CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 février 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 }                          Application No. 15961/90                       by J.K.                       against Austria             The European Commission of Human Rights sitting in private on 8 February 1993, the following members being present:                MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  F. ERMACORA                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                    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 23 October 1989 by J.K. against Austria and registered on 10 January 1990 under file No. 15961/90;         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         The applicant is an Austrian citizen born in 1947.   He lives in Klagenfurt.   He is represented before the Commission by Mr. K. Katary, a lawyer practising in Vienna.         The facts of the case may be summarised as follows:         The applicant is the editor of a periodical entitled "Weitblick" (Long view).   On 2 February 1988 the periodical printed four verses of the national socialist song "Es zittern die morschen Knochen" ("The rotten bones quake").   Proceedings under Section 3 of the National Socialism (Prohibition) Act 1945 ("the Prohibition Act") were formally discontinued by the prosecuting authority (Staatsanwaltschaft) on 19 March 1988, pursuant to Article 90 para. 1 of the Code of Criminal Procedure (Strafprozeßordnung).         The Klagenfurt Federal Police (Bundespolizeidirektion) brought administrative criminal proceedings against the applicant, which led to his conviction on 23 September 1988 by the Carinthian Security Directorate (Sicherheitsdirektion) for having disseminated national socialist philosophy within the meaning of the Prohibition Act because he failed to prevent the publication of the national socialist song "Es zittern die morschen Knochen".   He was fined AS 1,000 under Section 9 (1) (7) of the Introductory Provisions to the Code of Administrative Procedure (Einführungsgesetz zu den Verwaltungsverfahrensgesetzen) with provision for two days' imprisonment in default.   Section 9(1)(7) was added to the Introductory Provisions in 1986.         The applicant made a complaint under Article 144 of the Federal Constitution, alleging a violation of Article 90 para. 2 of the Federal Constitution (as the offence in the Prohibition Act is defined as political and therefore to be tried by a jury), a violation of the principle of Austrian law that the Prohibition Act regulated exhaustively questions of national socialism, and a violation of Article 6 para. 1 of the Convention.   The applicant also requested the Constitutional Court to refer his complaints to the Administrative Court (Verwaltungsgerichtshof), should it not be accepted by the Constitutional Court.         On 7 March 1989, the Constitutional Court rejected the applicant's complaint.     COMPLAINTS         The applicant has complained of the fine imposed on him and the proceedings involved, alleging violations of Articles 5, 6, 7 and 10 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 23 October 1989 and registered on 10 January 1990.         On 15 October 1991 the Commission decided to communicate the application to the respondent Government with a request to submit written observations on the admissibility and merits of the complaints concerning Article 6 of the Convention.         The respondent Government submitted their observations, after an extension of the time-limit, on 6 and 20 March 1992.   The applicant submitted his observations in reply on 6 May 1992.         On 7 and 9 October 1992 the respondent Government informed the Commission that pursuant to the applicant's administrative complaint the Administrative Court had quashed the decision of the Carinthian Security Directorate of 23 September 1988.   The Government submitted a copy of the Administrative Court's decision of 4 August 1992.   On 21 October 1992, in reply to the respondent Government's letters of 7 and 9 October 1992, and in the light of the Administrative Court's decision of 4 August 1992, the applicant informed the Commission that he wished to withdraw his application.   REASONS FOR THE DECISION         The Commission finds that the applicant regards the matter as resolved and no longer intends to pursue his petition, within the meaning of Article 30 para. 1(a) and (b) of the Convention.   Respect for human rights as defined in the Convention does not require the examination of the application to be continued.         For these reasons the Commission unanimously         DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.   Secretary to the Commission                 President of the Commission          (H. C. KRÜGER)                             (C. A. NØRGAARD)