the Commission is satisfied that the Jury of the Regional Court, having been so directed and in convicting the Applicant under Article 3 g of the Interdiction Act, must have found that he had intended to introduce National Socialism in Austria; and whereas, furthermore, there is no reason to consider that the Jury, in arriving at this conclusion, was acting in bad faith or in any other way inconsistent with the provisions of Article 6, paragraph (1) (Art. 6-1) of the Convention;   Whereas, in these circumstances, the Applicant's rights to freedom of thought and expression, as guaranteed in Articles 9 and 10 (Art. 9, 10) of the Convention were not violated by his conviction and sentence; whereas, in particular, the Commission finds that the Applicant's conviction and sentence, which necessarily imposed restrictions upon him in his exercise of these freedoms, were in pursuance of provisions in penal law; whereas, further having regard to the Applicant being duly convicted for activities aimed at the re-introduction into Austria of National Socialistic activities, the Commission finds that these restrictions were necessary in a democratic society in the interests of public safety and national security and for the protection of the rights and freedoms of others; whereas, therefore, the penal measures taken against the Applicant were justified under Article 9, paragraph (2), and Article 10, paragraph (2) (Art. 9-2, 10-2) respectively;   Whereas, consequently, it is not necessary to examine whether these measures were also satisfied under Article 17 (Art. 17) of the Convention; whereas it follows that this part of the Application, too, is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2), (Art. 27-2) of the Convention;   Whereas, in regard to the remaining complaints of the Applicant concerning the alleged violations of his right to defend himself, an examination of the case as it has been submitted, included an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 6 (Art.6);   Whereas it follows that the remainder of the Application also is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention;   Now therefore the Commission declares this Application INADMISSIBLE.