X. AND THE GERMAN ASSOCIATION OF Z. v. THE FEDERAL REPUBLIC OF GERMANY - 1167/61

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X. AND THE GERMAN ASSOCIATION OF Z. v. THE FEDERAL REPUBLIC OF GERMANY - 1167/61 [1963] ECHR 5 (16 December 1963)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:1. The first Applicant is a German citizen living in A, and the secondApplicant is a trade organisation (of which X is a member) withheadquarters in B which, in view of the importance of the issues,supports X's application (Nebenintervenient). They are both representedby Dr. Y, a barrister in Vienna.2. X is a wholesale newsagent in A where he is owner-manager of thefirm "Pressevertrieb X". He supplies a considerable clientèle ofshopkeepers and stallholders with various periodicals obtained frompublishers. The nature of his business necessitates the prompt deliveryof the periodicals to the retailers. To do this, X has built up anorganisation comprising some 80 employees and several delivery vans.In the Federal Republic of Germany, printed matter is not subject tocensorship; its sale, distribution and advertisement are, however,restricted by the Act of 9th July 1953, BGBl. I. Seite 377 governingthe circulation of publications liable to corrupt the young. This Actrequires that such publications, including especially those of anindecent nature and such as glorify crime, war and race hatred, shallbe entered in a list and their entry notified to the public (SectionI). The decision regarding their entry in the list rests with a branchof the Executive, the Federal Inspection Office in Bonn, whose membersare appointed by the Federal Minister of the Interior and theGovernments of the Länder and are not bound by instructions (Sections8 et seq.). Administrative court procedure provides for appeal againsta decision of the Inspection Office (Section 20).As soon as the entry of the publication in this list has been notified,it may not be offered for sale or made accessible to any person under18 (Section 3), nor may it be sold, distributed or lent either bydealers outside business premises or by door-to-door salesmen (Section4). After notification of its entry in the list, advertising of thepublication by displaying it in a shop window, inside a shop, or in anyother generally accessible place, by poster, newspaper or postaladvertisement, or by any other method is prohibited. Announcements intrade journals are permissible (Section 5). Where there is manifestlya high degree of liability to corrupt the young, the publication inquestion is subject to the restrictions laid down in Sections 3 to 5without the requirement of entry in the list of public modification(Section 6). Infringements of the provisions of Sections 3 to 6 arepunishable under Section 21 by up to one year's imprisonment and fines.Ordinary law courts are competent to try such cases.Under the Act, therefore, the subject covered is made the concern ofthe administration - more precisely of the Federal Administration, andtwo concepts are created: the wider concept embodied in Section 1,"publications liable to corrupt the young", and the narrower conceptof Section 6, "publications manifestly liable to corrupt the young".The sale of the former category outside business premises which thecustomer is not in the habit of entering - e.g. kiosks, as in the casein question - is prohibited only if they were entered in the list ofprohibited publications referred to in Section 1; the sale of thelatter in such premises, however, is prohibited even before their entryin this list. It is surely obvious that a publication which is"manifestly liable to corrupt the young" is also "liable to corrupt theyoung" and, as such, must be entered in the list in accordance withSection 1, and that the provision in Section 6 applies only to flagrantcases in which there has not been time to enter the publication in the"prohibited" list.X was fined once before under Section 21 - in his opinion, unjustly -for contravening the regulations contained in Section 6. He maintainsthat he was convicted only because the Bavarian courts interpret theconception "manifestly liable to corrupt the young" with a liberalitybordering on prudery. In order to avoid any danger of furtherprosecution, he instructed his senior employees always to examineperiodicals prior to their distribution to ensure that their contentwas not "manifestly liable to corrupt the young" and, if in doubt, toshow them to him. He did, in fact, withhold a number of publicationsfrom distribution to kiosks, although they were not subsequentlyentered in the list provided for in Section 1.3. In November 1956, X delivered to his regular customers, includingseveral kiosks, Number 7 of the publication "Das Journal Capriccio",issued by Pressebuch W. Hermann & Co., Publishers, Hamburg. Thispublication was described by the Public Prosecutor's Office as"manifestly liable to corrupt the young" on the grounds that seven ofits illustrations were likely to "considerably overexcite and misdirectthe ***ual fantasy of adolescents". The District Court of A endorsedthis opinion and sentenced X on ... 1957 to a fine of DM 50 foroffences under Section 6 in conjunction with Sections 4 and 21 of theabove Act.X protested against this sentence which was thereby rendered void anda court hearing was fixed. At the public hearing of ... 1957, Xdeclared that his employees had not shown him the publication prior toits distribution, but even if they had done so, he would still have hadit distributed to the kiosks, for he did not consider it as being inany way harmful to the morals of young persons, let alone "manifestlyliable to corrupt". The Bavarian Public Prosecutor's Office, it seemed,was alone in regarding it as such, since no objection had ever beenraised to the publication in any other Federal Land.Viewed objectively, the publication was not "manifestly liable tocorrupt the young"; he offered the following evidence in support ofthis: the opinions of Father S, Chaplain of the Secondary SchoolHostel, C, of ... 1957, and of Frau Dr. T, psychologist at the ...institut of ... 1957, neither of whom thought the publication likelyto corrupt the young, the opinion of a certain Frau U, of ... 1957,who, as a mother, did not consider the publication as dangerous to themorals of young persons, and finally, the verdict of the FederalInspection Office (Sections 8 et seq.), of ... 1957, which declinedto include the publication in the list provided for in Section 1.On ... 1957, the District Court of A found X guilty of negligence underSections 4, 6 and 21 and imposed a fine of DM 30. In the grounds givenfor this verdict, it was stated that the publication was manifestlyhighly prejudicial to the morals of young persons, that it was devoidof any artistic or literary value and merely displayed the physicalcharms of film stars, while the text dwelt on the love affairs of filsstars whom adolescents frequently idolised and imitated. The decisionof the Inspection Office of ... 1957 not to include the publicationin the "prohibited" list provided for in Section 1 was not binding onthe Court. Further evidence adduced by X was ignored by the Court. Indetermining the penalty, it took into account against X a previousconviction under the same section of the regulations and the fact thatthe publication was of a type likely "to be read clandestinely byadolescents", and in his favour the absence of evidence of any concreteharm having been caused.Both the Public Prosecutor's Office and X appealed from this judgment.The Public Prosecutor's Office moved that X be charged, not withnegligence, but with a deliberate breach of the regulations underSection 4 et seq. X, on the other hand, demanded his acquittal andagain submitted the evidence passed over by the Court of firstinstance. He argued that he could not, as a newsagent, be expected tobe a severer judge of the morality of the content of a periodical thana Minorite priest, a child psychologist or a mother. It was unjust toapply a standard, designed only for swift intervention in exceptional,difficult cases, to a publication which the competent authority (theInspection Office in Bonn) had not judged prejudicial to the morals ofyoung persons, and declare it manifestly highly prejudicial andprosecute a newsagent for not applying criteria which, among all thePublic Prosecutors'Offices in Germany, the Bavarian one alone seemedto have adopted.The Regional Court of A heard both appeals - X's and that of thePublic Prosecutor - on ... 1957. At the request of the Prosecutor, itcalled in an expert who expressed the view that, while theillustrations originally objected to in the publication could not -with the exception of one which on closer inspection appeared obscene- be said to be manifestly highly prejudicial to young persons, acareful perusal revealed that many passages in the text were. The Courtrefused X's request to hear a second expert and to rectify theexpert's statement on the basis of the tape-recordings submitted.By a decision of ... 1957, the Regional Court rejected both appeals andupheld the fine of DM 30 imposed on X as being "commensurate with theguilt of the accused and adequate as a penalty and deterrent".In the grounds given for the judgment, the Court devotes 12 pages todescribing a number of illustrations and passages in the publication.It found only two of the incriminated illustrations likely to have acorrupting influence on young persons:a colour photograph of the film star Lana Turner who, dressed asan oriental dancer, behind a gossamer-thin curtain, "seemed to belooking straight at the reader and beckoning to him"; the veil-likecurtain "threw into relief rather than concealed the charms of thelower part of the body";a picture of the film star Mamie van Doren as a "tap dancer in asleeveless blouse, satin briefs, net stockings and evening shoes; thetight-fitting briefs seemed to emphasise the contours of the female ***organs, particularly the vulva". Until the expert drew their attentionto it, this fact has "escaped the notice of the members of the Court,particularly since there did not seem, at first glance, to be anythingin the picture to make it harmful to the morals of young persons". Acareful examination of it, however, left the Court no longer in anydoubt as to the "highly licentious nature of the picture, even thoughit had to be admitted that many adolescents would not look at thepicture closely enough to notice the detail in question and hence beaware of the obscenity of the picture as a whole".The Court went on to state that while "the illustrations in general"could not be said to be manifestly liable to corrupt the young,nevertheless parts of the text described the"extravagance, frivolity,looseness and profligacy" of filmstars' lives, and thus presented agrave danger to adolescents who were much more prone than adults toseek models to imitate and emulate. Hence the risk that they mightchoose such a way of life as an ideal to strive after. The Courtconsidered that, since the text and illustrations belonged together -"on this one point the Court could not agree with the expert" - theentire publication was manifestly liable to corrupt the young. Thepublication should have been examined either by X himself or by someof his employees; in which case they could not have failed to recognisethe danger to young readers and should not have distributed themagazine to kiosks. The defence's arguments that the provision ofSection 6 was not applicable in this instance because it was designedonly for rapid intervention in particularly serious cases, wasunfounded, for it was "not the intention of the legislator to take thedecision in a normal case out of the hands of the State organs ofjustice and transfer it to other organisations". No mention of theopinions submitted as evidence by X was made by the Court in thisjudgment either.X applied to the Court of Appeal of A for a review of the RegionalCourt's decision, basing his plea on a number of points of law,including the following:(a) improper application of the provision of Section 6 due to the factthat the publication - which was not subsequently included in the listof publications prohibited under Section 1 as "prejudicial to youngpersons" - was pronounced "manifestly liable to corrupt the young", inaccordance with what were not generally accepted criteria, and thisonly after a careful study,and that a criminal charge was broughtagainst X for distributing it;(b) violation of the right of the defence to the admission andconsideration of evidence submitted by it as proof of the accused'sinnocence;(c) violation of the right of the defence to an explanation by theCourt of why a newsagent should be a severer judge of the corruptivenature of a publication than a chaplain in charge of the spiritualwelfare of young people, a qualified child psychologist or thecompetent Office.The Criminal Appeals Senate of the Court of Appeal reviewed the caseat a public hearing on ... 1959 and rejected the appeal by its decisionof ... 1959.X appealed to the Federal Constitutional Court in Karlsruhe againstthis decision, but the Federal Constitutional Court rejected X's appealin a decision taken at a non-public hearing on ... 1961. In the groundsgiven in accordance with Section 24 of the Basic Law (FederalConstitution Act), it is stated that the Court could find no evidenceof any violation of X's constitutionally guaranteed rights in thecriminal proceedings described above. With regard to the allegedviolation of the rights safeguarded in the Human Rights Convention, theCourt states:"The reference to the Human Rights Convention is pointless, since anappeal to a constitutional court on the grounds of its violation cannotbe supported."4. Whereas the Applicant alleges:1. violation of the right safeguarded in Article 6, paragraphs (1) and(3), of the Convention in that, in the criminal proceedings which beganin the Regional Court of A, the evidence adduced by him was notadmitted or his arguments heeded, and that the judgment issued againsthim was based on biased evidence, assertions which conflicted with thecase-file and an arbitrary application of the law;2. violation of freedom of the press safeguarded by Article 10 of theConvention, in that the obligation was imposed on him, a newsagent, tocensor publications in accordance with criteria alien to both thecompetent administrative organ and a democratic society;3. violation of his rights safeguarded in Articles 7, paragraph (1),5, paragraph (1) and 14, of the Convention, in that he was convictedin Bavaria for an act which is not expressly defined as punishableunder the general law applicable to all the Federal Länder and whichis regarded as legal in the rest of the Federal territory where, thoughcommitted repeatedly, it has never been punished;4. violation of his right safeguarded in Article 13 of the Convention,in that the judicial authorities to which he had applied in theprescribed manner - the last of these being the Federal ConstitutionalCourt - failed to submit his appeal to appropriate examination andbased their decisions on speculative, manifestly incorrect assumptions,or refused to give a proper legal verdict.THE LAWAs regards the alleged violation of Article 6, paragraphs (1) and(3) (Art. 6-1, 6-3) of the Convention.Whereas, during the proceedings before the District Court of A, thefirst Applicant availed himself of the possibility of submitting inevidence written statements by three private persons supporting his ownsubmissions in defence;Whereas, during the proceedings on appeal he unsuccessfully requestedthe permission of the Regional Court of A to call a counter-expert torefute the evidence of the expert appointed by the Court at the requestof the Public Prosecutor;Whereas Article 6, paragraph (3) (d) (Art. 6-3-d) provides that"everyone charged with a criminal offence has the right ... to examineor have examined witnesses against, and to obtain the attendance andexamination of, witnesses on his behalf under the same conditions aswitnesses against him."Whereas, in its decisions on the admissibility of Application Number1290/61 (M. v. Austria) the Commission considered that "the calling ofexperts as witnesses is covered by the terms of Article 6, paragraph(3) (d) (Art. 6-3-d) of the Convention";Whereas, however, the Commission has held in several decisions (Number617/59 - Hopfinger v. Austria - Yearbook III, page 370 - and Number753/60 - E. v. Austria - ibidem page 310) that "this provision does notallow the accused to call everyone, in particular persons who are notin a position to assist by their statements in elucidating the truth;whereas, in other words, paragraph (3) (d) (Art. 6-3-d) does notprohibit the Court from refusing to summon persons who cannot be'witnesses on his behalf' within the meaning of that same paragraph";Whereas the Regional Court of A had in the case-file the writtenstatements of three witnesses on behalf of the Applicant as well as theevidence of an expert which it had itself appointed; whereas the Courtthus considered that the evidence before it was adequate for it toreach a decision without calling the expert proposed by the Applicant;whereas the Applicant has not shown that the Court in so evaluating theevidence acted in violation of the rights guaranteed to the Applicantin paragraph (3) (d) (Art. 6-3-d) or in a wider notion of a "fairtrial" embodied in paragraph (1) of Article 6 (Art. 6-1) whereastherefore this part of the Application is manifestly ill-founded andmust be rejected in accordance with Article 27, paragraph (2) (Art.27-2) of the Convention.As regards the alleged violation of Article 10 (Art. 10) of theConvention;Whereas the Commission has frequently held in cases in which a publicauthority is shown to have interfered with the rights or freedomsguaranteed by the Convention that the Commission has not only the rightbut also the duty to examine the question whether such interferenceeither by legislation or otherwise complies with terms of the relevantprovisions of the Convention; whereas it has further held inconsidering this question both generally and with particular referenceto Article 10, paragraph (2), (Art. 10-2), that a State is given acertain margin of appreciation in determining the limits that may beplaced on freedom of expression; whereas in this respect the Commissionrefers to its decision on the admissibility of Application Number753/60 (see above);Whereas the first Applicant was sentenced under Sections 4, 6 and 21of the Act of 9th July 1953 on the circulation of publications liableto corrupt the young; whereas the Commission finds that theseprovisions in no way exceeded the above margin of appreciation andconstitute restrictions on the freedom of expression such as areauthorised under paragraph (2) of Article 10 (Art. 10-2) since they areprovided for by law and represent measures necessary "for theprotection of morals" of young persons;Whereas, in respect of the application of the provisions to theApplicant, the Commission on the general evidence before it and withoutconsidering it necessary to examine the actual contents of thepublication in question, finds that the Regional Court of A and theCourt of Appeal of A have not applied these restrictions on the rightto receive and impart information in a manner contrary to theprovisions of the Convention and in particular to Article 10 (Art. 10);whereas it follows that this part of the Application is manifestlyill-founded and must be rejected in accordance with Article 27,paragraph (2) (Art. 27-2) of the Convention.As regards the alleged violations of Articles 5, 7 and 14(Art. 5, 7, 14) of the Convention;Whereas an examination of the case as it has been submitted, includingan examination made ex officio, does not disclose any appearance of aviolation of the rights and freedoms set forth in the Convention andin particular in the Articles invoked by the Applicant; whereas, it istrue that no prosecutions for similar offences took place in otherparts of the Federal territory to which the Act of 9th July 1953applies; whereas, however, the appreciation by the authorities of theterms "liable to corrupt" and "manifestly liable to corrupt" mayinevitably vary according to the different standards and conditions inother parts of the Federal territory; whereas such difference inappreciation may well result in a difference in the application of theprovisions of the Act by the authorities but does not therebyconstitute a discrimination in its application within the meaning ofArticle 14 (Art. 14);Whereas it follows that this part of the Application is manifestlyill-founded and must be rejected in accordance with Article 27,paragraph (2) (Art. 27-2) of the Convention.As regards the alleged violations of Article 13 (Art. 13) of theConvention;Whereas it is to be observed that the effective remedy before anational authority which is guaranteed to everyone under Article 13(Art. 13) of the Convention relates exclusively to a remedy in respectof a violation of one of the rights and freedoms set forth in theConvention; and whereas, the first Applicant not having establishedany violation of Articles 5, 6, 7, 10 or 14 (Art. 5, 6, 7, 10 or 14)of the Convention, there is no basis for the Application of Article 13(Art. 13) to the present case; whereas the Commission in this respectrefers to its decisions on the admissibility of Applications Number472/59 (W. v. the Federal Republic of Germany - Yearbook III, page 206)and Number 912/60 (W. v. Sweden); whereas it follows that this part ofthe Application is manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Now therefore the Commission declares this application inadmissible.[/align]