CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 juillet 1992

.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. 15153/89                       by VEREINIGUNG DEMOKRATISCHER SOLDATEN                          ÖSTERREICHS and Berthold GUBI                       against Austria         The European Commission of Human Rights sitting in private on 6 July 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  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                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  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 12 June 1989, by VEREINIGUNG DEMOKRATISCHER SOLDATEN ÖSTERREICHS and Berthold GUBI against Austria and registered on 21 June 1989 under file No. 15153/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS     A.     The particular circumstances of the present case         The facts of the case, as they have been submitted by the applicants, may be summarised as follows:         The first applicant is a private association of soldiers under Austrian law and has its seat in Vienna.   The first applicant edits the military journal "Igel", which publishes information for soldiers and critical reports about problems concerning soldiers in general, concerning particular situations or events in military barracks as well as comments on other political matters.         The second applicant, born in 1958, is an Austrian national and resident in Vienna.   At the relevant time he was a soldier and member of the first applicant.         Both applicants are represented by Mr. G. Lansky, a lawyer practising in Vienna.         On 27 July 1987 the first applicant applied to the Federal Ministry of Defence (Bundesministerium für Landesverteidigung) for permission to distribute its military journal "Igel" in the area of Austrian military barracks.   This request has not yet been formally decided upon.         The Austrian military services issued internal rules on the distribution of non-official publications in the area of military barracks.   A circular of the Federal Ministry of Defence, Vienna Army Headquarters (Armeekommando), of 14 March 1975 instructed commanders to take preventive measures as regards publications with negative ideas concerning the military service ("negatives wehrpolitisches Gedanken- gut") or unjustified attacks on the Austrian armed forces, and, inter alia, to prohibit the distribution and posting of such publications. A circular of the Army Corps II Headquarters (Korpskommando II) of 17 December 1987 instructed commanders to amend the existing barracks regulations (Kasernordnung) to the effect that it was prohibited to distribute or post any non-official publications in the area of military barracks without permission by the commander of the barracks concerned.   It appears that general permissions for the distribution of military journals may be granted by the Federal Ministry of Defence.         According to replies of the Federal Minister of Defence of 14 June 1988 to questions of members of Parliament, the military journals "Miliz-Impuls" and "Visier", edited by private associations, were alternately joined with the official information bulletin of the Federal Ministry of Defence "Miliz-Information" and distributed to all militia soldiers.   For this purpose, the necessary number of copies of the two military journals were bought by the Federal Ministry of Defence.   The Minister also stated that the Ministry of Defence was examining to what extent other publications with a positive attitude to military defence could be supported.   However, activities directed against the interests of military defence would not be supported.         According to a further reply of 10 May 1989 to questions of members of Parliament, the Federal Ministry of Defence was not prepared to permit the distribution of the military journal "Igel" to the armed forces.   Under S. 46 para. 3 of the Military Act (Wehrgesetz) of 1978, members of the armed forces had the right to receive information about political matters from general sources.   They could buy, or have delivered by post, any publication.   Within military barracks, however, only such publications could be distributed which showed a minimum of identification with the constitutional duties of the Army, were free from party-political contents and were favourable or at least not unfavourable, to the reputation of the Army.   Critical publications, for example the journal "hallo" edited by the youth organisation of the trade union, would not be excluded from distribution, if they satisfied the above criteria.   Having regard to these criteria, the request of the first applicant could, for the time being, not be granted.   The Minister referred to S. 79 of the Constitution (Bundesverfassungs- gesetz), S. 44 para. 1 and S. 46 of the Military Act, S. 116 of the Criminal Code (Strafgesetzbuch) and S. 3 para. 1 of the Service Regulations (Allgemeine Dienstvorschriften) as the legal basis for a decision on the distribution of journals.         On 29 December 1987 the second applicant distributed copies of the military journal "Igel" in the area of the Schwarzenberg barracks. His superior R. ordered him to stop this distribution.         On 12 January 1988 the second applicant was instructed by another superior about the general regulations of 1975 and 1987 as well as the barracks regulations of the Schwarzenberg barracks of 4 January 1988 which prohibited the distribution and posting of publications in the area of military barracks without permission of the commander.         On 22 January 1988 the second applicant filed a complaint (Beschwerde) with the Military Complaints Board (Beschwerdekommission in militärischen Angelegenheiten) at the Federal Ministry of Defence about the order of his superior R. and the above regulations.         On 26 September 1988 the Constitutional Court (Verfassungs- gerichtshof) quashed a disciplinary punishment on the ground that the relevant regulations had not been binding upon the second applicant.         On 7 April 1988 the Complaints Division (Beschwerdeabteilung) of the Federal Ministry of Defence, in accordance with the recommendation of the Military Complaints Board of 22 March 1988, dismissed the applicant's complaint of 22 January 1988.         The Complaints Division found in particular that the order of the applicant's superior was based on the instructions of the Army Corps II Headquarters.   Article 5 of the Basic Constitutional Act (Staatsgrund- gesetz) guaranteed the property and also applied to legal persons of public law, and thus to the Austrian Federation as the owner of the real estate on which the Schwarzenberg barracks were situated.   The instructions of the Army Corps II Headquarters were based on Article 5 of the Basic Constitutional Act, S. 19 of the Service Regulations and S. 13 of the Military Act.   The contents and limits of the right to freedom of expression under Article 13 of the Basic Constitutional Act were prescribed by, inter alia, the Military Act as regards the duty to secrecy (S. 17 of the Military Act) and the duty to obedience (S. 44 of the Military Act).   Such restrictions followed from the particular nature of the relationship in the armed forces in which the superiors exercise authority (besonderes Gewaltverhältnis). Compliance with the order not to distribute or post publications without permission by the commander therefore constituted one of the applicant's duties as soldier.         On 26 September 1988 the Constitutional Court refused to admit the second applicant's complaint on the grounds that it did not raise any particular issues under constitutional law and that the matter was not excluded from the competence of the Administrative Court.   The decision was served on 12 December 1988.         The applicants' representative submitted a decision of the Administrative Court of 19 January 1988 declaring, in another case, a complaint about a decision of the Complaints Division at the Federal Ministry of Defence inadmissible.   The Administrative Court, in its reasoning, noted that the above complaint had been transferred by the Constitutional Court and that there was a divergence in the case-law of these two Courts on the question whether the decision of the Complaints Division was a formal decision subject to appeal.   B.     Relevant domestic law         S. 79 of the Constitution lays down the general duties of the Austrian armed forces.         SS. 44 to 46 of the Military Act govern the duties and rights of the soldiers.   S. 44 para. 1 prescribes that the duty to serve in the Army obliges the soldiers to support the Army in its tasks, and to refrain from anything unfavourable to the reputation of the Army. S. 44 para. 4 entitles every soldier to put forward requests, raise objections and complain about unlawful acts; such complaints are decided upon by the Complaints Division at the Federal Ministry of Defence upon recommandation by the Military Complaints Board (S. 6 para. 4).   According to S. 46 the Army must be kept free from any party-political activities; soldiers have the same political rights as other citizens; party-political activities during the service and in the military area are prohibited, except personal information about political matters from generally accessible sources.         Under S. 116 of the Criminal Code defamation or insult of, inter alia, the Austrian armed forces is punishable.         The Service Regulations are issued by the Austrian Government under powers given under S. 13 of the Military Act, and regulate in detail the military service in the Austrian armed forces.   As regards the general duties of soldiers, S. 3 states in particular that the soldier must always be prepared to do his service, and has to refrain from anything unfavourable to the reputation of, or the trust of the public in the Austrian Army.   Having regard to his task of defending his country, the soldier has a particular relationship of loyalty to the Republic of Austria, which requires discipline, comradeship, obedience, vigilance, bravery and secrecy.   S. 17 provides for the duties of persons liable to military service, including a particular duty of secrecy.   S. 19 contains rules on the tasks of the commanders of military barracks and, inter alia, the barracks regulations.     COMPLAINTS   1.     The first applicant complains under Article 10 of the Convention that its request of 27 July 1987 to the Federal Ministry of Defence for permission to distribute its military journal "Igel" in the area of Austrian military barracks has not been granted.   The first applicant submits in particular that the prohibition on the distribution of publications and the practice of granting permissions are not prescribed by law.   The restrictions as regards its journal "Igel" were not necessary in a democratic society for one of the reasons mentioned in Article 10 para. 2.   2.     The first applicant also complains under Article 13, in conjunction with Article 10, of the Convention, that it does not have an effective remedy under Austrian law to complain about the failure of the Federal Ministry of Defence to decide upon the above request.   3.     Furthermore, the first applicant complains under Article 14, in conjunction with Article 10, of the Convention that the practice of the Federal Ministry of Defence as regards the grant of permission for distribution and the financial support of some military journals discriminate against the applicant association for political reasons.   4.     The second applicant complains under Article 10 of the Convention that the order of 29 December 1987 to stop the distribution of the journal "Igel" in the area of the Schwarzenberg Barracks and the subsequent warning, referring to the prohibition on unauthorised distribution of publications under the Barracks Regulations, violated his right to freedom of expression.   5.     Moreover, the second applicant complains under Article 13, in conjunction with Article 10, of the Convention that he did not have an effective remedy under Austrian law to complain about the above order and instruction.   He considers in particular that, having regard to the case-law of the Administrative Court, he could not have obtained relief before that Court.   Furthermore, the Constitutional Court did not give any reasons as to the constitutional issues raised in his complaint.   6.     Finally, the second applicant complains under Article 14, in conjunction with Article 10, of the Convention about discrimination for political reasons.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 12 June 1989 and registered on 21 June 1989.         On 27 May 1991 the Commission decided to communicate the application and to invite the respondent Government to submit written observations on its admissibility and merits.         After an extension of the time-limit, the Government's observations were submitted on 22 October 1991.   The applicants submitted their observations in reply on 27 January 1992, also after an extension of the time-limit.     THE LAW         The applicants complain under Article 10 (Art. 10) of the Convention about the prohibition on the distribution of the military journal "Igel" in the area of Austrian military barracks, and the second applicant in particular about the order of 29 December 1987 to stop the distribution of the journal "Igel" in the area of the Schwarzenberg Barracks and the subsequent warning.   Both applicants also complain under Article 13, in conjunction with Article 10 (Art. 13+10), that they did not have an effective remedy under Austrian law to complain about the above matters.   Moreover, they complain under Article 14, in conjunction with Article 10 (Art. 14+10), about discrimination against them for political reasons.         The Government maintain that the prohibition on the distribution of the journal "Igel" in the area of Austrian military barracks does not interfere with the first applicant's right to freedom of expression under Article 10 (Art. 10).   They consider that the Federal Government, in this respect, exercises private property rights as the owner of the estates where the barracks are situated.   Furthermore, the Government submit that, assuming there was interference, it was prescribed by law and necessary in a democratic society for the prevention of disorder. In particular they contend that the contents of the journal "Igel" were likely to disparage the Federal Army and to undermine military discipline.         The Government further contend that the first applicant has no arguable claim to complain about a violation of Article 13, in conjunction with Article 10 (Art. 13+10).         As regards the second applicant's complaints, the Government contend that, while the order to stop the distribution of the journal "Igel" on 29 December 1987 and the subsequent warning constituted interferences with his right to freedom of expression, they were justified under Article 10 para. 2 (Art. 10-2).   They also consider that the second applicant's possibility to lodge complaints with the Military Complaints Board and the Complaints Division of the Federal Ministry of Defence, as well as subsequently with the Constitutional Court, constituted an effective remedy within the meaning of Article 13 (Art. 13).         Finally, the Government submit that there was no discrimination against the applicants contrary to Article 14 (Art. 14).         The Commission finds that the applicants' complaints raise difficult questions of fact and of law which require an examination of the merits.   The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.           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)