CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 avril 1991

.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 }                        AS TO THE ADMISSIBILITY OF                         Application No. 13470/87                       by P. Institut                       against Austria             The European Commission of Human Rights sitting in private on 12 April 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   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 RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   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 6 October 1987 by P. Institut against Austria and registered on 2 December 1987 under file No. 13470/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the Commission's decision of 5 March 1990 to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application as well as a copy of the confiscated film;           Having regard to the Government's observations of 25 May 1990 and the applicant's observations in reply of 5 July 1990;           Noting that the film was submitted to the Commission on 12 October 1990;           Having regard to the Commission's decision of 7 January 1991 to appoint a delegation to attend a screening of the film;           Having regard to the delegation's report of 16 January 1991;           Having deliberated on 17 January and 12 April 1991;           Decides as follows:   THE FACTS           The applicant, P. Institut Verein für audiovisuelle Mediengestaltung, is a private association established in Innsbruck, acting through its executive committee (Vorstand) who instructed Mr. Frank Höpfel, a university professor and criminal defence counsel in Innsbruck, to represent it before the Commission. It runs a cinema in Innsbruck and complains of the seizure and subsequent forfeiture of a German film which it intended to show there on 13 May 1985 at 22.00h. The film in question had earlier been shown in Vienna and apparently also in Graz without provoking any intervention by the authorities (see below).           The facts submitted may be summarised as follows.           The film in question, "Das Liebeskonzil" (The Council of Love) by Werner Schroeter, is based on a theatre play by Oskar Panizza of 1884 which after its first performance gave rise to criminal proceedings against the author before the Regional Court of Munich. The film shows this play, as put on the stage in the Teatro Belli in Rome in 1981 (a performance which provoked a theatre scandal), as a story within the story of the criminal proceedings against the author.   The play concerns a Council in Heaven, convoked by God the Father after having learnt of the lascivious life of the people of Naples in order to invent a punishment which would strike mankind without interfering with their need for salvation.   To this end the Devil and Salome procreate a daughter who is sent to Earth to spread syphilis first in the Court of the Pope and the monasteries and finally among the ordinary people.   In its judgment of 10 October 1986 the Regional Court (Landesgericht) of Innsbruck found that the scenes of the film showing the play "depicted God the Father as a senile and impotent fool, Christ as a cretin, and his mother, Mary, as a lascivious lady, and ridiculed the Eucharistic ceremony".           Before the film was to be shown in Innsbruck, the public prosecutor on 10 May 1985 instituted criminal proceedings against the applicant association's manager, being the responsible person under the Media Act (Mediengesetz), on the suspicion of the attempted criminal offence of disparaging religious precepts (Herabwürdigung religiöser Lehren) under Section 188 of the Penal Code (Strafgesetzbuch).   On 12 May, after the film had been shown in a private session in the presence of a duty judge (Journalrichter), the prosecution requested its seizure under Section 36 of the Media Act. This was granted by the Regional Court of Innsbruck the same day, and the film therefore could not be shown to the general public.   As the applicant association's manager had returned the film to the distributor, a firm in Vienna, the film was actually seized at the latter's premises on 11 June 1985.           The appeal of the applicant association's manager against the Regional Court's seizure order was rejected by the Innsbruck Court of Appeal (Oberlandesgericht) on 30 July 1985.   It held that the seizure was justified since the contents of the film were likely objectively to constitute the criminal offence of disparaging religious precepts in such a manner that the fundamental right of artistic freedom had to give way.   In this context the subjective side of the offence, i.e. the intent of the applicant association's manager, was not essential, the seizure being a preventive measure which could be taken on the basis of the objective facts if there was a well-founded suspicion of a criminal offence.   In the Court of Appeal's opinion the massive insult to religious feelings outweighed the arguments based on artistic freedom, the public's general interest in information and the financial interests of the persons who wished to show the film.           On 24 October 1985 the criminal proceedings against the applicant association's manager were dropped and the further proceedings were conducted as objective proceedings for the forfeiture (Einziehung) of the film under Section 33 of the Media Act.   In these proceedings, the distribution firm informed the Court that the copy to be shown in Innsbruck was the only copy existing in Austria and that they waived their right to the return of this copy and agreed to its destruction.   A trial took place before a single judge of the Innsbruck Regional Court on 10 October 1986.   At the trial, the film was shown again.   The distribution firm was not represented and the applicant association's manager, who had been summoned as an interested party (Haftungsbeteiligter), explained that he had sent the film back to the distribution firm following the seizure order since he did not wish to have anything to do with the matter.           The forfeiture was granted on the ground that the showing of the film in public would have constituted the criminal offence under Section 188 of the Penal Code.           In the reasons it was pointed out that God the Father, Christ and Mary were the central persons of veneration in the Catholic church and that also the Eucharistic ceremony was protected by Section 188. Not every injury of religious convictions was punishable under this provision, but only one that disturbed the religious peace by arousing public irritation.   In the present case the disparagement of God the Father, Christ, Mary and the Eucharistic ceremony was reinforced by the general character of the film as an attack on Christian religion. It was done in a scope and manner likely to disturb the feelings of average people, in particular the majority of believing Christians. This was not counterbalanced by the fact that a small minority of persons might be able to interpret the film in a positive way, having regard to the logical context of the disparaging remarks which could be seen as criticism of historic facts and of religious practices.           The freedom of art under Article 17 (a) of the Basic Law on the Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger) could not be invoked as this freedom was limited by other fundamental rights such as the right to religious freedom and by the necessity of a social order based on tolerance and respect for legally protected values.   While Section 188 of the Penal Code did not in itself restrict the freedom of art, there was in the present case such an intensive interference with religious feelings by the provocative anti-Christian attitude of the film that it outweighed the freedom of art.           The applicant association's manager appealed against the judgment, submitting a declaration signed by some 350 persons who protested that they had been prevented from having free access to a work of art, and claiming that Section 188 of the Penal Code had not been interpreted in line with the requirements of freedom of art under Article 17 (a) of the Basic Law.   However, on 25 March 1987 the Innsbruck Court of Appeal declared the appeal inadmissible, finding that the applicant association's manager had no standing as he was not the owner of the rights in the film which belonged to the distribution firm.           In May 1987 the Federal Minister for Education, Arts and Sport, Mrs.   Hawlicek, in a private letter approached the Attorney General (Generalprokuratur) suggesting the filing of a plea of nullity for safeguarding the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) with the Supreme Court (Oberster Gerichtshof).   The Attorney General made investigations which revealed that the film had been shown in Vienna in 1984 and that already at that time preliminary investigations had been made under Section 36 of the Media Act.   It had been noted that the contents of the film objectively constituted the offence of disparaging religious precepts, but no request for the seizure of the film had been made because it had no longer been on the programme of the Vienna cinema concerned and it had not been clear whether a copy of the film was still in Austria.   The investigations also concerned the manner in which the showing of the film had been announced in Innsbruck.   Finally, the Attorney General ruled on 26 July 1988 that there was no reason to file a plea of nullity for safeguarding the law.   Detailed reasons were given for this ruling which included, in particular, references to the legal doctrine in Austria and the Supreme Court's decision in the Achternbusch case which concerned the seizure of another film (11 Os 165,166/85-9, Medien und Recht 1986, No. 2 p. 15).   COMPLAINTS           The applicant association submits that the seizure and forfeiture of the film violated its right to freedom of expression, including the right to receive and impart information and ideas, as guaranteed by Article 10 of the Convention.   This interference was not justified under Article 10 para. 2 in that it was not "prescribed by law" (the Regional Court's interpretation of Section 188 of the Penal Code being unconstitutional) nor "necessary in a democratic society to protect the rights of others".   PROCEEDINGS           The application was introduced on 6 October and registered on 2 December 1987.           On 5 March 1990 the Commission decided, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former version), to give notice of the application to the respondent Government and to invite the parties to submit observations on its admissibility and merits; the Commission further requested the Government to submit a copy of the confiscated film.           The Government submitted their observations within the time limit fixed for this purpose, on 25 May 1990.   The applicant association replied on 5 July 1990.   On 12 October 1990 the Government submitted a copy of the confiscated film to the Commission.           On 7 January 1991 the Commission decided to appoint a delegation of five German speaking members (MM. Trechsel, Ermacora, Jörundsson, Weitzel and Danelius) to attend a screening of the film. The screening took place on 15 January 1991.           The delegation deliberated on 16 January 1991 and reported to the full Commission on 17 January 1991.   The Commission's deliberations continued on 12 April 1991.   THE LAW           The applicant association complains of the seizure and forfeiture of the film "Das Liebeskonzil" which it had intended to show in its cinema.   It invokes its right to freedom of expression, as guaranteed by Article 10 (Art. 10) of the Convention, which reads as follows:   "1.    Everyone has the right to freedom of expression.   This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.   This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   2.   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, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."           The Commission must examine under the first sentence of Article 10 para. 1 (Art. 10-1) whether the seizure and forfeiture of the film in question constituted an interference with the applicant association's rights.           The Government submit that the applicant association is not entitled to bring an application with respect to these measures because the contents of the film were not an expression of its own opinion.   The applicant association contests this, claiming that there has been an interference with its right to purvey an artistic work.           In the Commission's opinion the scope of Article 10 (Art. 10) of the Convention is not limited to the expression of one's own views. Everyone who wishes to impart to others information or ideas from whatever source can invoke this provision.   Also a cinema enterprise which wishes to show a particular film as part of its programme is therefore protected by Article 10 (Art. 10).   In the present case the applicant association was prevented from showing the film in question in its cinema as a consequence of its seizure and subsequent forfeiture.   It is true that the applicant association was not itself a party to the domestic proceedings.   However, it was in substance affected by the result of these proceedings and can therefore claim to have been a victim, within the meaning of Article 25 (Art. 25) of the Convention, of a violation of its rights under Article 10 (Art. 10) of the Convention.           The Government next submit that the six-months time limit provided for in Article 26 (Art. 26) of the Convention has not been complied with.   They claim that the applicant association was only affected by the seizure of the film, but not its subsequent forfeiture.   The proceedings on the seizure were terminated by the decision of the Innsbruck Court of Appeal of 30 July 1985 and the applicant association or its manager were not parties to the subsequent proceedings on the forfeiture of the film under Section 33 of the Media Act, which according to the Government concerned only the owner of the film rights, i.e. the distribution firm.   This was confirmed by the Court of Appeal's decision of 25 March 1987.           The applicant association claims that it was affected not only by the seizure of the film, but also its forfeiture.   In this respect it observes that its manager was treated as a party to the forfeiture proceedings at least in first instance, and that it was only by the Court of Appeal's final decision of 25 March 1987 that he was denied party status.   In any event it was only by this decision that the substantive justification of the prohibition to show the film was finally determined under Austrian law.   The applicant association therefore considers that the six-months time limit must be calculated from the date of this decision.           The Commission notes that according to the Court of Appeal's earlier decision of 30 July 1985 the seizure of the film was expressly described as a "provisional measure" based on a "suspicion" of a criminal offence which did not presuppose a final decision on the question whether the contents of the film actually constituted such an offence.   The Court of Appeal held that "at this stage of the proceedings" it was therefore not necessary to deal with all the aspects of the case such as the subjective elements of the offence.           In these circumstances the Commission considers it justified to regard the forfeiture case as a further stage of the same proceedings.           The Commission therefore finds that the Court of Appeal's decision of 25 March 1987 must be regarded as the final domestic decision within the meaning of Article 26 (Art. 26) of the Convention in the applicant association's case.   As the association lodged the application on 6 October 1987, i.e. less than six months after the final decision, the application cannot be rejected as having been filed out of time.           The Government admit that, as such, the seizure and subsequent forfeiture of the film constituted interferences by public authorities with the exercise of the right of freedom of expression.   As these interferences also affected the applicant association's rights under Article 10 para. 1 (Art. 10-1) of the Convention, it is necessary to examine their possible justification under Article 10 para. 2 (Art. 10-2).           The Government claim that the interferences in question were fully justified under this provision.   They were "prescribed by law" being based on the relevant provisions of the Media Act in conjunction with Section 188 of the Austrian Penal Code and Article 17 (a) of the Basic Law on the Rights of Citizens.   They also pursued legitimate aims covered by Article 10 para. 2 (Art. 10-2), namely the protection of morals and the protection of the rights of others.   Finally the measures were "necessary in a democratic society" having regard to the duties and responsibilities which the exercise of the freedom of expression carries with it.   In this latter respect the Government refer to the reasons of the domestic court decisions and the reasons of the Attorney General's ruling to refuse a plea of nullity for safeguarding the law.   They claim that these reasons were relevant and sufficient to justify the restriction of the applicant association's freedom of expression, which in their submission was proportionate to the aims pursued (including the protection of religious freedom enshrined in Article 9 (Art. 9) of the Convention) and did not transgress the State's margin of appreciation.   In this context the Government also refer to the Eur.   Court H.R. Müller and Others judgment of 24 May 1988, Series A No. 133.           The applicant association submits that the measures complained of were not "prescribed by law" as the relevant provisions of the Media Act and of the Penal Code were given an unconstitutional interpretation.   The applicant association furthermore contests that the interference was necessary in a democratic society for the protection of morals or for the protection of the rights of others. The prohibition to show the film was disproportionate as nobody was compelled to see the film and as the announcement of the programme could not give rise to any sensational expectations.   The applicant association's cinema addressed a qualified public and therefore the Court was not justified to refer to the opinion of the average population.   Moreover, the Court had failed to take into account the distance created by showing Panizza's play only in the context of the criminal proceedings against the author.   It must be possible in a democratic society to show to an interested public also shocking or provocative works of art.           The Commission has taken note of the parties' submissions.   It finds that the case raises complex issues concerning the interpretation of Article 10 (Art. 10) of the Convention which require to be determined on the merits.   The application therefore cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             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)