CEDH · CASELAW;REPORTS;ENG — 14 janvier 1993

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 13470/87                       OTTO-PREMINGER-INSTITUT                               against                               AUSTRIA                      REPORT OF THE COMMISSION                    (adopted on 14 January 1993)   TABLE OF CONTENTS                                                             Page   I.         INTRODUCTION           (paras. 1 - 18) . . . . . . . . . . . . . . . . . .1             A.    The application                (paras. 2 - 4) . . . . . . . . . . . . . . . .1             B.    The proceedings                (paras. 5 - 13). . . . . . . . . . . . . . . .1             C.    The present Report                (paras. 14 - 18) . . . . . . . . . . . . . . .2   II.        ESTABLISHMENT OF THE FACTS           (paras. 19 - 46). . . . . . . . . . . . . . . . . .4             A.    The particular circumstances of the case                (paras. 19 - 37) . . . . . . . . . . . . . . .4             B.    Relevant domestic law                (paras. 38 - 46) . . . . . . . . . . . . . . .8                  1.    Substantive provisions. . . . . . . . . .8                     (paras. 38 - 39)                  2.    Procedural provisions . . . . . . . . . .9                     (paras. 40 - 46)   III.       OPINION OF THE COMMISSION           (paras. 47 - 83). . . . . . . . . . . . . . . . . 12             A.    Complaints declared admissible                (para. 47) . . . . . . . . . . . . . . . . . 12             B.    Points at issue                (para. 48) . . . . . . . . . . . . . . . . . 12             C.    As to the alleged violations of                Article 10 of the Convention                (paras. 49 - 81) . . . . . . . . . . . . . . 12                  1.    Applicability of Article 10                     (para. 50). . . . . . . . . . . . . . . 12                  2.    Scope of interference with the                     applicant association's rights under                     Article 10 para. 1                     (paras. 51 - 57). . . . . . . . . . . . 13                  3.    Justification of the interference                     (Article 10 para. 2)                     (paras. 58 - 81). . . . . . . . . . . . 14                       a)    lawfulnes                          (paras. 59 - 61) . . . . . . . . . 14                       b)    Legitimate aim                          (paras. 62 - 63) . . . . . . . . . 14                       c)    Necessity in a democratic society                          (paras. 64 - 75) . . . . . . . . . 15                       aa)   The seizure                          (paras. 75 - 78) . . . . . . . . . 17                            Conclusion                          (para. 79) . . . . . . . . . . . . 18                       bb)   The forfeiture                          (para. 80) . . . . . . . . . . . . 18                            Conclusion                          (para. 81) . . . . . . . . . . . . 18             D.    Recapitulation                (paras. 82 - 83) . . . . . . . . . . . . . . 18   PARTLY DISSENTING OPINION of Mr. F. ERMACORA joined by MM. W. WEITZEL and L. LOUCAIDES . . . . . . . . . . . . . . 19   DISSENTING OPINION OF Mr. H.G. SCHERMERS. . . . . . . . . . 21   PARTLY DISSENTING OPINION OF Mrs. J. LIDDY. . . . . . . . . 22   APPENDIX I      : HISTORY OF PROCEEDINGS . . . . . . . . . . 23   APPENDIX II     : DECISION AS TO THE ADMISSIBILITY . . . . . 24   APPENDIX III    : SUMMARY OF THE CONTENTS OF THE FILM. . . . 32   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant, Otto-Preminger-Institut Verein für audiovisuelle Mediengestaltung (OPI), 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.   3.    The application is directed against Austria whose Government are represented by their Agent, Ambassador Helmut Türk, Deputy Secretary General and Legal Counsel of the Federal Ministry of Foreign Affairs.   4.    The application concerns the prohibition to show the film "Das Liebeskonzil" in the applicant association's cinema in Innsbruck on the ground that its showing would constitute the criminal offence of blasphemy.   The film was seized and subsequently confiscated in "objective media proceedings".   The applicant association complains that these measures violated its right of freedom of expression as guaranteed by Article 10 of the Convention.   B.    The proceedings   5.    The application was introduced on 6 October 1987 and registered on 2 December 1987.   6.    On 5 March 1990 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit before 11 May 1990 observations in writing on the admissibility and merits of the application as well as a copy of the confiscated film.   7.    At the Government's request, the time-limit was extended to 11 June 1990.   The Government submitted observations on 25 May 1990 and the applicant association replied thereto on 5 July 1990.   On 12 October 1990 the Government submitted the confiscated copy of the film to the Commission.   8.    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.   9.    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.   10.   On the same day the Commission declared the application admissible and fixed a further screening of the film before the full Commission in the presence of the parties.   11.   At the screening on 5 July 1991 the following members of the Commission were present: MM. C.A. Nørgaard (President), J.A. Frowein, S. Trechsel, F. Ermacora, G. Jörundsson, A.S. Gözübüyük, A. Weitzel, H.G. Schermers, H. Danelius, Mrs. G.H. Thune, Mr. C.L. Rozakis, Mrs. J. Liddy, MM. L. Loucaides, J.-C. Geus, M.P. Pellonpää and B. Marxer.   The parties were represented as follows: the Government by Mr. Wolf Okresek of the Federal Chancellery and Mr. Florian Haug of the Federal Ministry for Foreign Affairs; the applicant association by Mr. Frank Höpfel, Mr. Dietmar Zingl, manager of the applicant association's cinema and Mr. Friedrich Schmidt, cashier of the applicant association.   12.   Further information was submitted by the applicant association on 5 November and communicated to the respondent Government on 23 November 1992.   13.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   14.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   C. A. NØRGAARD, President                J. A. FROWEIN                S. TRECHSEL                F. ERMACORA                G. JÖRUNDSSON                A. S. GÖZÜBÜYÜK                A. WEITZEL                H. G. SCHERMERS                H. DANELIUS           Mrs. G. H. THUNE                J. LIDDY           MM.   L. LOUCAIDES                J.-C. GEUS                M. P. PELLONPÄÄ   15.   The text of this Report was adopted on 14 January 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.   The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)    to establish the facts, and   ii)   to state an opinion as to whether the facts found disclose a      breach by the State concerned of its obligations under the      Convention.   17.   A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   19.   The applicant is a private association in Innsbruck with the aim to give information and enable communication on audio-visual media, as well as to encourage creativity and entertainment in this field.   The applicant association also runs a cinema which was licensed by a decision of the Provincial Government of the Tyrol on 26 January 1984. In this cinema the association intended to show the film "Das Liebeskonzil" (Council in Heaven) to the general public on 13 May 1985 at 22.00h.   20.   This film by Werner Schroeter is based on a theatre play by Oskar Panizza of 1894 which after its first performance gave rise to criminal proceedings against the author before the Regional Court of Munich in 1895.   After those proceedings, the play had not been shown on stage until 1973 when it was produced in Hamburg.   Since then, performances have taken place in several countries, including Germany, Italy and Austria.   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. After deliberations with, inter alia, the Virgin Mary and Jesus Christ the Devil is also consulted and it is finally decided on the latter's proposal that 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.   21.   The film had earlier been shown in Vienna in February 1984. According to the Government the institution of criminal proceedings had been considered by the Vienna public prosecutor's office at that time. However, these proceedings had eventually not been pursued as the film had been taken off the programme of the Vienna cinema concerned and it appeared that the copy projected was no longer in Austria and therefore could not be seized.   According to the report of the Vienna public prosecutor's office the contents of the film manifestly fell within the scope of the criminal offence of disparaging religious precepts (Herabwürdigung religöser Lehren) within the meaning of Section 188 of the Austrian Penal Code (Strafgesetzbuch).   22.   The projection of the film in Innsbruck was announced in the show-window and foyer of the applicant association's cinema and in the periodical distributed to members of the association and other interested persons.   23.   The announcement was phrased in the following terms:        (German)        "Oskar Panizzas satirische Himmelstragödie wurde von Schroeter      in einer Aufführung des römischen Teatro Belli verfilmt und in      eine Rahmenhandlung gestellt, die den 1895 wegen Gotteslästerung      geführten Prozeß gegen den Dichter und seine Verurteilung      rekonstruiert.   Panizza geht von der Annahme aus, die Syphilis      sei die Strafe Gottes für die Unzucht und Sündenhaftigkeit der      Menschen zur Zeit der Renaissance gewesen, speziell am Hofe des      Borgia-Papstes Alexander VI.   In Schroeters Film gleichen die      Vertreter Gottes auf Erden, versehen mit den Insignien weltlicher      Macht, aufs Haar den himmlischen Protagonisten.        Karikaturistisch werden bildliche Trivialvorstellungen und      Auswüchse des christlichen Glaubens auf Korn genommen und die      Beziehung von Glaubensinhalten und weltlichen Unterdrückungs-      mechanismen untersucht."        (Translation)        "Oskar Panizza's satirical tragedy set in Heaven was filmed by      Schroeter from a performance of the Teatro Belli in Rome and      placed in a frame story which reconstructs the trial of the      writer for blasphemy in 1895 and his conviction.   Panizza starts      from the assumption that syphilis was God's punishment for the      lasciviousness and sinfulness of mankind at the time of the      Renaissance, especially at the court of the Borgia Pope      Alexander VI.   In Schroeter's film, God's representatives on      Earth carrying the insignia of worldly power resemble to a hair      the heavenly protagonists.        In a caricatural mode trivial imagery and absurdities of the      Christian creed are targeted and the relationship between      religious beliefs and worldly mechanisms of oppression is      investigated."   24.   A regional newspaper also announced the title of the film and the date and place of its projection without giving details as to its contents.   25.   On 10 May 1985 i.e. before the date of the intended projection, the public prosecutor at the request of the Innsbruck diocese of the Roman Catholic Church 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 under Section 188 of the Penal Code.   26.   On 12 May 1985, 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 (Landesgericht) 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.   27.   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.   28.   On 24 October 1985 the criminal proceedings against the applicant association's manager were discontinued 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.   29.   On 10 October 1986 a trial took place before a single judge of the Innsbruck Regional Court.   At the trial, the film was shown again in closed session.   Its contents were described in detail in the trial record (cf. Appendix III).   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.   30.   The court granted the forfeiture on the following grounds:        (German)        "Durch die für den 13. Mai 1985 vorgesehene öffentliche      Aufführung des Tonfilmes 'Das Liebeskonzil', worin in Bild und      Sprache Gott Vater als seniler, impotenter Trottel, Christus als      Kretin und die Gottesmutter Maria als lüsterne Dame mit      ebensolcher Ausdrucksweise dargestellt und die Eucharistie      verspottet wird, wurde der Tatbestand des Vergehens der      Herabwürdigung religiöser Lehren nach § 188 StGB verwirklicht."        (Translation)        "The intended public projection, on 13 May 1985, of the film      'Council in Heaven', which, both in image and text, depicts God      the Father as a senile, impotent idiot, Christ as a cretin and      Mary the Mother of God as a wanton lady with a corresponding      manner of expression, and which also ridicules the Eucharistic      ceremony, came within the definition of the criminal offence of      disparaging religious precepts under Section 188 of the Criminal      Code."   31.   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.   32.   The freedom of art under Article 17a of the Basic Law on the General 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.   33.   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 17a of the Basic Law.   34.   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 copyright of the film which belonged to the distribution firm.   35.   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).   36.   The Attorney General made investigations concerning the steps taken by the Vienna public prosecutor's office in 1984 (see para. 21 above) and the manner in which the showing of the film had been announced in Innsbruck (see paras. 22-24 above).   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).   In this decision the Austrian Supreme Court had ruled that the right of freedom of art, as guaranteed by Article 17a of the Basic Law, can be limited if other fundamental rights and freedoms are infringed, in this specific case the freedom of belief and conscience (Article 14 of the Basic Law).   37.   More recently, theatre performances of Panizza's play took place on two occasions in Austria: in November 1991 in Vienna, and in October 1992 in Innsbruck.   The Vienna production did not give rise to any action by the prosecution authorities.   The performance in Innsbruck was the subject of several complaints (Strafanzeigen) by private persons.   After preliminary investigations the Innsbruck public prosecution authorities found no reason to institute criminal proceedings and decided to discontinue the proceedings under Section 90 of the Austrian Code of Criminal Procedure (Zurücklegung der Strafanzeige).   B.    Relevant domestic law   1.    Substantive provisions   38.   Section 188 of the Penal Code (Strafgesetzbuch) makes it a criminal offence to disparage religious precepts.   It reads as follows:        (German)        "Wer öffentlich eine Person oder eine Sache, die den Gegenstand      der Verehrung einer im Inland bestehenden Kirche oder Religions-      gesellschaft bildet, oder eine Glaubenslehre, einen gesetzlich      zulässigen Brauch oder eine gesetzlich zulässige Einrichtung      einer solchen Kirche oder Religionsgesellschaft unter Umständen      herabwürdigt oder verspottet, unter denen sein Verhalten geeignet      ist, berechtigtes Ärgernis zu erregen, ist mit Freiheitsstrafe      bis zu sechs Monaten oder mit Geldstrafe bis zu 360 Tagessätzen      zu bestrafen."        (Translation)        "Whoever, in circumstances where his behaviour is likely to      arouse justified indignation, disparages or insults a person who      or an object which is being venerated by a church or religious      community established within the country, or a dogma, a legally      authorised custom or a legally authorised institution of such a      church or religious community, shall be liable to a prison      sentence of up to six months or a fine of up to 360 daily rates."   39.   According to the case-law of the Austrian courts the application of this provision may be subject to certain restrictions resulting from fundamental rights such as the freedom of art stipulated in Article 17a of the Basic Law on the General Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger).   This provision reads as follows:        (German)        "Das künstlerische Schaffen, die Vermittlung von Kunst sowie      deren Lehre sind frei."        (Translation)        "The artistic production, the dissemination of art and its      teaching are free."   2.    Procedural provisions   40.   Criminal proceedings concerning media offences (Medieninhalts- delikte) are mainly governed by the Media Act (Mediengesetz).   The provisions of the Code of Criminal Procedure (Strafprozeßordnung) are only applicable in so far as the Media Act contains no special stipulations (cf. Section 41 para. 1 of the latter Act).   41.   The principal sanction for media offences provided for in the Media Act is the forfeiture (Einziehung) of the publication whose contents infringe the criminal law (cf. Section 33 of the Media Act). Other measures such as seizure of publications (Section 36) are subordinate to this main sanction.   42.   Forfeiture may be ordered in addition to any criminal sanction under the Penal Code (cf. Section 33 para. 1 of the Media Act), but also in separate, so-called "objective", media proceedings.   43.   In the latter respect, Section 33 para. 2 provides as follows:        (German)        "Auf Antrag des Anklägers ist auf Einziehung in einem selb-      ständigen Verfahren zu erkennen, wenn in einem Medium der      objektive Tatbestand einer strafbaren Handlung hergestellt worden      ist und die Verfolgung einer bestimmten Person nicht durchführbar      oder ihre Verurteilung wegen des Vorhandenseins von Gründen, die      eine Bestrafung ausschließen, nicht möglich ist ...."        (Translation)        "Forfeiture shall be pronounced in separate proceedings at the      request of the prosecutor if a publication in the media fulfils      the objective facts of a criminal offence and if the prosecution      of a particular person cannot be secured or if a conviction is      impossible on grounds excluding the punishment of such a      person ...."   44.   Seizure is regulated in Section 36 which reads as follows:        (German)        "(1) Das Gericht kann die Beschlagnahme der zur Verbreitung      bestimmten Stücke eines Medienwerkes anordnen, wenn anzunehmen      ist, daß auf Einziehung nach § 33 erkannt werden wird, und wenn      die nachteiligen Folgen der Beschlagnahme nicht      unverhältnismäßigschwerer wiegen als das Rechtsschutzinteresse,      dem die Beschlagnahme dienen soll.   Die Beschlagnahme ist      jedenfalls unzulässig, wenn diesem Rechtsschutzinteresse auch      durch Veröffentlichung einer Mitteilung über das eingeleitete      strafgerichtliche Verfahren Genüge getan werden kann.        (2)   Die Beschlagnahme setzt voraus, daß ein Strafverfahren oder      ein selbständiges Verfahren wegen eines Medieninhaltsdelikts      geführt oder zugleich eingeleitet wird, und daß der Ankläger oder      Antragsteller im selbständigen Verfahren die Beschlagnahme      ausdrücklich beantragt.        (3)   In dem die Beschlagnahme anordnenden Beschluß ist      anzugeben, wegen welcher Stelle oder Darbietung des Medienwerkes      und wegen des Verdachtes welcher strafbaren Handlung die      Beschlagnahme angeordnet wird ...."        (Translation)        "(1) The Court may order the seizure of the copies of a work      published in the media which are intended for public      dissemination if it can be assumed that a forfeiture under      Section 33 will be pronounced and if the adverse consequences of      the seizure are not disproportionate to the legal interest to be      served by the seizure.   In any event the seizure is inadmissible      if this legal interest can also be satisfied by a publication of      a notice on the institution of the criminal proceedings in      question.        (2)   The seizure presupposes the prior or simultaneous      institution of criminal proceedings or of separate proceedings      concerning an offence relating to the contents of a publication      in the media and it may take place only if the prosecution, or      the applicant in the separate proceedings, has expressly      requested the seizure.        (3)   The decision ordering the seizure shall mention the      passages of the work published in the media, or the particular      production of it, which has given rise to the seizure order, as      well as the offence which is suspected to be committed by it      ...."   45.   In the relevant proceedings the owner (publisher) of the media in question is to be summoned as a private party (Einziehungs- beteiligter).   In this respect Section 41 para. 5 of the Media Act stipulates inter alia:        (German)        "... Er hat die Rechte des Beschuldigten; insbesondere steht ihm      das Recht zu, alle Verteidigungsmittel wie der Beschuldigte      vorzubringen und das Urteil in der Hauptsache anzufechten ...."        (Translation)        "... He shall have the rights of the accused; in particular he      shall have the right to the same means of defence as the accused      and to appeal against the judgment on the merits ...."   46.   According to the case-law of the Austrian courts this provision has the effect of excluding the applicability of the general provisions of the Code of Criminal Procedure concerning private parties in forfeiture and confiscation cases (Section 444 of the Code).   Therefore only the owners (publishers) of the medium in question, but not any other persons having rights in the object threatened with forfeiture are entitled to participate in the proceedings.   III.   OPINION OF THE COMMISSION   A.    Complaints declared admissible   47.   The Commission has declared admissible the applicant association's complaints that the seizure of the film "Das Liebeskonzil", which it had intended to show in its cinema, and the subsequent forfeiture of this film unjustifiedly interfered with its freedom of expression.   B.    Points at issue   48.   The Commission must accordingly determine whether there has been a violation of Article 10 (Art. 10) of the Convention:        -     by the seizure, and/or        -     by the forfeiture   of the film "Das Liebeskonzil".   C.    As to the alleged violations of Article 10 (Art. 10)      of the Convention   49.   Article 10 (Art. 10) of the Convention 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."   1.    Applicability of Article 10 (Art. 10)   50.   The present case concerns the exercise of freedom of "expression" in the form of showing a film.   As the last sentence of Article 10 para. 1 (Art. 10-1) implies, this activity is covered by freedom of expression.   In addition it is not in dispute that the film in question was a work of art as recognised by the Austrian courts.   In this respect the Commission recalls the Müller and Others case where the European Court of Human Rights acknowledged that artistic expression is included in freedom of expression within the meaning of Article 10 para. 1 (Art. 10-1) (judgment of 24 May 1988, Series A no. 133, p. 19, para. 27).   2.    Scope of interference with the applicant association's rights      under Article 10 para. 1 (Art. 10-1)   51.   The applicant association claims that it was affected both by the seizure of the film, which prevented it from showing it in its cinema in Innsbruck on 13 May 1985, and by its subsequent forfeiture, which finally confirmed the prohibition to show the film in Austria.   52.   The Government claim that the applicant association was only affected by the seizure of the film, but not by its subsequent forfeiture.   It was not the owner of the copyright in the film nor the owner of the copy distributed in Austria, nor was it a party to the "objective media proceedings" which eventually led to the film being declared forfeited.   53.   The Commission considers it irrelevant that the applicant association was not the owner of the copyright.   Under Article 10 para. 1 (Art. 10-1) everyone may, without interference by a public authority, impart information or ideas from whatever source.   The applicant association, being a licenced cinema enterprise which wished to show the film concerned as part of its programme, can therefore rely on this provision.   54.   The applicant association was directly affected by the seizure of the film, in connection with criminal proceedings instituted against its manager before it could be shown.   The seizure was a provisional measure whose substantive justification under Austrian law was finally determined only by the subsequent decision on forfeiture (cf. Appendix II, at p. 30 below).   55.   It is true that in the forfeiture proceedings the applicant association was not a party and that its manager, who had been allowed to participate in the proceedings of first instance, was eventually not recognised as a party.   But the declaration that the film was forfeited also affected the applicant association since it was thereby definitively prevented from showing it.   56.   In these circumstances, the Commission considers that there is a sufficient link between the seizure of the film and the subsequent "objective" forfeiture proceedings which entitles the applicant association to invoke Article 10 (Art. 10) in respect of both measures.     57.   The Government admit that both the seizure and the forfeiture constituted interferences by public authorities with the right to freedom of expression as laid down in Article 10 para. 1 (Art. 10-1). In the Commission's view these interferences with the rights of the applicant association require to be justified under Article 10 para. 2 (Art. 10-2).   3.    Justification of the interference (Article 10 para. 2)      (Art. 10-2)   58.   To meet the requirements of Article 10 para. 2 (Art. 10-2), any restriction of freedom of expression must   -     be prescribed by law;   -     pursue one or more of the legitimate aims set out in this      provision; and   -     be necessary in a democratic society, having regard to the duties      and responsibilities which exercise of that freedom carries with      it.        a)    Lawfulness   59.   The applicant association contends that the relevant provisions of the Penal Code and of the Media Act were given an unconstitutional interpretation and that therefore the measures complained of were not "prescribed by law".   The Government deny that the criminal law was applied in a manner incompatible with Article 17a of the Basic Law.   60.   The Commission observes that it is for the domestic courts to interpret and apply the domestic law.   It notes that the measures complained of were based on Section 188 of the Austrian Penal Code in conjunction with the Media Act, and that in applying those provisions the Austrian criminal courts also considered the relevance of the constitutional right to freedom of art as laid down in Article 17a of the Basic Law.   The criminal courts thus dealt with the question of constitutionality but did not find it appropriate to refer the matter to the Constitutional Court.   The Commission is satisfied that this was in line with Austrian law.   There is no indication that the criminal courts' interpretation and application of the relevant penal provisions was arbitrary or otherwise unreasonable in a manner incompatible with the rule of law.   61.   In these circumstances the Commission sees no reason to doubt that the measures complained of were "prescribed by law".        b)    Legitimate aim   62.   The Government claim that the seizure and forfeiture of the film aimed at the "protection of the rights of others", including the right to freedom of religion within the meaning of Article 9 of the Convention, and the "protection of morals".   The applicant association, while not contesting that "the rights of others" might be relevant, refutes the argument that the measures in question also served to protect morals.   63.   The obvious purpose of Section 188 of the Austrian Penal Code which was applied in the present case is to preserve religious peace. Thus the measures complained of served the protection of the rights of others and the prevention of disorder within the meaning of Article 10 para. 2 (Art. 10-2).   It is therefore not necessary to consider whether they also aimed at the protection of morals.   The Commission is consequently satisfied that the Austrian legislation, as applied in the present case, pursued legitimate aims covered by this provision.        c)    Necessity in a democratic society   64.   The Government claim that the restrictions imposed on the applicant association were "necessary in a democratic society" and that, in view of the contents of the film, they remained within the State's margin of appreciation.   65.   The applicant association submits that the film itself involved a discussion of freedom of art.   The play was presented as a story within the story of Panizza's trial.   It thus created a certain distance for the spectator as regards the critical discussion of religious subjects in the play.   66.   The Commission recalls that with regard to restrictions on freedom of expression it is important        "to pay the utmost attention to the principles characterising a      'democratic society'.   Freedom of expression constitutes one of      the essential foundations of such a society, one of the basic      conditions for its progress and for the development of every man.      Subject to paragraph 2 of Article 10 (Art. 10-2), it is      applicable not only to 'information' or 'ideas' that are      favourably received or regarded as inoffensive or as a matter of      indifference, but also to those that offend, shock or disturb the      State or any sector of the population.   Such are the demands of      that pluralism, tolerance and broadmindedness without which there      is no 'democratic society'.   This means, amongst other things,      that every 'formality', 'condition', 'restriction' or 'penalty'      imposed in this sphere must be proportionate to the legitimate      aim pursued."   (cf. Eur. Court H.R. Handyside judgment of      7 December 1976, Series A no. 24, p. 23, para. 49)